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AMENDED AND RESTATED DEPOSIT AGREEMENT
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by and among
BENETTON GROUP S.p.A.
as Issuer
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of March [ ], 2008
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WHITE & CASE LLP
0 Xxx Xxxxx Xxxxxx
Xxxxxx
XX0X 0XX
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..........................................................4
SECTION 1.1 "Affiliate".........................................................4
SECTION 1.2 "Agent".............................................................5
SECTION 1.3 "Alien Board Shares"................................................5
SECTION 1.4 "American Depositary Share(s)" and "ADS(s)".........................5
SECTION 1.5 "ADS Record Date"...................................................5
SECTION 1.6 "Beneficial Owner"..................................................5
SECTION 1.7 "Business Day"......................................................5
SECTION 1.8 "Commission"........................................................5
SECTION 1.9 "Company"...........................................................5
SECTION 1.10 "Custodian"........................................................5
SECTION 1.11 "Deliver" and "Delivery"...........................................5
SECTION 1.12 "Deposit Agreement"................................................6
SECTION 1.13 "Depositary".......................................................6
SECTION 1.14 "Deposited Securities".............................................6
SECTION 1.15 "Dollars", "$" and "U.S."..........................................6
SECTION 1.16 "DRS/Profile"......................................................6
SECTION 1.17 "DTC"..............................................................6
SECTION 1.18 "Exchange Act".....................................................6
SECTION 1.19 "euro".............................................................6
SECTION 1.20 "Foreign Currency".................................................6
SECTION 1.21 "Foreign Registrar"................................................6
SECTION 1.22 "Holder"...........................................................6
SECTION 1.23 "Indemnified Person" and "Indemnifying Person".....................6
SECTION 1.24 "Pre-Release"......................................................7
SECTION 1.25 "Principal Office".................................................7
SECTION 1.26 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"........7
SECTION 1.27 "Registrar"........................................................7
SECTION 1.28 "Restricted Securities"............................................7
SECTION 1.29 "Securities Act"...................................................7
SECTION 1.30 "Shares"...........................................................7
SECTION 1.31 "United States" or "U.S."..........................................8
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPT; DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS..........................8
SECTION 2.1 Appointment of Depositary...........................................8
SECTION 2.2 Form and Transferability of Receipts................................8
SECTION 2.3 Deposits............................................................9
SECTION 2.4 Execution and Delivery of Receipts.................................11
SECTION 2.5 Transfer of Receipts; Combination and Split-up of Receipts.........11
SECTION 2.6 Surrender of Receipts and Withdrawal of Deposited Securities.......12
SECTION 2.7 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc. .............................. 13
SECTION 2.8 Lost Receipts, etc.................................................14
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records..........................................................14
SECTION 2.10 Pre-Release.......................................................14
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ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS.......15
SECTION 3.1 Proofs, Certificates and Other Information.........................15
SECTION 3.2 Liability for Taxes and Other Charges..............................15
SECTION 3.3 Representations and Warranties on Deposit of Shares................16
SECTION 3.4 Compliance with Information Requests...............................16
ARTICLE IV THE DEPOSITED SECURITIES................................................17
SECTION 4.1 Cash Distributions.................................................17
SECTION 4.2 Distribution in Shares.............................................18
SECTION 4.3 Elective Distributions in Cash or Shares...........................18
SECTION 4.4 Distribution of Rights to Purchase Shares..........................19
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares.................................................................21
SECTION 4.6 Conversion of Foreign Currency.....................................21
SECTION 4.7 Fixing of Record Date..............................................22
SECTION 4.8 Voting of Deposited Securities.....................................22
SECTION 4.9 Changes Affecting Deposited Securities.............................23
SECTION 4.10 Available Information.............................................24
SECTION 4.11 Reports...........................................................24
SECTION 4.12 List of Holders...................................................24
SECTION 4.13 Taxation; Withholding.............................................24
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.......................25
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar..........25
SECTION 5.2 Exoneration........................................................26
SECTION 5.3 Standard of Care...................................................26
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary............................................................27
SECTION 5.5 The Custodian......................................................28
SECTION 5.6 Notices and Reports................................................29
SECTION 5.7 Issuance of Additional Shares, ADSs etc............................29
SECTION 5.8 Indemnification....................................................30
SECTION 5.9 Fees and Charges of Depositary.....................................31
SECTION 5.10 Restricted Securities Owners......................................32
ARTICLE VI AMENDMENT AND TERMINATION...........................................33
SECTION 6.1 Amendment/Supplement...............................................33
SECTION 6.2 Termination........................................................33
SECTION 7.1 Counterparts.......................................................34
SECTION 7.2 No Third-Party Beneficiaries.......................................34
SECTION 7.3 Severability.......................................................35
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect...........35
SECTION 7.5 Notices............................................................35
SECTION 7.6 Governing Law and Jurisdiction.....................................36
SECTION 7.7 Assignment.........................................................37
SECTION 7.8 Agents.............................................................37
SECTION 7.9 Exclusivity........................................................37
SECTION 7.10 Compliance with U.S. Securities Laws..............................37
SECTION 7.11 Titles............................................................37
EXHIBIT A [FORM OF FACE OF RECEIPT]...........................................A-1
EXHIBIT B [FORM OF REVERSE OF RECEIPT]........................................B-1
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DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of March [_], 2008, by and
among (i) BENETTON GROUP S.p.A., a company incorporated under the laws of The
Republic of Italy, and its successors (the "Company"), (ii) DEUTSCHE BANK TRUST
COMPANY AMERICAS, an indirect wholly owned subsidiary of Deutsche Bank A.G.,
acting in its capacity as depositary, and any successor depositary hereunder
(the "Depositary"), and (iii) all Holders and Beneficial Owners of American
Depositary Shares evidenced by American Depositary Receipts issued hereunder
(all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company and XX Xxxxxx Xxxxx Bank (as successor to Xxxxxx
Guaranty Trust Company of New York) (the "Predecessor Depositary") are party to
a Deposit Agreement dated as of February 2, 1987, as amended from time to time
(the "Original Agreement") for the purposes set forth therein;
WHEREAS, by written notice dated February 7, 2008 addressed to the
Predecessor Depositary, the Company, pursuant to Section 5.04 of the Original
Agreement, has removed the Predecessor Depositary under the Original Agreement;
WHEREAS, the Company and the Predecessor Depositary have agreed that the
Predecessor Depositary will be removed as depositary under the Original
Agreement with effect from the date hereof;
WHEREAS, the Company has appointed Deutsche Bank Trust Company Americas as
Depositary in accordance with and subject to the conditions of the Original
Agreement, as amended and restated by this Agreement;
WHEREAS, the Company and the Depositary have agreed that the Predecessor
Depositary shall deliver to the Depositary the information, right, title and
interest referred to in Section 5.04 of the Original Agreement; and
WHEREAS, Deutsche Bank Trust Company Americas has accepted its appointment
as Depositary in accordance with and subject to the conditions of the Original
Agreement, as amended and restated by this Agreement;
NOW, THEREFORE, in consideration of the premises, the Company and the
Depositary hereby amend and restate the Original Agreement and the form of
Receipt as follows:
ARTICLE I
DEFINITIONS
In this Deposit Agreement, the following terms, shall have the meanings
specified below, unless otherwise clearly indicated:
SECTION 1.1 "Affiliate" shall have the meaning assigned to such term by the
Commission under Regulation C promulgated under the Securities Act.
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SECTION 1.2 "Agent" shall mean such entity or entities as the Depositary
may appoint under Section 7.8 hereof, including the Custodian or any successor
or addition thereto.
SECTION 1.3 "Alien Board Shares" shall mean Shares of the Company which may
be held and traded by non-Italian nationals, or any equivalent mechanism which
clearly defines the acquisition, ownership and sale of Shares by non-Italian
nationals.
SECTION 1.4 "American Depositary Share(s)" and "ADS(s)" American Depositary
Share(s) shall mean the securities representing the rights and interests in the
Deposited Securities granted to the Holders and Beneficial Owners pursuant to
the terms and conditions of this Deposit Agreement and evidenced by the American
Depositary Receipts issued hereunder. Each American Depositary Share shall
represent the right to receive two Shares, until there shall occur a
distribution upon Deposited Securities referred to in Section 4.2 hereof or a
change in Deposited Securities referred to in Section 4.9 hereof with respect to
which additional American Depositary Receipts are not executed and delivered,
and thereafter each American Depositary Share shall represent the Shares or
Deposited Securities specified in such Sections.
SECTION 1.5 "ADS Record Date" shall have the meaning given to such term in
Section 4.7 hereof.
SECTION 1.6 "Beneficial Owner" shall mean as to any ADS, any person or
entity having a beneficial interest in any ADSs. A Beneficial Owner need not be
the Holder of the ADR evidencing such ADSs. A Beneficial Owner may exercise any
rights or receive any benefits hereunder solely through the Holder of the ADR(s)
evidencing the ADSs in which such Beneficial Owner has an interest.
SECTION 1.7 "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not (a) a day on which banking institutions in the
Borough of Manhattan, The City of New York are authorized or obligated by law or
executive order to close and (b) a day on which the market(s) in which ADSs are
traded are closed.
SECTION 1.8 "Commission" shall mean the United States Securities and
Exchange Commission or any successor governmental agency in the United States.
SECTION 1.9 "Company" shall mean Benetton Group S.p.A., a company
incorporated and existing under the laws of The Republic of Italy, and its
successors.
SECTION 1.10 "Custodian" shall mean, as of the date hereof, BNP Paribas
Securities Services, having its principal office at Milan Branch, Xxx Xxxxxxxx
0, 00000 Xxxxx, Xxxxx, as the custodian for the purposes of this Deposit
Agreement, and any other firm or corporation which may hereinafter be appointed
by the Depositary pursuant to the terms of Section 5.5 hereof as a successor or
an additional custodian or custodians hereunder, as the context shall require.
The term "Custodian" shall mean all custodians, collectively.
SECTION 1.11 "Deliver" and "Delivery" shall mean, when used in respect of
American Depositary Shares, Receipts, Deposited Securities and Shares, the
physical delivery of the certificate representing such security, or the
electronic delivery of such security by means of book-entry transfer, as
appropriate, including, without limitation, through DRS/Profile. With respect to
DRS/Profile ADRs, the terms "execute", "issue",
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"register", "surrender", "transfer" or "cancel" refer to applicable entries or
movements to or within DRS/Profile.
SECTION 1.12 "Deposit Agreement" shall mean this Amended and Restated
Deposit Agreement and all Exhibits hereto, as the same may from time to time be
amended and supplemented in accordance with the terms hereof.
SECTION 1.13 "Depositary" shall mean Deutsche Bank Trust Company Americas,
an indirect wholly owned subsidiary of Deutsche Bank AG, in its capacity as
depositary under the terms of this Deposit Agreement, and any successor
depositary hereunder.
SECTION 1.14 "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received or deemed to be
received by the Depositary or the Custodian in respect thereof and held
hereunder, subject, in the case of cash, to the provisions of Section 4.6
hereof. The collateral delivered in connection with Pre-Release Transactions
described in Section 2.10 hereof shall not constitute Deposited Securities.
SECTION 1.15 "Dollars", "$" and "U.S." shall refer to the lawful currency
of the United States.
SECTION 1.16 "DRS/Profile" means the system for the uncertificated
registration of ownership of securities pursuant to which ownership of ADSs is
maintained on the books of the Depositary without the issuance of a physical
certificate and transfer instructions may be given to allow for the automated
transfer of ownership between the books of DTC and the Depositary. Ownership of
ADSs held in DRS/Profile are evidenced by periodic statements issued by the
Depositary to the Holders entitled thereto, and "DTC Participants" shall mean
holders, directly or indirectly, of accounts with DTC.
SECTION 1.17 "DTC" shall mean The Depository Trust and Clearing
Corporation, the central book-entry clearinghouse and settlement system for
securities traded in the United States, and any successor thereto.
SECTION 1.18 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.19 "euro" shall refer to the lawful currency of the European
Union.
SECTION 1.20 "Foreign Currency" shall mean any currency other than Dollars.
SECTION 1.21 "Foreign Registrar" shall mean the entity, if any, that
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.22 "Holder" shall mean the person in whose name a Receipt is
registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. A Holder shall
be deemed to have all requisite authority to act on behalf of those Beneficial
Owners of the ADRs registered in such Holder's name.
SECTION 1.23 "Indemnified Person" and "Indemnifying Person" shall have the
meaning set forth in Section 5.8. hereof.
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SECTION 1.24 "Pre-Release" shall have the meaning set forth in Section 2.10
hereof.
SECTION 1.25 "Principal Office" when used with respect to the Depositary,
shall mean the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of this Deposit Agreement, is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
SECTION 1.26 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"
shall mean the certificate(s) or DRS/Profile statements issued by the Depositary
evidencing the American Depositary Shares issued under the terms of this Deposit
Agreement, as such Receipts may be amended from time to time in accordance with
the provisions of this Deposit Agreement. References to Receipts shall include
physical certificated Receipts as well as ADSs issued through DRS/Profile,
unless the context otherwise requires.
SECTION 1.27 "Registrar" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary to register ownership of Receipts and
transfer of Receipts as herein provided, shall include any co-registrar
appointed by the Depositary for such purposes. Registrars (other than the
Depositary) may be removed and substitutes appointed by the Depositary.
SECTION 1.28 "Restricted Securities" shall mean Shares, or American
Depositary Shares representing such Shares, which (i) have been acquired
directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and
subject to resale limitations under the Securities Act or the rules issued
thereunder, or (ii) are held by an officer or director (or persons performing
similar functions) or other Affiliate of the Company, or (iii) are subject to
other restrictions on sale or deposit under the laws of the United States, The
Republic of Italy or under a shareholders' agreement or the Company's Articles
of Association or under the regulations of an applicable securities exchange
unless, in each case, such Shares are being sold to persons other than an
Affiliate of the Company in a transaction (x) covered by an effective resale
registration statement or (y) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares are not, when held by
such persons, otherwise Restricted Securities.
SECTION 1.29 "Securities Act" shall mean the United States Securities Act
of 1933, as from time to time amended.
SECTION 1.30 "Shares" shall mean ordinary shares in registered form of the
Company, par value euro 1.30 each, heretofore validly issued and outstanding and
fully paid or hereafter validly issued and outstanding and fully paid.
References to Shares shall include evidence of rights to receive Shares, whether
or not stated in the particular instance; provided, however, that in no event
shall Shares include evidence of rights to receive Shares with respect to which
the full purchase price has not been paid or Shares as to which pre-emptive
rights have theretofore not been validly waived or exercised; provided further,
however, that if there shall occur any change in par value, split-up,
consolidation, exchange, reclassification, conversion or any other event
described in Section 4.9 hereof, in respect of the Shares of the Company, the
term "Shares" shall thereafter, to the extent permitted by law, represent the
successor securities resulting from such change in par value, split-up,
consolidation, exchange, conversion, reclassification or event.
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SECTION 1.31 "United States" or "U.S." shall mean the United States of
America.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPT; DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as exclusive depositary for the Deposited Securities and hereby
authorizes and directs the Depositary to act in accordance with the terms set
forth in this Deposit Agreement. Each Holder and each Beneficial Owner, upon
acceptance of any ADSs (or any interest therein) issued in accordance with the
terms of this Deposit Agreement, shall be deemed for all purposes to (a) be a
party to and bound by the terms of this Deposit Agreement and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in this Deposit Agreement,
to adopt any and all procedures necessary to comply with applicable law and to
take such action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement (the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof).
SECTION 2.2 Form and Transferability of Receipts.
(a) Definitive Receipts shall be substantially in the form set forth in
Exhibits A and B annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Receipts may be issued in
denominations of any number of American Depositary Shares. No definitive Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless such Receipt shall have been executed by the
Depositary by the manual or facsimile signature of a duly authorized signatory
of the Depositary. The Depositary shall maintain books on which each Receipt so
executed and delivered, in the case of definitive Receipts, and each Receipt
issued through the DRS/Profile, in either case as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts in certificated form
bearing the manual or facsimile signature of a duly authorized signatory of the
Depositary who was at any time a proper signatory of the Depositary shall bind
the Depositary, notwithstanding that such signatory has ceased to hold such
office prior to the execution and delivery of such Receipts by the Registrar or
did not hold such office on the date of issuance of such Receipts.
In addition to the foregoing, the Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications not
inconsistent with the provisions of this Deposit Agreement as may be reasonably
required by the Depositary in order to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which American Depositary Shares may be listed or to conform with
any usage with respect thereto or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the underlying Deposited Securities or otherwise.
Notwithstanding anything in this Deposit Agreement or in the Receipt to the
contrary, to the extent available by the Depositary, American Depositary Shares
shall be evidenced by Receipts issued through DRS/Profile unless certificated
Receipts are specifically requested by the Holder. Holders and Beneficial Owners
shall be bound by the terms and conditions of
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this Deposit Agreement and of the form of Receipt, regardless of whether their
Receipts are certificated or issued through DRS/Profile.
(b) Subject to the limitations contained herein and in the form of
Receipt, title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed (in the case of certificated Receipts) or upon
delivery to the Depositary of proper instruments of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument under the laws of the State of New York; provided, however, that the
Depositary, notwithstanding any notice to the contrary, may treat the Holder
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes and neither
the Depositary nor the Company will have any obligation or be subject to any
liability under this Deposit Agreement to any holder of a Receipt, unless such
holder is the Holder thereof.
SECTION 2.3 Deposits. (a) Subject to the terms and conditions of this
Deposit Agreement and applicable law, Shares or evidence of rights to receive
Shares (other than Restricted Securities) may be deposited by any person
(including the Depositary in its individual capacity but subject, however, in
the case of the Company or any Affiliate of the Company, to Section 5.7 hereof)
at any time, whether or not the transfer books of the Company or the Foreign
Registrar, if any, are closed, by Delivery of the Shares to the Custodian. Every
deposit of Shares shall be accompanied by the following: (A)(i) in the case of
Shares issued in registered form, appropriate instruments of transfer or
endorsement, in a form satisfactory to the Custodian, (ii) in the case of Shares
issued in bearer form, such Shares or the certificates representing such Shares
and (iii) in the case of Shares delivered by book-entry transfer, confirmation
of such book-entry transfer to the Custodian or that irrevocable instructions
have been given to cause such Shares to be so transferred, (B) such
certifications and payments (including, without limitation, the Depositary's
fees and related charges) and evidence of such payments (including, without
limitation, stamping or otherwise marking such Shares by way of receipt) as may
be required by the Depositary or the
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Custodian in accordance with the provisions of this Deposit Agreement, (C) if
the Depositary so requires, a written order directing the Depositary to execute
and deliver to, or upon the written order of, the person or persons stated in
such order a Receipt or Receipts for the number of American Depositary Shares
representing the Shares so deposited, (D) evidence satisfactory to the
Depositary (which may include an opinion of counsel reasonably satisfactory to
the Depositary provided at the cost of the person seeking to deposit Shares)
that all conditions to such deposit have been met and all necessary approvals
have been granted by, and there has been compliance with the rules and
regulations of, any applicable governmental agency in The Republic of Italy or
elsewhere and (E) if the Depositary so requires, (i) an agreement, assignment or
instrument satisfactory to the Depositary or the Custodian which provides for
the prompt transfer by any person in whose name the Shares are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such deposited
Shares or in lieu thereof, such indemnity or other agreement as shall be
satisfactory to the Depositary or the Custodian and (ii) if the Shares are
registered in the name of the person on whose behalf they are presented for
deposit, a proxy or proxies entitling the Custodian to exercise voting rights in
respect of the Shares for any and all purposes until the Shares so deposited are
registered in the name of the Depositary, the Custodian or any nominee. No Share
shall be accepted for deposit unless accompanied by confirmation or such
additional evidence, if any is required by the Depositary, that is reasonably
satisfactory to the Depositary or the Custodian that all conditions to such
deposit have been satisfied by the person depositing such Shares under the laws
and regulations of The Republic of Italy and any necessary approval has been
granted by any governmental body in The Republic of Italy, if any, which is then
performing the function of the regulator of currency exchange. The Depositary
may issue Receipts against evidence of rights to receive Shares from the
Company, any agent of the Company or any custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act, unless a
registration statement is in effect as to such Shares. The Depositary will use
commercially reasonable efforts to comply with reasonable written instructions
of the Company that the Depositary shall not accept for deposit hereunder any
Shares specifically identified in such instructions at such times and under such
circumstances as may reasonably be specified in such instructions in order to
facilitate the Company's compliance with the securities laws in The Republic of
Italy or in the United States.
(b) As soon as practicable after receipt of any permitted deposit
hereunder and compliance with the provisions of this Deposit Agreement, the
Custodian shall present the Shares so deposited, together with the appropriate
instrument or instruments of transfer or endorsement, duly stamped, to the
Foreign Registrar for transfer and registration of the Shares (as soon as
transfer and registration can be accomplished and at the expense of the person
for whom the deposit is made) in the name of the Depositary, the Custodian or a
nominee of either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee, in
each case for the account of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
(c) In the event any Shares are deposited which entitle the holders
thereof to receive a per-share distribution or other entitlement in an amount
different from the Shares then on deposit, the Depositary is authorized to take
any and all actions as may be necessary (including, without limitation, making
the necessary notations on Receipts) to give effect to the issuance of such ADSs
and to ensure that such ADSs are not fungible with other ADSs issued hereunder
until such time as the entitlement of the Shares represented by such
non-fungible ADSs equals that of the Shares represented by ADSs prior to the
original such deposit. The Company agrees to give timely written notice to the
Depositary if any Shares issued or to be issued contain rights different from
those of any other Shares theretofore issued and shall assist the Depositary
with the establishment of procedures enabling the identification of such
non-fungible Shares upon Delivery to the Custodian.
(d) Anything herein contained to the contrary notwithstanding, the
number of Shares on deposit hereunder may not equal or exceed 30% (or any other
percentage limitation imposed under Italian law, regulations or codes of
practice) of the total number of Shares outstanding from time to time (which
total number of Shares outstanding is currently approximately 182,679,012), and
the Company shall from time to time and upon request inform the Depositary in
writing of any increase or decrease in such total number and of any change in
Italian law relating to such limitation on deposits; provided, however, that,
notwithstanding any such decrease, the Depositary shall be under no obligation
to cause a corresponding decrease in the number of Shares on deposit hereunder.
The Depositary shall not be responsible for any change in the limit of Shares to
be accepted for deposit hereunder
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until it has received actual notice of such change in writing from the Company
and has had a reasonable opportunity to so notify the Custodian.
(e) Holders and Beneficial Owners shall make all necessary notifications
or filings and shall obtain, maintain, extend or renew all necessary approvals
from the relevant Government authority so as to remain at all times in
compliance with applicable rules and regulations of The Republic of Italy.
(f) Anything to the contrary contained herein notwithstanding, the only
type of Shares of the Company that will be accepted for deposit and that are
deliverable upon withdrawal are Alien Board Shares provided that is the Borsa
Italiana or the government of The Republic of Italy introduces a change which
would allow non-Italian nationals to own Shares other than Alien Board Shares,
or any equivalent mechanism, without violating any Italian laws generally
applicable thereto, the Company in its sole discretion may authorize the
Depositary in writing to take advantage of such change or liberalizing measure,
by allowing for the deposit of such Shares or otherwise as shall be determined
in the sole discretion of the Company.
SECTION 2.4 Execution and Delivery of Receipts. After the deposit of any
Shares pursuant to Section 2.2 hereof, the Custodian shall notify the Depositary
of such deposit and the person or persons to whom or upon whose written order a
Receipt or Receipts are deliverable in respect thereof and the number of
American Depositary Shares to be evidenced thereby. Such notification shall be
made by letter, first class airmail postage prepaid, or, at the request, risk
and expense of the person making the deposit, by cable, telex, SWIFT, facsimile
or electronic transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement (including, without limitation,
the payment of the fees, expenses, taxes and other charges owing hereunder),
shall issue the ADSs representing the Shares so deposited to or upon the order
of the person or persons named in the notice delivered to the Depositary and
shall execute and deliver a Receipt registered in the name or names requested by
such person or persons evidencing in the aggregate the number of American
Depositary Shares to which such person or persons are entitled. Nothing herein
shall prohibit any Pre-Release Transaction upon the terms set forth in this
Deposit Agreement.
SECTION 2.5 Transfer of Receipts; Combination and Split-up of Receipts.
(a) Transfer. The Depositary or, if a Registrar (other than the
Depositary) for the Receipts shall have been appointed, the Registrar, subject
to the terms and conditions of this Deposit Agreement, shall register transfers
of Receipts on its books, upon surrender at the Principal Office of the
Depositary of a Receipt by the Holder thereof in person or by duly authorized
attorney, properly endorsed in the case of a certificated Receipt or accompanied
by, or in the case of DRS/Profile Receipts receipt by the Depositary of, proper
instruments of transfer (including signature guarantees in accordance with
standard industry practice) and duly stamped as may be required by the laws of
the State of New York and of the United States and any other applicable law.
Subject to the terms and conditions of this Deposit Agreement, including payment
of the applicable fees and charges of the Depositary set forth in Section 5.9
hereof and Condition 9 of the form of Receipt annexed hereto, the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled thereto evidencing the same aggregate number of
American Depositary Shares as those evidenced by the Receipts surrendered.
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(b) Combination and Split Up. The Depositary, subject to the terms and
conditions of this Deposit Agreement shall, upon surrender of a Receipt or
Receipts for the purpose of effecting a split-up or combination of such Receipt
or Receipts and upon payment to the Depositary of the applicable fees and
charges set forth in Section 5.9 hereof and Condition 9 of the form of Receipt
annexed hereto, execute and deliver a new Receipt or Receipts for any authorized
number of American Depositary Shares requested, evidencing the same aggregate
number of American Depositary Shares as the Receipt or Receipts surrendered.
(c) Co-Transfer Agents. The Depositary may appoint one or more
co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other requirements
by Holders or persons entitled to such Receipts and will be entitled to
protection and indemnity, in each case to the same extent as the Depositary.
Such co-transfer agents may be removed and substitutes appointed by the
Depositary. Each co-transfer agent appointed under this Section 2.5 hereof
(other than the Depositary) shall give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
(d) At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated Receipt with a Receipt issued through DRS/Profile,
or vice versa, execute and deliver a certificated Receipt or DRS/Profile
statement, as the case may be, for any authorized number of American Depositary
Shares requested, evidencing the same aggregate number of American Depositary
Shares as those evidenced by the certificated Receipt or DRS/Profile statement,
as the case may be, substituted.
SECTION 2.6 Surrender of Receipts and Withdrawal of Deposited Securities.
Upon surrender, at the Principal Office of the Depositary, of American
Depositary Shares for the purpose of withdrawal of the Deposited Securities
represented thereby, and upon payment of (a) the fees and charges of the
Depositary for the making of withdrawals of Deposited Securities and
cancellation of Receipts (as set forth in Section 5.9 hereof and Condition 9 of
the form of Receipt annexed hereto and (b) all applicable taxes and governmental
charges payable in connection with such surrender and withdrawal, and subject to
the terms and conditions of this Deposit Agreement, the Company's Articles of
Association, Section 7.10 hereof and any other provisions of or governing the
Deposited Securities and other applicable laws, the Holder of such American
Depositary Shares shall be entitled to Delivery, to him or upon his order, of
the Deposited Securities at the time represented by the American Depositary
Shares so surrendered. American Depositary Shares may be surrendered for the
purpose of withdrawing Deposited Securities by delivery of a Receipt evidencing
such American Depositary Shares (if held in certificated form) or by book-entry
delivery of such American Depositary Shares to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) at the designated office of the Custodian or through a book
entry delivery of the Shares (in either case, subject to Sections 2.7, 3.1, 3.2,
5.9 hereof, and to the other terms and conditions
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of this Deposit Agreement, to the Company's Articles of Association, to the
provisions of or governing the Deposited Securities and to applicable laws, now
or hereafter in effect) to or upon the written order of the person or persons
designated in the order delivered to the Depositary as provided above, the
Deposited Securities represented by such American Depositary Shares, together
with any certificate or other proper documents of or relating to title of the
Deposited Securities as may be legally required, as the case may be, to or for
the account of such person.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares representing a number other than a whole
number of Shares. In the case of surrender of a Receipt evidencing a number of
American Depositary Shares representing other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares to be
Delivered in accordance with the terms hereof, and shall, at the discretion of
the Depositary, either (a) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing American Depositary Shares representing any
remaining fractional Share, or (b) sell or cause to be sold the fractional
Shares represented by the Receipt surrendered and remit the proceeds of such
sale (net of (i) applicable fees and charges of, and expenses incurred by, the
Depositary and (ii) taxes withheld) to the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering a Receipt,
and for the account of such Holder, the Depositary shall direct the Custodian to
forward (to the extent permitted by law) any cash or other property (other than
securities) held in respect of, and any certificate or certificates and other
proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission. Upon receipt by the
Depositary, the Depositary may make delivery to such person or persons entitled
thereto at the Principal Office of the Depositary of any dividends or cash
distributions with respect to the Deposited Securities represented by such
American Depositary Shares, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
SECTION 2.7 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution
and delivery, registration, registration of transfer, split-up, combination or
surrender of any Receipt, the delivery of any distribution thereon or withdrawal
of any Deposited Securities, the Depositary or the Custodian may require (a)
payment from the depositor of Shares or presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees and charges of the Depositary as provided in
Section 5.9 hereof and Condition 9 of the form of Receipt annexed hereto, (b)
the production of proof satisfactory to it as to the identity and genuineness of
any signature or any other matter contemplated by Section 3.1 hereof and (c)
compliance with (i) any laws or governmental regulations relating to the
execution and delivery of Receipts or American Depositary Shares or to the
withdrawal or delivery of Deposited Securities and (ii such reasonable
regulations as the Depositary may establish consistent with the provisions of
this Deposit Agreement and applicable law.
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(b) Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be suspended, or
the issuance of ADSs against the deposit of particular Shares may be withheld,
or the registration of transfer of Receipts in particular instances may be
refused, or the registration of transfers of Receipts generally may be
suspended, during any period when the transfer books of the Depositary are
closed or if any such action is deemed necessary or advisable by the Depositary
or the Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange on which the ADSs or Shares are listed, or under any
provision of this Deposit Agreement or provisions of, or governing, the
Deposited Securities, or any meeting of shareholders of the Company or for any
other reason, subject, in all cases, to Section 7.10 hereof.
SECTION 2.8 Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, unless the Depositary has notice that such ADR has
been acquired by a bona fide purchaser, subject to Section 5.9 hereof, the
Depositary shall execute and deliver a new Receipt (which, in the discretion of
the Depositary may be issued through DRS/Profile unless specifically requested
otherwise) in exchange and substitution for such mutilated Receipt upon
cancellation thereof, or in lieu of and in substitution for such destroyed, lost
or stolen Receipt. Before the Depositary shall execute and deliver a new Receipt
in substitution for a destroyed, lost or stolen Receipt, the Holder thereof
shall have (a) filed with the Depositary (i) a request for such execution and
delivery before the Depositary has notice that the Receipt has been acquired by
a bona fide purchaser and (ii) a sufficient indemnity bond in form and amount
acceptable to the Depositary and (b) satisfied any other reasonable requirements
imposed by the Depositary.
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy Receipts so
cancelled in accordance with its customary practices. Cancelled Receipts shall
not be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose.
SECTION 2.10 Pre-Release. Subject to the further terms and provisions of
this Section 2.10, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. In its capacity as Depositary, the Depositary may (a)
issue ADSs prior to the receipt of Shares (each such transaction a "Pre-Release
Transaction") as provided below and (b) deliver Shares upon the receipt and
cancellation of ADSs that were issued in a Pre-Release Transaction, but for
which Shares may not yet have been received. The Depositary may receive ADSs in
lieu of Shares under (a) above and receive shares in lieu of ADSs under (b)
above. Each such Pre-Release Transaction will be (a) subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or Shares
are to be delivered (A) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (B) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (D) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs, and (E) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (ii) at all times fully collateralized with cash,
United States government securities or such other collateral as the Depositary
deems appropriate, (iii) terminable by the Depositary on not more than five
(5) business days' notice
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and (iv) subject to such further indemnities and credit regulations as the
Depositary deems appropriate. The Depositary will normally limit the number of
ADSs and Shares involved in such Pre-Release Transactions at any one time to
thirty percent 30% of the ADSs outstanding (without giving effect to ADSs
outstanding under (a) above), provided, however, that the Depositary reserves
the right to disregard such limit from time to time as it deems appropriate. The
Depositary may also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions with any one person on a case by case basis
as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (ii)
above, but not the earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary or the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of this Deposit Agreement and the provisions of, or governing, the Deposited
Securities or other information; to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation as the Depositary may deem necessary or proper or as the Company
may reasonably require by written request to the Depositary consistent with its
obligations hereunder. The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof, or to the extent not limited by the terms of Section 7.10
hereof, the delivery of any Deposited Securities, until such proof or other
information is filed or such certifications are executed, or such
representations and warranties are made, or such other documentation or
information provided, in each case to the Depositary's and the Company's
satisfaction. The Depositary shall from time to time on the written request
advise the Company of the availability of any such proofs, certificates or other
information and shall, at the Company's sole expense, provide or otherwise make
available copies thereof to the Company upon written request thereof by the
Company, unless such disclosure is prohibited by law. Each Holder and Beneficial
Owner agrees to provide any information requested by the Company or the
Depositary pursuant to this paragraph. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if not provided by the
Holders or Beneficial Owners or (b) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
SECTION 3.2 Liability for Taxes and Other Charges. If any present or future
tax or other governmental charge shall become payable by the Depositary or the
Custodian with respect to any ADR or any Deposited Securities or American
Depositary Shares, such tax or other governmental charge shall be payable by the
Holders and Beneficial Owners to the Depositary and such Holders and Beneficial
Owners shall be deemed liable therefor. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder
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and/or Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, with the Holder and the Beneficial Owner
remaining fully liable for any deficiency. In addition to any other remedies
available to it, the Depositary and the Custodian may refuse the deposit of
Shares, and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer, split-up or combination of ADRs and (subject to Section 7.10
hereof) the withdrawal of Deposited Securities, until payment in full of such
tax, charge, penalty or interest is received. Every Holder and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian, and each of
their respective agents, officers, directors, employees and Affiliates for, and
to hold each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner. The obligations of Holders and
Beneficial Owners of Receipts under this Section 3.2 shall survive any transfer
of Receipts, any surrender of Receipts and withdrawal of Deposited Securities,
or the termination of this Deposit Agreement.
SECTION 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that (a) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and were legally
obtained by such person, (b) all preemptive (and similar) rights, if any, with
respect to such Shares have been validly waived or exercised, (c) the person
making such deposit is duly authorized so to do, (d) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim, and are not, and the American Depositary Shares
issuable upon such deposit will not be, Restricted Securities and (e) the Shares
presented for deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of American Depositary Shares in respect
thereof and the transfer of such American Depositary Shares. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
SECTION 3.4 Compliance with Information Requests. Notwithstanding any other
provision of this Deposit Agreement, the Company's Articles of Association and
applicable law, each Holder and Beneficial Owner agrees to (a) provide such
information as the Company or the Depositary may request pursuant to law
(including, without limitation, relevant Italian law, any applicable law of the
United States, the Company's Articles of Association, any resolutions of the
Company's Board of Directors adopted pursuant to such Articles of Association,
the requirements of any markets or exchanges upon which the Shares, ADSs or
Receipts are listed or traded or to any requirements of any electronic
book-entry system by which the ADSs or Receipts may be transferred, and (b) be
bound by and subject to applicable provisions of the laws of The Republic of
Italy, the Company's Articles of Association and the requirements of any markets
or exchanges upon which the ADSs, Receipts or Shares are listed or traded, or
pursuant to any requirements of any electronic book-entry system by which the
ADSs, Receipts or Shares may be transferred, to the same extent as if such
Holder and Beneficial Owner held Shares directly, in each case irrespective of
whether or not they are Holders or Beneficial Owners at the time such request is
made. The Depositary agrees to use its reasonable efforts to forward upon the
request of the Company, and at the Company's expense, any such request from the
Company to the Holders
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and to forward to the Company any such responses to such requests received by
the Depositary.
Failure by a Holder or Beneficial Owner to provide in a timely fashion the
information requested by the Company may, in the Company's sole discretion,
result in the withholding of certain rights in respect of such Holder or
Beneficial Owner's ADRs (including voting rights and certain rights as to
dividends in respect of the Shares represented by such ADRs). The Depositary
agrees to use its commercially reasonable efforts to comply with any reasonable
instructions received from the Company requesting that the Depositary take the
actions specified therein to obtain such information.
In the event that the Company determines that there has been a failure to
comply with the applicable reporting requirements with respect to any Deposited
Securities and that sanctions are to be imposed against such Deposited
Securities pursuant to Italian law by a court of competent jurisdiction or the
Company's Articles of Association, the Company shall notify the Depositary,
giving details thereof, an shall instruct the Depositary in writing as to the
application of such sanctions to the Deposited Securities. The Depositary shall
have no liability for any actions taken in accordance with such instructions.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Shares, rights, securities or other entitlements under the terms hereof, the
Depositary will, if at the time of receipt thereof any amounts received in a
foreign currency can in the judgment of the Depositary (pursuant to Section 4.6
hereof) be converted on a practicable basis into Dollars transferable to the
United States, promptly convert or cause to be converted such cash dividend,
distribution or proceeds into Dollars (on the terms described in Section 4.6
hereof) and will distribute promptly the amount thus received (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes withheld) to the Holders of record as of the ADS Record Date in proportion
to the number of American Depositary Shares held by such Holders respectively as
of the ADS Record Date. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Holder a fraction of
one cent. Any such fractional amount shall be rounded to the nearest whole cent
and so distributed to Owners entitled thereto. Holders and Beneficial Owners
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which exceeds three or four decimal places (the number
of decimal places used by the Depositary to report distribution rates). The
excess amount may be retained by the Depositary as an additional cost of
conversion, irrespective of any other fees and expenses payable or owing
hereunder and shall not be subject to escheatment. If the Company, the Custodian
or the Depositary is required to withhold and does withhold from any cash
dividend or other cash distribution in respect of any Deposited Securities an
amount on account of taxes, duties or other governmental charges, the amount
distributed to Holders on the American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request. The Depositary will
forward to the Company or its agent such information from its records as the
Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental agencies, such
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reports necessary to obtain benefits under the applicable tax treaties for the
Holders and Beneficial Owners of Receipts.
SECTION 4.2 Distribution in Shares. If any distribution upon any Deposited
Securities consists of a dividend in, or free distribution of, Shares, the
Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
any of their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.7 hereof and shall, subject to Section 5.9 hereof, either
(a) distribute to the Holders as of the ADS Record Date in proportion to the
number of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (i) the
applicable fees and charges of, and expenses incurred by, the Depositary and
(ii) taxes) or (b) if additional American Depositary Shares are not so
distributed, each American Depositary Share issued and outstanding after the ADS
Record Date shall, to the extent permissible by law, thenceforth also represent
rights and interests in the additional Shares distributed upon the Deposited
Securities represented thereby (net of (A) the applicable fees and charges of,
and expenses incurred by, the Depositary and (B) taxes). In lieu of delivering
fractional American Depositary Shares, the Depositary shall sell the number of
Shares represented by the aggregate of such fractions and distribute the
proceeds upon the terms described in Section 4.1 hereof. The Depositary may
withhold any such distribution of Receipts if it has not received satisfactory
assurances from the Company (including an opinion of counsel to the Company
furnished at the expense of the Company) that such distribution does not require
registration under the Securities Act or is exempt from registration under the
provisions of the Securities Act. To the extent such distribution may be
withheld, the Depositary may dispose of all or a portion of such distribution in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable, and the Depositary shall distribute
the net proceeds of any such sale (after deduction of applicable taxes and fees
and charges of, and expenses incurred by, the Depositary) to Holders entitled
thereto upon the terms described in Section 4.1 hereof.
SECTION 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to distribute a dividend payable at the election of the holders of
Shares in cash or in additional Shares, the Company shall give notice thereof to
the Depositary at least 30 days prior to the proposed distribution stating
whether or not it wishes such elective distribution to be made available to
Holders of ADSs. Upon receipt of notice indicating that the Company wishes such
elective distribution 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 reasonably practicable
to make such elective distribution available to the Holders of ADSs. The
Depositary shall make such elective distribution available to Holders only if
(a) the Company shall have timely requested that the elective distribution is
available to Holders of ADRs, (b) the Depositary shall have determined that such
distribution is reasonably practicable and (c) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7 hereof
(including, without limitation, any legal opinions of counsel in any applicable
jurisdiction that the Depositary in its reasonable discretion may request, at
the expense of the Company. If the above conditions are not satisfied, the
Depositary shall, to the extent permitted by law, distribute to the Holders, on
the basis of the same determination as is made in the local market in respect of
the Shares for which no election is made, either (i) cash upon the terms
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described in Section 4.1 hereof or (ii) additional ADSs representing such
additional Shares upon the terms described in Section 4.2 hereof. If the above
conditions are satisfied, the Depositary shall establish an ADS Record Date (on
the terms described in Section 4.7 hereof) and establish procedures to enable
Holders to elect the receipt of the proposed dividend in cash or in additional
ADSs. The Company shall assist the Depositary in establishing such procedures to
the extent necessary. Subject to Section 5.9 hereof, if a Holder elects to
receive the proposed dividend in cash, the dividend shall be distributed upon
the terms described in Section 4.1 hereof, or in ADSs, the dividend shall be
distributed upon the terms described in Section 4.2 hereof. Nothing herein shall
oblige the Depositary to make available to Holders a method to receive the
elective dividend in Shares (rather than ADSs). There can be no assurance that
Holders generally, or any Holder in particular, will be given the opportunity to
receive elective distributions on the same terms and conditions as the holders
of Shares.
SECTION 4.4 Distribution of Rights to Purchase Shares.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
least 30 days prior to the proposed distribution stating whether or not it
wishes such rights to be made available to Holders of ADSs. Upon 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 determine, whether it is lawful and reasonably practicable 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 5.7 hereof and
(iii) the Depositary shall have determined that such distribution of rights is
lawful and reasonably practicable. In the event any of the conditions set forth
above are not satisfied, the Depositary shall proceed with the sale of the
rights as contemplated in Section 4.4(b) or, if timing or 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 ADS
Record Date (upon the terms described in Section 4.7 hereof) and establish
procedures to distribute such rights (by means of warrants or otherwise) and to
enable the Holders to exercise the rights (upon payment of applicable fees and
charges of, and expenses incurred by, the Depositary and taxes and other
governmental charges). Nothing herein shall obligate the Depositary to make
available to the Holders a method to exercise such rights to subscribe for
Shares (rather than ADSs).
(b) Sale of Rights. 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 5.7 hereof or determines
it is not lawful or reasonably practicable to make the rights available to
Holders 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, in a riskless principal capacity or
otherwise, at such place and upon such terms (including public or private sale)
as it may deem proper. The Company shall assist the Depositary to the extent
necessary to determine such legality and practicability. The Depositary shall,
upon such sale, convert and distribute proceeds of such sale (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes) upon
the terms set forth in Section 4.1 hereof.
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(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) above or to
arrange for the sale of the rights upon the terms described in Section 4.4(b)
above, the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holders 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 Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act 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 unless and until a registration statement under the
Securities Act covering such offering is in effect or the Company furnishes to
the Depositary at the Company's own expense opinion(s) of counsel to 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 satisfactory to the
Depositary, to the effect that the offering and sale of such securities to
Holders and Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws. 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 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 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.
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SECTION 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to purchase
additional Shares, the Company shall give notice thereof to the Depositary at
least 30 days prior to the proposed distribution and shall indicate whether or
not it wishes such distribution to be made to Holders of ADSs. Upon receipt of a
notice indicating that the Company wishes such distribution be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and practicable. The Depositary shall not make such distribution unless
(a) the Company shall have timely requested the Depositary to make such
distribution to Holders, (b) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7 hereof and (c) the Depositary
shall have determined that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in Section 4.5(a), the Depositary may distribute the
property so received to the Holders of record as of the ADS Record Date, in
proportion to the number of ADSs held by such Holders respectively and in such
manner as the Depositary may deem practicable for accomplishing such
distribution (a) upon receipt of payment or net of the applicable fees and
charges of, and expenses incurred by, the Depositary, and (b) net of any taxes
and other governmental charges withheld. The Depositary may dispose of all or a
portion of the property so distributed and deposited, in such amounts and in
such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the distribution.
(c) If (a) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(b) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7 hereof, or (c) the Depositary determines that all or a portion of
such distribution is not reasonably practicable or feasible, the Depositary
shall endeavour to sell or cause such property to be sold in a public or private
sale, at such place or places and upon such terms as it may deem proper and
shall distribute the net proceeds, if any, of such sale received by the
Depositary (net of applicable fees and charges of, and expenses incurred by, the
Depositary and taxes) to the Holders as of the ADS Record Date upon the terms of
Section 4.1 hereof. If the Depositary is unable to sell such property, the
Depositary may dispose of such property in any way it deems reasonably
practicable under the circumstances for nominal or no consideration and Holders
and Beneficial Owners shall have no rights thereto or arising therefrom.
SECTION 4.6 Conversion of Foreign Currency. Whenever the Depositary or the
Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, and in the judgment of the Depositary such Foreign Currency can at such
time be converted on a practicable basis (by sale or in any other manner that it
may determine in accordance with applicable law) into Dollars transferable to
the United States and distributable to the Holders entitled thereto, the
Depositary shall convert or cause to be converted, by sale or in any other
manner that it may determine, such Foreign Currency into Dollars and shall
distribute such Dollars (net of any fees, expenses, taxes or other governmental
charges incurred in the process of such conversion) in accordance with the terms
of the applicable Sections of this Deposit Agreement. If the Depositary shall
have distributed warrants or other instruments that entitle
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the holders thereof to such Dollars, the Depositary shall distribute such
Dollars to the holders of such warrants and/or instruments upon surrender
thereof for cancellation, in either case without liability for interest thereon.
Such distribution may be made upon an averaged or other practicable basis
without regard to any distinctions among Holders on account of exchange
restrictions, the date of delivery of any Receipt or otherwise.
Holders shall be deemed to agree and understand that in converting Foreign
Currency, amounts received on conversion are calculated at a rate which may
exceed the number of decimal places used by the Depositary to report
distribution rates (which in any case will not be less than two decimal places).
Any excess amount may be retained by the Depositary as an additional cost of
conversion, irrespective of any other fees and expenses payable or owing
hereunder and shall not be subject to escheatment.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary may file such
application for approval or license, if any, as it may deem necessary,
practicable and at nominal cost and expense. Nothing herein shall obligate the
Depositary to file or cause to be filed, or to seek effectiveness of any such
application or license.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practical or lawful, or if
any approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied, or not
obtainable at a reasonable cost, within a reasonable period or otherwise sought,
the Depositary shall, in its sole discretion but subject to applicable laws and
regulations, either (a) distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary to the Holders entitled to receive such foreign currency or (b) hold
such foreign currency uninvested and without liability for interest thereon for
the respective accounts of the Holders entitled to receive the same.
SECTION 4.7 Fixing of Record Date. Whenever necessary in connection with
any distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of or solicitation of holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient, the Depositary shall fix a record date (the "ADS Record
Date"), as close as practicable to the record date fixed by the Company with
respect to the Shares, for the determination of the Holders who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, or to give or withhold such consent, or to
receive such notice or solicitation or to otherwise take action, or to exercise
the rights of Holders with respect to such changed number of Shares represented
by each American Depositary Share. Subject to applicable law and the provisions
of Sections 4.1 through 4.6 hereof and to the other terms and conditions of this
Deposit Agreement, only the Holders of record at the close of business in New
York on such ADS Record Date shall be entitled to receive such distribution, to
give such voting instructions, to receive such notice or solicitation, or
otherwise take action.
SECTION 4.8 Voting of Deposited Securities. Holders of ADRs will have no
voting rights with respect to the Deposited Shares. The Depositary will not
exercise any voting rights in respect of the Deposited Shares unless it is
required to do so by law. If so required,
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the Depositary will, at the direction of the Board of Directors of the Company
(subject to the advice of legal counsel taken by the Depositary and the Company
at the expense of the Company), either vote as directed by the Board of
Directors of the Company or give a proxy or power of attorney to vote the
Deposited Shares in favour of a Director of the Company or other person or vote
in same manner as those shareholders designated by the Board of Directors of the
Company. A valid corporate decision of the Company will bind the Depositary and
the Holders notwithstanding these restrictions on voting rights.
Shares which have been withdrawn from the depositary facility and
transferred on the Company's register of members to a person other than the
Depositary or its nominee may be voted by the holders thereof. However, Holders
or beneficial owners of ADRs may not receive sufficient advance notice of
shareholder meetings to enable them to withdraw the Shares and vote at such
meetings.
SECTION 4.9 Changes Affecting Deposited Securities. Upon any change in par
value, split-up, exchange, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is otherwise a party, any securities which shall be received by
the Depositary or the Custodian in exchange for, or in conversion of or
replacement or otherwise in respect of, such Deposited Securities shall, to the
extent permitted by law, be treated as new Deposited Securities under this
Deposit Agreement, and the Receipts shall, subject to the provisions of this
Deposit Agreement and applicable law, evidence American Depositary Shares
representing the right to receive such additional securities. Alternatively, the
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of this Deposit Agreement and receipt of an
opinion of counsel to the Company, furnished at the expense of the Company,
satisfactory to the Depositary that such distributions are not in violation of
any applicable laws or regulations, execute and deliver additional Receipts as
in the case of a stock dividend on the Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts, in either case, as well
as in the event of newly deposited Shares, with necessary modifications to the
form of Receipt contained in Exhibits A and B hereto, specifically describing
such new Deposited Securities and/or corporate change. The Company agrees to,
jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new form of Receipt.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall, if the Company requests, subject to receipt of an
opinion of counsel to the Company, furnished at the expense of the Company,
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, sell such securities at public or private sale,
at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of fees and charges of, and
expenses incurred by, the Depositary and taxes) for the account of the Holders
otherwise entitled to such securities upon an averaged or other practicable
basis without regard to any distinctions among such Holders and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to Section 4.1 hereof. The Depositary
shall not be responsible for any failure to determine that it may be lawful or
feasible to make such securities available to Holders in general or to any
Holder in particular, any foreign exchange exposure or loss incurred in
connection with such sale or any liability to the purchaser of such securities.
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SECTION 4.10 Available Information. The Company is exempt from the periodic
reporting requirements of the Exchange Act applicable to foreign private issuers
(as defined in Rule 405 under the Securities Act). The Company furnishes the
Commission with certain public reports and documents required by foreign law or
otherwise under Rule 12g3-2(b) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Such public reports and documents are made
available on and may be inspected and copied from the Company's website in
accordance with Rule 12g3-2(f) under the Exchange Act.
SECTION 4.11 Reports. The Depositary shall make available during normal
business hour on any Business Day for inspection by Holders at its Principal
Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company. The Company agrees to provide to the Depositary, at
the Company's expense, all documents that it provides to the Custodian. The
Depositary shall, at the expense of the Company and in accordance with Section
5.6 hereof, also mail by regular, ordinary mail delivery or by electronic
transmission (if agreed by the Company and the Depositary) and unless otherwise
agreed in writing by the Company and the Depositary, to Holders copies of such
reports when furnished by the Company pursuant to Section 5.6 hereof.
SECTION 4.12 List of Holders. Promptly upon written request by the Company,
the Depositary shall, at the expense of the Company, furnish to it a list, as of
a recent date, of the names, addresses and holdings of American Depositary
Shares by all persons in whose names Receipts are registered on the books of the
Depositary.
SECTION 4.13 Taxation; Withholding. The Depositary will, and will instruct
the Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file necessary tax reports with governmental authorities or agencies.
The Depositary, the Custodian or the Company and its agents may, but shall not
be obligated to, file such reports as are necessary to reduce or eliminate
applicable taxes on dividends and on other distributions in respect of Deposited
Securities under applicable tax treaties or laws for the Holders and Beneficial
Owners. Holders and Beneficial Owners of American Depositary Shares may be
required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide
any other information or documents, as the Depositary or the Custodian may deem
necessary or proper to fulfill the Depositary's or the Custodian's obligations
under applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
The Company shall remit to the appropriate governmental authority or agency
any amounts required to be withheld by the Company and owing to such
governmental authority or agency. Upon any such withholding, the Company shall
remit to the Depositary information, in a form satisfactory to the Depositary,
about such taxes or governmental charges withheld or paid, and, if so requested,
the tax receipt (or other proof of payment to the applicable governmental
authority) therefor. The Depositary shall, to the extent required by U.S. law,
report to Holders as to any taxes withheld by it, withheld by the Custodian,
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subject to information being provided to the Depositary by the Custodian, and
any taxes withheld by the Company, subject to information being provided to the
Depositary by the Company. The Depositary and the Custodian shall not be
required to provide the Holders with any evidence of the remittance by the
Company (or its agents) of any taxes withheld, or of the payment of taxes by the
Company, except to the extent the evidence is provided by the Company to the
Depositary. Neither the Depositary nor the Custodian shall be liable for the
failure by any Holder or Beneficial Owner to obtain the benefits of credits on
the basis of non-U.S. tax paid against such Holder's or Beneficial Owner's
income tax liability.
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 charge which the Depositary is obligated to withhold,
the Depositary shall withhold the amount required to be withheld and may by
public or private sale dispose of all or a portion of such property (including
Shares and rights to subscribe therefor) in such amounts and in such manner as
the Depositary deems necessary and practicable to pay such taxes or charges and
the Depositary shall distribute the net proceeds of any such sale after
deduction of such taxes or charges to the Holders entitled thereto in proportion
to the number of American Depositary Shares held by them respectively.
The Depositary is under no obligation to provide the Holders and Beneficial
Owners with any information about the tax status of the Company. The Depositary
shall not incur any liability for any tax consequences that may be incurred by
Holders and Beneficial Owners on account of their ownership of the American
Depositary Shares.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Depositary or if a Registrar for the Receipts shall have been appointed, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
and the delivery and withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Depositary or the Registrar as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary's or the
Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts in the interest of a business or object other than the business of the
Company or other than a matter related to this Deposit Agreement or the
Receipts.
The Depositary or the Registrar, as applicable, may close the transfer
books with respect to the Receipts, at any time or from time to time, when
deemed necessary or advisable by it in connection with the performance of its
duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or appoint a Registrar or
one or more co-registrars for registration of Receipts and transfers,
combinations and split-ups, and to countersign such
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Receipts in accordance with any requirements of such exchanges or systems. Such
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more securities exchanges, markets or automated quotation
systems, (a) the Depositary shall be entitled to, and shall, take or refrain
from taking such action(s) as it may deem necessary or appropriate to comply
with the requirements of such securities exchange(s), market(s) or automated
quotation system(s) applicable to it, notwithstanding any other provision of
this Deposit Agreement and (b) upon the reasonable request of the Depositary,
the Company shall provide the Depositary such information and assistance as may
be reasonably necessary for the Depositary to comply with such requirements, to
the extent that the Company may lawfully do so.
SECTION 5.2 Exoneration. Neither the Depositary, the Custodian or the
Company shall be obligated to do or perform any act which is inconsistent with
the provisions of this Deposit Agreement or shall incur any liability (a) if the
Depositary, the Custodian or the Company or their respective controlling persons
or agents shall be prevented or forbidden from, or delayed in, doing or
performing any act or thing required by the terms of this Deposit Agreement, by
reason of any provision of any present or future law or regulation of the United
States or any state thereof, The Republic of Italy or any other country of any
other governmental authority or regulatory authority or stock exchange or on
account of the possible criminal or civil penalties or restraint, or by reason
of any provision, present or future, of the Company's Articles of Association or
any provision of or governing any Deposited Securities, or by reason of any act
of God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (b) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement or in the Company's Articles
of Association or provisions of or governing Deposited Securities, (c) for any
action or inaction of the Depositary, the Custodian or the Company or their
respective controlling persons or agents in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (d) for the inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of this
Deposit Agreement, made available to Holders of American Depositary Shares or
(e) for any special, consequential, indirect or punitive damages for any breach
of the terms of this Deposit Agreement or otherwise.
The Depositary, its controlling persons, its agents, the Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request, opinion or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.3 Standard of Care. The Company and the Depositary and their
respective agents assume no obligation and shall not be subject to any liability
under this Deposit Agreement or any Receipts to any Holder(s) or Beneficial
Owner(s) or other persons (except for the Company's and the Depositary's
obligations specifically set forth in Section
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5.8), provided, that the Company and the Depositary and their respective agents
agree to perform their respective obligations specifically set forth in this
Deposit Agreement or the applicable ADRs without gross negligence or willful
misconduct.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses (including fees and disbursements of
counsel) and liabilities be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any vote is cast or the effects of any vote. The Depositary shall not
incur any liability for any failure to determine that any distribution or action
may be lawful or reasonably practicable, for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated with
acquiring an interest in the Deposited Securities, for the validity or worth of
the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness of
any third party, for allowing any rights to lapse upon the terms of this Deposit
Agreement or for the failure or timeliness of any notice from the Company, or
for any action or non action by it in reliance upon the opinion, advice of or
information from legal counsel, accountants, any person representing Shares for
deposit, any Holder or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary and its agents
shall not be liable for any acts or omissions made by a successor depositary
whether in connection with a previous act or omission of the Depositary or in
connection with any matter arising wholly after the removal or resignation of
the Depositary, provided, however, that in connection with the issue out of
which such potential liability arises the Depositary performed its obligations
without gross negligence or willful misconduct while it acted as Depositary.
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (a) the 90th day after delivery
thereof to the Company (whereupon the Depositary shall, in the event no
successor depositary has been appointed by the Company, be entitled to take the
actions contemplated in Section 6.2) or (b) upon the appointment by the Company
of a successor depositary and its acceptance of such appointment as hereinafter
provided, save that, any amounts, fees, costs or expenses owed to the Depositary
hereunder or in accordance with any other agreements otherwise agreed in writing
between the Company and the Depositary from time to time shall be paid to the
Depositary prior to such resignation.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the later of (a) the 90th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2) or (b) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter, save that, any amounts, fees, costs or expenses owed
to the Depositary hereunder or in accordance with any other
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agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such removal.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. The Company shall give notice to the
Depositary of the appointment of a successor depositary not more than 90 days
after delivery by the Depositary of written notice of resignation or by the
Company of removal, each as provided in this section. In the event that a
successor depositary is not appointed or notice of the appointment of a
successor depositary is not provided by the Company in accordance with the
preceding sentence, the Depositary shall be entitled to take the actions
contemplated in Section 6.2 hereof.
Every successor depositary shall be required by the Company to execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed (except as required by applicable law), shall become fully
vested with all the rights, powers, duties and obligations of its predecessor.
The predecessor depositary, upon payment of all sums due to it and on the
written request of the Company, shall (a) execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder (other than as contemplated in Sections 5.8. and 5.9 hereof), (b) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor and (c) deliver to such successor a list of the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodian. The Custodian or its successors in acting
hereunder shall be subject at all times and in all respects to the direction of
the Depositary for the Deposited Securities for which the Custodian acts as a
custodian and shall be responsible solely to it. If any Custodian resigns or is
discharged from its duties hereunder with respect to any Deposited Securities
and no other Custodian has previously been appointed hereunder, the Depositary
shall promptly appoint a substitute custodian. The Depositary shall require such
resigning or discharged Custodian to deliver the Deposited Securities held by
it, together with all such records maintained by it as Custodian with respect to
such Deposited Securities as the Depositary may request, to the Custodian
designated by the Depositary. Whenever the Depositary determines, in its
discretion, that it is appropriate to do so, it may appoint an additional entity
to act as Custodian with respect to any Deposited Securities, or discharge the
Custodian with respect to any Deposited Securities and appoint a substitute
custodian, which shall thereafter be Custodian hereunder with respect to the
Deposited Securities. After any such change, the Depositary shall give notice
thereof in writing to all Holders.
Upon the appointment of any successor depositary, any Custodian then acting
hereunder shall, unless otherwise instructed by the Depositary, continue to be
the Custodian of the Deposited Securities without any further act or writing and
shall be subject to the direction of the successor depositary. The successor
depositary so appointed shall, nevertheless, on the written request of any
Custodian, execute and deliver to such Custodian
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all such instruments as may be proper to give to such Custodian full and
complete power and authority to act on the direction of such successor
depositary.
SECTION 5.6 Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, the taking of any action by such holders other than at a meeting or the
taking of any action in respect of any cash or other distributions or the
offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in
English but otherwise in the form given or to be given to holders of Shares or
other Deposited Securities. The Company shall also furnish to the Custodian and
the Depositary a summary, in English, of any applicable provisions or proposed
provisions of the Company's Articles of Association that may be relevant or
pertain to such notice of meeting or be the subject of a vote thereat.
The Company will also transmit to the Depositary such notices, reports and
communications which are made generally available to shareholders and/or
investors in the Company's home market in accordance with the requirements of
the Commission under Rule 12g3-2(b) under the Securities Act. The Depositary
shall arrange, at the request of the Company and at the Company's expense, for
the mailing of copies thereof to all Holders, or by any other means as agreed
between the Company and the Depositary (at the Company's expense) or make such
notices, reports and other communications available for inspection by all
Holders. The Company will timely provide the Depositary with the quantity of
such notices, reports, and communications, as requested by the Depositary from
time to time, in order for the Depositary to effect such mailings. The Company
has delivered to the Depositary and the Custodian a copy of the Company's
Articles of Association along with the provisions of or governing the Shares and
any other Deposited Securities issued by the Company or any Affiliate of the
Company, in connection with the Shares, in each case along with a certified
English translation thereof, and promptly upon any amendment thereto or change
therein, the Company shall deliver to the Depositary and the Custodian a copy of
such amendment thereto or change therein (along with a certified English
translation thereof). The Depositary may rely upon such copy for all purposes of
this Deposit Agreement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the Receipts
evidencing the American Depositary Shares representing such Shares governed by
such provisions at the Depositary's Principal Office, at the office of the
Custodian and at any other designated transfer office.
SECTION 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it or any of its Affiliates proposes (a) an issuance, sale or
distribution of additional Shares, (b) an offering of rights to subscribe for
Shares or other Deposited Securities, (c) an issuance of securities convertible
into or exchangeable for Shares, (d) an issuance of rights to subscribe for
securities convertible into or exchangeable for Shares, (e) an elective dividend
of cash or Shares, (f) a redemption of Deposited Securities, (g) a meeting of
holders of Deposited Securities, or solicitation of consents or proxies,
relating to any reclassification of securities, merger or consolidation or
transfer of assets or (h) any reclassification, recapitalization,
reorganization, merger, consolidation or sale of assets which affects the
Deposited Securities, it will obtain U.S. legal advice and take all steps
necessary to ensure that the application of the proposed transaction to Holders
and Beneficial Owners does not violate the registration provisions of the
Securities Act, or any other applicable laws
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(including, without limitation, the Investment Company Act of 1940, as amended,
the Exchange Act or the securities laws of the states of the United States). In
support of the foregoing or at the reasonable request of the Depositary where it
deems necessary, the Company will furnish to the Depositary, at it's own expense
(a) a written opinion of U.S. counsel (reasonably satisfactory to the
Depositary) stating whether or not application of such transaction to Holders
and Beneficial Owners (i) requires a registration statement under the Securities
Act to be in effect or is exempt from the registration requirements of the
Securities Act and/or (ii) dealing with such other reasonable issues requested
by the Depositary and (b) an opinion of U.S. counsel (reasonably satisfactory to
the Depositary) stating that making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of the United States
and a written opinion of Italian counsel (reasonably satisfactory to the
Depositary) stating that all requisite regulatory consents and approvals have
been obtained in The Republic of Italy. If the filing of a registration
statement is required, the Depositary shall not have any obligation to proceed
with the transaction unless it shall have received evidence reasonably
satisfactory to it that such registration statement has been declared effective
and that such distribution is in accordance with all applicable laws or
regulations. If, being advised by counsel, the Company determines that a
transaction is required to be registered under the Securities Act, the Company
will either register such transaction to the extent necessary, alter the terms
of the transaction to avoid the registration requirements of the Securities Act
or direct the Depositary to take specific measures, in each case as contemplated
in this Deposit Agreement, to prevent such transaction from violating the
registration requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor any of
its Affiliates will at any time deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate or issue additional Shares, rights to subscribe for such Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for such securities, unless such transaction and the securities issuable in such
transaction are exempt from registration under the Securities Act or have been
registered under the Securities Act (and such registration statement has been
declared effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
SECTION 5.8 Indemnification. The Company agrees to indemnify the
Depositary, any Custodian and each of their respective directors, officers,
employees, agents and Affiliates against, and hold each of them harmless from,
any losses, liabilities, taxes, costs, claims, judgements, proceedings, actions,
demands and any charges or expenses of any kind whatsoever (including, but not
limited to, reasonable attorney's fees and expenses and, in each case, fees and
expenses of counsel, in each case, irrevocable value added tax and any similar
tax charged or otherwise imposed in respect thereof) (collectively referred to
as "Losses") which the Depositary or any agent thereof may incur or which may be
made against it as a result of or in connection with its appointment or the
exercise of its powers and duties under this Agreement or that may arise (a) out
of or in connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Shares, or other
Deposited Securities, as the case may be, (b) out of or in connection with any
offering documents in respect thereof or (c) out of or in connection with acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on
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behalf of the Company of information regarding the Company in connection with
this Deposit Agreement, the Receipts, the American Depositary Shares, the
Shares, or any Deposited Securities, in any such case (a) by the Depositary, the
Custodian or any of their respective directors, officers, employees, agents and
Affiliates, except to the extent any such Losses directly arises out of the
gross negligence or bad faith of any of them, or (b) by the Company or any of
its directors, officers, employees, agents and Affiliates. Notwithstanding the
above, in no event shall the Depositary or any of its directors, officers,
employees, agents and/or Affiliates be liable for any indirect, special,
punitive or consequential damages to the Company, Holders, Beneficial Owners or
any other person.
Any person seeking indemnification hereunder (an "Indemnified Person")
shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of the commencement of any indemnifiable action or claim
promptly after such Indemnified Person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
Indemnified Person's rights to indemnification except to the extent the
Indemnifying Person is materially prejudiced by such failure) and shall consult
in good faith with the Indemnifying Person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable under the circumstances. No Indemnified Person shall
compromise or settle any action or claim that may give rise to an indemnity
hereunder without the consent of the Indemnifying Person, which consent shall
not be unreasonably withheld.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
SECTION 5.9 Fees and Charges of Depositary. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively as provided for under Condition 9 of the form of Receipt
annexed hereto; provided, however, that no fees shall be payable upon
distribution of cash dividends so long as the charging of such fee is prohibited
by the exchange, if any, upon which the ADSs are listed. All fees and charges so
payable may, at any time and from time to time, be changed by agreement between
the Depositary and the Company, but, in the case of fees and charges payable by
Holders and Beneficial Owners, only in the manner contemplated in Section 6.1
hereof. The Depositary shall provide, without charge, a copy of its latest fee
schedule to anyone upon request.
The Depositary and the Company may reach separate agreement in relation to
the payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
by both parties in the performance of its obligations hereunder and in respect
of the actual costs and expenses of the Depositary in respect of any notices
required to be given to the Holders in accordance with Condition 20 of the form
of Receipt annexed hereto.
In connection with any payment by the Company to the Depositary:
(i) all fees, taxes, duties, charges, costs and expenses which are
payable by the Company shall be paid or be procured to be paid by the Company
(and any such amounts which are paid by the Depositary shall be reimbursed to
the Depositary by the Company upon demand therefor);
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(ii) such payment shall be subject to all necessary Italian exchange
control and other consents and approvals having been obtained. The Company
undertakes to use its reasonable endeavours to obtain all necessary approvals
that are required to be obtained by it in this connection; and
(iii) the Depositary may request, in its sole but reasonable discretion
after consultation with the Company, an opinion of counsel regarding New York
law, the laws of The Republic of Italy, or the laws of any other relevant
jurisdiction, to be furnished at the expense of the Company, if at any time it
deems it necessary to seek such an opinion of counsel regarding the validity of
any action to be taken or instructed to be taken under this Deposit Agreement.
The Company agrees to promptly pay to the Depositary such other expenses,
fees and charges and to reimburse the Depositary for such out-of-pocket expenses
as the Depositary and the Company may agree to from time to time. Responsibility
for payment of such charges may at any time and from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed, in
the discretion of the Depositary, the Depositary shall present its statement for
such expenses and fees or charges to the Company upon receipt or payment of any
relevant invoice by the Depositary, once every three months, semiannually or
annually.
All payments by the Company to the Depositary under this Clause 5.9 shall
be paid without set-off or counterclaim, and free and clear of and without
deduction or withholding for or on account of, any present or future taxes,
levies, imports, duties, fees, assessments or other charges of whatever nature,
imposed by law, rule, regulation, court, tribunal or by any department, agency
or other political subdivision or taxing authority thereof or therein, and all
interest, penalties or similar liabilities with respect thereto.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
SECTION 5.10 Restricted Securities Owners. From time to time or upon
request by the Depositary, the Company shall provide to the Depositary a list
setting forth, to the actual knowledge of the Company, those persons or entities
who beneficially own Restricted Securities and the Company shall update that
list on a regular basis. The Depositary may rely on such a list or update but
shall not be liable for any action or omission made in reliance thereon. The
Company agrees to advise in writing each of the persons or entities who, to the
actual knowledge of the Company, holds Restricted Securities that such
Restricted Securities are ineligible for deposit hereunder and, to the extent
practicable, shall require each of such persons to represent in writing that
such person will not deposit Restricted Securities hereunder. The Company shall,
in accordance with Condition 24 of the form of Receipt annexed hereto, inform
Holders and Beneficial Holders and Beneficial Owners and the Depositary of any
other limitations on ownership of Shares that the Holders and Beneficial owners
may be subject to by reason of the number of American Depositary Shares held
under the Articles of Association of the Company or applicable Italian law, as
such restrictions may be in force from time to time.
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ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement. Subject to the terms and conditions of
this Section 6.1 and applicable law, the Receipts outstanding at any time, the
provisions of this Deposit Agreement and the form of Receipt annexed hereto and
to be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or not materially
prejudicial to the Holders without the consent of the Holders or Beneficial
Owners. Any amendment or supplement which shall impose or increase any fees or
charges (other than charges in connection with foreign exchange control
regulations, and taxes and other governmental charges, delivery and other such
expenses), or which shall otherwise materially prejudice any substantial
existing right of Holders or Beneficial Owners, shall not, however, become
effective as to outstanding Receipts until 30 days after notice of such
amendment or supplement shall have been given to the Holders of outstanding
Receipts. The parties hereto agree that any amendments or supplements which (a)
are reasonably necessary (as agreed by the Company and the Depositary) in order
for (i) the American Depositary Shares to be registered on Form F-6 under the
Securities Act or (ii) the American Depositary Shares or the Shares to be traded
solely in electronic book-entry form and (b) do not in either such case impose
or increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such American
Depositary Share or Shares, to consent and agree to such amendment or supplement
and to be bound by the Deposit Agreement as amended and supplemented thereby. In
no event shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement the Deposit Agreement and the Receipt at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance with such laws, rules or
regulations.
SECTION 6.2 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate this Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 90
days prior to the date fixed in such notice for such termination, provided that,
the Depositary shall be reimbursed for any amounts, fees, costs or expenses owed
to it in accordance with the terms of this Deposit Agreement and in accordance
with any other agreements as otherwise agreed in writing between the Company and
the Depositary from time to time, prior to such termination shall take effect.
If 90 days shall have expired after (a) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (b) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4 hereof, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Section
2.6 hereof and subject to the conditions and restrictions therein set forth, and
upon payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Receipt. If any Receipts shall remain outstanding after the
date of termination of this
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Xxxxxxx Xxxxxxxxx, the Registrar thereafter shall discontinue the registration
of transfers of Receipts, and the Depositary shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights or other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in Section 2.6
hereof, together with any dividends or other distributions received with respect
thereto and the net proceeds of the sale of any rights or other property, in
exchange for Receipts surrendered to the Depositary (after deducting, or
charging, as the case may be, in each case, the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of this Deposit Agreement and any
applicable taxes or governmental charges or assessments). At any time after the
date of termination of this Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders of Receipts whose Receipts have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement with respect to the Receipts
and the Shares, Deposited Securities and American Depositary Shares, except to
account for such net proceeds and other cash (after deducting, or charging, as
the case may be, in each case, the charges of the Depositary for the surrender
of a Receipt, any expenses for the account of the Holder in accordance with the
terms and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments). Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary hereunder.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
SECTION 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for the
exclusive benefit of the parties hereto (and their successors) and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any
other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties hereto nor establish a fiduciary
or similar relationship among the parties. The parties hereto acknowledge and
agree that (a) the Depositary and its
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Affiliates may at any time have multiple banking relationships with the Company
and its Affiliates, (b) the Depositary and its Affiliates may be engaged at any
time in transactions in which parties adverse to the Company or the Holders or
Beneficial Owners may have interests and (c) nothing contained in this Agreement
shall (i) preclude the Depositary or any of its Affiliates from engaging in such
transactions or establishing or maintaining such relationships, or (ii) obligate
the Depositary or any of its Affiliates to disclose such transactions or
relationships or to account for any profit made or payment received in such
transactions or relationships.
SECTION 7.3 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of American Depositary Shares
shall be parties to the Deposit Agreement and shall be bound by all of the terms
and conditions hereof and of any Receipt by acceptance hereof or any beneficial
interest therein.
SECTION 7.5 Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex, facsimile or electronic transmission, confirmed by
letter, addressed to Benetton Group S.p.A., Xxx Xxxxx Xxxxxxx 0, 00000 Xxxxxxx
Xxxxxx (XX) Xxxxx, Attention: Company Secretary Office, telephone: +39 0422
519860, facsimile: x00 0000 000000, or to any other address which the Company
may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex, facsimile transmission or by electronic transmission (if agreed by the
Company and the Depositary), at the Company's expense, unless otherwise agreed
in writing between the Company and the Depositary, confirmed by letter,
addressed to Deutsche Bank Trust Company Americas, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, X.X.X. Attention: ADR Department, telephone: x0 000 000 0000,
facsimile: x0 000 000-0000 or to any other address which the Depositary may
specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex, facsimile
transmission or by electronic transmission (if agreed by the Company and the
Depositary), at the Company's expense, unless otherwise agreed in writing
between the Company and the Depositary, addressed to such Holder at the address
of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address specified in such request. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex, facsimile
or electronic transmission shall be deemed to be effective at the time when a
duly addressed letter containing the same (or a confirmation thereof in the case
of a cable, telex, facsimile or electronic transmission) is deposited, postage
prepaid, in a post-office letter box or delivered to an air courier service. The
Depositary or the Company may, however, act upon any cable, telex, facsimile or
electronic transmission received by it from the other or from any Holder,
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notwithstanding that such cable, telex, facsimile or electronic transmission
shall not subsequently be confirmed by letter as aforesaid, as the case may be.
SECTION 7.6 Governing Law and Jurisdiction. This Deposit Agreement and the
Receipts shall be interpreted in accordance with, and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, the laws of
the State of New York without reference to the principles of choice of law
thereof. Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers Benetton U.S.A. Corporation (the
"Agent") now at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
U.S.A., as its authorized agent to receive and accept for and on its behalf, and
on behalf of its properties, assets and revenues, service by mail of any and all
legal process, summons, notices and documents that may be served in any suit,
action or proceeding brought against the Company in any federal or state court
as described in the preceding sentence or in the next paragraph of this Section
7.6. If for any reason the Agent shall cease to be available to act as such, the
Company agrees to designate a new agent in the City of New York on the terms and
for the purposes of this Section 7.6 reasonably satisfactory to the Depositary.
The Company further hereby irrevocably consents and agrees to the service of any
and all legal process, summons, notices and documents in any suit, action or
proceeding against the Company, by service by mail of a copy thereof upon the
Agent (whether or not the appointment of such Agent shall for any reason prove
to be ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air mail,
postage prepaid, to its address provided in Section 7.5 hereof. The Company
agrees that the failure of the Agent to give any notice of such service to it
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any state or federal court of the United States,
and the Depositary or the Company have any claim, for indemnification or
otherwise, against each other arising out of the subject matter of such suit,
action or proceeding, then the Company and the Depositary may pursue such claim
against each other in the state or federal court in the United States in which
such suit, action, or proceeding is pending, and for such purposes, the Company
and the Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in the manner
set forth in the preceding paragraph shall be effective service upon it for any
suit, action or proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
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The Company and the Depositary agree that, notwithstanding the foregoing,
with regard to any claim or dispute or difference of whatever nature between the
parties hereto arising directly or indirectly from the relationship created by
this Deposit Agreement, the Depositary, in its sole discretion, shall be
entitled to refer such dispute or difference for final settlement by arbitration
("Arbitration") in accordance with the applicable rules of the American
Arbitration Association (the "Rules") then in force, by a sole arbitrator
appointed in accordance with the Rules. The seat and place of any reference to
Arbitration shall be New York, New York. The procedural law of any Arbitration
shall be New York law and the language to be used in the Arbitration shall be
English. The fees of the arbitrator and other costs incurred by the parties in
connection with such Arbitration shall be paid by the party that is unsuccessful
in such Arbitration.
The provisions of this Section 7.6 shall survive any termination of this
Deposit Agreement, in whole or in part.
SECTION 7.7 Assignment. Subject to the provisions of Section 5.4 hereof,
this Deposit Agreement may not be assigned by either the Company or the
Depositary.
SECTION 7.8 Agents. The Depositary shall be entitled, in its sole
discretion, to appoint one or more Agents of which it shall have control for the
purpose, inter alia, of making distributions to the Holders or otherwise
carrying out its obligations under this Agreement.
SECTION 7.9 Exclusivity. The Company agrees not to appoint any other
depositary for the issuance or administration of depositary receipts evidencing
any class of stock of the Company so long as Deutsche Bank Trust Company
Americas is acting as Depositary hereunder.
SECTION 7.10 Compliance with U.S. Securities Laws. Notwithstanding anything
in this Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
SECTION 7.11 Titles. All references in this Deposit Agreement to Articles,
Exhibits, Sections, and Conditions refer to the articles, exhibits, sections, to
or of this Deposit Agreement or the Conditions of the Receipts, unless expressly
provided otherwise. The words "this Deposit Agreement", "herein", "hereof",
"hereby", "hereunder", and words of similar import refer to the Deposit
Agreement as a whole as in effect between the Company, the Depositary and the
Holders and Beneficial Owners of ADSs and not to any particular subdivision
unless expressly so limited. Pronouns in masculine, feminine and neuter gender
shall be construed to include any other gender, and words in the singular form
shall be construed to include the plural and vice versa unless the context
otherwise requires. Titles to Sections of this Deposit Agreement are included
for convenience only and shall be disregarded in construing the language
contained in this Deposit Agreement.
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IN WITNESS WHEREOF, BENETTON GROUP S.p.A. and DEUTSCHE BANK TRUST COMPANY
AMERICAS have duly executed this Deposit Agreement as of the day and year first
above set forth and all Holders and Beneficial Owners shall become parties
hereto upon acceptance by them of American Depositary Shares evidenced by
Receipts issued in accordance with the terms hereof.
BENETTON GROUP S.p.A.
By:
--------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
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Number CUSIP: 000000000
ISIN: US0817954037
American Depositary Shares
(Each American Depositary
Share representing
two ordinary shares)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
Of
BENETTON GROUP S.p.A.
(Incorporated under the laws of The Republic of Italy)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary (herein called the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADSs"), representing deposited ordinary
shares, each of par value of euro 1.30 each including evidence of rights to
receive such ordinary shares (the "Shares") of BENETTON GROUP S.p.A. (the
"Company"), a company incorporated under the laws of The Republic of Italy (the
"Company"). As of the date of the Deposit Agreement (hereinafter referred to),
each ADS represents two Shares deposited under the Deposit Agreement with the
Custodian which at the date of execution of the Deposit Agreement is BNP Paribas
Securities Services (the "Custodian"). The ratio of Depositary Shares to Shares
is subject to subsequent amendment as provided in Article VI of the Deposit
Agreement. The Depositary's Principal Office is located at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts (the "Receipts"), all issued and to be
issued upon the terms and conditions set forth in the Deposit Agreement, dated
as of March [_], 2008 (as amended from time to time, the "Deposit Agreement"),
by and among the Company, the Depositary, and all Holders and Beneficial Owners
from time to time of Receipts issued thereunder, each of whom by accepting a
Receipt agrees to become a party thereto and becomes bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights and obligations
of Holders and Beneficial Owners of Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time, received in respect of such
Shares and held thereunder (such Shares, other
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securities, property and cash are herein called "Deposited Securities"). Copies
of the Deposit Agreement are on file at the Principal Office of the Depositary
and the Custodian.
Each owner and each Beneficial Owner, upon acceptance of any ADSs (or any
interest therein) issued in accordance with the terms and conditions of the
Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of the Deposit Agreement and applicable ADR(s) and (b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
the Deposit Agreement and the applicable ADR(s), the taking of such actions to
be the conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Company's Articles of
Association (as in effect on the date of the Deposit Agreement) and are
qualified by and subject to the detailed provisions of the Deposit Agreement and
such Articles, to which reference is hereby made. Terms used herein are defined
in the Deposit Agreement are used herein as so defined. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the
American Depositary Shares into DTC. Each Beneficial Owner of American
Depositary Shares held through DTC must rely on the procedures of DTC and the
DTC Participants to exercise and be entitled to any rights attributable to such
American Depositary Shares. The Receipt evidencing the American Depositary
Shares held through DTC will be registered in the name of a nominee of DTC. So
long as the American Depositary Shares are held through DTC or unless otherwise
required by law, ownership of beneficial interests in the Receipt registered in
the name of DTC (or its nominee) will be shown on, and transfers of such
ownership will be effected only through, records maintained by DTC (or its
nominee) or DTC Participants (or their nominees).
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Condition 9 hereof and
in Section 5.9 of the Deposit Agreement) and (ii) all fees, taxes and
governmental charges payable in connection with such surrender and withdrawal,
and, subject to the terms and conditions of the Deposit Agreement, the Company's
Articles of Association, Section 7.10 of the Deposit Agreement, Condition 22
hereof and the provisions of or governing the Deposited Securities and other
applicable laws, the Holder of the American Depositary Shares evidenced hereby
is entitled to delivery, to him or upon his order, of the Deposited Securities
represented by the ADS so surrendered. Subject to the last sentence of this
paragraph, such Deposited Securities may be delivered in certificated form or by
electronic delivery. ADS may be surrendered for the purpose of withdrawing
Deposited Securities by delivery of a Receipt evidencing such ADS (if held in
registered form) or by book-entry delivery of such ADS to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to
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be delivered to or upon the written order of a person or persons designated in
such order. Thereupon, the Depositary shall direct the Custodian to Deliver
(without unreasonable delay) at the designated office of the Custodian (subject
to the terms and conditions of the Deposit Agreement, to the Company's Articles
of Association, and to the provisions of or governing the Deposited Securities
and applicable laws, now or hereafter in effect), to or upon the written order
of the person or persons designated in the order delivered to the Depositary as
provided above, the Deposited Securities represented by such ADSs, together with
any certificate or other proper documents of or relating to title for the
Deposited Securities or evidence of the electronic transfer thereof (if
available) as the case may be to or for the account of such person. The
Depositary may make delivery to such person or persons at the Principal Office
of the Depositary of any dividends or distributions with respect to the
Deposited Securities represented by such Receipt, or of any proceeds of sale of
any dividends, distributions or rights, which may at the time be held by the
Depositary.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares representing a number of Shares other than
a whole number of Shares. In the case of surrender of a Receipt evidencing a
number of ADSs representing other than a whole number of Shares, the Depositary
shall cause ownership of the appropriate whole number of Shares to be delivered
in accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt so surrendered and remit the proceeds thereof (net of
applicable fees and charges of, and expenses incurred by, the Depositary and
taxes withheld) to the person surrendering the Receipt. At the request, risk and
expense of any Holder so surrendering a Receipt, and for the account of such
Holder, the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any cash or other property (other than securities) held in
respect of, and any certificate or certificates and other proper documents of or
relating to title to, the Deposited Securities represented by such Receipt to
the Depositary for delivery at the Principal Office of the Depositary, and for
further delivery to such Holder. Such direction shall be given by letter or, at
the request, risk and expense of such Holder, by cable, telex or facsimile
transmission
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the
terms and conditions of the Deposit Agreement, the Registrar shall register
transfers of Receipts on its books, upon surrender at the Principal Office of
the Depositary of a Receipt by the Holder thereof in person or by duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer (including signature guarantees in accordance with standard industry
practice) and duly stamped as may be required by the laws of the State of New
York and of the United States of America, of The Republic of Italy and of any
other applicable jurisdiction. Subject to the terms and conditions of the
Deposit Agreement, including payment of the applicable fees and charges of the
Depositary, the Depositary shall execute and deliver a new Receipt(s) (and if
necessary, cause the Registrar to countersign such Receipt(s)) and deliver the
same to or upon the order of the person entitled to such Receipts evidencing the
same aggregate number of ADSs as those evidenced by the Receipts surrendered.
Upon surrender of a Receipt or Receipts for the purpose of effecting a split-up
or combination of such Receipt or Receipts upon payment of the applicable fees
and charges of the Depositary, and subject to the terms and conditions of the
Deposit Agreement, the Depositary shall execute and deliver a new Receipt or
Receipts for any authorized number of
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ADSs requested, evidencing the same aggregate number of ADSs as the Receipt or
Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from the
depositor of Shares or presenter of the Receipt of a sum sufficient to reimburse
it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matters and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts and ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations of the Depositary or the Company
consistent with the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange upon which the
Receipts or Share are listed, or under any provision of the Deposit Agreement or
provisions of, or governing, the Deposited Securities or any meeting of
shareholders of the Company or for any other reason, subject in all cases to
Condition 22 hereof. Notwithstanding any provision of the Deposit Agreement or
this Receipt to the contrary, the Holders of Receipts are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities at any time subject only
to (i) temporary delays caused by closing the transfer books of the Depositary
or the Company or the deposit of Shares in connection with voting at a
shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 under the Securities Act
(as such General Instructions may be amended from time to time). Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares or other Deposited Securities
required to be registered under the provisions of the Securities Act, unless a
registration statement is in effect as to such Shares.
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to the laws of The Republic of Italy, the rules and
requirements of the Borsa Italiana and any other stock exchange on which the
Shares are, or will be registered, traded or listed, the Company's Articles of
Association, which are made to provide information as to the capacity in which
such Holder or Beneficial Owner owns ADSs and regarding the identity of any
other person interested in such ADSs and the nature of such interest and various
other matters whether or not they are Holders and/or Beneficial Owner at the
time of such request. The Depositary
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agrees to use reasonable efforts to forward any such requests to the Holders and
to forward to the Company any such responses to such requests received by the
Depositary.
(6) Liability of Holder for Taxes, Duties and Other Charges. If any tax
or other governmental charge shall become payable by the Depositary or the
Custodian with respect to any Receipt or any Deposited Securities or ADSs, such
tax or other governmental charge shall be payable by the Holders and Beneficial
Owners to the Depositary. The Company, the Custodian and/or the Depositary may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of the Holder and/or Beneficial Owner
any or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, with the Holder and the Beneficial Owner hereof remaining fully
liable for any deficiency. The Custodian may refuse the deposit of Shares, and
the Depositary may refuse to issue ADSs, to deliver Receipts, register the
transfer, split-up or combination of ADRs and (subject to Condition 22 hereof)
the withdrawal of Deposited Securities, until payment in full of such tax,
charge, penalty or interest is received. Every Holder and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian and each of their
respective agents, directors, employees and Affiliates for, and hold each of
them harmless from, any claims with respect to taxes (including applicable
interest and penalties thereon) arising from any tax benefit obtained for such
Holder and/or Beneficial Owner.
Holders understand that in converting Foreign Currency, amounts received on
conversion are calculated at a rate which may exceed the number of decimal
places used by the Depositary to report distribution rates (which in any case
will not be less than two decimal places). Any excess amount may be retained by
the Depositary as an additional cost of conversion, irrespective of any other
fees and expenses payable or owing hereunder and shall not be subject to
escheatment.
(7) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares (and the certificates therefor) are duly
authorized, validly issued, fully paid, non-assessable and were legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares, have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim and are not, and the ADSs issuable upon such deposit will not
be, Restricted Securities and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and warranties
shall survive the deposit and withdrawal of Shares and the issuance,
cancellation and transfer of ADSs. If any such representations or warranties are
false in any way, the Company and Depositary shall be authorized, at the cost
and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
(8) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and the terms of the Deposit
Agreement and the provisions of, or governing, the Deposited Securities or other
information as the Depositary deem necessary or proper or as the Company may
reasonably require by
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written request to the Depositary consistent with its obligations under the
Deposit Agreement. Subject to Condition 22 hereof and the terms of the Deposit
Agreement, the Depositary and the Registrar, as applicable, may withhold the
delivery or registration of transfer of any Receipt or the distribution or sale
of any dividend or other distribution of rights or of the proceeds thereof or
the delivery of any Deposited Securities until such proof or other information
is filed, or such certifications are executed, or such representations and
warranties made, or such information and documentation are provided.
(9) Charges of Depositary. The Depositary shall charge the following
fees for the services performed under the terms of the Deposit Agreement;
provided, however, that no fees shall be payable upon distribution of cash
dividends so long as the charging of such fee is prohibited by the exchange, if
any, upon which the ADSs are listed:
(i) to any person to whom ADSs are issued or to any person to whom a
distribution is made in respect of ADS distributions pursuant to stock dividends
or other free distributions of stock, bonus distributions, stock splits or other
distributions (except where converted to cash), a fee not in excess of U.S.$5.00
per 100 ADSs (or fraction thereof) so issued under the terms of the Deposit
Agreement to be determined by the Depositary;
(ii) to any person surrendering ADSs for cancellation and withdrawal of
Deposited Securities including, inter alia, cash distributions made pursuant to
a cancellation or withdrawal, a fee not in excess of U.S.$5.00 per 100 ADSs (or
fraction thereof) so surrendered;
(iii) to any Holder of ADSs, for distribution of cash proceeds on or in
respect of the Deposited Shares, including any cash dividends or sale of rights
and other entitlements, not made pursuant to a cancellation or withdrawal and/or
for the operation and maintenance costs associated with the administration of
the ADSs: a fee of U.S.$0.02 per ADS.
(iv) to any Holder of ADSs, a fee not in the excess of U.S.$5.00 per 100
ADSs (or portion thereof) issued upon the exercise of rights;
(v) any additional fees, charges, costs or expenses that may be incurred
by the Depositary or its agents, or the Custodian, or its agents from time to
time, including, inter alia, any fees paid in respect of a local central
depository for securities (if applicable), any expenses incurred in the audit or
inspection of the local share register by the Depositary or the Custodian or
their respective agents as they may deem necessary from time to time or any
registrar fees and expenses incurred by the Depositary.
In addition, Holders, Beneficial Owners, person depositing Shares for
deposit and person surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities with the Foreign Registrar
and applicable to transfers of Shares or other Deposited Securities to or from
the name of the Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
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(iii) such cable, telex , facsimile and electronic transmission and
delivery expenses as are expressly provided in the Deposit Agreement to be at
the expense of the person depositing or withdrawing Shares or Holders and
Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and other
regulatory requirements applicable to Shares, Deposited Securities, ADSs and
ADRs;
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities, including any fees of a central depository
for securities in the local market, where applicable;
(vii) any additional fees, charges, costs or expenses that may be incurred
by the Depositary from time to time.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Condition 20 hereof.
(10) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) is
transferable by delivery of the Receipt, provided it has been properly endorsed
or accompanied by proper instruments of transfer, such Receipt being a
certificated security under the laws of the State of New York. Notwithstanding
any notice to the contrary, the Depositary may deem and treat the Holder of this
Receipt (that is, the person in whose name this Receipt is registered on the
books of the Depositary) as the absolute owner hereof for all purposes. The
Depositary shall have no obligation or be subject to any liability under the
Deposit Agreement or this Receipt to any holder of this Receipt or any
Beneficial Owner unless such holder is the Holder of this Receipt registered on
the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(11) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or enforceable for any purpose,
unless this Receipt has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) if a Registrar
for the Receipts shall have been appointed, countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar and (iv)
registered in the books maintained by the Depositary or the Registrar, as
applicable, for the issuance and transfer of Receipts. Receipts bearing the
facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly-authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the execution and delivery of such Receipt by the Depositary or did not
hold such office on the date of issuance of such Receipts.
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(12) Available Information; Reports; Inspection of Transfer Books. The
Company furnishes the Commission with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Such public reports and
documents are made available on and may be inspected and copied from the
Company's website in accordance with Rule 12g3-2(f) under the Exchange Act.
The Depositary shall make available during normal business hours on any
Business Day for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (i) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (ii)
made generally available to the holders of such Deposited Securities by the
Company.
The Depositary or the Registrar, as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary's or the
Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the Receipts.
The Depositary or the Registrar, as applicable, may close the transfer
books with respect to the Receipts, at any time or from time to time, when
deemed necessary or advisable by it in good faith in connection with the
performance of its duties hereunder, or at the reasonable written request of the
Company subject, in all cases, to Condition 22 hereof.
Dated: DEUTSCHE BANK TRUST
COMPANY AMERICAS, as Depositary
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
The address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, X.X.X.
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EXHIBIT B
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a foreign currency can, in the judgment of the
Depositary (upon the terms of the Deposit Agreement), be converted on a
practicable basis, into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars and will distribute promptly the amount thus received (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of ADS representing such Deposited Securities held by such Holders
respectively as of the ADS Record Date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder a
fraction of one cent. Any such fractional amount shall be rounded to the nearest
whole cent and so distributed to Owners entitled thereto. If the Company, the
Custodian or the Depositary is required to withhold and does withhold from any
cash dividend or other cash distribution in respect of any Deposited Securities
an amount on account of taxes, duties or other governmental charges, the amount
distributed to Holders on the ADSs representing such Deposited Securities shall
be reduced accordingly. Such withheld amounts shall be forwarded by the Company,
the Custodian or the Depositary to the relevant governmental authority. Any
foreign currency received by the Depositary shall be converted upon the terms
and conditions set forth in the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall or cause such Shares to
be deposited with the Custodian and registered, as the case may be, in the name
of the Depositary, the Custodian or their nominees. Upon receipt of confirmation
of such deposit, the Depositary shall, subject to and in accordance with the
Deposit Agreement, establish the ADS Record Date and either (i) distribute to
the Holders as of the ADS Record Date in proportion to the number of ADSs held
as of the ADS Record Date, additional ADSs, which represent in aggregate the
number of Shares received as such dividend, or free distribution, subject to the
terms of the Deposit Agreement (including, without limitation, the applicable
fees and charges of, and expenses incurred by, the Depositary, and taxes), or
(ii) if additional ADSs are not so distributed, each ADS issued and outstanding
after the ADS Record Date shall, to the extent permissible by law, thenceforth
also represent rights and interest in the additional Shares distributed upon the
Deposited Securities represented thereby (net of the applicable fees and charges
of, and the expenses incurred by, the Depositary, and taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds upon
the terms set forth in the Deposit Agreement.
In the event that (x) the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, (y) if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has either (a)
furnished an opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to
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Holders (and no such registration statement has been declared effective), or (b)
fails to timely deliver the documentation contemplated in the Deposit Agreement,
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, and the Depositary shall distribute the net proceeds of any such
sale (after deduction of taxes and fees and charges of, and expenses incurred
by, the Depositary) to Holders entitled thereto upon the terms of the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold balance of
such property in accordance with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Depositary shall, upon provision of all
documentation required under the Deposit Agreement (including, without
limitation, any legal opinions the Depositary may reasonably request, to be
furnished at the expense of the Company) determine whether such distribution is
lawful and reasonably practicable. If so, the Depositary shall, subject to the
terms and conditions of the Deposit Agreement, establish an ADS Record Date
according to Condition 14 hereof and establish procedures to enable the Holder
hereof to elect to receive the proposed distribution in cash or in additional
ADSs. If a Holder elects to receive the distribution in cash, the dividend shall
be distributed as in the case of a distribution in cash. If the Holder hereof
elects to receive the distribution in additional ADSs, the distribution shall be
distributed as in the case of a distribution in Shares upon the terms described
in the Deposit Agreement. If such elective distribution is not lawful or
reasonably practicable or if the Depositary did not receive satisfactory
documentation set forth in the Deposit Agreement, the Depositary shall, to the
extent permitted by law, distribute to Holders, on the basis of the same
determination as is made in The Republic of Italy in respect of the Shares for
which no election is made, either (x) cash or (y) additional ADSs representing
such additional Shares, in each case, upon the terms described in the Deposit
Agreement. Nothing herein shall obligate the Depositary to make available to the
Holder hereof a method to receive the elective distribution in Shares (rather
than ADSs). There can be no assurance that the Holder hereof will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Shares.
Upon receipt by the Depositary of a notice indicating that the Company
wishes rights to subscribe for additional Shares to be made available to Holders
of ADSs, the Company shall determine whether it is lawful and reasonably
practicable to make such rights available to the Holders. The Depositary shall
make such rights available to any Holders only if the Company shall have timely
requested that such rights be made available to Holders, the Depositary shall
have received the documentation required by the Deposit Agreement, and the
Depositary shall have determined that such distribution of rights is lawful and
reasonably practicable. If such conditions are not satisfied, the Depositary
shall sell the rights as described below. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date and
establish procedures (x) to distribute such rights (by means of warrants or
otherwise) and (y) to enable the Holders to exercise the rights (upon payment of
the applicable fees and charges of, and expenses incurred by, the Depositary and
taxes). Nothing herein or in the Deposit Agreement shall obligate the Depositary
to make available to the Holders a method to exercise such rights to subscribe
for Shares (rather than ADSs). If (i) the Company does not timely request the
Depositary to make the rights available to Holders or if the Company requests
that the rights not be made available to Holders, (ii) the Depositary fails to
receive the documentation required by the Deposit
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Agreement or determines it is not lawful or reasonably practicable to make the
rights available to Holders, 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, in a
riskless principal capacity or otherwise, at such place and upon such terms
(including public and private sale) as it may deem proper. The Depositary shall,
upon such sale, convert and distribute proceeds of such sale (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes) upon
the terms hereof and in the Deposit Agreement. If the Depositary is unable to
make any rights available to Holders or to arrange for the sale of the rights
upon the terms described above, the Depositary shall allow such rights to lapse.
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 Holders in general or
any Holders 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 Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein to the contrary, if registration (under the
Securities Act 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 covering such
offering is in effect or (ii) unless the Company furnishes to 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 satisfactorily to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. 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 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 exercise rights on the same terms
and conditions as the holders of Shares or 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.
Upon receipt of a notice regarding property other than cash, Shares or
rights to purchase additional Shares, to be made to Holders of ADSs, the
Depositary shall determine, upon consultation with the Company, whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have timely
requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received the documentation required by the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution
is lawful and reasonably practicable. Upon satisfaction of such conditions, the
Depositary shall distribute the property
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so received to the Holders of record as of the ADS Record Date, in proportion to
the number of ADSs held by such Holders respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary
may dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem proper and shall distribute the
proceeds of such sale received by the Depositary (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) to the
Holders upon the terms hereof and of the Deposit Agreement. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances.
(14) Fixing of Record Date. Whenever necessary in connection with any
distribution (whether in cash, shares, rights or other distribution) or whenever
for any reason the Depositary causes a change in the number of Shares that are
represented by each ADS or shall receive notice of any meeting of holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice, or any
other matter, the Depositary shall fix a record date (an "ADS Record Date") for
the determination of the Holders who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, or to receive such notice or
solicitation or to otherwise take action or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. Subject
to applicable law and the terms and conditions of this Receipt and the Deposit
Agreement, only the Holders of record at the close of business in New York on
such ADS Record Date shall be entitled to receive such distributions, to give
such voting instructions, to receive such notice or solicitation or otherwise
take action.
(15) Voting of Deposited Securities. Holders of ADRs will have no voting
rights with respect to the Deposited Shares. The Depositary will not exercise
any voting rights in respect of the Deposited Shares unless it is required to do
so by law. If so required, the Depositary will, at the direction of the Board of
Directors of the Company (subject to the advice of legal counsel taken by the
Depositary and the Company at the expense of the Company), either vote as
directed by the Board of Directors of the Company or give a proxy or power of
attorney to vote the Deposited Shares in favour of a Director of the Company or
other person or vote in same manner as those shareholders designated by the
Board of Directors of the Company. A valid corporate decision of the Company
will bind the Depositary and the Holders notwithstanding these restrictions on
voting rights.
Shares which have been withdrawn from the depositary facility and
transferred on the Company's register of members to a person other than the
Depositary or its nominee may be voted by the holders thereof. However, Holders
or beneficial owners of ADRs may not receive sufficient advance notice of
shareholder meetings to enable them to withdraw the Shares and vote at such
meetings.
(16) Changes Affecting Deposited Securities. Upon any change in par
value, split-up, cancellation, consolidation or any other reclassification of
Deposited Securities, or upon
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any recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it otherwise is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for, or in
conversion of or replacement or otherwise in respect of, such Deposited
Securities shall, to the extent permitted by law, be treated as new Deposited
Securities under the Deposit Agreement, and the Receipts shall, subject to the
provisions of the Deposit Agreement and applicable law, evidence ADSs
representing the right to receive such additional securities. Alternatively, the
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of
satisfactory documentation contemplated by the Deposit Agreement, execute and
deliver additional Receipts as in the case of a stock dividend on the Shares, or
call for the surrender of outstanding Receipts to be exchanged for new Receipts,
in either case, as well as in the event of newly deposited Shares, with
necessary modifications to this form of Receipt specifically describing such new
Deposited Securities and/or corporate change. Notwithstanding the foregoing, in
the event that any security so received may not be lawfully distributed to some
or all Holders, the Depositary may, with the Company's approval, and shall if
the Company requests, subject to receipt of satisfactory legal documentation
contemplated in the Deposit Agreement, sell such securities at public or private
sale, at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of fees and charges of, and
expenses incurred by, the Depositary and taxes) for the account of the Holders
otherwise entitled to such securities and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to the Deposit Agreement. The Depositary shall not be responsible
for (i) any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or any Holder in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
(17) Exoneration. Neither the Depositary, the Custodian or the Company
shall be obligated to do or perform any act which is inconsistent with the
provisions of the Deposit Agreement or shall incur any liability (i) if the
Depositary, the Custodian or the Company or their respective controlling persons
or agents shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, The Republic of Italy or any other country, or of any
other governmental authority or regulatory authority or stock exchange, or by
reason of any provision, present or future of the Company's Articles of
Association or any provision of or governing any Deposited Securities, or by
reason of any act of God or war or other circumstances beyond its control,
(including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in the Deposit Agreement or in the
Company's Articles of Association or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the Custodian or
the Company or their respective controlling persons or agents in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for any inability by a Holder
or Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of the Deposit Agreement, made available to Holders of ADS or
(v) for any
B-5
consequential or punitive damages for any breach of the terms of the Deposit
Agreement. The Depositary, its controlling persons, its agents, any Custodian
and the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request, opinion or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties. No disclaimer of liability under the Securities Act is
intended by any provision of the Deposit Agreement.
(18) Standard of Care. The Company and the Depositary and their
respective agents assume no obligation and shall not be subject to any liability
under the Deposit Agreement or the Receipts to Holders or Beneficial Owners or
other persons (except for the Company's and the Depositary's obligations
specifically set forth in Section 5.8 of the Deposit Agreement), provided, that
the Company and the Depositary and their respective agents agree to perform
their respective obligations specifically set forth in the Deposit Agreement
without gross negligence or bad faith. The Depositary and its agents shall not
be liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of the Deposit Agreement. The Depositary shall not
incur any liability for any failure to determine that any distribution or action
may be lawful or reasonably practicable, for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated with
acquiring an interest in the Deposited Securities, for the validity or worth of
the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness of
any third party, for allowing any rights to lapse upon the terms of the Deposit
Agreement or for the failure or timeliness of any notice from the Company. In no
event shall the Depositary or any of its Agents be liable for any indirect,
special, punitive or consequential damages.
(19) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement, save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such resignation. The
Company shall use reasonable efforts to appoint such successor depositary, and
give notice to the Depositary of such appointment, not more than 90 days after
delivery by the Depositary of written notice of resignation as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal which notice shall be effective on the later of
(i) the 90th day after delivery thereof to the Depositary and (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement save that, any amounts, fees, costs or
expenses owed to the Depositary under the Deposit Agreement or in accordance
with any other agreements otherwise agreed in writing between the Company and
the Depositary from time to time shall be paid to the Depositary prior to such
removal. In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the
B-6
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor. The predecessor depositary, upon payment of all sums due it and on
the written request of the Company, shall (i) execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder (other than as contemplated in the Deposit Agreement), (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders. Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
(20) Amendment/Supplement. Subject to the terms and conditions of this
Condition 20, and applicable law, this Receipt and any provisions of the Deposit
Agreement may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the consent of the Holders or
Beneficial Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than the charges of the Depositary in connection with
foreign exchange control regulations, and taxes and other governmental charges,
delivery and other such expenses), or which shall otherwise materially prejudice
any substantial existing right of Holders or Beneficial Owners, shall not,
however, become effective as to outstanding Receipts until 30 days after notice
of such amendment or supplement shall have been given to the Holders of
outstanding Receipts. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs or Shares to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and Beneficial
Owner at the time any amendment or supplement so becomes effective shall be
deemed, by continuing to hold such ADS, to consent and agree to such amendment
or supplement and to be bound by the Deposit Agreement as amended or
supplemented thereby. In no event shall any amendment or supplement impair the
right of the Holder to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Notwithstanding the foregoing, if any governmental
body should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and the
Receipt at any time in accordance with such changed laws, rules or regulations.
Such amendment or supplement to the Deposit Agreement in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, or rules or regulations.
(21) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 90
days prior to the date fixed in such notice for such termination provided that,
the Depositary shall be reimbursed for any amounts, fees, costs or expenses owed
to it in accordance with the terms of the Deposit Agreement and in
B-7
accordance with any other agreements as otherwise agreed in writing between the
Company and the Depositary from time to time, prior to such termination shall
take effect. If 90 days shall have expired after (i) the Depositary shall have
delivered to the Company a written notice of its election to resign, or (ii) the
Company shall have delivered to the Depositary a written notice of the removal
of the Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holder's Receipt at the Principal Office of the Depositary, upon the payment of
the charges of the Depositary for the surrender of Receipts referred to in
Condition 2 hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments). At
any time after the expiration of one year from the date of termination of the
Deposit Agreement, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, in an unsegregated
account, without liability for interest for the pro rata benefit of the Holders
of Receipts whose Receipts have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all obligations under the
Deposit Agreement with respect to the Receipts and the Shares, Deposited
Securities and ADSs, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case the charges of
the Depositary for the surrender of a Receipt, any expenses for the account of
the Holder in accordance with the terms and conditions of the Deposit Agreement
and any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
(22) Compliance with U.S. Securities Laws; Regulatory Compliance.
Notwithstanding any provisions in this Receipt or the Deposit Agreement to the
contrary, the withdrawal or delivery of Deposited Securities will not be
suspended by the Company or the Depositary except as would be permitted by
Section I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act.
(23) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Condition 23, the Depositary, its
Affiliates and their agents, on their own
B-8
behalf, may own and deal in any class of securities of the Company and its
affiliates and in ADSs. The Depositary may issue ADSs against evidence of rights
to receive Shares from the Company, any agent of the Company or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished on behalf of the holder thereof. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 of the
Deposit Agreement and (ii) deliver Shares prior to the receipt and cancellation
of ADSs pursuant to Section 2.6 of the Deposit Agreement, including ADSs which
were issued under (i) above but for which Shares may not have been received
(each such transaction a "Pre-Release Transaction"). The Depositary may receive
ADSs in lieu of Shares under (i) above and receive Shares in lieu of ADSs under
(ii) above. Each such Pre-Release Transaction will be (a) accompanied by or
subject to a written agreement whereby the person or entity (the "Applicant") to
whom ADSs or Shares are to be delivered (1) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(2) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (3)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (4) agrees to any additional restrictions or
requirements that the Depositary deems appropriate; (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate; (c) terminable by the Depositary on not more
than five (5) business days' notice; and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to 30% of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may also set limits with respect to
the number of ADSs and Shares involved in Pre-Release Transactions with any one
person on a case by case basis as it deems appropriate. The Depositary may
retain for its own account any compensation received by it in conjunction with
the foregoing. Collateral provided pursuant to (b) above, but not earnings
thereon, shall be held for the benefit of the Holders (other than the
Applicant).
B-9
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated: Name:
-------------------------
By:
Title:
NOTICE: The signature of the Holder
to this assignment must correspond
with the name as written upon the
face of the within instrument in
every particular, without
alteration or enlargement or any
change whatsoever.
If the endorsement be executed by
an attorney, executor,
administrator, trustee or guardian,
the person executing the
endorsement must give his/her full
title in such capacity and proper
evidence of authority to act in
such capacity, if not on file with
the Depositary, must be forwarded
with this Receipt.
SIGNATURE GUARANTEED
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B-10
