Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 13 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or to dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as will promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner Owners to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 11 contracts
Samples: Deposit Agreement (Telemig Celular Participacoes Sa), Deposit Agreement (Telemig Celular Participacoes Sa), Deposit Agreement (Embartel Participacoes Sa)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or to dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as will promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner Owners to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use its best efforts that are reasonable efforts under the circumstances to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement Agreement, any expenses in connection with such sale and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from If a registration statement under the Securities Act of 1933 is required with respect to the securities to which any rights relate in order for the Company to offer such rights to Owners and sell the securities represented by such rights, the Depositary will not offer such rights to Owners having an address in the United States (as defined in Regulation S) unless and until such a distribution registration statement is in effect, or unless the offering and sale of such securities and such rights to all such Owners or are registered exempt from registration under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 8 contracts
Samples: Deposit Agreement (Telemar Participacoes S.A.), Deposit Agreement (Vivo Participacoes S.A.), Deposit Agreement (Embratel Participacoes Sa)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available in U.S. dollars to such Owners; or, then provided, however, that the Depositary shall allow will, if requested by the rights to lapse. If Company take action as follows: (i) if at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all the Owners by means of warrants or certain Owners but not to other Ownersotherwise, the Depositary may, and at the request of the Company shall, shall distribute as promptly as practicable to any each Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares representing such Deposited Securities held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate rights agency agreement to be entered into between the Company and the Depositary setting out forth the procedure to be used and the procedures, terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributedapplicable to the particular offering, or employ such other method, if an Owner requests the distribution of warrants or other instruments any, as it may deem lawful and feasible in order to exercise facilitate the exercise, sale or transfer of rights allocable to by such Owners; or (ii) if at the American Depositary Shares time of such Owner under the Deposit Agreement, offering of any rights the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all the Owners by means of warrants or certain Ownersotherwise, but that it is lawful or if the rights represented by such warrants or such other instruments are not exercised and feasible appear to sell thembe about to lapse, it may, and at the request of the Company will use its best efforts that are reasonable efforts to, under the circumstances to sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular, provided that the Depositary has not acted negligently or in bad faith.
Appears in 6 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Central North Airport Group)
Rights. In the event that Whenever the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares Stock or any rights of any other nature, such rights shall be made available by the Depositary shall, after consultation with the Company, have discretion as to the procedure holders of Receipts entitled thereto in such manner as the Depositary may determine, either by the issue to be followed in making the holders of Receipts entitled thereto of warrants representing such rights available to any Owners or in disposing of by such rights on behalf of any Owners and making the net proceeds available to such Owners or, if other method as may be approved by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Ownersin its discretion; provided, then the Depositary shall allow the rights to lapse. If however, that if at the time of the offering issue or offer of any rights the Depositary determines in its discretion that it is not lawful and or not feasible to make such rights available to all or certain Owners but not to other Owners, holders of Receipts by the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution issue of warrants or other instruments in order to exercise the rights allocable otherwise, or if and to the American Depositary Shares extent so instructed by holders of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner Receipts who do not desire to exercise such rights, the Depositary in its discretion may, if applicable laws permit, sell such rights at public or private sale, at such place or places and upon payment by such Owner terms as it may deem proper, and distribute the net proceeds to the Depositary for the account holders of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges Receipts entitled thereto as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to received in cash. So long as the second paragraph aggregate number of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide of Stock held by or for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request residents exceeds 1% of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the total number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights availableshares of Stock then outstanding, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from if registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the securities to which any rights relate is required in order for holders of Receipts to be offered or sold the securities covered by such rights, the Company to has agreed that it will file promptly a registration statement with respect to such rights or underlying and securities or and use its best efforts and take all steps available to endeavor it to have cause such registration statement to become effective at least 21 days before such rights shall expire. In no event shall the Depositary offer such rights to the holders of Receipts unless and until such a registration statement declared effective. If an Owner requests is in effect, or unless the distribution offering and sale of warrants or other instruments, notwithstanding that there has been no such securities to the holders of such Receipts are exempt in the opinion of counsel from registration under the Securities Act provisions of 1933such Act. If any other action under the laws of any jurisdiction or any governmental or administrative authorization, consent or permit is required in order for such rights to be made available to holders of Receipts in any such jurisdiction, the Depositary shall Company has agreed that it will use its best efforts, to the extent not effect such distribution unless it has received an opinion from recognized counsel unduly burdensome in the United States for judgment of the Company upon which Company, to take such action or obtain such authorization, consent or permit sufficiently in advance of the Depositary may rely that expiration of the rights to enable holders of Receipts to exercise such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particularrights.
Appears in 5 contracts
Samples: Deposit Agreement (Citibank,N.A./ADR), Deposit Agreement (Mitsui & Co LTD), Deposit Agreement (Mitsui & Co LTD)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or or, for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion discretion, after consultation with the Company, that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it it, after consultation with the Company, deems appropriate, but only pursuant . The Depositary shall not be responsible for any failure to a separate agreement determine that it may be lawful or feasible to be entered into between the Company and the Depositary setting out the procedure make such rights available to be used and the terms and conditions for that distributionOwners in general or any Owner in particular. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion discretion, after consultation with the Company, that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing . Nothing in the Deposit Agreement shall create create, or be construed to create, any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 5 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (National Grid PLC), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that Whenever the Company shall offer or cause to be offered to the holders of any Deposited Securities in whose names such securities are recorded on the books of the Company any rights to subscribe for or to purchase additional Shares Stock or any rights of any other nature, such rights shall be made available by the Depositary shall, after consultation with the Company, have discretion as to the procedure Holders of Receipts in such manner as the Depositary may determine, subject to be followed in making the requirements of any securities exchange on which the American Depositary Receipts are listed, either by the issue to the Holders of American Depositary Receipts entitled thereto of warrants representing such rights available to any Owners or in disposing of by such rights on behalf of any Owners and making the net proceeds available to such Owners or, if other method as may be approved by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Ownersin its discretion; provided, then the Depositary shall allow the rights to lapse. If however, that if at the time of the offering issue or offer of any rights the Depositary determines in its discretion determined that it is not lawful and or not feasible to make such rights available to all or certain Owners but not to other Owners, Holders of Receipts by the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution issue of warrants or other instruments in order to exercise the rights allocable otherwise, or if and to the American Depositary Shares extent so instructed by Holders of Receipts that such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner Holders do not desire to exercise such rights, the Depositary may in its discretion, if applicable laws permit, sell such rights at public or private sale, at such place or places and upon payment by such Owner term as it may deem proper, and distribute the net proceeds to the Depositary for the account Holders of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges Receipts entitled thereto as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to received in cash. So long as the second paragraph aggregate number of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide of Stock held by or for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible residents (including any such shares of Stock represented by Receipts held by or for United States residents) or issuable to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request United States residents on conversion of securities convertible into Stock of the Company will use reasonable efforts to, sell exceeds 1% of the rights, warrants or other instruments in proportion to the total number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights availableshares of Stock then outstanding, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from if registration under the Securities Act of 1933 of the securities to which any rights relate is required in order for the Company to offer such rights to Holders of Receipts and sell the securities represented by such rights, the Company has agreed in the Deposit Agreement that it will file promptly a registration statement pursuant to such Act with respect to such rights and securities and use best efforts to take all steps available to it to cause such registration statement to become effective at least 21 days before such rights shall expire. In no event shall the Depositary make available to the Holders of Receipts any right to subscribe for or to purchase any securities unless and until such a distribution registration statement is in effect, or unless the offering and sale of such securities to all Owners or the Holders of such Receipts are registered exempt from registration under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or feasible to make such rights available to Owners Holders in general or any Owner Holders in particular, (ii) any foreign exchange exposure or loss incurred in connection with sale, or exercise of rights, or (iii) the content of any materials forwarded to the Holders on behalf of the Company in connection with the rights distribution.
Appears in 4 contracts
Samples: Amended and Restated Deposit Agreement (Citibank,N.A./ADR), Amended and Restated Deposit Agreement (Citibank,N.A./ADR), Amended and Restated Deposit Agreement (Kyocera Corp)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, and subject to the Company's Memorandum and Articles of Association and applicable laws and regulations, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or or, for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary reasonably determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it reasonably determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit AgreementAgreement , the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. and Israeli laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has reasonably determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Company shall not be obligated to file any such registration statement in order to permit U.S. holders to participate in any such rights distribution. The Depositary shall not be responsible for any reasonable failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. Nothing in this Receipt or Section 4.4 or elsewhere in the Deposit Agreement shall create, or be construed to create, any obligation on the part of the Company to file a registration statement with the Commission or endeavor to have such a registration statement declared effective so as to allow rights to be made available to Owners.
Appears in 4 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company Issuer shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, Issuer shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If ; provided, however, if at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, after consultation with the Issuer, and at if requested in writing by the request of the Company shallIssuer, shall distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares representing such Deposited Securities evidenced by Receipts held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it maymay after consultation with the Issuer, and at if requested in writing by the request of the Company will use reasonable efforts toIssuer, shall sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or Receipts or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner or Owners in particular. If an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will make such rights available to such Owner upon written notice from the Issuer to the Depositary that (a) the Issuer has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Issuer has determined in its sole discretion are reasonably required under applicable law. Upon instruction pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees of the Depositary as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Issuer shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver to such Owner. If registration under the Securities Act of 1933 of the securities to which any rights relate is required in order for the Issuer to offer such rights to Owners and sell the securities upon the exercise of such rights to Owners, the Depositary will not offer such rights to the Owners having an address in the United States unless and until such a registration statement is in effect, or unless the offering and sale of such securities to the Owners of such Receipts are exempt from registration under the provisions of such Act. Notwithstanding any terms of the Deposit Agreement to the contrary, the Issuer shall have no obligation to prepare and file a registration statement for any purpose.
Appears in 4 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In (a) If rights are granted to the event that Depositary in respect of deposited Units to purchase additional Units or other securities, the Company and the Depositary shall offer or cause endeavor to be offered consult as to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other natureactions, if any, the Depositary should take in connection with that grant of rights. The Depositary shall, after consultation with to the extent reasonably deemed by it to be lawful and practical, and on the conditions set forth in paragraphs (b), (c) or (d) below, as applicable, (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Units under this Deposit Agreement and the Company shall deliver American Depositary Shares representing those Units to that Owner or (ii) deliver or cause the Shares so purchased Units or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is reasonably satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds .
(e) Payment or deduction of the fees of the Depositary as provided in Section 5.9 and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be distributed as promptly as practicable in accordance with Section 4.01 conditions of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act any delivery of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding that there has been no such registration cash proceeds under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. this Section 4.4.
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 4 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Getnet Adquirencia E Servicos Para Meios De Pagamento S.A.), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that (a) Distribution to American Depositary Share Owners. Whenever the Company shall offer or cause intends to be offered distribute to the holders of any the Deposited Securities any rights to subscribe for additional Shares Shares, the Company shall give timely notice thereof to the Depositary at least 60 days prior to the proposed distribution specifying, inter alia, the record date applicable to holders of Deposited Securities entitled to receive such distribution and whether or any not it wishes such rights to be made available to Owners of any other natureAmerican Depositary Shares. Upon the timely receipt of a notice indicating that the Company wishes such rights to be made available to Owners of American Depositary Shares, the Depositary shall, after consultation shall consult with the CompanyCompany to determine, have discretion as to and the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners Company shall determine, whether it is lawful and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either reasonably practicable to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners only if (i) the Company shall have timely requested that such rights be made available to Owners, (ii) the Depositary shall have received satisfactory documentation within the terms of Section 5.07 of the Agreement, and (iii) the Depositary shall have determined that such distribution of rights is reasonably practicable. In the event any of the conditions set forth above are not satisfied or if the Company requests that the rights not be made available to Owners of American Depositary Shares, the Depositary shall proceed with the sale of the rights as contemplated in general Section 4.04(b) of the Agreement or, if timing and market conditions may not permit, do nothing thereby allowing such rights to lapse. In the event all conditions set forth above are satisfied, the Depositary shall establish an American Depositary Shares record date (upon the terms described in Section 4.06 of the Agreement) and establish procedures to (x) distribute rights to purchase additional American Depositary Shares (by means of warrants or any Owner otherwise), (y) to enable the Owners to exercise such rights (upon payment of the subscription price and of the applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes), and (z) to deliver American Depositary Shares upon the valid exercise of such rights. The Company shall assist the Depositary to the extent reasonably necessary in particularestablishing such procedures. Nothing herein shall obligate the Depositary to make available to the Owners a method to exercise rights to subscribe for Shares (rather than American Depositary Shares). Notwithstanding anything contained in Section 4.04(a) of the Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of the proposed distribution provided for above, the Depositary agrees to use commercially reasonable efforts to perform the actions contemplated in Section 4.04(a) of the Agreement, and the Company, the Owners and the Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositary’s failure to perform the actions contemplated in Section 4.04(a) of the Agreement where such notice has not been so timely given, other than its failure to use commercially reasonable effort, as provided herein.
Appears in 4 contracts
Samples: Deposit Agreement (Deutsche Bank Trust Co Americas/ ADR Group), Deposit Agreement (Deutsche Bank Trust Co Americas/ ADR Group), Deposit Agreement (Deutsche Bank Trust Co Americas/ ADR Group)
Rights. In the event that Whenever the Company shall offer or cause intends to be offered distribute to the holders of any the Deposited Securities any rights to subscribe for additional Shares, the Company shall give timely notice thereof to the Depositary stating whether or not it wishes such rights to be made available to Holders of ADSs. Upon timely receipt of a notice indicating that the Company wishes such rights to be made available to Holders of ADSs, the Depositary shall consult with the Company to determine, and the Company shall assist the Depositary in its determination, whether it is lawful and commercially feasible to make such rights available to the Holders. The Depositary shall make such rights available to Holders only if (i) the Company shall have timely requested that such rights be made available to Holders, (ii) the Depositary shall have received satisfactory documentation within the terms of Section 5.9, and (iii) the Depositary shall have determined that such distribution of rights is commercially feasible. In the event all conditions set forth above are satisfied, the Depositary shall establish a record date (upon the terms described in Section 4.8) and establish procedures to (x) distribute rights to purchase additional ADSs (by means of warrants or otherwise) in proportion to the number of ADSs held, (y) to enable the Holders (or holders of warrants) to exercise such rights or warrants (upon payment of the subscription price and of the applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes), and, if applicable, to enable Holders or holders of warrants, as the case may be, to sell or transfer such rights or warrants, as the case may be, and (z) to deliver ADSs upon the valid exercise of such rights. The Company shall assist the Depositary to the extent necessary in establishing such procedures. Nothing herein shall obligate the Depositary to make available to the Holders a method to exercise rights to subscribe for Shares (rather than ADSs) if the conditions set forth above are not satisfied. In the event any of the conditions set forth above are not satisfied or if the Company requests that the rights not be made available to Holders of ADSs, the Depositary shall proceed with the sale of the rights and subsequent distribution of proceeds as contemplated below. If (i) the Company does not timely request the Depositary to make the rights available to Holders or requests that the rights not be made available to Holders, (ii) the Depositary fails to receive satisfactory documentation within the terms of Section 5.9 or determines it is not lawful or commercially feasible to make the rights available to Holders, or (iii) any rights of any other naturemade available are not exercised and appear to be about to lapse, the Depositary shall, after consultation with the Company, have discretion determine whether it is lawful and commercially feasible to sell such rights, in a riskless principal capacity, at such places and upon such terms (including public or private sale) as it may deem proper and commercially feasible. The Depositary shall consult with the Company to the procedure to be followed in making determine whether such rights available to any Owners or in disposing actions are lawful and commercially feasible. The Depositary shall, upon such sale, convert and distribute proceeds of such rights on behalf sale (net of any Owners applicable (a) fees and making charges of, and expenses incurred by, the net proceeds available to such Owners or, if by Depositary and (b) taxes) upon the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapseset forth in Section 4.2. If at the time of the offering of any rights rights, the Depositary determines in its discretion and the Company determine that it is lawful and commercially feasible to make such rights available to all or certain Owners but not to other OwnersHolders by means of warrants or otherwise, the Depositary mayshall, and at upon the request by the Company, after deduction or upon payment of the Company shallfees and expenses of the Depositary, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available may determine to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersHolders entitled thereto, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares ADSs representing such Deposited Securities held by the Owners to whom it has determined them respectively, or employ such other method as it may not lawfully deem commercially feasible in order to facilitate the exercise, sale or feasibly make transfer of rights by such Holders or the sale or resale of securities obtainable upon exercise of such rights available, and allocate by such Holders. If the net proceeds of such sales (net Depositary is unable to make any rights available to Holders or to arrange for the sale of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to upon the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933described above, the Depositary shall not effect allow such distribution unless it has received an opinion from recognized counsel in rights to lapse. Neither the United States for Depositary nor the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or commercially feasible to make such rights available to Owners Holders in general or any Owner Holders in particular that is not due to its negligence, or (ii) any foreign exchange exposure or loss incurred in connection with such sale, or exercise. The Depositary shall not be responsible for the content of any materials forwarded to the Holders on behalf of the Company in connection with the rights distribution. Notwithstanding anything to the contrary in this Section 4.6, if registration (under the Securities Act of 1933 or any other applicable law) of the rights or the securities to which any rights relate may be required in order for the Company to offer such rights or such securities to Holders and to sell the securities represented by such rights, the Depositary will not distribute such rights to the Holders (i) unless and until a registration statement under the Securities Act of 1933 (or other applicable law) covering such offering is in effect or (ii) unless the Company furnishes the Depositary opinion(s) of counsel for the Company in the United States and counsel to the Company in any other applicable country in which rights would be distributed, in each case reasonably satisfactory to the Depositary, to the effect that the offering and sale of such securities to Holders are exempt from, or do not require registration under, the provisions of the Securities Act of 1933 or any other applicable laws. If Korean law requires the Depositary to obtain approval or license from a governmental agency to effect a sale of rights, the Depositary may file an application for such approval or license as it may deem desirable, in good faith. Such requirements may adversely affect (1) the ability of the Depositary to dispose of such rights or (2) the costs and expenses of the Depositary associated with disposal of rights. In the event that the Company, the Depositary or the Custodian shall be required to withhold and does withhold from any distribution of property (including rights) an amount on account of taxes or other governmental charges, the amount distributed to the Holders of ADSs representing such Deposited Securities shall be reduced accordingly. In the event that the Depositary determines that any distribution in property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charges which the Depositary is obligated to withhold, the Depositary may dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner, including by public or private sale, as the Depositary deems necessary and practicable to pay any such taxes or charges. There can be no assurance that Holders generally, or any Holder in particular, will be given the opportunity to receive or exercise rights on the same terms and conditions as the holders of Shares or be able to exercise such rights. Nothing herein shall obligate the Company to file any registration statement in respect of any rights or Shares or other securities to be acquired upon the exercise of such rights.
Appears in 4 contracts
Samples: Deposit Agreement (Citibank,N.A./ADR), Deposit Agreement (Citibank,N.A./ADR), Deposit Agreement (Woori Bank)
Rights. In the event that the Company shall offer or ------ cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion shall as soon as practicable give notice to the procedure Registered Holders of such offer (unless notified by the Company that such offer or invitation should not be made), specifying, if applicable, the earliest date established for acceptance thereof, the last date established for acceptance thereof and the manner by which and time during which Registered Holders may request the Depositary to be followed in making exercise such rights available as provided below or, if such be the case, give details of how the Depositary proposes to any Owners distribute the rights or in disposing of such rights on behalf of any Owners and making make the net proceeds available to such Owners Registered Holders in accordance with the procedures for distributing cash provided for in Section 4.01 hereof, or, if by the terms of such rights offering or for any other reason it would not be unlawful lawful or unfeasible feasible for the Depositary either to make such rights available to any Owners Registered Holders or to dispose of such rights and make the net proceeds available to such OwnersRegistered Holders, then the Depositary shall allow the rights to lapse. If at In circumstances in which rights would otherwise not be distributed generally, if the time of the offering of any rights Company and the Depositary determines in its discretion determine that it is lawful and feasible to make such rights available available, by means of warrants or otherwise, to all or certain Owners but not to other OwnersRegistered Holders, the Depositary maywill, and at the request of the Company shallsubject to applicable law, distribute make such rights available to any Owner to whom it determines the distribution to be lawful and feasible, such Registered Holders in proportion to the number of American Depositary Shares held by such OwnerRegistered Holder, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner Registered Holder has executed such documents as the Company has and the Depositary have determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersRegistered Holders, then upon instruction from any such an Owner Registered Holder pursuant to such warrants or other instruments to the Depositary from such Owner Registered Holder to exercise such rights, upon payment by such Owner Registered Holder to the Depositary for the account of such Owner Registered Holder of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such OwnerRegistered Holder, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerRegistered Holder. As agent for such OwnerRegistered Holder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such OwnerRegistered Holder. In the case of a distribution pursuant to the second paragraph of this Article 13Section 4.04, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, cancellation and transfer under applicable United States such laws. If the Depositary reasonably determines in its reasonable discretion that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell themRegistered Holders, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments (either by public or private sale and otherwise at its discretion subject to Indian laws and regulations) in proportion to the number of American Depositary Shares held by the Owners Registered Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees fees, expenses and expenses charges of the Depositary as provided in Section 5.09 of the Deposit Agreement hereof and Exhibit B hereto and all taxes and other governmental charges payable in connection with such rights rights, and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners Registered Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because Registered Holders on account of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds The Depositary shall endeavor to effect any such sale as is contemplated in this Section, but shall have no liability (in the absence of its own willful default, negligence or bad faith or that of its agents, officers, directors or employees) with respect the terms of such sale or if such sale shall not be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreementpossible. The Depositary will not offer rights to Owners Registered Holders, unless both it has received from the rights and Company evidence, as provided in Section 5.07 hereof, to the securities to which effect that (i) a registration statement under the Securities Act covering such rights relate are either exempt from offering is in effect or (ii) such offering does not require registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner a Registered Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Owner Registered Holder is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners Registered Holders in general or any Owner Registered Holder in particular, any foreign exchange exposure or loss incurred in connection with such sale, or any liability to the purchaser of such rights or other instruments. Nothing in the Deposit Agreement shall create, or shall be construed to create, any obligation on the part of the Company to file such a registration statement or to register such rights or the securities represented thereby under the Securities Act or any other applicable law. Notwithstanding any provision of this Deposit Agreement or the Receipts to the contrary, the Company shall not issue any rights or bonus shares in respect of the Deposited Securities nor shall the proceeds of a sale of such rights or bonus shares be repatriated by the Company unless there is approval by the Reserve Bank of India to do so.
Appears in 4 contracts
Samples: Deposit Agreement (Infosys Technologies LTD), Deposit Agreement (Infosys Technologies LTD), Deposit Agreement (Infosys Technologies LTD /Adr/)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If the Company notifies the Depositary that such rights may only be offered to Owners subject to specified conditions required to be met in order to comply with any ownership restrictions relating to the Shares underlying such rights, the Depositary shall not make such rights available to Owners except in accordance with reasonable written instructions received from the Company relating to those conditions. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to subscribe for Shares to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In ; provided, however, that in the case of a distribution pursuant to the second paragraph of this Article 13preceding paragraph, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares receipts subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed Except as promptly as practicable otherwise provided in accordance with Section 4.01 of the Deposit Agreement. The third preceding paragraph, the Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing . Nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular, provided the Depositary has not acted in bad faith.
Appears in 3 contracts
Samples: Deposit Agreement (Gol Intelligent Airlines Inc.), Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Gol Intelligent Airlines Inc.)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners Holders of Receipts or in disposing of such rights on behalf of any Owners Holders and making the net proceeds available to such Owners Holders in accordance with the procedures for distributing cash provided for in Section 4.01, or, if by the terms of such rights offering or for any other reason it would not be unlawful lawful or unfeasible feasible for the Depositary either to make such rights available to any Owners Holders or to dispose of such rights and make the net proceeds available to such OwnersHolders, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners Holders but not to other OwnersHolders, the Depositary may, and at the request of shall if the Company shallso requests, distribute to any Owner Holder to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such OwnerHolder, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributeddistributed generally, if an Owner requests the distribution of warrants or other instruments Depositary determines in order it discretion that it is lawful and feasible to exercise the make such rights allocable available to the American Depositary Shares of such Owner under the Deposit Agreementcertain Holders, the Depositary will, as promptly as practicablesubject to applicable law, make such rights available to such Owner Holders upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner Holder has executed such documents as the Company has and the Depositary have determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersHolders, then upon instruction from any such an Owner Holder pursuant to such warrants or other instruments to the Depositary from such Owner Holder to exercise such rights, upon payment by such Owner Holder to the Depositary for the account of such Owner Holder of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such OwnerHolder, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerHolder. As agent for such OwnerHolder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such OwnerHolder. In the case of a distribution pursuant to the second paragraph of this Article 13Section 4.04, such deposit Receipts shall bear a legend in accordance with applicable U.S. laws; and shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, cancellation and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell themHolders, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees fees, expenses and expenses charges of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and other governmental charges payable in connection with such rights rights, and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because Holders on account of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners Holders, unless both it has received from the rights and Company evidence, as provided in Section 5.07, to the securities to which effect that (i) a registration statement under the Securities Act covering such rights relate are either exempt from offering is in effect or (ii) such offering does not require registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner a Holder of Receipts requests the distribution of warrants or other instruments, ; notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Owner Holder is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners Holders in general or any Owner Holder in particular.
Appears in 3 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (HSBC Holdings PLC), Deposit Agreement (HSBC Holdings PLC)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the written request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate rights agency agreement to be entered into between the Company and the Depositary Depositary, as rights agent, setting out forth the procedure procedures to be used and for the terms and conditions for that distributionparticular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as will promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use its best efforts that are reasonable efforts under the circumstances to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement 5.09, any expenses in connection with such sale and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreementhereof. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from If a registration statement under the Securities Act of 1933 is required with respect to the securities to which any rights relate in order for the Company to offer such rights to Owners and sell the securities represented by such rights, the Depositary will not offer such rights to Owners having an address in the United States (as defined in Regulation S) unless and until such a distribution registration statement is in effect, or unless the offering and sale of such securities and such rights to all such Owners or are registered exempt from registration under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 3 contracts
Samples: Deposit Agreement (Contax Holding CO), Deposit Agreement (Contax Holding Co), Deposit Agreement (Contax Holding CO)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallshall have discretion, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion discretion, after consultation with the Company, that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it determines in its discretion, after consultation with the Company, the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Section, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion discretion, after consultation with the Company, that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Neither the Depositary nor the Company shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 3 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Nippon Shokubai Co., Ltd.)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the CompanyCompany to the extent practicable, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion determines, after consultation with the Company, that it is lawful and feasible to make such rights available to all or certain Owners but not to other OwnersOwners (in which case the fourth paragraph of this Section shall apply), the Depositary may, and at the request of the Company shall, shall distribute as promptly as practicable to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriateappropriate or employ such other method, if any, as it may deem lawful and feasible in order to facilitate the exercise, sale or transfer of rights by such Owners, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out forth the procedure to be used and the procedures, terms and conditions for that distributionapplicable to the particular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Section, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion determines, after consultation with the Company to the extent practicable, that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use its reasonable efforts toto sell, sell at public or private sale, the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed delivered as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement4.01. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 3 contracts
Samples: Deposit Agreement (Deutsche Bank Trust Co Americas/ ADR Group), Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Tenaris Sa)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to determine the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason reason, it would be unlawful or unfeasible for the Depositary to either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion after consultation with the Company that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, shall distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out specifying the procedure to be used and the terms procedures and conditions for that will apply to that particular distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, will as promptly as practicable, practicable make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon (i) instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon (ii) payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon (iii) payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion determines, after consultation with the Company, that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create or shall be construed as creating any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 3 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Usinas Siderurgicas De Minas Gerais Sa Usiminas /Fi)
Rights. In the event that the Company shall offer or cause to be offered to the holders Beneficial Owners of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or or, for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If ; provided, however, if at the time of the offering of any rights the Depositary determines in its discretion discretion, after consultation with the Company, that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary Depositary, after consultation with the Company may, and at the request of the Company shall, distribute distribute, to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it reasonably deems appropriate. If the Depositary determines in its discretion, but only pursuant after consultation with the Company, that it is not lawful and feasible to a separate agreement make such rights available to be entered into between certain Owners, it may, and at the request of the Company will use its reasonable best efforts to, sell the rights or warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees of the Depositary setting out as provided in Section 5.09 of the procedure Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any Receipt or otherwise. Neither the Depositary nor the Company shall be used and the terms and conditions responsible for any failure to determine that distributionit may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. In circumstances in which rights would otherwise not be distributed, if If an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon Upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares to such OwnerOwner Restricted Receipts. In the case of a distribution pursuant to the second paragraph of this Article 13, All such deposit Restricted Receipts shall be made, assigned a separate CUSIP number and depositary shares all Shares represented by such Restricted Receipts shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, held in a segregated account and transfer under applicable United States lawswill not be commingled with other Deposited Securities (whether restricted or unrestricted). If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect of the securities to which any rights relate is required in order for the Company to offer such rights to Owners and sell the securities upon the exercise of such rights, the Depositary will not offer such rights to the Owners unless and until such a distribution registration statement is in effect, or unless the offering and sale of such securities to all the Owners or of such Receipts are registered exempt from registration under the provisions of such Act; provided, that nothing in the Deposit Agreement . The Company shall create any have no obligation on the part of the Company to file a registration statement with respect to register such rights or underlying such securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 3 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or for any other by reason it would be unlawful or unfeasible for of applicable law, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary mayDepositary, and at after consultation with the request of the Company shallCompany, distribute may distribute, to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If After consultation with the Company, if the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its reasonable discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such No distributions of rights or the net proceeds of any sale of rights to Owners shall be distributed as promptly as practicable in accordance with Section 4.01 unreasonably delayed by any action of the Deposit AgreementDepositary or any of its agents. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, provided that nothing in the Deposit Agreement shall will create or be construed to create, any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 3 contracts
Samples: Deposit Agreement (Arm Holdings PLC), Deposit Agreement (Arm Holdings PLC), Deposit Agreement (Arm Holdings PLC)
Rights. In (a) If rights are granted to the event that Depositary in respect of deposited Units to purchase additional Units or other securities, the Company and the Depositary shall offer or cause endeavor to be offered consult as to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other natureactions, if any, the Depositary should take in connection with that grant of rights. The Depositary shall, after consultation with to the extent reasonably deemed by it to be lawful and practical, and on the conditions set forth in paragraphs (b), (c) or (d) below, as applicable, (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Units under the Deposit Agreement and the Company shall deliver American Depositary Shares representing those Units to that Owner or (ii) deliver or cause the Shares so purchased Units or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is reasonably satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed .
(e) Payment or deduction of the fees of the Depositary as promptly as practicable provided in accordance with Section 4.01 5.9 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights Agreement and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners payment or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part deduction of the Company to file a registration statement with respect to such rights expenses of the Depositary and any applicable taxes or underlying other governmental charges shall be conditions of any delivery of securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding cash proceeds under Section 4.4 of that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. Agreement.
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particularparticular , or to sell rights.
Appears in 3 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Getnet Adquirencia E Servicos Para Meios De Pagamento S.A.), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallshall have discretion, after consultation with the CompanyCompany to the extent practicable, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion discretion, after consultation with the Company to the extent practicable, that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it determines determines, in its discretion, after consultation with the Company to the extent practicable, the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 1314, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion reasonable discretion, after consultation with the Company to the extent practicable, that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless if, in response to its reasonable request, it has not received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Neither the Depositary nor the Company shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. Nothing in this Deposit Agreement shall create any obligation on the part of the Company to alter the terms or conditions of any offering or distribution of rights.
Appears in 3 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, shall (after consultation with the Company, have discretion Company as to the procedure to be followed in making followed) make, as promptly as practicable, such rights available to any Owners Owners, including the distribution of warrants or other instruments therefor in disposing such form as it deems appropriate, or dispose of such rights on behalf of any Owners and making distribute, as promptly as practicable, the net proceeds available in Dollars to such Owners orOwners, if but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting forth the conditions and procedures that shall apply to that particular offering. If, by the terms of such rights offering or for any other by reason it would be unlawful or unfeasible for of applicable law, the Depositary either to may neither make such rights available to any Owners or Owners, nor dispose of such rights and make distribute the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If If, at the time of the offering of any rights the Depositary determines in its discretion determines, following consultation with the Company, that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, (i) the Depositary may, and at the request of the Company shall, distribute pursuant to any an agreement as described above, distribute, as promptly as practicable, to every Owner with respect to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant appropriate and (ii) in respect of Owners to a separate agreement whom the Depositary determines the distribution not to be entered into between the Company and lawful or feasible, the Depositary setting out shall use reasonable efforts to sell the procedure rights, warrants or other instruments in proportion to be used the number of American Depositary Shares held by such Owners and distribute the net proceeds of such sales (net of the fees of the Depositary as provided in Section 5.09 and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions for that distributionof this Deposit Agreement) to such Owners upon an averaged or other fair and practicable basis without regard to any distinctions among such Owners resulting from exchange restrictions, the date of delivery of any Receipt or otherwise. In circumstances in which rights would not otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the in respect of American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such the Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon Upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares or other securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Sharessuch Shares or other securities, and the Company shall cause the Shares or other securities so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Section 4.04 of the Deposit Agreement, such deposit Receipts shall be madelegended, if required, in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If registration under the Securities Act of 1933 of the rights or the securities to which any rights relate is required in order for the Company or the Depositary reasonably determines in its discretion that it is not lawful and feasible to make offer such rights available to all or certain Owners, but that it is lawful the Owners and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held securities represented by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsexcept as otherwise provided in the preceding paragraph, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of Company and the Deposit Agreement. The Depositary will not offer rights to Owners unless a registration statement is in effect with respect both the to such rights and the any securities to which be received upon exercise of such rights relate under the Securities Act of 1933 or unless the offering and sale of such securities to such Owners are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing 1933. Nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with in respect to such of any rights or underlying securities for any purpose or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 3 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Ambev S.A.), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company Issuer shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallshall have discretion, after consultation with the CompanyIssuer, have discretion as to the procedure to be followed in making such rights available to any Owners including the distribution of warrants or other instruments thereof as it deems appropriate or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or or, for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company Issuer to the Depositary that (a) the Company Issuer has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company Issuer has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company Issuer shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell themshall, it may, and at the request of the Company will use reasonable efforts toif possible, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company Issuer upon which the Depositary may rely that such distribution to such Owner is exempt from such registration, it being understood that this Issuer shall have no obligation to furnish any such opinion. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 3 contracts
Samples: Deposit Agreement (Business Objects Sa), Deposit Agreement (Business Objects S.A.), Deposit Agreement (Business Objects Sa)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, have discretion as to shall determine the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason reason, it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion after consultation with the Company that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, shall distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out specifying the procedure to be used and the terms procedures and conditions for that will apply to that particular distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, will as promptly as practicable, practicable make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon (i) instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon (ii) payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, rights and upon (iii) payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion determines, after consultation with the Company, that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement4.01. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the this Deposit Agreement shall create or shall be construed as creating any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary and the Company shall not be responsible for any failure by the Depositary to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 3 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Usinas Siderurgicas De Minas Gerais Sa Usiminas /Fi)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or or, for any other reason it would be unlawful or unfeasible for reason, the Depositary either to can neither make such rights available to any Owners or nor dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines determines, after consultation with the Company, in its reasonable discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, and and, at the request of the Company Company, shall, distribute distribute, to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, will make as promptly as practicable, make practicable such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited as promptly as practicable, pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, as promptly as practicable, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its reasonable discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will shall use its reasonable efforts to, as promptly as practicable, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; Act provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. 15.
Appears in 3 contracts
Samples: Deposit Agreement (Syngenta Ag), Deposit Agreement (Syngenta Ag), Deposit Agreement (Syngenta Ag)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 3 contracts
Samples: Deposit Agreement (Coari Holding Co), Deposit Agreement (Brasil Telecom Sa), Deposit Agreement (Coari Holding Co)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion shall as soon as practicable give notice to the procedure Registered Holders of such offer (unless notified by the Company that such offer or invitation should not be made), specifying, if applicable, the earliest date established for acceptance thereof, the last date established for acceptance thereof and the manner by which and time during which Registered Holders may request the Depositary to be followed in making exercise such rights available as provided below or, if such be the case, give details of how the Depositary proposes to any Owners distribute the rights or in disposing to dispose of such rights on behalf of any Owners and making make the net proceeds available to such Owners Registered Holders in accordance with the procedures for distributing cash provided for in Section 4.01 of the Deposit Agreement, or, if by the terms of such rights offering or for any other reason it would not be unlawful lawful or unfeasible feasible for the Depositary either to make such rights available to any Owners Registered Holders or to dispose of such rights and make the net proceeds available to such OwnersRegistered Holders, then the Depositary shall allow the rights to lapse. If at In circumstances in which rights would otherwise not be distributed generally, if the time of the offering of any rights Company and the Depositary determines in its discretion determine that it is lawful and feasible to make such rights available available, by means of warrants or otherwise, to all or certain Owners but not to other OwnersRegistered Holders, the Depositary maywill, and at the request of the Company shallsubject to applicable law, distribute make such rights available to any Owner to whom it determines the distribution to be lawful and feasible, such Registered Holders in proportion to the number of American Depositary Shares held by such OwnerRegistered Holder, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner Registered Holder has executed such documents as the Company has and the Depositary have determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersRegistered Holders, then upon instruction from any such an Owner Registered Holder pursuant to such warrants or other instruments to the Depositary from such Owner Registered Holder to exercise such rights, upon payment by such Owner Registered Holder to the Depositary for the account of such Owner Registered Holder of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such OwnerRegistered Holder, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerRegistered Holder. As agent for such OwnerRegistered Holder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such OwnerRegistered Holder. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines and the Company determine in its their reasonable discretion that it is not lawful and or feasible to make such rights available to all or certain OwnersRegistered Holders, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, Depositary may sell the rights, warrants or other instruments (either by public or private sale and otherwise at its discretion subject to Indian laws and regulations) in proportion to the number of American Depositary Shares held by the Owners Registered Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees fees, expenses and expenses charges of the Depositary as provided in Section 5.09 and Exhibit B of the Deposit Agreement and all taxes and other governmental charges payable in connection with such rights rights, and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners Registered Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because Registered Holders on account of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners Registered Holders unless both it has received from the rights and Company evidence, as provided in Section 5.07 of the securities Deposit Agreement, to which the effect that (i) a registration statement under the Securities Act covering such rights relate are either exempt from offering is in effect or (ii) such offering does not require registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner a Registered Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall will not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Owner Registered Holder is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners Registered Holders in general or any Owner Registered Holder in particular, any foreign exchange exposure or loss incurred in connection with such sale, or any liability to the purchaser of such rights, warrants or other instruments. Notwithstanding any provision of the Deposit Agreement or set forth herein to the contrary, the Company shall not issue any rights or bonus shares in respect of the Deposited Securities nor shall the proceeds of a sale of such rights or bonus shares be repatriated by the Company unless there is approval by the Reserve Bank of India to do so.
Appears in 2 contracts
Samples: Deposit Agreement (Infosys Technologies LTD /Adr/), Deposit Agreement (Infosys Technologies LTD)
Rights. In the event that the Company shall offer or cause to be offered to the holders Holders of any Deposited Securities of a particular Series any rights to subscribe for additional Shares of the corresponding Series or any rights of any other nature, the Depositary shall, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners Holders or in disposing of such rights on behalf of any Owners Holders and making the net proceeds available to such Owners Holders in accordance with the procedures for distributing cash provided for in Section 4.01 of the Deposit Agreement, or, if by the thc terms of such rights offering or for any other reason it would not be unlawful lawful or unfeasible feasible for the Depositary either to make such rights available to any Owners Holders or to dispose of such rights and make the net proceeds available to such OwnersHolders, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners Holders but not to other OwnersHolders, the Depositary may, and at the request of shall if the Company shallso requests, distribute to any Owner Holder to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such OwnerHolder, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributeddistributed generally, if an Owner requests the distribution of warrants or other instruments Depositary determines in order its discretion that it is lawful and feasible to exercise the make such rights allocable available to the American Depositary Shares of such Owner under the Deposit Agreementcertain Holders, the Depositary will, as promptly as practicablesubject to applicable law, make such rights available to such Owner Holders upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner Holder has executed such documents as the Company has and the Depositary have determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersHolders, then upon instruction from any such an Owner Holder pursuant to such warrants or other instruments to the Depositary from such Owner Holder to exercise such rights, upon payment by such Owner Holder to the Depositary for the account of such Owner Holder of an amount equal to the purchase price of the Shares of a particular Series to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such OwnerHolder, exercise the rights and purchase the SharesShares of the corresponding Series, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerHolder. As agent for such OwnerHolder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts of the corresponding Series to such OwnerHolder. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall bear a legend in accordance with applicable U.S. laws, and shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell themHolders, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares of a particular Series held by the Owners Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees fees, expenses and expenses charges of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and other governmental charges payable in connection with such rights rights, and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because Holders on account of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners Holders unless both it has received from the rights and Company evidence, as provided in Section 5.07 of the securities Deposit Agreement, to which the effect that (i) a registration statement under the Securities Act covering such rights relate are either exempt from offering is in effect or (ii) such offering does not require registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner a Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall will not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company reasonably satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Owner Holder is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners Holders in general or any Owner Holder in particular.
Appears in 2 contracts
Samples: Deposit Agreement (HSBC Holdings PLC), Deposit Agreement (HSBC Holdings PLC)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners Holders or in disposing of such rights on behalf of any Owners Holders and making the net proceeds available to such Owners Holders or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners Holders or dispose of such rights and make the net proceeds available to such OwnersHolders, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Holders or to certain Owners Holders but not to other OwnersHolders, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner Holder to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such OwnerHolder, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner a Holder of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner Holder under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner Holder upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner Holder has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. In the case of a distribution pursuant to this paragraph, such Receipts shall be legended in accordance with applicable U.S. laws, and shall be subject to the appropriate restrictions on sale, deposit, cancellation and transfer under such laws. If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersHolders, then upon instruction from such an Owner receipt of instructions pursuant to such warrants or other instruments to the Depositary from such Owner Holder to exercise such rights, upon payment by such Owner Holder to the Depositary for the account of such Owner Holder of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instrumentsinstruments or as may be requested by the Company to the Depositary in writing, the Depositary shall, on behalf of such OwnerHolder, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerHolder. As agent for such OwnerHolder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States lawsHolder. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain OwnersHolders, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, Depositary may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners Holders because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners Holders unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners Holders or are registered under the provisions of such Act; provided, however, that nothing in the Deposit Agreement shall create any obligation on the part of the Company shall have no obligation to file a any such registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effectivestatement. If an Owner a Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner Holder is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners Holders in general or any Owner Holder in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Quilmes Industrial Quinsa Societe Anonyme), Deposit Agreement (Quilmes Industrial Quinsa Societe Anonyme)
Rights. In the event that the Company shall offer or cause to be offered (a) If rights are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary should take in connection with that grant of rights. The Depositary shall, after consultation with to the extent reasonably deemed by it to be lawful and practical, and on the conditions set forth in paragraphs (b), (c) or (d) below, as applicable, (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under this Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is reasonably satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds .
(e) Payment or deduction of the fees of the Depositary as provided in Section 5.9 and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be distributed as promptly as practicable in accordance with Section 4.01 conditions of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act any delivery of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding that there has been no such registration cash proceeds under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. this Section 4.4.
(f) The Depositary shall not be responsible responsible, other than by reason of gross negligence or bad faith, for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 2 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion shall as soon as practicable give notice to the procedure Registered Holders of such offer (unless notified by the Company that such offer or invitation should not be made), specifying, if applicable, the earliest date established for acceptance thereof, the last date established for acceptance thereof and the manner by which and time during which Registered Holders may request the Depositary to be followed in making exercise such rights available as provided below or, if such be the case, give details of how the Depositary proposes to any Owners distribute the rights or in disposing to dispose of such rights on behalf of any Owners and making make the net proceeds available to such Owners Registered Holders in accordance with the procedures for distributing cash provided for in Section 4.01 of the Deposit Agreement, or, if by the terms of such rights offering or for any other reason it would not be unlawful lawful or unfeasible feasible for the Depositary either to make such rights available to any Owners Registered Holders or to dispose of such rights and make the net proceeds available to such OwnersRegistered Holders, then the Depositary shall allow the rights to lapse. If at In circumstances in which rights would otherwise not be distributed generally, if the time of the offering of any rights Company and the Depositary determines in its discretion determine that it is lawful and feasible to make such rights available available, by means of warrants or otherwise, to all or certain Owners but not to other OwnersRegistered Holders, the Depositary maywill, and at the request of the Company shallsubject to applicable law, distribute make such rights available to any Owner to whom it determines the distribution to be lawful and feasible, such Registered Holders in proportion to the number of American Depositary Shares held by such OwnerRegistered Holders, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner Registered Holder has executed such documents as the Company has and the Depositary have determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersRegistered Holders, then upon instruction from any such an Owner Registered Holder pursuant to such warrants or other instruments to the Depositary from such Owner Registered Holder to exercise such rights, upon payment by such Owner Registered Holder to the Depositary for the account of such Owner Registered Holder of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such OwnerRegistered Holder, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerRegistered Holder. As agent for such OwnerRegistered Holder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such OwnerRegistered Holder. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Company and the Depositary reasonably determines determine in its their reasonable discretion that it is .s not lawful and or feasible to make such rights available to all or certain OwnersRegistered Holders, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, Depositary may sell the rights, warrants or other instruments (either by public or private sale and otherwise at its discretion subject to Indian laws and regulations) in proportion to the number of American Depositary Shares held by the Owners Registered Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees fees, expenses and expenses charges of the Depositary as provided in Section 5.09 and Exhibit B of the Deposit Agreement and all taxes and other governmental charges payable in connection with such rights rights, and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners Registered Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because Registered Holders on account of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners Registered Holders unless both it has received from the rights and Company evidence, as provided in Section 5.07 of the securities Deposit Agreement, to which the effect that (i) a registration statement under the Securities Act covering such rights relate are either exempt from offering is in effect or (ii) such offering does not require registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner a Registered Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall will not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Owner Registered Holder is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners Registered Holders in general or any Owner Registered Holder in particular, any foreign exchange exposure or loss incurred in connection with such sale, or any liability to the purchaser of such rights, warrants or other instruments.
Appears in 2 contracts
Samples: Deposit Agreement (Deutsche Bank Trust Co Americas/ ADR Group), Deposit Agreement (Infosys Technologies LTD)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the CompanyCompany to the extent practicable, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then then, after consultation with the Company, the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its sole discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares Deposited Securities shall be delivered, under depositary arrangements which provide for issuance of depositary shares Deposited Securities subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States lawslaw. If the Depositary reasonably Depositary, after consultation with the Company, determines in its sole discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement under the Securities Act of 1933 with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effectiveeffective or otherwise to register such rights or securities under any other applicable law for any purpose. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (China Hydroelectric Corp)
Rights. In the event that the Company shall offer or cause to be offered to the holders Holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners Holders or in disposing of such rights on behalf of any Owners Holders and making the net proceeds available to such Owners Holders in accordance with the procedures for distributing cash provided for in Section 4.01 of the Deposit Agreement, or, if by the terms of such rights offering or for any other reason it would not be unlawful lawful or unfeasible feasible for the Depositary either to make such rights available to any Owners Holders or to dispose of such rights and make the net proceeds available to such OwnersHolders, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners Holders but not to other OwnersHolders, the Depositary may, and at the request of shall if the Company shallso requests, distribute to any Owner Holder to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such OwnerHolder, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributeddistributed generally, if an Owner requests the distribution of warrants or other instruments Depositary determines in order its discretion that it is lawful and feasible to exercise the make such rights allocable available to the American Depositary Shares of such Owner under the Deposit Agreementcertain Holders, the Depositary will, as promptly as practicablesubject to applicable law, make such rights available to such Owner Holders upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner Holder has executed such documents as the Company has and the Depositary have determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersHolders, then upon instruction from any such an Owner Holder pursuant to such warrants or other instruments to the Depositary from such Owner Holder to exercise such rights, upon payment by such Owner Holder to the Depositary for the account of such Owner Holder of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such OwnerHolder, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerHolder. As agent for such OwnerHolder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such OwnerHolder. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall bear a legend in accordance with applicable U.S. laws, and shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell themHolders, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees fees, expenses and expenses charges of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and other governmental charges payable in connection with such rights rights, and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because Holders on account of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners Holders unless both it has received from the rights and Company evidence, as provided in Section 5.07 of the securities Deposit Agreement, to which the effect that (i) a registration statement under the Securities Act covering such rights relate are either exempt from offering is in effect or (ii) such offering does not require registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner a Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall will not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Owner Holder is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners Holders in general or any Owner Holder in particular.
Appears in 2 contracts
Samples: Deposit Agreement (HSBC Holdings PLC), Deposit Agreement (HSBC Holdings PLC)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company Company’s written request, shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems and the Company deem appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out forth the procedure to be used and the terms procedures and conditions for that distributionwill apply to that particular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Section, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will Company’s written request, shall, use commercially reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such All such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of 4.01. Notwithstanding anything to the contrary in this Deposit Agreement. The , the Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.declared
Appears in 2 contracts
Samples: Deposit Agreement (VimpelCom Ltd.), Deposit Agreement (VimpelCom Ltd.)
Rights. (a) In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion Company as to the procedure to be followed in making followed, (i) make such rights available to any Owners or in disposing pursuant to paragraph (b) below, (ii) dispose of such rights on behalf of any Owners and making distribute the net proceeds available to such Owners orpursuant to paragraph (e) below or (iii) if, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any the Owners or dispose of such rights and make distribute the net proceeds available to such the Owners, then the Depositary shall allow the rights to lapse. .
(b) If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. .
(c) In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (ai) the Company has elected in its sole discretion to permit such rights to be exercised and (bii) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. .
(d) If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In ; provided, however, that in the case of a distribution pursuant to the second paragraph of this Article 13(c) above, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares receipts subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(e) If the Depositary reasonably determines in its discretion determines, after consultation with the Company, that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate distribute the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed , as promptly as practicable in accordance with the case of a distribution received in cash pursuant to Section 4.01 of the Deposit Agreement. The .
(f) Except as otherwise provided in subsection (c) above, the Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from or not subject to the registration under requirements of the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing . Nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized U.S. counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from or not subject to such registration. .
(g) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Cyclacel Group PLC), Deposit Agreement (Cyclacel Group PLC)
Rights. In the event that the Company shall offer or cause to be offered to the holders Holders of any Deposited Securities of a particular Series any rights to subscribe for additional Shares of the corresponding Series or any rights of any other nature, the Depositary shall, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners Holders of Receipts or in disposing of such rights on behalf of any Owners Holders and making the net proceeds available to such Owners Holders in accordance with the procedures for distributing cash provided for in Section 4.01, or, if by the terms of such rights offering or for any other reason it would not be unlawful lawful or unfeasible feasible for the Depositary either to make such rights available to any Owners Holders or to dispose of such rights and make the net proceeds available to such OwnersHolders, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners Holders but not to other OwnersHolders, the Depositary may, and at the request of shall if the Company shallso requests, distribute to any Owner Holder to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares representing such Deposited Securities held by such OwnerHolder, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributeddistributed generally, if an Owner requests the distribution of warrants or other instruments Depositary determines in order it discretion that it is lawful and feasible to exercise the make such rights allocable available to the American Depositary Shares of such Owner under the Deposit Agreementcertain Holders, the Depositary will, as promptly as practicablesubject to applicable law, make such rights available to such Owner Holders upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner Holder has executed such documents as the Company has and the Depositary have determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersHolders, then upon instruction from any such an Owner Holder pursuant to such warrants or other instruments to the Depositary from such Owner Holder to exercise such rights, upon payment by such Owner Holder to the Depositary for the account of such Owner Holder of an amount equal to the purchase price of the Shares of a particular Series to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such OwnerHolder, exercise the rights and purchase the SharesShares of the corresponding Series, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerHolder. As agent for such OwnerHolder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts of the corresponding Series to such OwnerHolder. In the case of a distribution pursuant to the second paragraph of this Article 13Section 4.04, such deposit Receipts shall bear a legend in accordance with applicable U.S. laws, and shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, cancellation and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell themHolders, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares of a particular Series held by the Owners Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees fees, expenses and expenses charges of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and other governmental charges payable in connection with such rights rights, and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because Holders on account of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners Holders, unless both it has received from the rights and Company evidence, as provided in Section 5.07, to the securities to which effect that (i) a registration statement under the Securities Act covering such rights relate are either exempt from offering is in effect or (ii) such offering does not require registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner a Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Owner Holder is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners Holders in general or any Owner Holder in particular.
Appears in 2 contracts
Samples: Deposit Agreement (HSBC Holdings PLC), Deposit Agreement (HSBC Holdings PLC)
Rights. In the event that the Company Issuer shall offer or distribute or cause to be offered or distributed to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Issuer will give notice thereof to the Depositary shallat least 60 days prior to the proposed distribution stating whether or not it wishes such rights to be made available to Owners. Upon receipt by the Depositary of a notice that the Issuer wishes such rights to be made available to the Owners and receipt by the Depositary of satisfactory documentation within the terms of Section 5.7 hereof, after consultation with the Company, have discretion as Issuer and the Depositary will consult to the extent practicable to determine the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible reasonably practicable to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, after consultation with the Issuer and at subject to the request approval of the Company shallIssuer, which approval shall not be unreasonably withheld, and to the Depositary’s receipt of satisfactory documentation within the terms of Section 5.7, distribute to any Owner to whom it determines the distribution to be lawful and feasiblereasonably practicable, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, will as promptly as practicable, practicable make such rights available for delivery to such Owner upon written notice from the Company Issuer to the Depositary that (a) the Company Issuer has elected in its sole discretion to permit such rights to be exercised and warrants or other instruments to be distributed and (b) such Owner has executed such documents as the Company Issuer has determined in its sole discretion consultation with the Depositary are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares. Thereafter, and the Company Issuer shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the this Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13section, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible reasonably practicable to make such rights available to all or certain Owners, but that it is lawful and feasible reasonably practicable to sell themthose rights, after consultation with the Issuer and approval by the Issuer (such approval not to be unreasonably withheld), it may, and at the request of the Company will shall use reasonable efforts to, to sell the rights, warrants or other instruments instruments, in a riskless principal capacity or otherwise, by public or private sale and upon such terms as it may reasonably deem proper, in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly reasonably practicably make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement 5.9 and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such Any such cash proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement4.1 hereof. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 Act, or any other applicable law, with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights Act or underlying securities or to endeavor to have such a registration statement declared effectiveother applicable law. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933or other applicable law, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in such legal opinions as are required under Section 5.7 hereof, unless waived by the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registrationDepositary. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or feasible reasonably practicable to make such rights available to Owners in general or any Owner in particular, (ii) any foreign exchange exposure or loss incurred in connection with any sale or exercise of such rights or (iii) the content of any materials forwarded to the Owners on behalf of and at the request of the Issuer in connection with the rights distribution. There can be no assurance that Owners generally, or any Owner in particular, will be given the opportunity to receive or exercise rights on the same terms and conditions as the holders of Shares or be able to exercise such rights. Nothing herein shall obligate the Issuer to file any registration statement in respect of any rights or Shares or other securities to be acquired upon the exercise of such rights.
Appears in 2 contracts
Samples: Deposit Agreement (Coca-Cola Hellenic Bottling Co Sa), Deposit Agreement (Citibank,N.A./ADR)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the CompanyCompany to the extent practicable, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then then, after consultation with the Company to the extent practicable, the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Section, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably Depositary, after consultation with the Company to the extent practicable, determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement under the Securities Act of 1933 with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effectiveeffective or otherwise to register such rights or securities under any other applicable law for any purpose. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Sunity Online Entertainment LTD), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion shall as soon as practicable give notice to the procedure Registered Holders of such offer (unless notified by the Company that such offer or invitation should not be made), specifying, if applicable, the earliest date established for acceptance thereof, the last date established for acceptance thereof and the manner by which and time during which Registered Holders may request the Depositary to be followed in making exercise such rights available as provided below or, if such be the case, give details of how the Depositary proposes to any Owners distribute the rights or in disposing to dispose of such rights on behalf of any Owners and making make the net proceeds available to such Owners Registered Holders in accordance with the procedures for distributing cash provided for in Section 4.01 of the Deposit Agreement, or, if by the terms of such rights offering or for any other reason it would not be unlawful lawful or unfeasible feasible for the Depositary either to make such rights available to any Owners Registered Holders or to dispose of such rights and make the net proceeds available to such OwnersRegistered Holders, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners Registered Holders but not to other OwnersRegistered Holders, the Depositary may, and at the request of the Company shall, may distribute to any Owner Registered Holder to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such OwnerRegistered Holder, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributeddistributed generally, if an Owner requests the distribution of warrants or other instruments Depositary determines in order its discretion that it is lawful and feasible to exercise the make such rights allocable available to the American Depositary Shares of such Owner under the Deposit Agreementcertain Registered Holders, the Depositary will, as promptly as practicablesubject to applicable law, make such rights available to such Owner Registered Holders upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner Registered Holder has executed such documents as the Company has and the Depositary have determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersRegistered Holders, then upon instruction from any such an Owner Registered Holder pursuant to such warrants or other instruments to the Depositary from such Owner Registered Holder to exercise such rights, upon payment by such Owner Registered Holder to the Depositary for the account of such Owner Registered Holder of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such OwnerRegistered Holder, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerRegistered Holder. As agent for such OwnerRegistered Holder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such OwnerRegistered Holder. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell themRegistered Holders, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments (either by public or private sale and otherwise at its discretion subject to South African laws and regulations) in proportion to the number of American Depositary Shares held by the Owners Registered Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees fees, expenses and expenses charges of the Depositary as provided in Section 5.09 and Exhibit B of the Deposit Agreement and all taxes and other governmental charges payable in connection with such rights rights, and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners Registered Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because Registered Holders on account of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners Registered Holders unless both it has received from the rights and Company evidence, as provided in Section 5.07 of the securities Deposit Agreement, to which the effect that (i) a registration statement under the Securities Act covering such rights relate are either exempt from offering is in effect or (ii) such offering does not require registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner a Registered Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall will not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Owner Registered Holder is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners Registered Holders in general or any Owner Registered Holder in particular, any foreign exchange exposure or loss incurred in connection with such sale, or any liability to the purchaser of such rights, warrants or other instruments. Notwithstanding any provision of the Deposit Agreement or set forth herein to the contrary, the Company shall not issue any rights or bonus shares in respect of the Deposited Securities nor shall the proceeds of a sale of such rights or bonus shares be repatriated by the Company unless there is approval by the Reserve Bank of India to do so.
Appears in 2 contracts
Samples: Deposit Agreement (Infosys Technologies LTD /Adr/), Deposit Agreement (Infosys Technologies LTD)
Rights. In The Company, acting through its Board, shall take all necessary action (and shall notify Praxair of any such actions taken) prior to the event Expiration Date including, without limitation, supplementing or amending the Rights Agreement to ensure that, so long as this Agreement has not been terminated, the Amended Offer is a "Permitted Tender Offer" (as defined in the Rights Agreement), (it being understood that the Company shall offer amend the definition of "Permitted Tender Offer" in the Rights Agreement), no "Distribution Date" (as defined in the Rights Agreement) will occur and Section 11.1(b) of the Rights Agreement will not be triggered, in each case as a result of the announcement, commencement or cause consummation of the Amended Offer or the execution or delivery of this Agreement with the effect that none of such events will trigger the exercisability of the Rights or the separation of the Rights from the certificates to be offered which they are attached. So long as this Agreement has not been terminated, the Board shall also take all further action (in addition to that referred to above) requested in writing by Praxair or Purchaser (including redeeming the Rights immediately prior to the holders of any Deposited Securities any rights to subscribe for additional Shares Effective Time or any rights of any other nature, amending the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments Rights Agreement) in order to exercise render the rights allocable Rights inapplicable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, Merger and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Ownerother transactions contemplated by this Agreement. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary Except as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 above with respect to the Merger and the other transactions by Praxair or Purchaser, the Board shall not (i) amend the Rights Agreement or (ii) take any action with respect to, or make any determination under, the Rights Agreement, including a distribution redemption of the Rights or any action to all Owners or are registered under the provisions of such Act; facilitate an Acquisition Proposal, provided, however, that nothing in herein shall be deemed to preclude the Deposit Company from taking any action with respect to the Rights Agreement shall create (including any obligation on modification or amendment thereto or waiver thereof) as it applies to any third party other than Praxair and the part Purchaser to the extent required for the Board of Directors of the Company to file a registration statement comply with respect its fiduciary obligations under applicable law, as advised in writing by outside counsel to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registrationCompany. The Depositary shall not be responsible for any failure Company will promptly furnish to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particularPraxair and Purchaser a complete and correct copy of the Rights Agreement, as so amended.
Appears in 2 contracts
Samples: Merger Agreement (Px Acquisition Corp), Merger Agreement (Px Acquisition Corp)
Rights. In the event that the Company shall offer or cause to be offered (a) If rights are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary should take in connection with that grant of rights. The Depositary shall, after consultation with to the extent reasonably deemed by it to be lawful and practical, and on the conditions set forth in paragraphs (b), (c) or (d) below, as applicable, (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under the Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is reasonably satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed .
(e) Payment or deduction of the fees of the Depositary as promptly as practicable provided in accordance with Section 4.01 5.9 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights Agreement and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners payment or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part deduction of the Company to file a registration statement with respect to such rights expenses of the Depositary and any applicable taxes or underlying other governmental charges shall be conditions of any delivery of securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding cash proceeds under Section 4.4 of that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. Agreement.
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particularparticular , or to sell rights.
Appears in 2 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered (a) If rights are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary should take in connection with that grant of rights. The Depositary shall, after consultation with to the extent reasonably deemed by it to be lawful and practical, and on the conditions set forth in paragraphs (b), (c) or (d) below, as applicable, (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under the Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is reasonably satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed .
(e) Payment or deduction of the fees of the Depositary as promptly as practicable provided in accordance with Section 4.01 5.9 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights Agreement and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners payment or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part deduction of the Company to file a registration statement with respect to such rights expenses of the Depositary and any applicable taxes or underlying other governmental charges shall be conditions of any delivery of securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding cash proceeds under Section 4.4 of that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. Agreement.
(f) The Depositary shall not be responsible responsible, other than by reason of gross negligence or bad faith, for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 2 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that (a) If rights (including Share subscription warrants (bons de souscription d’actions) issued by the Company shall offer or cause to be offered in lieu of rights) are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary shallshould take in connection with that grant of rights. The Depositary may, after consultation with to the extent deemed by it to be lawful and practical (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under the Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both may enter into any arrangements with the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners Company or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation persons acting on the part behalf of the Company to file a registration statement with respect to such rights effect the orderly disposal of rights.
(e) Payment or underlying deduction of the fees of the Depositary as provided in Section 5.9 of the Deposit Agreement and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be conditions of any delivery of securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding cash proceeds under Section 4.4 of that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. Agreement.
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 2 contracts
Samples: Deposit Agreement (Genfit S.A.), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds (net of expenses, taxes and fees as provided in Sections 4.5, 4.11 and 5.9 of the Deposit Agreement) available in Dollars to such Owners or, if by the terms of such rights offering or or, for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and . If the Depositary setting out determines in its discretion that it is not lawful and feasible to make such rights available to certain Owners, it may sell the procedure rights or warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees of the Depositary as provided in Section 5.9 of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any Receipt or otherwise. The Depositary shall not be used and the terms and conditions responsible for any failure to determine that distributionit may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. Nothing in Section 4.4 of the Deposit Agreement or elsewhere in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement under the Securities Act or otherwise register such rights or securities under any other applicable laws for any purpose. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Lihir Gold LTD), Deposit Agreement (Lihir Gold LTD)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with and having given reasonable consideration to the suggestions of the Company, and subject to applicable law and applicable rules of any securities exchange or automated quotation system on which the Shares or American Depositary Shares are listed or quoted, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other OwnersOwners and the Company so requests in writing, the Depositary may, and at the request of the Company shall, shall distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate written agreement to be entered into between the Company and the Depositary setting out establishing the procedure conditions and procedures that will be applicable to be used and the terms and conditions for that distributionparticular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Section, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably Depositary, after consultation with the Company to the extent practicable using reasonable efforts, determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will shall use reasonable efforts to, to sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of 5.09, unless those fees and expenses have been paid by the Deposit Agreement Company, and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical commercially reasonable basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Sims Group LTD), Deposit Agreement (Sims Group LTD)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or to dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the written request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate rights agency agreement to be entered into between the Company and the Depositary Depositary, as rights agent, setting out forth the procedure procedures to be used and for the terms and conditions for that distributionparticular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as will promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner Owners to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Contax Holding Co), Deposit Agreement (Contax Holding CO)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation shall have discretion following Consultation with the Company, have discretion Company as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion determines, following Consultation with the Company, that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant or employ such other methods as it may deem feasible in order to a separate agreement to be entered into between facilitate the Company and exercise, sale or transfer of rights by such Owners or the Depositary setting out the procedure to be used and the terms and conditions for that distributionsale or resale of Securities obtainable upon exercise of such rights by such Owners. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, cancellation and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such the Securities Act; provided, provided that nothing in the Deposit Agreement shall create create, or shall be construed to create, any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under such the Securities Act of 1933Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized U.S. counsel in the United States for the Company Company, which counsel shall be reasonably satisfactory to the Depositary, upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or distribute or cause to be offered or distributed to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Company will give notice thereof to the Depositary shallat least 60 days prior to the proposed distribution stating whether or not it wishes such rights to be made available to Owners. Upon receipt by the Depositary of a notice that the Company wishes such rights to be made available to the Owners and receipt by the Depositary of satisfactory documentation within the terms of Section 5.7 of the Deposit Agreement, after consultation with the Company, have discretion as Company and the Depositary will consult to the extent practicable to determine the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible reasonably practicable to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, after consultation with the Company and at subject to the request approval of the Company shallCompany, which approval shall not be unreasonably withheld, and to the Depositary’s receipt of satisfactory documentation within the terms of Section 5.7 of the Deposit Agreement, distribute to any Owner to whom it determines the distribution to be lawful and feasiblereasonably practicable, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, will as promptly as practicable, practicable make such rights available for delivery to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and warrants or other instruments to be distributed and (b) such Owner has executed such documents as the Company has determined in its sole discretion consultation with the Depositary are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares. Thereafter, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible reasonably practicable to make such rights available to all or certain Owners, but that it is lawful and feasible reasonably practicable to sell themthose rights, after consultation with the Company and approval by the Company (such approval not to be unreasonably withheld), it may, and at the request of the Company will shall use reasonable efforts to, to sell the rights, warrants or other instruments instruments, in a riskless principal capacity or otherwise, by public or private sale and upon such terms as it may reasonably deem proper, in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly reasonably practicably make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Article 7 hereof and Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such Any such cash proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 4.1 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 Act, or any other applicable law, with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights Act or underlying securities or to endeavor to have such a registration statement declared effectiveother applicable law. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933or other applicable law, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in such legal opinions as are required under Section 5.7 of the United States for Deposit Agreement, unless waived by the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registrationDepositary. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or feasible reasonably practicable to make such rights available to Owners in general or any Owner in particular, (ii) any foreign exchange exposure or loss incurred in connection with any sale or exercise of such rights or (iii) the content of any materials forwarded to the Owners on behalf of and at the request of the Company in connection with the rights distribution. There can be no assurance that Owners generally, or any Owner in particular, will be given the opportunity to receive or exercise rights on the same terms and conditions as the holders of Shares or be able to exercise such rights. Nothing herein shall obligate the Company to file any registration statement in respect of any rights or Shares or other securities to be acquired upon the exercise of such rights.
Appears in 2 contracts
Samples: Deposit Agreement (Coca-Cola Hellenic Bottling Co Sa), Deposit Agreement (Citibank,N.A./ADR)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If ; provided, however, if at the time of the offering of any rights the Depositary determines in its discretion discretion, after consultation with the Company, that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary mayDepositary, and at after consultation with the request of the Company shallCompany, may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and . If the Depositary setting out determines in its discretion, after consultation with the procedure Company, that it is not lawful and feasible to be used make such rights available to certain Owners, it may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees of the Depositary as provided in Section 5.09 and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any Receipt or otherwise. Neither the Depositary nor the Company shall be responsible for any failure to determine that distributionit may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. In circumstances in which rights would otherwise not be distributed, if If an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon Upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, execute and deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States lawsOwner Restricted Receipts. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect of the securities to which any rights relate is required in order for the Company to offer such rights to Owners and sell the securities upon the exercise of such rights to Owners, the Depositary will not offer such rights to the Owners unless and until such a distribution registration statement is in effect, or unless the offering and sale of such securities to all the Owners or of such Receipts are registered exempt from registration under the provisions of such Act; provided, that nothing in the Deposit Agreement . The Company shall create any have no obligation on the part of the Company to file a registration statement with respect to register such rights or underlying such securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company Issuer shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with subject to the CompanyIssuer's Memorandum and Articles of Association and applicable laws and regulations, shall have discretion as to the procedure to be followed in making such rights available to any Owners including (i) the distribution of warrants or other instruments in disposing the discretion of such the Depositary representing rights on behalf to acquire additional ADSs in respect of any Owners rights to subscribe for additional Shares or rights of any nature available to the Depositary as a result of a distribution on Deposited Securities, to the extent that the Issuer timely furnishes to the Depositary evidence satisfactory to the Depositary that the Depositary may lawfully distribute the same (the Issuer has no obligation to so furnish such evidence), or (ii) to the extent the Issuer does not so furnish such evidence and making sales of rights are practicable, the distribution of any U.S. dollars available to the Depositary from the net proceeds available of sales of rights as in the case of cash, or (iii) to the extent the Issuer does not so furnish such Owners orevidence and such sales cannot practicably be accomplished by reason of the nontransferability of the rights, if by the terms of such limited markets therefor, their short duration or otherwise, nothing (and any rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to may lapse). If at the time of the offering of any rights the Depositary reasonably determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it reasonably determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees fees, charges and expenses of the Depositary contemplated in Section 5.9 of the Deposit Agreement and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company Issuer shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, issue and deliver American Depositary Shares ADSs to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible may endeavor to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has reasonably determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of any such sales (net of the fees fees, charges and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares ADS or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement . The Issuer shall create any obligation on the part of the Company not be obligated to file a any such registration statement with respect in order to permit U.S. holders to participate in any such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registrationdistribution. The Depositary shall not be responsible for any reasonable failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. Nothing in this Receipt or Section 4.4 or elsewhere in the Deposit Agreement shall create, or be construed to create, any obligation on the part of the Issuer to file a registration statement with the Commission or endeavor to have such a registration statement declared effective so as to allow rights to be made available to Owners.
Appears in 2 contracts
Samples: Deposit Agreement (JPMorgan Chase Bank, N.A. - ADR Depositary), Deposit Agreement (JPMorgan Chase Bank, N.A. - ADR Depositary)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company Company’s written request, shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems and the Company deem appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out forth the procedure to be used and the terms procedures and conditions for that distributionwill apply to that particular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Section, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will Company’s written request, shall, use commercially reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such All such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of 4.01. Notwithstanding anything to the contrary in this Deposit Agreement. The , the Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Company will give timely notice thereof to the Depositary shallprior to the proposed distribution stating whether or not it wishes such rights to be made available to Owners. Upon receipt by the Depositary of a notice that the Company wishes such rights to be made available to the Owners, after consultation with the Company, have discretion as Company and the Depositary will consult to the extent practicable to determine the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, after consultation with the Company and at subject to the request approval of the Company shallCompany, which approval shall not be unreasonably withheld, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, will as promptly as practicable, practicable make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and warrants or other instruments to be distributed and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares. Thereafter, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell themthose rights, after consultation with the Company and subject to the approval of the Company, which approval shall not be unreasonably withheld, it may, and at the request of the Company will shall use reasonable efforts to, to sell the rights, warrants or other instruments by public or private sale in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such Any such cash proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.4.1
Appears in 2 contracts
Samples: Deposit Agreement (Coca-Cola Hellenic Bottling Co Sa), Deposit Agreement (Coca-Cola Hellenic Bottling Co Sa)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion discretion, after consultation with the Company, that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at after consultation with the request of the Company shallCompany, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section Section 2.03 of the this Deposit Agreement, execute and deliver Receipts representing American Depositary Shares evidencing such Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13section, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion discretion, after consultation with the Company, that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical practicable basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from If registration under the Securities Act of 1933 with respect of the rights or of the securities to which any rights relate is required in order for the Company to offer such rights to Owners and sell the securities upon the exercise of such rights to Owners, the Depositary will not offer such rights to the Owners having an address in the United States unless and until such a distribution registration statement is in effect, or unless the offering and sale of such securities to all the Owners or of such Receipts are registered exempt from registration under the provisions of such Act; provided, that nothing in the . Notwithstanding any terms of this Deposit Agreement shall create any obligation on to the part of contrary, the Company shall have no obligation to prepare and file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registrationany purpose. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Ypf Sociedad Anonima), Deposit Agreement (Ypf Sociedad Anonima)
Rights. In the event that the Company shall offer or cause to be offered (a) If rights are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for or purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary should take in connection with that grant of rights. The Depositary shall, after consultation with the Company, have discretion as to the procedure extent deemed by it to be followed lawful and practical (i) if requested in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if writing by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for Company and the Company and the Depositary either to make such rights available to any Owners or dispose of such rights and make enter into the net proceeds available to such Ownersagreement contemplated in paragraph (b) below, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but not rights to other Owners, instruct the Depositary may, to subscribe for or purchase the securities to which the rights relate and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of deliver those securities or American Depositary Shares held representing those securities to Owners, (ii) if requested in writing by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Company and the Depositary setting out enter into the procedure to be used and the terms and conditions for that distribution. In circumstances agreement contemplated in which rights would otherwise not be distributedparagraph (c) below, if an Owner requests the distribution of warrants or other instruments in order to exercise deliver the rights allocable to or to the American Depositary Shares order of such Owner certain Owners, or (iii) if the actions under (i) or (ii) are not taken, sell the Deposit Agreementrights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not exercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from shall permit the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and lapse unexercised.
(b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights will act under (a)(i) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to all or certain Owners, then upon the particular offering. Upon instruction from such an applicable Owner pursuant to such warrants or other instruments to in the form the Depositary from such Owner to exercise such rights, specified and upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under this Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds .
(e) Payment or deduction of the fees of the Depositary as provided in Section 5.9 and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be distributed as promptly as practicable in accordance with Section 4.01 conditions of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act any delivery of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding that there has been no such registration cash proceeds under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. this Section 4.4.
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 2 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with and having given reasonable consideration to the suggestions of the Company, and subject to applicable law and applicable rules of any securities exchange or automated quotation system on which the Shares or American Depositary Shares are listed or quoted, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other OwnersOwners and the Company so requests in writing, the Depositary may, and at the request of the Company shall, shall distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate written agreement to be entered into between the Company and the Depositary setting out establishing the procedure conditions and procedures that will be applicable to be used and the terms and conditions for that distributionparticular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion determines, after consultation with the Company to the extent practicable using reasonable efforts, that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will shall use reasonable efforts to, to sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement Agreement, unless those fees and expenses have been paid by the Company, and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical commercially reasonable basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 2 contracts
Samples: Deposit Agreement (Sims Group LTD), Deposit Agreement (Sims Group LTD)
Rights. In the event that (a) If rights (including Share subscription warrants (bons de souscription d’actions) issued by the Company shall offer or cause to be offered in lieu of rights) are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary shallshould take in connection with that grant of rights. The Depositary may, after consultation with to the extent deemed by it to be lawful and practical (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under this Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon (i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both may enter into any arrangements with the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners Company or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation persons acting on the part behalf of the Company to file a registration statement with respect to effect the orderly disposal or such rights rights.
(e) Payment or underlying deduction of the fees of the Depositary as provided in Section 5.9 and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be conditions of any delivery of securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding that there has been no such registration cash proceeds under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. this Section 4.4.
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 1 contract
Samples: Deposit Agreement (Genfit S.A.)
Rights. In the event that the Company Issuer shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or or, for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and . If the Depositary setting out determines in its discretion that it is not lawful and feasible to make such rights available to certain Owners, it may sell the procedure rights or warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees of the Depositary as provided in Section 5.9 of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. The Depositary shall not be used and the terms and conditions responsible for any failure to determine that distributionit may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company Issuer to the Depositary that (a) the Company Issuer has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company Issuer has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company Issuer shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit the Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company Issuer to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company Issuer upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Samples: Deposit Agreement (Bancolombia Sa)
Rights. In the event that the Company shall offer or cause to be offered (a) If rights are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary shallshould take in connection with that grant of rights. The Depositary may, after consultation with to the extent reasonably deemed by it to be lawful and practical, and on the conditions set forth in paragraphs (b), (c) or (d) below, as applicable (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under this Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is reasonably satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon (i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds .
(e) Payment or deduction of the fees of the Depositary as provided in Section 5.9 and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be distributed as promptly as practicable in accordance with Section 4.01 conditions of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act any delivery of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding that there has been no such registration cash proceeds under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. this Section 4.4.
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered (a) If rights are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary shallshould take in connection with that grant of rights. The Depositary may, after consultation with to the extent deemed by it to be lawful and practical and on the conditions set out in paragraphs (b), (c) or (d) below, as applicable, (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under this Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is reasonably satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate as promptly as practicable pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds .
(e) Payment or deduction of the fees of the Depositary as provided in Section 5.9 and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be distributed as promptly as practicable in accordance with Section 4.01 conditions of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act any delivery of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding that there has been no such registration cash proceeds under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. this Section 4.4.
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. (a) In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, after consultation with the Company, and at if requested in writing by the request of the Company shallCompany, shall distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out forth the procedure to be used and the terms specific procedures and conditions for that distribution. applicable to the particular offering.
(b) In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. .
(c) If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and reasonable expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of after consultation with the Company will to the extent practicable, and, if requested in writing by the Company, shall use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. .
(e) The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. .
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion shall as soon as practicable give notice to the procedure Registered Holders of such offer (unless notified by the Company that such offer or invitation should not be made), specifying, if applicable, the earliest date established for acceptance thereof, the last date established for acceptance thereof and the manner by which and time during which Registered Holders may request the Depositary to be followed in making exercise such rights available as provided below or, if such be the case, give details of how the Depositary proposes to any Owners distribute the rights or in disposing to dispose of such rights on behalf of any Owners and making make the net proceeds available to such Owners Registered Holders in accordance with the procedures for distributing cash provided for in Section 4.01 of the Deposit Agreement, or, if by the terms of such rights offering or for any other reason it would not be unlawful lawful or unfeasible feasible for the Depositary either to make such rights available to any Owners Registered Holders or to dispose of such rights and make the net proceeds available to such OwnersRegistered Holders, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners Registered Holders but not to other OwnersRegistered Holders, the Depositary may, and at the request of the Company shall, may distribute to any Owner Registered Holder to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such OwnerRegistered Holder, warrants or other instruments therefor therefore in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributeddistributed generally, if an Owner requests the distribution Company determines in its discretion that it is lawful and feasible to make such rights available, by means of warrants or other instruments in order otherwise, to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementcertain Registered Holders, the Depositary will, as promptly as practicablesubject to applicable law, make such rights available to such Owner Registered Holders, upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner Registered Holder has executed such documents as the Company has and the Depositary have determined in its sole discretion are reasonably required under applicable law. If the Depositary Company has distributed warrants or other instruments for rights to all or certain OwnersRegistered Holders, then upon instruction from any such an Owner Registered Holder pursuant to such warrants or other instruments to the Depositary from such Owner Registered Holder to exercise such rights, upon payment by such Owner Registered Holder to the Depositary for the account of such Owner Registered Holder of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such OwnerRegistered Holder, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerRegistered Holder. As agent for such OwnerRegistered Holder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such OwnerRegistered Holder. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably Company determines in its discretion that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell themRegistered Holders, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments (either by public or private sale and otherwise at its discretion subject to Korean laws and regulations) in proportion to the number of American Depositary Shares held by the Owners Registered Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees fees, expenses and expenses charges of the Depositary as provided in Section 5.09 and Exhibit B of the Deposit Agreement and all taxes and other governmental charges payable in connection with such rights rights, and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners Registered Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because Registered Holders on account of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners Registered Holders unless both it has received from the rights and Company evidence, as provided in Section 5.07 of the securities Deposit Agreement, to which the effect that (i) a registration statement under the Securities Act covering such rights relate are either exempt from offering is in effect or (ii) such offering does not require registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner a Registered Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall will not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Owner Registered Holder is exempt from such registration. Nothing herein or in the Deposit Agreement shall create, or shall be construed to create, any obligation on the part of the Company to file such a registration statement or to endeavor to have such a registration statement in effect or to register such rights or the securities presented thereby under the Securities Act or any other applicable law. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners Registered Holders in general or any Owner Registered Holder in particular, any foreign exchange exposure or loss incurred in connection with such sale, or any liability to the purchaser of such rights, warrants or other instruments.
Appears in 1 contract
Rights. In the event that the Company Issuer shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the CompanyIssuer, shall, subject to Brazilian law and the provisions of the Issuer's by-laws as notified to the Depositary by the Issuer, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its reasonable discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it reasonably determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company Issuer to the Depositary that (a) the Company Issuer has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company Issuer has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all Owners or to certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company Issuer shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the this Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13section, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its reasonable discretion that it is not lawful and feasible to make such rights available to all Owners or to certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement 5.9 and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing . Nothing in the this Deposit Agreement shall create any obligation on the part of the Company Issuer to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company Issuer upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Samples: Deposit Agreement (CPFL Energy INC)
Rights. In the event that the Company Issuer shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Issuer shall give notice thereof to the Depositary shallat least 60 days prior to the proposed distribution stating whether or not it wishes such rights to be made available to Owners. . The Depositary shall make such rights available to Owners only if (i) the Issuer shall have timely requested that such rights be made available to Owners, after consultation with (ii) the Company, Depositary shall have received satisfactory documentation within the terms of Section 5.7 and (iii) the Depositary shall have determined that such distribution of rights is lawful and reasonably practicable. The Depositary shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible reasonably practicable to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it determines the distribution to be lawful and feasiblereasonably practicable, in proportion to the number of American America Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner Owner, pursuant to such warrants or other instruments instruments, to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company Issuer shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the this Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In Nothing herein shall obligate the case of a distribution pursuant Depositary to make available to the second paragraph of this Article 13, Owners a method to exercise such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide rights to subscribe for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States lawsShares (rather than American Depositary Shares). If (i) the Issuer does not timely request the Depositary reasonably to make the rights available to Owners or requests that the rights not be made available to Owners, (ii) the Depositary fails to receive satisfactory documentation within the terms of Section 5.7 or the Depositary determines in its discretion that it is not lawful and feasible reasonably practicable to make such rights available to all or certain Owners, but or (iii) any rights made available are not exercised and appear to be about to lapse, the Depositary shall determine whether it is lawful and reasonably practicable to sell such rights, and if it so determines that it is lawful and feasible reasonably practicable it may endeavor to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments upon such terms as it may deem proper in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly on a reasonably practicable basis make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the this Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part Securities Act of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective1933. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel for the Issuer in the United States for the Company and any other applicable country in which rights would be distributed upon which the Depositary may rely that such distribution to such Owner is exempt from such registrationregistration under the Securities Act of 1933 and any other applicable laws. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or feasible reasonably practicable to make such rights available to Owners in general or any Owner in particular, (ii) any foreign exchange exposure or loss incurred in connection with such sale, or exercise, or (iii) the content of any materials forwarded to the Owners on behalf of the Issuer in connection with any rights distribution. In the event the Issuer, the Depositary or the Custodian shall be required to withhold and does withhold from any distribution of property (including rights) an amount on account of taxes or other governmental charges, the amount distributed to the Owners shall be reduced accordingly.
Appears in 1 contract
Samples: Deposit Agreement (Deutsche Bank Trust Co Americas/ ADR Group)
Rights. In the event that the Company Issuer shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the CompanyIssuer, shall, subject to Brazilian law and the provisions of the Issuer’s by-laws as notified to the Depositary by the Issuer, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its reasonable discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it reasonably determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company Issuer to the Depositary that (a) the Company Issuer has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company Issuer has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all Owners or to certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company Issuer shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the this Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13section, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its reasonable discretion that it is not lawful and feasible to make such rights available to all Owners or to certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement 5.9 and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing . Nothing in the this Deposit Agreement shall create any obligation on the part of the Company Issuer to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company Issuer upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Samples: Deposit Agreement (CPFL Energy INC)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for or acquire additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners orOwners; provided, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for however, that the Depositary either to will not make such rights available to any Owners or dispose the holders of such rights deposited Securities if so requested by the Company and make will, if requested by the net proceeds available to such OwnersCompany, then the Depositary shall allow the rights to lapse. If take action as follows: (i) if at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, by means of warrants or otherwise the Depositary mayshall distribute, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant or employ such other method as it may deem feasible in order to a separate agreement to be entered into between facilitate the Company and exercise, sale or transfer of rights by such Owners; or, (ii) if the Depositary setting out determines in its discretion that it is not lawful and feasible to make such rights available to certain Owners, (but not to other Owners) it may sell the procedure rights or warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales for the account of such Owners otherwise entitled to such rights, warrants or other instru- ments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any Receipt or Receipts, or otherwise. The Depositary shall not be used and responsible for any failure to determine that it may be lawful or feasible or not lawful or feasible to make such rights available to Owners in general or any Owner or Owners in particular. If by the terms of such rights offering or, for any other reason, the Depositary may not either make such rights available to any Owners or dispose of such rights and conditions for that distributionmake the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. In circumstances in which rights would otherwise not be distributed, if If an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon Upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the in exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants war- rants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares to such OwnerOwner Restricted Receipts. In If and to the case extent that the filing or effectiveness of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration statement under the Securities Act of 1933 with respect of the securities to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing which any rights relate is required in the Deposit Agreement shall create any obligation on the part of order for the Company to file a registration statement with respect to offer such rights or underlying to Owners and sell the securities or represented by such rights, the Depositary will not offer such rights to endeavor to have the Owners unless and until such a registration statement declared is filed or effective. If an Owner requests , as the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary case may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particularbe.
Appears in 1 contract
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible infeasible for the Depositary to either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out establishing the procedure to be used and the terms procedures and conditions for applicable to that distributionparticular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement2.02, and shall, pursuant to Section 2.03 of the Deposit Agreement2.03, deliver American Depositary Shares to such Owner. In ; provided, however, that in the case of a distribution pursuant to the second paragraph of this Article 13Section, such deposit shall may be made, and depositary shares shall may be delivered, under other depositary arrangements to be entered into between the Company and the Depositary which provide for issuance of depositary shares which shall be legended in accordance with applicable United States laws and shall be subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws, including without limitation, circumstances as provided in Section 2.12. An Owner or Holder shall not be entitled to any rights to subscribe for additional Shares if and to the extent that the number of Shares represented by American Depositary Shares beneficially owned by such Owner or Holder, when aggregated with all other Shares beneficially owned by such Owner or Holder (including Shares beneficially owned by affiliates of such Owner or Holder), exceeds four (4) percent of the aggregated number of shares with voting rights of the Company issued and outstanding. If the Depositary reasonably determines in its discretion discretion, after consultation with the Company to the extent practicable, that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will shall use its best efforts that are reasonable efforts under the circumstances to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 hereof. If such sale can be effected only with the approval or license of the Deposit AgreementKorean government or any agency thereof, the Depositary shall file as promptly as practicable such application for approval or license as it may deem reasonable and practicable in its sole discretion. The Except as provided in the third preceding paragraph, the Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallshall have discretion, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights right and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.3 of the this Deposit Agreement, and shall, pursuant to Section 2.03 2.4 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Section, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, cancellation and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement 5.9 and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. Back to Contents Subject to the preceding paragraph, in circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner hereunder, the Depositary will make such rights available to such Owner only upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. The Depositary and the Company shall not be responsible for any failure have no responsibility or obligation to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particularparticular and shall not be responsible for any failure to do so.
Appears in 1 contract
Samples: Deposit Agreement (New World Development Co LTD /Fi)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines determines, after consultation with the Company, in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Ownersand if the Company shall so request, the Depositary may, and at the request of the Company shall, shall distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out that establishes the procedure condition and procedures applicable to be used and the terms and conditions for that distributionparticular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Neither the Company nor the Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. There can be no assurance that Owners generally, or any Owner in particular, will be given the opportunity to receive or exercise rights on the same terms and conditions as the holders of Shares or be able to exercise such rights.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making making, as promptly as practicable, the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines determines, after consultation with the Company, in its reasonable discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary willwill make such rights available to such Owner, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited deposited, as promptly as practicable, pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, as promptly as practicable, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, cancellation and transfer under applicable United States such laws. If the Depositary reasonably determines in its reasonable discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.4.1
Appears in 1 contract
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making making, as promptly as practicable, the net proceeds available to such Owners Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering offering of any rights the Depositary determines determines, after consultation with the Company, in its reasonable discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it determines determines the distribution to be lawful and feasible, in proportion proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary willwill make such rights available to such Owner, as promptly as practicable, make such rights available to such Owner only upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments instruments for rights to all or certain Owners, then upon instruction instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instrumentsinstruments, the Depositary shall, on behalf of such Owner, exercise exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited deposited, as promptly as practicable, pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, as promptly as practicable, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13(14), such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions restrictions on sale, deposit, cancellation, cancellation and transfer under applicable United States such laws. If the Depositary reasonably determines in its reasonable discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses charges of the Depositary Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions conditions of the Deposit Agreement) for the account of such Owners otherwise otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwiseotherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 4.1 of the Deposit Agreement. The Depositary will not offer rights to Owners unless unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Securities Act of 1933 with respect to a distribution to all Owners or are registered registered under the provisions of such Act; provided, that that, nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instrumentsinstruments, notwithstanding that there has been no such registration registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particularparticular.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered (a) If rights are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary should take in connection with that grant of rights. The Depositary shall, after consultation with to the extent reasonably deemed by it to be lawful and practical, and on the conditions set forth in paragraphs (b), (c) or (d) below, as applicable, (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under this Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is reasonably satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon (i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds .
(e) Payment or deduction of the fees of the Depositary as provided in Section 5.9 and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be distributed as promptly as practicable in accordance with Section 4.01 conditions of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act any delivery of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding that there has been no such registration cash proceeds under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. this Section 4.4.
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or to dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the written request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate rights agency agreement to be entered into between the Company and the Depositary Depositary, as rights agent, setting out forth the procedure procedures to be used and for the terms and conditions for that distributionparticular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as will promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner Owners to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13paragraph, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use its best efforts that are reasonable efforts under the circumstances to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement Agreement, any expenses in connection with such sale and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from If a registration statement under the Securities Act of 1933 is required with respect to the securities to which any rights relate in order for the Company to offer such rights to Owners and sell the securities represented by such rights, the Depositary will not offer such rights to Owners having an address in the United States (as defined in Regulation S) unless and until such a distribution registration statement is in effect, or unless the offering and sale of such securities and such rights to all such Owners or are registered exempt from registration under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Rights. In the event that the Company shall offer or cause to be offered (a) If rights are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary shallshould take in connection with that grant of rights. The Depositary may, after consultation with to the extent reasonably deemed by it to be lawful and practical, and on the conditions set forth in paragraphs (b), (c) or (d) below, as applicable (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under the Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is reasonably satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed .
(e) Payment or deduction of the fees of the Depositary as promptly as practicable provided in accordance with Section 4.01 5.9 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights Agreement and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners payment or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part deduction of the Company to file a registration statement with respect to such rights expenses of the Depositary and any applicable taxes or underlying other governmental charges shall be conditions of any delivery of securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding cash proceeds under Section 4.4 of that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. Agreement.
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particularparticular , or to sell rights.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making making, as promptly as practicable, the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines determines, after consultation with the Company, in its reasonable discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, Depositary may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary willwill make such rights available to such Owner, as promptly as practicable, make such rights available to such Owner only upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instrumentsinstruments, the Depositary shall, on behalf of such Owner, exercise exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited deposited, as promptly as practicable, pursuant to Section 2.02 2.2 of the this Deposit Agreement, and shall, as promptly as practicable, pursuant to Section 2.03 2.3 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13section, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its reasonable discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses charges of the Depositary as provided in Section 5.09 of the Deposit Agreement 5.9 and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit AgreementAgreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement4.1 hereof. The Depositary will not offer rights to Owners unless unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that that, nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instrumentsinstruments, notwithstanding that there has been no such registration registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution distribution unless it has received an opinion from recognized counsel in the United States for the Company Company, upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered (a) If rights are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary shallshould take in connection with that grant of rights. The Depositary may, after consultation with to the extent deemed by it to be lawful and practical, and on the conditions set forth in paragraphs (b), (c) or (d) below, as applicable (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under this Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is reasonably satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds .
(e) Payment or deduction of the fees of the Depositary as provided in Section 5.9 and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be distributed as promptly as practicable in accordance with conditions of any delivery of securities or payment of cash proceeds under this Section 4.01 of 4.4.
(f) Neither the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of nor the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities Securi- ties any rights to subscribe sub- scribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners entitled thereto or in disposing of such rights on behalf of any such Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or for any other by reason it would be unlawful or unfeasible for of applicable law, the Depositary either to may neither make such rights available to any Owners or nor dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If ; provided, however, that if at the time of the offering of any rights the Depositary determines deter- mines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and . If the Depositary setting out determines in its discretion that it is not lawful and feasible to make such rights available to certain Owners, it may sell the procedure rights, war- rants or other instruments in proportion to be used the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of this Receipt and of the Deposit Agreement) for that distributionthe account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any Receipt or otherwise. In circumstances in which rights would otherwise The Depositary shall not be distributed, if responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. If an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (ai) the Company has elected in its sole discretion to permit such rights to be exercised and (bii) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably rea- sonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon Upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States lawsOwner Restricted Receipts. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect or any other applicable law of the securities to which any rights relate is required in order for the Company to offer such rights to Owners and sell the securities received upon the exercise of such rights to Owners, the Depositary will not offer such rights to Owners unless and until such a distribution registration statement is in effect, or unless the offering and sale of such rights or securities to all Owners or are registered of such Receipts is exempt from registration under the provisions of such Act; provided, that nothing in the Deposit Agreement . The Company shall create any have no obligation on the part of the Company to file a registration statement with respect to register such rights or underlying such securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Samples: Deposit Agreement (Shin Satellite Public Co LTD /Fi)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners Holders or in disposing of such rights on behalf of any Owners Holders and making the net proceeds available to such Owners Holders or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners Holders or dispose of such rights and make the net proceeds available to such OwnersHolders, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Holders or to certain Owners Holders but not to other OwnersHolders, the Depositary may, and at the request of the Company shall, may distribute to any Owner Holder to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such OwnerHolder, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner a Holder of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit AgreementHolder hereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner Holder upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner Holder has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. In the case of a distribution pursuant to this paragraph, such Receipts shall be legended in accordance with applicable U.S. laws, and shall be subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under such laws. If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersHolders, then upon instruction from such an Owner receipt of instructions pursuant to such warrants or other instruments to the Depositary from such Owner Holder to exercise such rights, upon payment by such Owner Holder to the Depositary for the account of such Owner Holder of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instrumentsinstruments or as may be requested by the Company to the Depositary in writing, the Depositary shall, on behalf of such OwnerHolder, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerHolder. As agent for such OwnerHolder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the this Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States lawsHolder. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell themHolders, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement 5.9 and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners Holders because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners Holders unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners Holders or are registered under the provisions of such Act; provided, however, that nothing in the Deposit Agreement shall create any obligation on the part of the Company shall have no obligation to file a any such registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effectivestatement. If an Owner a Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner Holder is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners Holders in general or any Owner Holder in particular.
Appears in 1 contract
Samples: Deposit Agreement (Quilmes Industrial Quinsa Societe Anonyme)
Rights. In consideration of these presents and insofar as any contributions of the event Camera Operator may give rise to the same the Camera Operator hereby grants and assigns to the Company exclusively by way of assignment of present and future copyright the entire unencumbered copyright and all other rights of whatsoever nature in and to all shots of the services of the Camera Operator hereunder throughout the world to hold the same unto the company absolutely for the full period of copyright therein including all renewals and extensions thereof and thereafter (insofar as the Camera Operator is able to grant and assign the same) in perpetuity. Further Assurance The Camera Operator shall at the Company's expense perform all such further acts, deeds and things and execute all such further deeds, documents and instruments a may from time to time be reasonably required to vest in or further assure to the Company all the rights herein expressed to be granted and assigned to the Company. Credit Provided that the Camera Operator shall fully perform all of her obligations hereunder the Camera Opertor shall receive a credit on the positive prints and/or tape of the Film and the company shall determine in its sole discretion the manner and size of such credits. No casual or inadvertent failure of this provision shall constitute or be deemed a breach of this agreement. [or set out specific credit i.e. " Camera Operator by "] Expenses The Company shall reimburse the Camera Operator for all expenses incurred by her relating to her services as Camera Operator and such expenses shall require the prior written approval of the Company. Right to Assign The Company shall be entitled to assign this agreement in whole or in part to any third party provided that the Company shall offer or cause to be offered to remain liable for all its obligations hereunder notwithstanding such assignment. Entire Agreement This agreement contains the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time entire agreement of the offering of any rights parties and may only be varied by written instrument signed by both parties. No Partnership Nothing herein contained shall be construed or deemed to constitute a partnership or joint venture between the Depositary determines in its discretion that it is lawful parties hereto and feasible to make such rights available to all or certain Owners but not to other Owners, save as expressly herein provided no party shall hold itself out as the Depositary may, and at the request agent of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate other. Governing Law This agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, read and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines construed in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable respects in accordance with Section 4.01 and shall be governed by the laws of England and the parties hereby submit to the jurisdiction of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particularEnglish Courts.
Appears in 1 contract
Samples: Camera Operators Agreement
Rights. In i. MEDIGEN will own the event that entire right, title and interest in and to the Company Licenced Technology as well as any and all MEDIGEN New Developments, subject only to Clause 9 of Schedule 3 hereto;
ii. If, at any time during the term of this Agreement any Sublicensee (or any of their respective employees, agents, or other persons acting under their authority) makes, develops, conceives, acquires, reduces to practice, becomes entitled to or secures control over any Improvement, MPP shall offer request such Sublicensee or any of their employee, agent or other person (each, an “Improvement Creator”) to communicate such Improvement to MEDIGEN in full together with all available information concerning the mode of working and using the same. MEDIGEN shall treat this information as Confidential Information;
iii. MPP shall, and shall cause any such Improvement Creator to grant to MEDIGEN a perpetual, irrevocable, worldwide, royalty free, non-exclusive licence to use any Improvement, Improvement Patent and related Know-How (and shall promptly execute and cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as MEDIGEN may reasonably request accordingly) in the Company has determined in its sole discretion are reasonably required under applicable lawField. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit MEDIGEN shall be madeentitled to grant sublicences (without further right to sublicence) under such licence only to its Affiliates; and/or contract manufacturers, distributors and depositary shares shall be delivered, under depositary arrangements which provide service providers solely for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such their engagement of Commercialising MEDIGEN products. No Improvement Creator shall have any rights and subject in relation to the terms conduct of any matter relating to the Patent Rights, including the filing, prosecution and conditions of maintenance thereof;
iv. If any suit or claim by a Third Party is instituted against MPP, WHO C-TAP or any Sublicensee for patent infringement involving the Deposit Agreement) for Products, MPP shall promptly notify MEDIGEN in writing. MEDIGEN shall have the account right, but not the obligation, to defend or to conduct the defense of such Owners otherwise suit or claim at its own expense. MPP shall and shall request WHO C-TAP (if relevant) and the relevant Licensee assist MEDIGEN and co-operate in any such litigation at MEDIGEN’s request and expense;
v. MEDIGEN (and in no circumstances MPP, WHO C-TAP nor any Sublicensee) shall be entitled to bring infringement actions in relation to the Patent Rights and Licensed Know-How at its own expense. To the extent MEDIGEN decides not to bring any such rightsinfringement action, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary MEDIGEN shall not be responsible for any failure liable to determine that it may be lawful or feasible to make such rights available to Owners in general MPP, WHO C-TAP, or any Owner Sublicensee in particularany respect for such decision. MPP shall, and shall request WHO C-TAP and each Sublicensee to, assist MEDIGEN and co-operate in any such litigation at MEDIGEN’s request without expense to the cooperating party.
Appears in 1 contract
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe sub- scribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion discre- tion as to the procedure to be followed in making such rights available to any Owners entitled thereto or in disposing of such rights on behalf of any such Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or for any other by reason it would be unlawful or unfeasible for of applicable law, the Depositary either to may neither make such rights available to any Owners or nor dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If ; provided, however, that if at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and . If the Depositary setting out determines in its discretion that it is not lawful and feasible to make such rights available to certain Owners, it may sell the procedure rights, warrants or other instruments in proportion to be used the number of American De- positary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of this Receipt and of the Deposit Agreement) for that distributionthe account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any Receipt or otherwise. In circumstances in which rights would otherwise The Depositary shall not be distributed, if responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. If an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (ai) the Company has elected in its sole discretion to permit such rights to be exercised and (bii) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon Upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States lawsOwner Restricted Receipts. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect or any other applicable law of the securities to which any rights relate is required in order for the Company to offer such rights to Owners and sell the securities received upon the exercise of such rights to Owners, the Depositary will not offer such rights to Owners unless and until such a distribution registration statement is in effect, or unless the offering and sale of such rights or securities to all Owners or are registered of such Receipts is exempt from registration under the provisions of such Act; provided, that nothing in the Deposit Agreement . The Company shall create any have no obligation on the part of the Company to file a registration statement with respect to register such rights or underlying such securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Samples: Deposit Agreement (Shin Satellite Public Co LTD /Fi)
Rights. In the event that the Company shall offer or cause to be offered (a) If rights are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary shallshould take in connection with that grant of rights. The Depositary may, after consultation with to the extent deemed by it to be lawful and practical, and on the conditions set forth in paragraphs (b), (c) or (d) below, as applicable (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under the Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is reasonably satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed .
(e) Payment or deduction of the fees of the Depositary as promptly as practicable provided in accordance with Section 4.01 5.9 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights Agreement and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners payment or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part deduction of the Company to file a registration statement with respect to such rights expenses of the Depositary and any applicable taxes or underlying other governmental charges shall be conditions of any delivery of securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding cash proceeds under Section 4.4 of that there has been no such registration under the Securities Act of 1933, Agreement.
(f) Neither the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for nor the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation Consultation with the Company, shall have reasonable discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary (following Consultation with the Company) shall allow the rights to lapse. If at the time of the any offering of any rights the Depositary Depositary, after Consultation with the Company, determines in its reasonable discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it reasonably determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it reasonably deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole reasonable discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole reasonable discretion are reasonably required under the Company’s Articles of Incorporation and applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, cancellation and transfer under applicable United States such laws, all in accordance with the Company’s instructions. If the Depositary reasonably determines in its discretion reasonable discretion, after Consultation with the Company, that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell themsuch rights, it may, and at the request of the Company will use reasonable efforts toshall, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has reasonably determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from or not subject to the registration provisions of such registrationAct. In exercising any reasonable discretion under Section 4.4 of the Deposit Agreement or this Article 14, the Depositary will engage in Consultation with the Company. The Company will have no obligation to the Depositary or any Owner under the Deposit Agreement or under this Receipt to register such rights under the Securities Act of 1933. The Depositary shall not make any determination without prior Consultation with and approval from the Company (which approval shall not be responsible for any failure unreasonably withheld) with respect to determine that whether it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Rights. To the extent that any of the Assets or any claim, right or benefit arising under or resulting from such Assets (collectively, the "Rights") is not capable of being transferred without the approval, consent or waiver of any third Person, or if the transfer of a Right would constitute a breach of any obligation under, or violation of, any applicable law unless the approval, consent or waiver of such third Person is obtained, then, except as expressly otherwise provided in this Agreement and without limiting the rights and remedies of Buyer contained elsewhere in this Agreement, this Agreement shall not constitute an agreement to transfer such Right unless and until such approval, consent or waiver has been obtained (which approval, consent or waiver shall be obtained at Company's cost). After the Closing and until all such Rights are transferred to Buyer, Company shall use its best efforts to: obtain such approvals, consents and waivers with respect to all Rights; maintain Company's existence and hold the Rights for Buyer; comply with the terms and provisions of the Rights as agent for Buyer for Buyer's benefit; cooperate with Buyer in any lawful arrangements designated by Buyer designed to provide the benefits of such Rights solely and exclusively to Buyer; enforce, at the request of Buyer and for the account of Buyer, any rights of Company arising from such Rights against any third Person, including the right to elect to terminate any such Rights in accordance with the terms of such Rights upon the written direction of Buyer; take any action at its own expense (subject to the terms of Section 8.01(f) if the Company's representations under Section 3.15 and/or 3.16 are inaccurate) relating to the Rights requested by Buyer; and not waive, alter or amend any obligations of third parties, whether expressly or impliedly without the written consent of Buyer. In the event order that the full value of the Rights may be realized for the benefit of Buyer, Company shall offer shall, at the request and under the direction of Buyer, in the name of Company or otherwise as Buyer may specify, take all such actions and do or cause to be offered done all such things in order that the obligations of Company under such Rights may be performed in such manner that the value of such Rights is preserved and inures to the holders benefit of Buyer; and Company shall not take any Deposited Securities any rights to subscribe for additional Shares action which would be inconsistent with, or any rights of any other naturediminish the value of, the Depositary shallRights to Buyer. At the end of each month after the Closing Date, after consultation Company shall supply Buyer with the Company, have discretion as written reports regarding all moneys collected by or paid to Company in respect of every such Right and shall promptly pay to Buyer all such moneys collected. With respect to the procedure Rights, Company agrees that Buyer may perform the services specified in the Rights on Company's behalf, pursuant to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distributionRights. In circumstances in which rights would otherwise not be distributedaddition, if an Owner requests the distribution of warrants or other instruments in order Company hereby consents for Buyer to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments collect payment for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution services rendered pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide Rights for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particularBuyer's own account.
Appears in 1 contract
Rights. In the event that (a) If rights (including Share subscription warrants (bons de souscription d’actions) issued by the Company shall offer or cause to be offered in lieu of rights) are granted to the holders Depositary in respect of any Deposited Securities any rights deposited Shares to subscribe for purchase additional Shares or any rights of any other naturesecurities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary shallshould take in connection with that grant of rights. The Depositary may, after consultation with to the extent deemed by it to be lawful and practical (i) if requested in writing by the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available grant to all or certain Owners but rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not to other Ownersexercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary mayshall permit the rights to lapse unexercised.
(b) If the Depositary will act under (a)(i) above, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary will enter into a separate agreement setting out forth the procedure to be used conditions and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable procedures applicable to the American Depositary Shares of such particular offering. Upon instruction from an applicable Owner under in the Deposit Agreement, form the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised specified and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such that Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares securities to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such that Owner, exercise the rights and purchase the Sharessecurities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under this Deposit Agreement and the Company shall deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares so purchased or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary on behalf has received an opinion of United States counsel that is satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.
(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon
(i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such Owner. As agent for such Ownerdocuments as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such those rights as requested by that Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. .
(d) If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Ownerswill act under (a)(iii) above, but that it is lawful and feasible to sell them, it may, and at the request of the Company Depositary will use reasonable efforts to, to sell the rights, warrants or other instruments rights in proportion to the number of American Depositary Shares held by the applicable Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate pay the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instrumentsthe rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both may enter into any arrangements with the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners Company or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation persons acting on the part behalf of the Company to file a registration statement with respect to effect the orderly disposal or such rights rights.
(e) Payment or underlying deduction of the fees of the Depositary as provided in Section 5.9 and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be conditions of any delivery of securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution payment of warrants or other instruments, notwithstanding that there has been no such registration cash proceeds under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. this Section 4.4.
(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In Whenever the event that Depositary shall receive timely notice from the Company shall offer or cause of its intent to be offered distribute to the holders of any the Deposited Securities any rights to subscribe for additional Shares or any and specifying, inter alia, the record date applicable to holders of Deposited Securities entitled to receive such distribution and indicating that the Company wishes that such rights be made available to Owners of any other natureADSs, the Depositary shall, after shall establish an ADS record date upon the terms described in Section 4.06. After consultation with the Company, the Depositary shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making making, as promptly as practicable, the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason reason, it would be unlawful or unfeasible impracticable for the Depositary to either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines determines, after consultation with the Company, in its reasonable discretion that it is lawful and feasible practicable to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasiblepracticable, in proportion to the number of American Depositary Shares ADSs held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares ADSs of such Owner under the Deposit Agreementhereunder, the Depositary will, as will promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner to the Depositary to exercise such rights, pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rightsinstruments, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, issue and deliver American Depositary Shares ADSs to such Owner. In the case of a distribution pursuant No Single Owner Or Beneficial Owner shall be entitled to any rights to subscribe for additional Shares if and to the second paragraph extent the total number of this Article 13Shares represented by ADSs beneficially owned by such Owner or Beneficial Owner, when aggregated with all other Shares beneficially owned by such deposit shall be madeOwner or Beneficial Owner (including Shares beneficially owned by Affiliated Owners of such Owner or Beneficial Owner), exceeds the limits under the Company’s Articles of Incorporation and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States lawslaw. If the Depositary reasonably determines in its reasonable discretion that it is not lawful and feasible or practicable to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it the Depositary may, and at the request of the Company will shall, use its best efforts that are reasonable efforts tounder the circumstances to (in either case, only to the extent lawfully permitted to do so), sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares ADSs held by the Owners to whom it has determined it may not lawfully or feasibly practicably make such rights available, and . The Depositary shall allocate the any net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement 5.09, any other expenses in connection with such sale and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares ADS or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 hereof. If such sale can be effected only with the approval or license of the Deposit AgreementKorean government or any agency thereof, the Depositary shall file as promptly as practicable an application for such approval or license; provided, however, that the Depositary shall be entitled to rely upon Korean counsel in such matters, which counsel shall be instructed to act as promptly as possible. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that that, nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of ADSs requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company Company, upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible practicable to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, will have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall will allow the rights to lapse. If ; provided, however, if at the time of the offering of any rights the Depositary determines in its discretion discretion, after consultation with the Company, that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary mayDepositary, and at after consultation with the request of the Company shallCompany, may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares representing such Deposited Securities evidenced by Receipts held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion discretion, after consultation with the Company, that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or Receipts or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner or Owners in particular. If an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner hereunder, the Depositary will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. Upon instruction pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees of the Depositary as set forth in such warrants or other instruments, the Depositary will, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company will cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and will, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver to such Owner Receipts. If registration under the Securities Act of the securities to which any rights relate is required in order for the Company to offer such rights to Owners and sell the securities upon the exercise of such rights to Owners, the Depositary will not offer such rights to the Owners having an address in the United States unless and until such a registration statement is in effect, or unless the offering and sale of such securities to the Owners of such Receipts are exempt from registration under the provisions of such Act. Notwithstanding any terms of the Deposit Agreement to the contrary, the Company will have no obligation to prepare and file a registration statement for any purpose.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, (after consultation Consultation with the Company, Company to the extent practicable) shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or or, for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and . If the Depositary setting out determines in its discretion that it is not lawful and feasible to make such rights available to certain Owners, it may sell the procedure rights or warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees of the Depositary as provided in Section 5.9 of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any Receipt or otherwise. The Depositary shall not be used and the terms and conditions responsible for any failure to determine that distributionit may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such an Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13section, such deposit Receipts shall be madelegended in accordance with appropriate U.S. law, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, cancellation and transfer provided under applicable United States lawsthe Deposit Agreement. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, provided that nothing in the Deposit Agreement shall create any obligation on the part of the Company shall have no obligation to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. 15.
Appears in 1 contract
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation shall have discretion following Consultation with the Company, have discretion Company as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion determines, following Consultation with the Company, that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant or employ such other methods as it may deem feasible in order to a separate agreement to be entered into between facilitate the Company and exercise, sale or transfer of rights by such Owners or the Depositary setting out the procedure to be used and the terms and conditions for that distributionsale or resale of Securities obtainable upon exercise of such rights by such Owners. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, cancellation and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such the Securities Act; provided, provided that nothing in the Deposit Agreement shall create create, or shall be construed to create, any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under such the Securities Act of 1933Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized U.S. counsel in the United States for the Company Company, which counsel shall be reasonably satisfactory to the Depositary, upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. 15.
Appears in 1 contract
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, if practicable, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners as promptly as practicable or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary reasonably determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, after consultation with the Company, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary will, as promptly as practicable, will make such rights available to such Owner as promptly as practicable upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the this Deposit Agreement, and shall, pursuant to Section 2.03 of the this Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13section, the Depositary shall cause such deposit shall Shares to be made, deposited and depositary shares shall receipts to be delivered, executed and delivered under depositary arrangements which provide a separate deposit agreement to be entered into between the Company and the Depositary providing for issuance of depositary shares receipts subject to the appropriate restrictions on sale, deposit, cancellation, deposit and withdrawal of Shares and transfer under applicable of depositary shares as required by United States securities laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will shall, use reasonable efforts to, to sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed delivered as promptly as practicable in accordance with Section 4.01 of the Deposit Agreementhereof. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either not subject to, or exempt from from, the registration under requirements of the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such the Securities Act; provided, however, that nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States counsel for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Rights. In (a) If any Consent set forth in Seller Disclosure Schedule 3.3 is not obtained by the event that Seller Parties on or before the Company shall offer or cause to be offered to Closing, then, on and after the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other natureClosing unless and until such Consent is obtained, the Depositary shall, after consultation with the Company, have discretion as to the procedure rights, assets, benefits or remedies (collectively, the “Rights”) not assignable to the Buyer Parties because such Consent has not been obtained:
(i) the applicable Seller Party shall hold the Rights in trust for the benefit of the Buyer Parties;
(ii) subject to clause (iv), the applicable Seller Party shall, at the request and under the direction of the Partnership, take all such actions and do all such things, at such Seller Party’s expense, as shall in the opinion of the Partnership, be followed reasonably necessary or desirable in making order that the obligations of the applicable Seller Party under such rights available Rights may be performed in a manner such that the value of the Rights shall be preserved and shall inure to any Owners or the benefit of the applicable Buyer Party and such that all such Rights may be received by the applicable Buyer Party;
(iii) the applicable Seller Party shall promptly tender over to the applicable Buyer Party all such Rights received by such Seller Party in disposing respect of such rights Rights; and
(iv) the applicable Buyer Party shall make all payment obligations under such Rights and, unless prohibited by the third party, shall perform the non-payment obligations under such Rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and applicable Seller Party.
(b) With respect to any Consent set forth in Seller Disclosure Schedule 3.3 not obtained by the Seller Parties on or before the Closing, the Seller Parties shall use commercially reasonable efforts to obtain such Owner has executed Consent following the Closing. The Parties shall reasonably cooperate with each other in obtaining such documents as Consents and shall keep each other reasonably informed of the Company has determined in its sole discretion are reasonably required under applicable lawstatus of and any developments with respect to obtaining such Consents. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from The commercially reasonable costs of obtaining such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary Consents shall be for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particularSeller Parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Holly Energy Partners Lp)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible infeasible for the Depositary to either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out establishing the procedure to be used and the terms procedures and conditions for applicable to that distributionparticular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In ; provided, however, that in the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall may be made, and depositary shares shall may be delivered, under other depositary arrangements to be entered into between the Company and the Depositary which provide for issuance of depositary shares which shall be legended in accordance with applicable United States laws and shall be subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws, including without limitation, circumstances as provided in Section 2.12 of the Deposit Agreement. An Owner or Holder shall not be entitled to any rights to subscribe for additional Shares if and to the extent that the number of Shares represented by American Depositary Shares beneficially owned by such Owner or Holder, when aggregated with all other Shares beneficially owned by such Owner or Holder (including Shares beneficially owned by affiliates of such Owner or Holder), exceeds four (4) percent of the aggregated number of shares with voting rights of the Company issued and outstanding. If the Depositary reasonably determines in its discretion discretion, after consultation with the Company to the extent practicable, that it is not lawful and or feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it the Depositary may, and at the request of the Company will shall use its best efforts that are reasonable efforts under the circumstances to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The If such sale can be effected only with the approval or license of the Korean government or any agency thereof, the Depositary shall file as promptly as practicable such application for approval or license as it may deem reasonable and practicable in its sole discretion. Except as provided in the third preceding paragraph, the Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallshall have discretion, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shallCompany's written request, shall distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems as it and the Company deem appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out forth the procedure to be used and the terms procedures and conditions for that distributionwill apply to that particular offering. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion reasonable judgment that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will shall, use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such All such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Notwithstanding anything to the contrary in the Deposit Agreement or any Receipt, the Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or for any other by reason it would be unlawful or unfeasible for of applicable law, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary mayDepositary, and at after consultation with the request of the Company shallCompany, distribute may distribute, to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If After consultation with the Company, if the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended, if required, in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its reasonable discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such No distributions of rights or the net proceeds of any sale of rights to Owners shall be distributed as promptly as practicable in accordance with Section 4.01 unreasonably delayed by any action of the Deposit AgreementDepositary or any of its agents. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, provided that nothing in the Deposit Agreement shall will create or be construed to create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Rights. In (i) To the event extent the Company so instructs and timely furnishes to the Depositary evidence (the Company having no obligation to so furnish such evidence) satisfactory to the Depositary (which may include a written opinion from U.S. counsel to the Company) that the Company shall offer Depositary may lawfully distribute the same, warrants or cause other instruments representing rights to be offered to the holders acquire additional ADRs in respect of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, nature available to the Depositary shallas a result of a distribution on Deposited Securities ("Rights"), or (ii) to the extent the Company does not furnish such evidence and/or so instructs the Depositary and sales of Rights are practicable as determined by the Depositary after consultation with the CompanyCompany (which sales shall be effected as promptly as practicable and, have discretion as to the procedure to be followed in making such rights extent practicable, on the principal Austrian stock exchange on which the Shares are traded) , any U.S. dollars available to any Owners or in disposing of such rights on behalf of any Owners and making the Depositary constituting the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for the Depositary either to make such rights available to any Owners or dispose sales of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary willRights, as promptly as practicablein the case of Cash, make such rights available to such Owner upon written notice from the Company to the Depositary that or (aiii) the Company has elected in its sole discretion to permit such rights to be exercised failing either (i) or (ii), nothing (and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable lawany Rights may lapse). If the Depositary has distributed warrants or other instruments for rights to all or certain OwnersHolders, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner Holders to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, rights and upon payment of such Holders to the Depositary of all amounts in connection therewith, the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such OwnerHolders, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such OwnerHolders. As agent for such OwnerHolders, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver American Depositary Shares ADRs to such OwnerHolders. In the case of a distribution pursuant to the second paragraph of this Article 13previous paragraph, such deposit ADRs shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Samples: Deposit Agreement (Osterreichische Elektrizitatswirtschafts /Fi)
Rights. In the event that the Company shall offer or cause to be offered to the holders Beneficial Owners of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shallDepositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or, if by the terms of such rights offering or or, for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If ; provided, however, if at the time of the offering of any rights the Depositary determines in its discretion discretion, after consultation with the Company, that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary Depositary, after consultation with the Company may, and at the request of the Company shall, distribute distribute, to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it reasonably deems appropriate. If the Depositary determines in its discretion, but only pursuant after consultation with the Company, that it is not lawful and feasible to a separate agreement make such rights available to be entered into between certain Owners, it may, and at the request of the Company will use its reasonable best efforts to, sell the rights or warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees of the Depositary setting out as provided in Section 5.09 of the procedure Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any Receipt or otherwise. Neither the Depositary nor the Company shall be used and the terms and conditions responsible for any failure to determine that distributionit may be lawful or feasible to make such rights available to Owners in general or any Owner in particular. In circumstances in which rights would otherwise not be distributed, if If an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, as promptly as practicable, will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon Upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.Section
Appears in 1 contract
Rights. In the event that Whenever the Company shall offer or cause intends to be offered distribute to the holders of any the Deposited Securities any rights to subscribe for additional Shares Shares, the Company shall give notice thereof to the Depositary at least sixty (60) days prior to the proposed distribution specifying, inter alia, the record date applicable to holders of Deposited Securities entitled to receive such distribution and whether or any not it wishes such rights to be made available to Owners of any other natureAmerican Depositary Shares. Upon the timely receipt of a notice indicating that the Company wishes such rights to be made available to Owners of American Depositary Shares, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making making, as promptly as practicable, the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines determines, after consultation with the Company, in its reasonable discretion that it is lawful and feasible practicable to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, and at the request of the Company shall, may distribute to any Owner to whom it determines the distribution to be lawful and feasiblepracticable, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreementhereunder, the Depositary willwill make such rights available to such Owner, as promptly as practicable, make such rights available to such Owner only upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses charges of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited deposited, as promptly as practicable, pursuant to Section 2.02 of the this Deposit Agreement, and shall, as promptly as practicable, pursuant to Section 2.03 of the this Deposit Agreement, issue and deliver American Depositary Shares the corresponding ADSs to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13section, such deposit ADSs shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion reasonable discretion, after consultation with the Company, that it is not lawful and feasible practicable to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly practicably make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses charges of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares ADS or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that that, nothing in the this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of ADSs requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company Company, upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible practicable to make such rights available to Owners in general or any Owner in particular.
Appears in 1 contract
Rights. In the event that the Company Issuer shall offer or distribute or cause to be offered or distributed to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Issuer will give notice thereof to the Depositary shallat least 45 days prior to the proposed distribution stating whether or not it wishes such rights to be made available to Owners. Upon receipt by the Depositary of a notice that the Issuer wishes such rights to be made available to the Owners and receipt by the Depositary of satisfactory documentation within the terms of Section 5.7 of the Deposit Agreement, after consultation with the Company, have discretion as Issuer and the Depositary will consult to the extent practicable to determine the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible reasonably practicable to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary may, after consultation with the Company and at subject to the request approval of the Company shallCompany, which approval shall not be unreasonably withheld, and to the Depositary’s receipt of satisfactory documentation within the terms of Section 5.7 of the Deposit Agreement, distribute to any Owner to whom it determines the distribution to be lawful and feasiblereasonably practicable, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will, will as promptly as practicable, practicable make such rights available for delivery to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and warrants or other instruments to be distributed and (b) such Owner has executed such documents as the Company has determined in its sole discretion consultation with the Depositary are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares. Thereafter, and the Company Issuer shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States such laws. If the Depositary reasonably determines in its discretion that it is not lawful and feasible reasonably practicable to make such rights available to all or certain Owners, but that it is lawful and feasible reasonably practicable to sell themthose rights, after consultation with the Issuer and approval by the Issuer (such approval not to be unreasonably withheld), it may, and at the request of the Company will shall use reasonable efforts to, to sell the rights, warrants or other instruments instruments, in a riskless principal capacity or otherwise, by public or private sale and upon such terms as it may reasonably deem proper, in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly reasonably practicably make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Article 9 hereof and Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such Any such cash proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 4.1 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 Act, or any other applicable law, with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights Act or underlying securities or to endeavor to have such a registration statement declared effectiveother applicable law. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933or other applicable law, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in such legal opinions as are required under Section 5.7 of the United States for Deposit Agreement, unless waived by the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registrationDepositary. The Depositary shall not be responsible for (i) any failure to determine that it may be lawful or feasible reasonably practicable to make such rights available to Owners in general or any Owner in particular, (ii) any foreign exchange exposure or loss incurred in connection with any sale or exercise of such rights or (iii) the content of any materials forwarded to the Owners on behalf of and at the request of the Issuer in connection with the rights distribution. There can be no assurance that Owners generally, or any Owner in particular, will be given the opportunity to receive or exercise rights on the same terms and conditions as the holders of Shares or be able to exercise such rights. Nothing herein shall obligate the Issuer to file any registration statement in respect of any rights or Shares or other securities to be acquired upon the exercise of such rights.
Appears in 1 contract
Rights. In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making making, as promptly as practicable, the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason it would be unlawful or unfeasible for reason, the Depositary may not either to make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines determines, after consultation with the Company, in its reasonable discretion that it is lawful and feasible to make such rights available to all Owners or to certain Owners but not to other Owners, the Depositary maymay distribute, and at the request of the Company shall, distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it deems appropriate, but only pursuant to a separate agreement to be entered into between the Company and the Depositary setting out the procedure to be used and the terms and conditions for that distribution. In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary willwill make such rights available to such Owner, as promptly as practicable, make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law. If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited deposited, as promptly as practicable, pursuant to Section 2.02 2.2 of the Deposit Agreement, and shall, as promptly as practicable, pursuant to Section 2.03 2.3 of the Deposit Agreement, execute and deliver American Depositary Shares Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13Article, such deposit Receipts shall be madelegended in accordance with applicable U.S. laws, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, cancellation and transfer under applicable United States such laws. If the Depositary reasonably determines in its reasonable discretion that it is not lawful and feasible to make such rights available to all or certain Owners, but that it is lawful and feasible to sell them, it may, and at the request of the Company will use reasonable efforts to, may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.09 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares Receipt or otherwise. Such proceeds shall be distributed as promptly as practicable in accordance with Section 4.01 4.1 of the Deposit Agreement. The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided, that that, nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933such Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration. The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.
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Samples: Deposit Agreement (Skyepharma PLC)