AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of March 18, 2003 (the "Amendment"),
to the Deposit Agreement dated as of June 19, 2000 (as so amended hereby, the
"Deposit Agreement"), among Silverline Technologies Limited, incorporated under
the laws of the Republic of India (the "Company"), JPMorgan Chase Bank, as
depositary (the "Depositary"), and all holders from time to time of American
depositary receipts ("ADRs") issued thereunder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Depositary executed the Deposit
Agreement for the purposes set forth therein; and
WHEREAS, pursuant to paragraph (16) of the form of ADR
contained in the Deposit Agreement, the Company and the Depositary desire to
amend the terms of the Deposit Agreement and ADRs.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Depositary hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment,
all capitalized terms used, but not otherwise defined, herein shall have the
meaning given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. All references in the Deposit Agreement to the term
"Deposit Agreement" shall, as of the Effective Date (as herein defined), refer
to the Deposit Agreement, dated as of June 19, 2000 as amended by this
Amendment.
SECTION 2.02. Section 1(c) of the Deposit Agreement is amended by
replacing "two" with "ten".
SECTION 2.03. The third paragraph of Section 16 of the Deposit
Agreement is amended by inserting the following at the conclusion thereof:
In no event shall the Depositary or any of its agents be
liable for any indirect, special, punitive or consequential
damages.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. The face of the form of ADR is amended by replacing "two
shares" with "ten shares".
SECTION 3.02. The first paragraph of the form of ADR is amended by
replacing "two (2) equity shares" with "ten (10) equity shares".
SECTION 3.03. Paragraph (14) of the form of ADR is amended by
inserting the following before the last sentence thereof:
In no event shall the Depositary or any of its agents be
liable for any indirect, special, punitive or consequential
damages.
SECTION 3.04. The form of ADR shall be in the form set forth as Exhibit
A hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company
represents and warrants to, and agrees with, the Depositary and the Holders,
that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been,
respectively, duly and validly authorized, executed and delivered by
the Company, and constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and
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similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement
as amended hereby, and any other document furnished hereunder or
thereunder in the Republic of India, neither of such agreements need to
be filed or recorded with any court or other authority in the Republic
of India, nor does any stamp or similar tax or governmental charge need
to be paid in the Republic of India on or in respect of such
agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the
date set forth above and shall be effective as of March 18, 2003 (the
"Effective Date").
SECTION 5.02. Outstanding ADRs. The Depositary is authorized and
directed to take any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. Indemnification. The parties hereto shall be entitled to
the benefits of the indemnification provisions of Section 16 of the Deposit
Agreement in connection with any and all liability it or they may incur as a
result of the terms of this Amendment and the transactions contemplated herein.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
SILVERLINE TECHNOLOGIES LIMITED
By:__________________________________________
Name:
Title:
JPMORGAN CHASE BANK
By:__________________________________________
Name:
Title:
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
AMENDMENT TO DEPOSIT AGREEMENT
______________________________
[FORM OF FACE OF ADR]
________________
Number No. of ADSs:
Each ADS represents
Ten Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
EQUITY SHARES
of
SILVERLINE TECHNOLOGIES LIMITED
(Incorporated under the
laws of the Republic of India)
JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder
(the "Depositary"), hereby certifies that ____ is the registered owner (a
"Holder") of ___ American Depositary Shares ("ADSs"), each (subject to paragraph
(13)) representing ten (10) equity shares in registered form (including the
rights to receive Shares described in paragraph (1), "Shares" and, together with
any other securities, cash or property from time to time held by the Depositary
in respect or in lieu of deposited Shares, the "Deposited Securities"), of
SILVERLINE TECHNOLOGIES LIMITED, a corporation organized under the laws of the
Republic of India (the "Company"), deposited under the Deposit Agreement dated
as of June 19, 2000 (as amended from time to time, the "Deposit Agreement"),
among the Company, the Depositary and all Holders from time to time of American
Depositary Receipts issued thereunder ("ADRs"), each of whom by accepting an ADR
becomes a party thereto. The Deposit Agreement and this ADR (which includes the
provisions set forth on the reverse hereof) shall be governed by and
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construed in accordance with the laws of the State of New York.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the
Deposit Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the Custodian;
(b) rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or (c)
other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not more
than 30% of all ADSs (excluding those evidenced by Pre-released ADRs), provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary may retain for
its own account any earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. At the request, risk and expense of the person depositing
Shares, the Depositary may accept deposits for forwarding to the Custodian and
may deliver ADRs at a place other than its office. Every person depositing
Shares under the Deposit Agreement represents and warrants that such Shares are
validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights of holders of outstanding Shares, that the person making such
deposit is duly authorized so to do and that such Shares (A) are not "restricted
securities" as such term is defined in Rule 144 under the Securities Act of 1933
unless at the time of deposit they may be freely transferred in accordance with
Rule 144(k) and may otherwise be offered and sold freely in the United States or
(B) have been registered under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary will not knowingly accept for deposit under the Deposit Agreement any
Shares required to be registered under the Securities Act of 1933 and not so
registered; the Depositary may refuse to accept for such deposit any Shares
identified by the Company in order to facilitate the Company's compliance with
such Act or whenever the Depositary is notified in writing that the Company has
restricted transfer of shares if such transfer would result in the ownership of
the Shares being in violation of any applicable laws or regulations (including
stock exchange regulations), the Government Approval or the Memorandum and
Articles of Association of the Company. The Depositary may also refuse to accept
Shares for deposit if such action is deemed necessary or desirable by the
Depositary, in good faith, at any time or from time to time because of any
requirement or law or rule of any government or governmental authority, body or
commission or stock exchange or under any provision of this Deposit Agreement or
for any other reason.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and
(5), upon surrender of (i) a certificated ADR in form satisfactory to the
Depositary at the Transfer Office or
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(ii) proper instructions and documentation in the case of a Direct Registration
ADR, the Holder hereof is entitled to delivery at the Custodian's office of
the Deposited Securities at the time represented by the ADSs evidenced by this
ADR. At the request, risk and expense of the Holder hereof, the Depositary may
deliver such Deposited Securities at such other place as may have been requested
by the Holder. A stamp duty of 0.5 per cent (or such percentage as may be
applicable at the relevant time) of the market value of the Shares will be
charged in respect of any withdrawal of Shares and such stamp duty will be
payable by the relevant Holder. However, no stamp duty will be payable for
transfer of Shares held in dematerialized form. Any subsequent transfer by the
Holder of the Shares after withdrawal will require the approval of the Reserve
Bank of India, which approval must be obtained by the purchaser and the Company
under Section 29(1)(b) and 19(4), respectively, of the Foreign Exchange
Regulation Act, 1973 unless the transfer is on a stock exchange or in connection
with an offer under the Indian takeover regulations. Notwithstanding any other
provision of the Deposit Agreement or this ADR, the withdrawal of Deposited
Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, which,
in the case of Direct Registration ADRs, shall include the Direct Registration
System, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Deposit Agreement and (b)
facilities for the delivery and receipt of ADRs. The term ADR Register includes
the Direct Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed in
the case of ADRs in certificated form or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of negotiable instruments under the laws of the State of New
York; provided that the Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this ADR is registered on the ADR Register as
the absolute owner hereof for all purposes. Subject to paragraphs (4) and (5),
this ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by such Holder's duly authorized
attorney upon surrender of this ADR at the Transfer Office properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer and duly stamped as may be required by applicable
law; provided that the Depositary may close the ADR Register at any time or from
time to time when deemed expedient by it or requested by the Company. At the
request of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct Registration ADR, or vice versa, execute and
deliver a certificated ADR or a Direct Registration ADR, as the case may be, for
any authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
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(4) Certain Limitations. Prior to the issue, registration, registration
of transfer, split-up or combination of any ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of paragraph
(2), the withdrawal of any Deposited Securities, and from time to time in the
case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed advisable by
the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable
by or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. If the Depositary determines that any distribution
in property other than cash (including Shares or rights) on Deposited Securities
is subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such
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sale or the balance of any such property after deduction of such taxes to the
Holders entitled thereto.
(6) Disclosure of Interests. To the extent that the provisions of or
governing any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary in the Depositary's compliance with any Company
instructions in respect thereof, and the Depositary will use reasonable efforts
to comply with such Company instructions.
The Company may restrict transfers of the Shares where any such
transfer might result in ownership of Shares in contravention of, or exceeding
the limits under, the Government Approval, applicable law or the constituent
instruments of the Company. The Company also may also instruct Holders, in such
manner as it deems appropriate in its sole discretion, that it is restricting
the transfers of ADSs where such transfer may result in the total number of
Shares represented by the ADSs beneficially owned by a single Holder to
contravene or exceed the limits under the Government Approval, applicable law or
the constituent instruments of the Company. The Company reserves the right to
instruct Holders to deliver their ADRs for cancellation and withdrawal of the
Deposited Securities so as to permit the Company to deal directly with the
Holder thereof as a holder of Shares. The Depositary agrees to cooperate with
the Company in its efforts to inform Holders of the Company's exercise of its
rights under this paragraph and agrees to consult with, and provide reasonable
assistance without risk, liability or expense on the part of the Depositary, to
the Company on the manner or manners in which it may enforce such rights with
respect to any Holder.
(7) Charges of Depositary. The Depositary may charge each person to
whom ADRs are issued against deposits of Shares, including deposits in respect
of Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph (10)), and each person surrendering ADRs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
evidenced by the ADRs delivered or surrendered. The Depositary may sell (by
public or private sale) sufficient securities and property received in respect
of Share Distributions, Rights and Other Distributions prior to such deposit to
pay such charge. The Company will pay all other charges and expenses of the
Depositary and any agent of the Depositary (except the Custodian) pursuant to
agreements from time to time between the Company and the Depositary, except (i)
stock transfer or other taxes and other governmental charges (which are payable
by Holders or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders delivering Shares, ADRs or Deposited Securities (which are payable by
such persons or Holders), (iii) transfer or registration fees for the
registration of transfer of Deposited Securities on any applicable register in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the
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Shares as of the date of the Deposit Agreement) and (iv) expenses of the
Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency). These charges may be
changed in the manner indicated in paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will mail copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by the Company. The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and accordingly files
certain reports with the United States Securities and Exchange Commission (the
"Commission"). Such reports and other information may be inspected and copied at
public reference facilities maintained by the Commission located at the date
hereof at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
(9) Execution. This ADR shall not be valid for any purpose unless
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By _______________________________
Authorized Officer
The Depositary's office is located at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4)
and (5), to the extent practicable, the Depositary will distribute by mail to
each Holder entitled thereto on the record date set by the Depositary therefor
at such Holder's address shown on the ADR Register, in proportion to the number
of Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of
any other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible or
impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that
it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means
as the Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable manner
provided, however, that in the event that any of the deposited Shares is not
entitled, by reason of its date of issuance, or otherwise, to receive the full
amount of such cash dividend or distribution, the Depositary shall make
appropriate adjustments in the amounts distributed to the Holders of the ADRs
issued in respect of such Shares; and provided, further, that in the event that
the Company or the Depositary shall be 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, the amount distributed on the ADRs
issued in respect of such Deposited Securities shall be reduced accordingly. (b)
Shares. (i) Additional ADRs evidencing whole ADSs representing any Shares
available to the Depositary resulting from a dividend or free distribution on
Deposited Securities consisting of Shares (a "Share Distribution") and (ii) U.S.
dollars available to it resulting from the net proceeds of sales of Shares
received in a Share Distribution, which Shares would give rise to fractional
ADSs if additional ADRs were issued therefor, as in the case of Cash. (c)
Rights. (i) Warrants or other instruments in the discretion of the Depositary
representing rights to acquire additional ADRs in respect of any rights to
subscribe for additional Shares or rights of any nature available to the
Depositary as a result of a distribution on Deposited Securities ("Rights"), to
the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute the
same (the Company has no obligation to so furnish such evidence), or (ii) to
the extent the Company does not so furnish such evidence and sales of Rights
are practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Rights as in the case of Cash, or (iii) to the extent
the Company does not so furnish such evidence and such sales cannot practicably
be accomplished by reason of the nontransferability of the Rights, limited
markets therefor, their short duration or otherwise, nothing (and any Rights may
lapse).
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(d) Other Distributions. (i) Securities or property available to the
Depositary resulting from any distribution on Deposited Securities other than
Cash, Share Distributions and Rights ("Other Distributions"), by any means that
the Depositary may deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents (any fractional cents being withheld without
liability for interest and added to future Cash distributions).
(11) Record Dates. The Depositary may, after consultation with the
Company if practicable, fix a record date (which shall be as near as practicable
to any corresponding record date set by the Company) for the determination of
the Holders who shall be entitled to receive any distribution on or in respect
of Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after
receipt from the Company of notice of any meeting or solicitation of consents or
proxies of holders of Shares or other Deposited Securities, the Depositary shall
mail to Holders a notice stating (a) such information as is contained in such
notice and any solicitation materials, (b) that each Holder on the record date
set by the Depositary therefor will be entitled to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs and (c) the
manner in which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4)
and (5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange) or
cash, securities or property on the record date set by the Depositary therefor
to reflect any change in par value, split-up, consolidation, cancellation or
other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
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(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, regulation, the provisions of or
governing any Deposited Securities, act of God, war or other circumstance beyond
its control shall prevent, delay or subject to any civil or criminal penalty any
act which the Deposit Agreement or this ADR provides shall be done or performed
by it, or (ii) by reason of any exercise or failure to exercise any discretion
given it in the Deposit Agreement or this ADR; (b) assume no liability except to
perform its obligations to the extent they are specifically set forth in this
ADR and the Deposit Agreement without gross negligence or bad faith; (c) in the
case of the Depositary and its agents, be under no obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this ADR; (d) in the case of the Company and its agents
hereunder be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or this ADR,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required by the Company;
and (e) not be liable for any action or inaction by it in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Holder, or any other person believed by it to be
competent to give such advice or information. The Depositary, its agents and the
Company may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them to be genuine and to have
been signed or presented by the proper party or parties. The Depositary and its
agents will not be responsible for any failure to carry out any instructions to
vote any of the Deposited Securities, for the manner in which any such vote is
cast or for the effect of any such vote. In no event shall the Depositary or any
of its agents be liable for any indirect, special, punitive or consequential
damages. The Depositary and its agents may own and deal in any class of
securities of the Company and its affiliates and in ADRs. The Company has agreed
to indemnify the Depositary and its agents under certain circumstances and the
Depositary has agreed to indemnify the Company against losses incurred by the
Company to the extent such losses are due to the negligence or bad faith of the
Depositary. No disclaimer of liability under the Securities Act of 1933 is
intended by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The
Depositary may resign as Depositary by written notice of its election to do so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary; such resignation or removal
shall take effect upon the appointment of and acceptance by a successor
depositary. The Depositary may appoint substitute or additional Custodians and
the term "Custodian" refers to each Custodian or all Custodians as the context
requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs
and the Deposit Agreement may be amended by the Company and the Depositary,
provided that any amendment that imposes or increases any fees or charges (other
than stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder
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of any ADR to surrender such ADR and receive the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. 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 of 1933 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.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement or the form of ADR to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the ADR at any time
in accordance with such changed rules. 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.
(17) Termination. The Depositary may, and shall at the written
direction of the Company, terminate the Deposit Agreement and this ADR by
mailing notice of such termination to the Holders at least 30 days prior to the
date fixed in such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further acts under
the Deposit Agreement and this ADR, except to receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn. As soon as practicable after the expiration of six months from the
date so fixed for termination, the Depositary shall sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in a
segregated account the net proceeds of such sales, together with any other cash
then held by it under the Deposit Agreement, without liability for interest, in
trust for the pro rata benefit of the Holders of ADRs not theretofore
surrendered. After making such sale, the Depositary shall be discharged from all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such net proceeds and other cash. After the date so fixed for termination,
the Company shall be discharged from all obligations under the Deposit Agreement
except for its obligations to the Depositary and its agents.
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