Exhibit d(1)
QUILMES INDUSTRIAL (QUINSA), SOCIETE ANONYME
AND
THE BANK OF NEW YORK
AS DEPOSITARY
AND
HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY RECEIPTS
AMENDED AND RESTATED DEPOSIT AGREEMENT
DATED AS OF FEBRUARY 28, 2002
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS......................................................................... 1
SECTION 1.1. American Depositary Shares; ADSs............................................ 2
SECTION 1.2. Beneficial Owner............................................................ 2
SECTION 1.3. Business Day................................................................ 2
SECTION 1.4. Commission.................................................................. 2
SECTION 1.5. Company..................................................................... 2
SECTION 1.6. Custodian; Custodians....................................................... 2
SECTION 1.7. Delivery; Deposit; Surrender; Transfer; Withdraw............................ 3
SECTION 1.8. Deposit Agreement........................................................... 3
SECTION 1.9. Depositary; Corporate Trust Office.......................................... 3
SECTION 1.10 Deposited Securities........................................................ 3
SECTION 1.11 Dollars..................................................................... 4
SECTION 1.12 Foreign Registrar........................................................... 4
SECTION 1.13 Holder...................................................................... 4
SECTION 1.14 Receipts.................................................................... 4
SECTION 1.15 Registrar................................................................... 4
SECTION 1.16 Restricted Securities....................................................... 4
SECTION 1.17 Securities Act of 1933...................................................... 5
SECTION 1.18 Securities Exchange Act..................................................... 5
SECTION 1.19 Shares...................................................................... 5
SECTION 1.20 United States............................................................... 5
SECTION 1.21 Luxembourg.................................................................. 5
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS.................................................................. 5
SECTION 2.1. Form and Transferability of Receipts........................................ 5
SECTION 2.2. Deposit of Shares........................................................... 6
SECTION 2.3. Execution and Delivery of Receipts.......................................... 7
SECTION 2.4. Transfer of Receipts; Combination and Split-up of Receipts.................. 8
SECTION 2.5. Surrender of Receipts and Withdrawal of Shares.............................. 8
SECTION 2.6. Limitations on Execution and Delivery, Transfer and Surrender of Receipts... 9
SECTION 2.7. Lost Receipts, etc.......................................................... 10
SECTION 2.8. Cancellation and Destruction of Surrendered Receipts........................ 11
SECTION 2.9. Pre-Release of Receipts..................................................... 11
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ARTICLE 3. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.......................................... 12
SECTION 3.1. Filing Proofs, Certificates and Other Information........................... 12
SECTION 3.2. Liability of Holder for Taxes............................................... 12
SECTION 3.3. Warranties on Deposit of Shares............................................. 13
SECTION 3.4. Disclosure of Interest...................................................... 13
ARTICLE 4. THE DEPOSITED SECURITIES............................................................ 13
SECTION 4.1. Cash Distributions.......................................................... 13
SECTION 4.2. Distributions Other Than Cash, Shares or Rights............................. 14
SECTION 4.3. Distributions in Shares..................................................... 14
SECTION 4.4. Rights...................................................................... 15
SECTION 4.5. Conversion of Foreign Currency.............................................. 16
SECTION 4.6. Fixing of Record Date....................................................... 17
SECTION 4.7. Voting of Deposited Securities.............................................. 18
SECTION 4.8. Changes Affecting Deposited Securities...................................... 19
SECTION 4.9. Reports..................................................................... 19
SECTION 4.10 Lists of Owners............................................................. 20
SECTION 4.11 Withholding................................................................. 20
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY...................................... 20
SECTION 5.1. Maintenance of Office and Transfer Books by the Depositary.................. 20
SECTION 5.2. Prevention or Delay in Performance by the Depositary or the Company......... 21
SECTION 5.3. Obligations of the Depositary, the Custodian and the Company................ 21
SECTION 5.4. Resignation and Removal of the Depositary................................... 22
SECTION 5.5. The Custodians.............................................................. 23
SECTION 5.6. Notices and Reports......................................................... 24
SECTION 5.7. Distribution of Additional Shares, Rights, etc.............................. 24
SECTION 5.8. Indemnification............................................................. 25
SECTION 5.9. Charges of Depositary....................................................... 26
SECTION 5.10 Retention of Depositary Documents........................................... 27
SECTION 5.11 Exclusivity................................................................. 28
SECTION 5.12 List of Restricted Securities Owners........................................ 28
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ARTICLE 6. AMENDMENT AND TERMINATION........................................................... 28
SECTION 6.1. Amendment................................................................... 28
SECTION 6.2. Termination................................................................. 28
ARTICLE 7. MISCELLANEOUS....................................................................... 29
SECTION 7.1. Counterparts................................................................ 29
SECTION 7.2. No Third Party Beneficiaries................................................ 30
SECTION 7.3. Severability................................................................ 30
SECTION 7.4. Holders and Beneficial Owners as Parties; Binding Effect.................... 30
SECTION 7.5. Notices..................................................................... 30
SECTION 7.6. Governing Law............................................................... 31
SECTION 7.7. Compliance with U.S. Securities Laws........................................ 31
SECTION 7.8. Submission to Jurisdiction; Appointment of Agent for Service of Process. ... 31
SECTION 7.9. Assignment.................................................................. 32
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AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of February 28, 2002 among
QUILMES INDUSTRIAL (QUINSA), Societe Anonyme, a company incorporated under the
laws of Luxembourg (the "Company"), THE BANK OF NEW YORK, a New York banking
corporation (the "Depositary"), and all Holders and Beneficial Owners from time
to time of American Depositary Receipts issued hereunder.
WITNESSETH:
WHEREAS, the Company, Citibank, N.A., as depositary, and all holders from
time to time entered into a deposit agreement dated as of April 2, 1996, as
amended on December 21, 2001 (the "Original Deposit Agreement"); and
WHEREAS, pursuant to Section 5.04 of the Original Deposit Agreement, the
Company removed Citibank, N.A., as depositary, and appointed The Bank of New
York as successor depositary (hereinafter called the "Depositary"); and
WHEREAS, the Company has duly authorized the issue from time to time of
its Class B shares without par value to be issued with such terms and provisions
as shall be specified in or pursuant to the Articles of Incorporation of the
Company and one or more resolutions of its Board of Directors; and
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Company, from time to time with the Depositary or with the Custodian, as agent
of the Depositary, for the purposes set forth in this Deposit Agreement, for the
creation of American Depositary Shares representing the Shares so deposited and
for the execution and delivery of American Depositary Receipts evidencing
American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE 1. DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
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SECTION 1.1. American Depositary Shares; ADSs.
The terms "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent the
number of Shares specified in Exhibit A annexed hereto, until there shall occur
a distribution upon Deposited Securities covered by Section 4.3 or a change in
Deposited Securities covered by Section 4.8 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
SECTION 1.2. Beneficial Owner.
The term "Beneficial Owner" shall mean any person owning a
beneficial interest in a Receipt and the American Depositary Shares represented
by such Receipt but who is not the Holder of such Receipt.
SECTION 1.3. Business Day
The term "Business Day" shall mean any day that is not a
Saturday, Sunday, or other day on which banks are required or authorized by law
to be closed in the City of New York.
SECTION 1.4. Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.5. Company.
The term "Company" shall mean QUILMES INDUSTRIAL (QUINSA), Societe
Anonyme, a company incorporated and existing under the laws of Luxembourg, and
its successors.
SECTION 1.6. Custodian; Custodians.
The term "Custodian" shall mean, as of the date hereof, Banque et
Caisse d'Epargne de l'Etat having its principal office in Luxembourg, as
Custodian and agent of the Depositary for the purposes of this Deposit
Agreement, and any other firm or
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corporation which may hereafter be appointed by the Depositary pursuant to the
terms of Section 5.5 as a successor or an additional custodian or custodians
hereunder, as the context shall require, and the term "Custodians" shall mean
all of them, collectively.
SECTION 1.7. Delivery; Deposit; Surrender; Transfer; Withdraw.
The term "deliver", "deposit", surrender", "transfer" or "withdraw",
when used (i) with respect to Shares: (a) in the case of book-entry Shares,
shall refer to an entry or entries in an account or accounts maintained by
institutions authorized under applicable law to effect transfers of securities,
or (b) in the case of certificated Shares, to the physical delivery, deposit,
withdrawal or transfer of certificates representing the Shares and (ii) with
respect to American Depositary Shares evidenced by Receipts, (a) in the case of
American Depositary Shares available in book-entry form, shall refer to
appropriate adjustments in the records maintained by (1) the Depositary, (2) the
Depositary Trust Company ("DTC") or its nominee, or (3) institutions that have
accounts with DTC, as applicable, or (b) otherwise, shall refer to the physical
delivery, deposit, surrender, transfer or withdrawal of such American Depositary
Shares evidenced by Receipts.
SECTION 1.8. Deposit Agreement.
The term "Deposit Agreement" shall mean this amended and restated
Agreement, as the same may be amended from time to time in accordance with the
provisions hereof.
SECTION 1.9. Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
SECTION 1.10. Deposited Securities.
The term "Deposited Securities" as of any time shall mean, Shares at
such time deposited under this Deposit Agreement and any and all other
securities, property and cash received by the Depositary or the Custodian in
respect thereof and at such time held hereunder, subject in the case of cash to
the provisions of Section 4.5.
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SECTION 1.11. Dollars.
The term "dollars" shall refer to the lawful currency of the United
States.
SECTION 1.12. Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
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 1.13. Holder.
The term "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.
SECTION 1.14. Receipts.
The term "Receipts" shall mean, with respect to any American
Depositary Shares, the American Depositary Receipts issued hereunder evidencing
such American Depositary Shares. A Receipt may evidence any number of American
Depositary Shares.
SECTION 1.15. Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein provided.
SECTION 1.16. Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company or its affiliates (as defined in Rule 144 under the Securities Act of
1933) in a transaction or chain of transactions not involving any public
offering or which are subject to resale limitations under Regulation D under
that Act or both, or which are held by an officer, director (or person
performing similar functions) or other affiliate of the Company, or which are
subject to other restrictions on sale or deposit under the laws of the United
States or Luxembourg, or under a shareholder agreement or the Articles of
Incorporation of the Company.
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SECTION 1.17. Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.18. Securities Exchange Act.
The term "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.19. Shares.
The term "Shares" shall mean Class B Shares of the Company, without
par value, heretofore validly, issued and outstanding and fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares or hereafter validly issued and outstanding and fully paid, nonassessable
and free of any pre-emptive rights of the holders of outstanding Shares or
interim certificates representing such Shares; provided, however, that if there
shall occur any change in par value, a split-up or consolidation or any other
reclassification or, upon the occurrence of an event described in Section 4.8,
an exchange or conversion in respect of Shares of the Company, the term "Shares"
shall thereafter represent the successor securities resulting from such change
in par value, split-up or consolidation or such other reclassification or such
exchange or conversion.
XXXXXXX 0.00. Xxxxxx Xxxxxx.
The term "United States" shall have the meaning assigned to it under
Regulation S under the Securities Act.
SECTION 1.21. Luxembourg.
The term "Luxembourg" shall mean the Grand Duchy of Luxembourg.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1. Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and
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omissions, as hereinafter provided. No Receipt shall be entitled to any benefits
under this Deposit Agreement or be valid or obligatory for any purpose, unless
such Receipt shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary and, if a
Registrar for the Receipts shall have been appointed, countersigned by the
manual or facsimile signature of a duly authorized officer of the Registrar. The
Depositary shall maintain books on which each Receipt so executed and delivered
as hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts bearing the manual or facsimile signature of a duly
authorized signatory of the Depositary who was at any time a proper signatory of
the Depositary shall bind the Depositary, notwithstanding that such signatory
has ceased to hold such office prior to the execution and delivery of such
Receipts by the Registrar or did not hold such office on the date of issuance of
such Receipts.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which 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.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument; provided, however, that the Depositary,
notwithstanding any notice to the contrary, may treat the 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.
SECTION 2.2. Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer or endorsement in a form satisfactory to the Custodian,
together with all such certifications as may be required by the Depositary or
the Custodian in accordance with the provisions of this Deposit Agreement, and,
if the Depositary requires, together with a written order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order, a Receipt or Receipts for the number of
American Depositary Shares representing such Shares to be deposited. No Share
shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary (which may be an opinion of counsel) that any necessary approval has
been granted by,
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or there has been compliance with the rules and regulations of, the governmental
agency in Luxembourg, if any, which is then performing the function of the
regulation of currency exchange. If required by the Depositary, Shares presented
for deposit at any time, whether or not the transfer books of the Company or the
Foreign Registrar, if applicable, are closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Custodian of any dividend, or
right to subscribe for additional Shares or to receive other property which any
person in whose name the Shares are or have been recorded may thereafter receive
upon or in respect of such deposited Shares, or in lieu thereof, such agreement
of indemnity or other agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates
for Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company or the
Foreign Registrar, if applicable, for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary (on behalf of
Holders) or at such other place or places as the Depositary shall determine.
SECTION 2.3. Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition, if the transfer books of the Company or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Company that any
Deposited Securities have been recorded upon the books of the Company or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee), together with the other documents required as
above specified, such Custodian shall notify the Depositary of such deposit and
the person or persons to whom or upon whose written order a Receipt or Receipts
are deliverable in respect thereof and the number of American Depositary Shares
to be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or
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upon the order of the person or persons entitled thereto, a Receipt or Receipts,
registered in the name or names and evidencing any authorized number of American
Depositary Shares requested by such person or persons, but only upon payment to
the Depositary of the fees of the Depositary for the execution and delivery of
such Receipt or Receipts as provided in Section 5.9, and of all taxes and
governmental charges and fees payable in connection with such deposit and the
transfer of the Deposited Securities.
SECTION 2.4. Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Holder thereof in person or by
a duly authorized attorney, properly endorsed or accompanied by proper
instruments of transfer, and duly stamped as may be required by the laws of the
State of New York and of the United States of America. Thereupon the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may, upon the request or with the approval of the
Company to the extent practicable, 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
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary.
SECTION 2.5. Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.9 and payment of all taxes and governmental charges payable in connection with
such surrender and withdrawal of the Deposited Securities, and subject to the
terms and conditions of this Deposit Agreement, the Holder of such Receipt shall
be entitled to delivery, to him or
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upon his order, of the amount of Deposited Securities at the time represented by
the American Depositary Shares evidenced by such Receipt. Delivery of such
Deposited Securities may be made by the delivery of (a) certificates in the name
of such Holder or as ordered by him or by certificates properly endorsed or
accompanied by proper instruments of transfer to such Holder or as ordered by
him and (b) any other securities, property and cash to which such Holder is then
entitled in respect of such Receipts to such Holder or as ordered by him. Such
delivery shall be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the 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 at the designated
office of such Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other
terms and conditions of this Deposit Agreement, to or upon the written order of
the person or persons designated in the order delivered to the Depositary as
above provided, the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Holder so surrendering a
Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
SECTION 2.6. Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, Custodian or Registrar may require
payment from the depositor of Shares or the presentor of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being
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deposited or withdrawn) and payment of any applicable fees as herein provided,
may require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with any reasonable
regulations the Depositary and the Company may establish consistent with the
provisions of this Deposit Agreement, including, without limitation, this
Section 2.6.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to the provisions of Section 7.7 hereof. Notwithstanding
any other provision of this Deposit Agreement or the Receipts, the surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the 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, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Shares or
other Deposited Securities required to be registered under the provisions of the
Securities Act of 1933, unless a registration statement is in effect as to such
Shares or to the extent the Depositary has received written instructions with
respect thereto from the Company as to any Shares or other Deposited Securities
the deposit of which would violate any applicable law or the Company's Articles
of Incorporation.
SECTION 2.7. Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt of like tenor in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt. Before
the Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the 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 and (b) satisfied any other
reasonable requirements imposed by the Depositary.
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SECTION 2.8. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.9. Pre-Release of Receipts.
The Depositary may issue Receipts against the delivery by the
Company (or any agent of the Company recording Share ownership) of rights to
receive Shares from the Company (or any such agent). No such issue of Receipts
will be deemed a "Pre-Release" that is subject to the restrictions of the
following paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.3 hereof, execute and deliver Receipts
prior to the receipt of shares pursuant to Section 2.2 ("Pre-Release"). The
Depositary may, pursuant to Section 2.5, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation and agreement
from the person to whom Receipts are to be delivered (the "Pre-Releasee") that
the Pre-Releasee, or its customer, (i) owns the Shares or Receipts to be
remitted, as the case may be, (ii) assigns all beneficial rights, title and
interest in such Shares or Receipts, as the case may be, to the Depositary in
its capacity as such and for the benefit of the Holders, and (iii) will not take
any action with respect to such Shares or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts, as the case may
be), other than in satisfaction of such Pre-Release, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary determines, in good faith, will provide substantially similar
liquidity and security, (c) terminable by the Depositary on not more than five
(5) business days notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The number of Shares not
deposited but represented by American Depositary Shares outstanding at any time
as a result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited hereunder; provided, however, that the Depositary reserves the
right to disregard such limit from time to time as it deems reasonably
appropriate, and may, with the prior written consent of the Company, change such
limit for purposes of general application. The Depositary will also set Dollar
limits with respect to Pre-Release transactions to be entered into hereunder
with any particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Holders under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in
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connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
ARTICLE 3. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.
SECTION 3.1. Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Holder of a Receipt
may be required from time to time to file with the Depositary or the Custodian
such proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may reasonably require by written request to the Depositary
consistent with its obligations hereunder. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made. The Depositary shall provide the Company with copies or originals of any
such proofs of citizenship or residence, exchange control approval and any other
information or documents which the Company may reasonably request and which the
Depositary shall request and receive from any Holder or person presenting Shares
for deposit.
SECTION 3.2. Liability of Holder for Taxes.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented by any Receipt,
such tax or other governmental charge shall be payable by the Holder of such
Receipt to the Depositary. The Depositary may refuse to effect any transfer of
such Receipt or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced by such Receipt until such payment is made, and may
withhold any dividends or other distributions, or may sell for the account of
the Holder thereof any part or all of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Holder of such Receipt shall
remain liable for any deficiency.
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SECTION 3.3. Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, nonassessable and free of any
pre-emptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that the deposit of such Shares and the sale of Receipts
evidencing American Depositary Shares representing such Shares by that person
are not restricted under the Securities Act of 1933. Such representations and
warranties shall survive the deposit of Shares and issuance of Receipts.
SECTION 3.4. Disclosure of Interest
Each Holder and Beneficial Owner agrees to comply with requests from
the Company which are made pursuant to applicable law or the Company's Articles
of Incorporation or other such corporate document of the Company to provide
information as to the capacity in which such Holders or Beneficial Owners owns
American Depositary Shares and regarding the identity of any other person
interested in such American Depositary Shares and regarding the nature of such
interest, all as if such American Depositary Shares were to the extent
practicable the underlying Shares. The Depositary agrees to use its reasonable
efforts to forward to any Holder, at the written request and expense of the
Company, any written request by the Company for such information. If the Company
requests information from the Depositary, the Custodian or the nominee of
either, as the registered owner of the Shares, the obligations of the
Depositary, Custodian or such nominee, as the case may be, shall be limited to
disclosing to the Company the information contained in the register.
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.1. Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other
cash distribution by the Company in respect of any Deposited Securities, the
Depositary shall, as promptly as practicable, subject to the provisions of
Section 4.5, convert such dividend or distribution into Dollars and shall
distribute the amount thus received (net of the fees of the Depositary as
provided in Section 5.9 hereof, if applicable) to the Holders entitled thereto,
in proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; provided, however, that in the
event that the Company or the Depositary shall be required to withhold and does
withhold from such cash dividend or such other cash distribution an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of the Receipts evidencing
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American Depositary Shares representing such Deposited Securities shall be
reduced accordingly. 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 amounts shall be rounded to the nearest whole cent and so
distributed to Holders entitled thereto. The Company or its agent will remit to
the appropriate governmental agency in Luxembourg all amounts withheld and owing
to such agency. 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, and
the Depositary or the Company or its agent may file any such reports necessary
to obtain benefits under the applicable tax treaties for the Holders of
Receipts.
SECTION 4.2. Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 5.9, whenever
the Depositary shall receive any distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4, the Depositary shall cause the securities
or property received by it to be distributed to the Holders entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; net of fees and expenses of the Depositary; provided, however,
that if in the opinion of the Depositary such distribution cannot be made
proportionately among the Holders entitled thereto, or if for any other reason
(including, but not limited to, any requirement that the Company or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be registered under the Securities Act of 1933 in
order to be distributed to Holders or Beneficial Owners) the Depositary deems
such distribution not to be feasible, the Depositary may adopt such method as it
may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees of the Depositary as provided in Section 5.9)
shall be distributed by the Depositary to the Holders entitled thereto as in the
case of a distribution received in cash, as provided in Section 4.1 of this
Deposit Agreement.
SECTION 4.3. Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, upon
consultation with the Company to the extent practicable, distribute to the
Holders outstanding Receipts entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution, subject to the terms and conditions of the Deposit
- 14 -
Agreement with respect to the deposit of Shares and the issuance of American
Depositary Shares evidenced by Receipts, including the withholding of any tax or
other governmental charge as provided in Section 4.11 and the payment of fees of
the Depositary as provided in Section 5.9. In lieu of delivering Receipts for
fractional American Depositary Shares in any such case, the Depositary shall
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.1. If additional Receipts are not so distributed, each
American Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.4. Rights.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Holders or in disposing of such rights on
behalf of any Holders and making the net proceeds available to such Holders or,
if by the terms of such rights offering or for any other reason, the Depositary
may not either make such rights available to any Holders or dispose of such
rights and make the net proceeds available to such Holders, then the Depositary
shall allow the rights to lapse. If at the time of the offering of any rights
the Depositary determines in its discretion that it is lawful and feasible to
make such rights available to all Holders or to certain Holders but not to other
Holders, the Depositary may distribute to any Holder to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Holder, warrants or other instruments therefor in
such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed,
if a Holder of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Holder hereunder, the Depositary will make such rights available
to such Holder upon written notice from the Company to the Depositary that (a)
the Company has elected in its sole discretion to permit such rights to be
exercised and (b) such Holder has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
In the case of a distribution pursuant to this paragraph, such Receipts shall be
legended in accordance with applicable U.S. laws, and shall be subject to the
appropriate restrictions on sale, deposit, cancellation, and transfer under such
laws.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Holders, then upon receipt of instructions pursuant to
such warrants or other instruments to the Depositary from such Holder to
exercise such rights, upon payment by such Holder to the Depositary for the
account of such Holder of an amount equal to the
- 15 -
purchase price of the Shares to be received upon the exercise of the rights, and
upon payment of the fees of the Depositary and any other charges as set forth in
such warrants or other instruments or as may be requested by the Company to the
Depositary in writing, the Depositary shall, on behalf of such Holder, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Holder. As agent
for such Holder, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.2 of this Deposit Agreement, and shall, pursuant
to Section 2.3 of this Deposit Agreement, execute and deliver Receipts to such
Holder.
If the Depositary determines in its discretion that it is not lawful
and feasible to make such rights available to all or certain Holders, it may
sell the rights, warrants or other instruments in proportion to the number of
American Depositary Shares held by the Holders to whom it has determined it may
not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.9 and all taxes and governmental charges payable in connection with such
rights and subject to the terms and conditions of this Deposit Agreement) for
the account of such Holders otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Holders because of exchange restrictions or the date of
delivery of any Receipt or otherwise.
The Depositary will not offer rights to Holders unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Holders or are registered under the provisions of such Act; provided, however,
that the Company shall have no obligation to file any such registration
statement. If a Holder of Receipts requests distribution of warrants or other
instruments, notwithstanding that there has been no such registration under such
Act, the Depositary shall not effect such distribution unless it has received an
opinion from recognized counsel in the United States for the Company upon which
the Depositary may rely that such distribution to such Holder is exempt from
such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Holders in
general or any Holder in particular.
SECTION 4.5. Conversion of Foreign Currency.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to
- 16 -
be converted, by sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars shall be distributed, as promptly as
practicable, to the Holders entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the holders thereof
to such Dollars, then to the holders of such warrants and/or instruments upon
surrender thereof for cancellation. 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 and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment
any foreign currency received by the Depositary is not convertible on a
reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some of the Holders entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Holders entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Holders entitled thereto.
SECTION 4.6. Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason the Depositary and the Company cause 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 holders of Shares or other
Deposited Securities, the Depositary shall fix a record date (which shall be the
same date as, to the extent practicable to, any corresponding record date set by
the Company) (a) for the determination of the Holders who shall be (i) entitled
to receive such dividend, distribution or rights or the net proceeds of the sale
thereof or (ii) entitled to give instructions for the exercise of voting
- 17 -
rights at any such meeting, or (b) on or after which each American Depositary
Share will represent the changed number of Shares. Subject to the provisions of
Sections 4.1 through 4.5 and to the other terms and conditions of this Deposit
Agreement, the Holders on such record date shall be entitled, as the case may
be, to receive the amount distributable by the Depositary with respect to such
dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by them
respectively and to give voting instructions and to act in respect of any other
such matter.
SECTION 4.7. Voting of Deposited Securities.
Each of the Company's Class B shares entitles the holder thereof to
cast one vote at any shareholder's meeting. Class A and Class B shares shall
normally vote as one class at any shareholders' meeting provided that any
resolutions affecting the respective rights of particular classes must be
approved separately by the quorum and majority requirements established by law
for each class.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company the Depositary
shall, as soon as practicable thereafter, mail to the Holders a notice, the form
of which notice shall be approved by the Company, which shall contain (a) such
information as is contained in such notice of meeting, and (b) a statement that
the Holders as of the close of business on a specified record date will be
entitled, subject to Luxembourg law, the Articles of Incorporation and the
provisions of or governing the Deposited Securities, to instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the amount of
Shares or other Deposited Securities represented by their respective American
Depositary Shares and (c) a statement as to the manner in which such
instructions may be given or deemed given in accordance with the last sentence
of this paragraph if no instruction is received. Upon the written request of a
Holder on such record date, received on or before the date established by the
Depositary for such purpose, (the "Instruction Date") the Depositary shall
endeavor, in so far as practicable, to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request. The Depositary shall not vote or attempt to exercise the right
to vote that attaches to the Shares or other Deposited Securities, other than in
accordance with such instructions or deemed instructions. If no instructions are
received by the Depositary from any Holder with respect to any of the Deposited
Securities represented by the American Depositary Shares evidenced by such
Holder's Receipts on or before the date established by the Depositary for such
purpose, the Depositary shall deem such Holder to have instructed the Depositary
to give a discretionary proxy to the Chairman of the Board of Directors of the
Company or to a person designated by the Company with respect to such Deposited
Securities and the Depositary shall give a discretionary proxy to the Chairman
of the Board of Directors of the Company or to a person designated by the
- 18 -
Company to vote such Deposited Securities, provided, that no such
instruction shall be given with respect to any matter as to which the Company
informs the Depositary (and the Company agrees to provide such information as
promptly as practicable in writing) that (x) the Company does not wish such
proxy given, (y) substantial shareholder opposition exists or (z) such matter
materially and adversely affects the rights of holders of Shares.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance with the provisions set
forth in the preceding paragraph.
SECTION 4.8. Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not apply,
upon any change in nominal value, change in par value, split-up, 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 a party, any securities which shall be
received by the Depositary or a Custodian in exchange for or in conversion of or
in respect of Deposited Securities, shall be treated as new Deposited Securities
under this Deposit Agreement, and American Depositary Shares shall thenceforth
represent or additionally represent, the right to receive the new Deposited
Securities so received in exchange, conversion or otherwise, unless additional
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, with the Company's approval, and shall if the Company shall so
request, execute and deliver additional Receipts as in the case of a dividend in
Shares, or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities. If requested
in writing by the Company, upon the occurrence of any such change, conversion or
exchange covered by this Section 4.8 in respect of Deposited Securities, the
Depositary shall give notice thereof to all Holders, at the Company's expense
(unless otherwise agreed in writing by the Company and the Depositary).
SECTION 4.9. Reports.
The Depositary shall make available for inspection by Holders at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request, send to the Holders copies of such
reports furnished by the Company pursuant to Section 5.6.
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SECTION 4.10. Lists of Owners.
Promptly upon 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 4.11. Withholding.
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 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 any 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.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.
SECTION 5.1. Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary 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 Holders of such Receipts, provided that such inspection
shall not be for the purpose of communicating with Holders in the interest of a
business or object other than the business of the Company or a matter related to
this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient 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 in the United States, the Depositary
shall act as
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Registrar or, upon consultation with the Company to the extent practicable,
appoint a Registrar or one or more co-registrars for registry of such Receipts
in accordance with any requirements of such exchange or exchanges.
SECTION 5.2. Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Holder or Beneficial Owner of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States, Luxembourg or any
other country, or of any governmental or regulatory authority or stock exchange,
or by reason of any provision, present or future, of the Articles of
Incorporation of the Company, or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or terrorism or other
circumstances beyond its control, the Depositary or its agents or the Company or
its agents shall be prevented or forbidden from, or be subject to any civil or
criminal penalty on account of, doing or performing any act or thing which by
the terms of this Deposit Agreement it is provided shall be done or performed;
nor shall the Depositary or its agents or the Company or its agents incur any
liability to any Holder or Beneficial Owner of any Receipt by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of this Deposit Agreement it is provided shall or may
be done or performed, or by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the Articles of
Incorporation or provisions of or governing any Deposited Securities. Where, by
the terms of a distribution pursuant to Sections 4.1, 4.2, or 4.3 of the Deposit
Agreement, or an offering or distribution pursuant to Section 4.4 of the Deposit
Agreement, or for any other reason, such distribution or offering may not be
made available to Holders, and the Depositary may not dispose of such
distribution or offering on behalf of such Holders and make the net proceeds
available to such Holders, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.3. Obligations of the Depositary, the Custodian and the Company.
The Company and its directors, employees, agents and affiliates
assume no obligation nor shall they be subject to any liability under this
Deposit Agreement or the Receipts to Holders or Beneficial Owners of Receipts or
any other persons, except that each agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary and its directors, employees, agents and affiliates
assume no obligation nor shall they be subject to any liability under this
Deposit Agreement or the Receipts to any Holder or Beneficial Owner of any
Receipt or any other person
- 21 -
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that each agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates 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 expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall be liable for any action or
nonaction 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 in good faith to be competent to give such
advice or information. Each of the Depositary, the Company and their directors,
employees and agents may rely and shall be protected in acting upon any written
notice, request, direction or other document believed by such person to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary 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 that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.4. Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment by the Company of a successor
depositary and its acceptance of such appointment as hereinafter provided.
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The Depositary may at any time be removed by the Company by 30
Business Days prior written notice of such removal effective upon the later of
(i) the 30th Business Day after delivery of the notice to the Depositary or (ii)
the appointment of a successor depositary and its acceptance of such appointment
as hereinafter provided.
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 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; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Holders of all outstanding Receipts. Any such successor depositary shall
promptly mail notice of its appointment to the 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 Custodians.
The Depositary, after consultation with the Company to the extent
practicable, may from time to time appoint one or more agents to act for it as
Custodian hereunder. The Custodian shall be subject at all times and in all
respects to the directions of the Depositary and shall be responsible solely to
it. Any Custodian may resign and be discharged from its duties hereunder by
notice of such resignation delivered to the Depositary at least 30 days prior to
the date on which such resignation is to become effective. If upon such
resignation there shall be no Custodian acting hereunder, the Depositary shall,
promptly after receiving such notice, appoint a substitute custodian or
custodians, each of which shall thereafter be a Custodian hereunder. Whenever
the Depositary in its discretion determines that it is in the best interest of
the Holders to do so, it may appoint substitute or additional custodian or
custodians, which shall thereafter be one of the Custodians hereunder. Upon
demand of the Depositary, any Custodian shall deliver such of the Deposited
Securities held by it as are requested of it to any other Custodian or such
substitute or additional custodian or custodians. Each such substitute or
additional custodian shall deliver to the Depositary, forthwith upon its
appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or
- 23 -
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of each Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder 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, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the translation into English and the
prompt transmittal by the Company to the Depositary and the Custodian of such
notices and any other reports and communications which are made generally
available by the Company to holders of its Shares or other Deposited Securities.
If requested in writing by the Company, the Depositary will arrange for the
mailing, at the Company's expense, of copies of such notices, reports and
communications to 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.
SECTION 5.7. Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution
of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into or exchangeable for Shares, or (4) rights to subscribe for such
securities, (each a "Distribution") the Company will take all steps reasonably
necessary to ensure that no violation by the Company or the Depositary of the
Securities Act of 1933 will result from such issuance or distribution.
The Company agrees with the Depositary that neither the Company nor
any company controlled by, controlling or under common control with the Company
will at any time deposit any Shares, either originally issued or previously
issued and reacquired by the Company or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the Securities Act
of 1933 or the Company furnishes to the Depositary a written opinion from U.S.
Counsel for the Company, which Counsel shall be reasonably satisfactory to the
Depositary, stating that a Registration Statement is not necessary.
- 24 -
SECTION 5.8. Indemnification.
The Company agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
fees and expenses of counsel) which may arise out of acts performed or omitted,
in accordance with the provisions of this Deposit Agreement and of the Receipts,
as the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not
extend to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.9) of a Receipt or Receipts in accordance
with Section 2.9 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.9;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not been the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or sale
of American Depositary Shares, except to the extent any such liability or
expense arises out of (a) information relating to the Depositary or any
Custodian (other than the Company), as applicable, furnished in writing to the
Company by the Depositary and not materially changed or altered by the Company
expressly for use in any of the foregoing documents, or, (b) if such information
is provided, the failure to state a material fact necessary to make the
information provided not misleading.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, but not limited to, the reasonable fees and expenses of
counsel) which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall promptly (and in no event more than twenty (20) days after receipt of
notice of such Proceeding) notify the party obligated to provide such
indemnification (the "Indemnitor") of such Proceeding. The failure of the
Indemnitee to so notify the Indemnitor shall not impair the Indemnitee's ability
to seek indemnification from the Indemnitor (but only for costs, expenses and
- 25 -
liabilities incurred after such notice) unless such failure adversely affects
the Indemnitor's ability to adequately oppose or defend such Proceeding. Upon
receipt of such notice from the Indemnitee, the Indemnitor shall be entitled to
participate in such Proceeding and, to the extent that it shall so desire and
provided no conflict of interest exists as specified in subparagraph (b) below
or there are no other defenses available to Indemnitee as specified in
subparagraph (d) below, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnitee (in which case all attorney's fees and expenses
shall be borne by the Indemnitor and the Indemnitor shall in good faith defend
the Indemnitee). The Indemnitee shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be borne by the Indemnitee unless (a) the
Indemnitor agrees in writing to pay such fees and expenses, (b) the Indemnitee
shall have reasonably and in good faith concluded that there is a conflict of
interest between the Indemnitor and the Indemnitee in the conduct of the defense
of such action, (c) the Indemnitor fails, within ten (10) days prior to the date
the first response or appearance is required to be made in such Proceeding, to
assume the defense of such Proceeding with counsel reasonably satisfactory to
the Indemnitee or (d) there are legal defenses available to Indemnitee that are
different from or are in addition to those available to the Indemnitor. No
compromise or settlement of such Proceeding may be effected by either party
without the other party's consent unless (i) there is no finding or admission of
any violation of law and no effect on any other claims that may be made against
such other party and (ii) the sole relief provided is monetary damages that are
paid in full by the party seeking the settlement. Neither party shall have any
liability with respect to any compromise or settlement effected without its
consent, which shall not be unreasonably withheld. The Indemnitor shall have no
obligation to indemnify and hold harmless the Indemnitee from any loss, expense
or liability incurred by the Indemnitee as a result of a default judgment
entered against the Indemnitee unless such judgment was entered after the
Indemnitor agreed, in writing, to assume the defense of such Proceeding.
SECTION 5.9. Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company once every three months. The charges
and expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), or by Holders, as
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applicable: (1) taxes and other governmental charges, (2) such registration fees
as may from time to time be in effect for the registration of transfers of
Shares generally on the Share register of the Company or Foreign Registrar and
applicable to transfers of Shares to or from the name of the Depositary or its
nominee or the Custodian or its nominee on the making of deposits or withdrawals
hereunder, (3) such cable, telex and facsimile transmission expenses as are
expressly provided in this Deposit Agreement, (4) such expenses as are incurred
by the Depositary in the conversion of foreign currency pursuant to Section 4.5,
(5) a fee of $5.00 or less per 100 American Depositary Shares (or portion
thereof) for the execution and delivery of Receipts pursuant to Section 2.3, 4.3
or 4.4 and the surrender of Receipts pursuant to Section 2.5 or 6.2, (6) a fee
of $.02 or less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to the Deposit Agreement, including, but not limited
to Sections 4.1 through 4.4 hereof, (7) a fee for the distribution of securities
pursuant to Section 4.2, such fee being in an amount equal to the fee for the
execution and delivery of American Depositary Shares referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this clause 7 treating all such securities as if they were Shares)
but which securities are instead distributed by the Depositary to Holders, (8) a
fee of $.02 or less per American Depositary Share (or portion thereof) for
depositary services, which will accrue on the last day of each calendar year and
which will be payable as provided in clause (9) below; provided, however, that
no fee will be assessed under this clause (8) if a fee was charged pursuant to
clause (6) above during that calendar year and (9) any other charge payable by
the Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares or
other Deposited Securities (which charge shall be assessed against Owners as of
the date or dates set by the Depositary in accordance with Section 4.6 and shall
be payable at the sole discretion of the Depositary by billing such Owners for
such charge or by deducting such charge from one or more cash dividends or other
cash distributions).
The Depositary, subject to Section 2.9 hereof, may own and deal in
any class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10. Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless the
Company requests that such papers be retained for a longer period or turned over
to the Company or to a successor depositary.
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SECTION 5.11. Exclusivity.
The Company agrees not to appoint any other depositary for issuance
of American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder, subject, however, to the rights of the Company under
Section 5.4.
SECTION 5.12. List of Restricted Securities Owners.
From time to time, 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 Company agrees to advise in writing each of
the persons or entities so listed that such Restricted Securities are ineligible
for deposit hereunder. The Depositary may rely on such a list or update but
shall not be liable for any action or omission made in reliance thereon.
ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.1. Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose or increase any fees or charges
(other than taxes and other governmental charges, registration fees, cable,
telex or facsimile transmission costs, delivery costs or other such expenses),
or which shall otherwise prejudice any substantial existing right of Holders,
shall, however, not become effective as to outstanding Receipts until the
expiration of thirty (30) days after notice of such amendment shall have been
given to the Holders of outstanding Receipts. Every Holder at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, 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 of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
SECTION 6.2. Termination.
The Depositary shall at any time at the direction of the Company
terminate this Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least 60 days prior to the date
fixed in such notice for such termination. The Depositary may likewise terminate
this Deposit Agreement by mailing notice of such termination to the Company and
the Holders of all Receipts then outstanding if at any time 60 days shall have
expired after the Depositary shall have
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delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.4. On and after the date of termination, the Holder of
a Receipt will, upon (a) surrender of such Receipt at the Corporate Trust Office
of the Depositary, (b) payment of the fee of the Depositary for the surrender of
Receipts referred to in Section 2.5, and (c) 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 the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the registration of transfers of Receipts, 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 as provided in this
Deposit Agreement, and shall continue to deliver Deposited Securities, 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, in each case, the fee
of the Depositary for the surrender of a Receipt, any expenses for the account
of the Holder of such Receipt in accordance with the terms and conditions of
this Deposit Agreement, and any applicable taxes or governmental charges). At
any time after the expiration of one year from 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, unsegregated and without
liability for interest, for the pro rata benefit of the Holders of Receipts
which have not theretofore been surrendered, such Holders thereupon becoming
general creditors of the Depositary with respect to such net proceeds. After
making such sale, the Depositary shall be discharged from all obligations under
this Deposit Agreement, except to account for such net proceeds and other cash
(after deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges). 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 under Sections
5.8 and 5.9 hereof.
ARTICLE 7. 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 shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any Holder or Beneficial Owner of a Receipt
during business hours.
- 29 -
SECTION 7.2. No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
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 of Receipts from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions hereof and of the Receipts by acceptance thereof.
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 or facsimile transmission, confirmed by letter, addressed to
Quilmes Industrial (Quinsa), Societe Anonyme, 00 Xxxxx-Xxx X-0000 Xxxxxxxxxx,
Xxxxx-Xxxxx of Luxembourg, Attention: Company Secretary, or any other place to
which the Company may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: American Depositary Receipt Administration, or any other place to
which the Depositary may have transferred its Corporate Trust Office.
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, air courier or
cable, telex or facsimile transmission, confirmed by letter, 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
- 30 -
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
designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
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 or facsimile 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 or facsimile transmission received by
it, notwithstanding that such cable, telex or facsimile transmission shall not
subsequently be confirmed by letter as aforesaid.
SECTION 7.6. Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York.
SECTION 7.7. Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary,
the Company and the Depositary each agrees that it will not exercise any rights
it has under this Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the United States
securities laws, including, but not limited to, 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 of 1933.
SECTION 7.8. Submission to Jurisdiction; Appointment of Agent for Service
of Process.
The Company hereby (i) irrevocably designates and appoints National
Registered Agents, Inc., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
in the State of New York, as the Company's authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to the Shares
or Deposited Securities, the American Depositary Shares, the Receipts or this
Agreement, (ii) consents and submits to the jurisdiction of any state or federal
court in the State of New York in which any such suit or proceeding may be
instituted, and (iii) agrees that service of process upon said authorized agent
shall be deemed in every respect effective service of process upon the Company
in any such suit or proceeding. The Company agrees to deliver, upon the
execution and delivery of this Deposit Agreement, a written acceptance by such
agent of its appointment as such agent. The Company further agrees to take any
and all action, including the filing of any and all such documents and
instruments, as may
- 31 -
be necessary to continue such designation and appointment in full force and
effect for so long as any American Depositary Shares or Receipts remain
outstanding or this Agreement remains in force. In the event the Company fails
to continue such designation and appointment in full force and effect, the
Company hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Company at its address last specified for
notices hereunder, and service so made shall be deemed completed seven (7) days
after the same shall have been so mailed.
SECTION 7.9. Assignment.
This Deposit Agreement may not be assigned by either the Company or
the Depositary, except as provided in Section 5.4.
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IN WITNESS WHEREOF, QUILMES INDUSTRIAL (QUINSA), SOCIETE ANONYME and THE
BANK OF NEW YORK have duly executed this agreement as of the day and year first
set forth above and all Holders and Beneficial Owners shall become parties
hereto upon acceptance by them of Receipts issued in accordance with the terms
hereof.
QUILMES INDUSTRIAL (QUINSA),
SOCIETE ANONYME
By: ________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name:
Title:
- 33 -
Exhibit A to Deposit Agreement
NO. _________________________________
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents two (2) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR CLASS B SHARES WITHOUT PAR VALUE
OF QUILMES INDUSTRIAL (QUINSA), SOCIETE ANONYME
(ORGANIZED UNDER THE LAWS OF THE GRAND-DUCHY OF LUXEMBOURG)
The Bank of New York as depositary (hereinafter called the
"Depositary"), hereby certifies that _____________________, or registered
assigns IS THE OWNER OF ___________________.
AMERICAN DEPOSITARY SHARES
representing deposited Class B Shares, without par value (herein called
"Shares") of Quilmes Industrial (Quinsa), Societe Anonyme, incorporated under
the laws of the Grand-Duchy of Luxembourg (herein called the "Company"). At the
date hereof, each American Depositary Share represents two (2) Shares which is
either deposited or subject to deposit under the deposit agreement at the
Luxembourg office of Banque et Caisse d'Epargne de l'Etat (herein called the
"Custodian"). The Depositary's Corporate Trust Office is located at a different
address than its principal executive office. Its Corporate Trust Office is
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive
office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000
ARTICLE 8. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the amended and restated deposit agreement, dated as of February 28, 2002
(herein called 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 become bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights of Holders and Beneficial Owners of the 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, securities,
property, and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Depositary's Corporate Trust Office in New
York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms not defined herein shall have the meanings set
forth in the Deposit Agreement.
ARTICLE 9. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Holder
hereof is entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American Depositary Shares
for which this Receipt is issued. Delivery of such Deposited Securities may be
made by the delivery of (a) certificates in the name of the Holder hereof or as
ordered by him or by certificates properly endorsed or accompanied by proper
instruments of transfer to such Holder or as ordered by him and (b) any other
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securities, property and cash to which such Holder is then entitled in respect
of this Receipt to such Holder or as ordered by him. Such delivery will be made
at the option of the Holder hereof, either at the office of the Custodian or at
the Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Holder hereof. Notwithstanding any other provision of the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may be suspended only for (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, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities.
ARTICLE 10. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Holder hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. 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, the Custodian, or
Registrar may require payment from the depositor of Shares or the presentor of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with
- 4 -
respect to Shares being deposited or withdrawn) and payment of any applicable
fees as provided in this Receipt, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any reasonable regulations the Depositary and the
Company may establish consistent with the provisions of the Deposit Agreement or
this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to Article (22) hereof. 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 of 1933,
unless a registration statement is in effect as to such Shares or to the extent
the Depositary has received written instructions with respect thereto from the
Company as to any Shares or Deposited Securities the deposit of which would
violate any applicable law or the Company's Articles of Incorporation.
ARTICLE 11. LIABILITY OF HOLDER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Holder hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Holder hereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, and may apply such
- 5 -
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Holder hereof shall remain liable
for any deficiency.
ARTICLE 12. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, nonassessable and free of any pre-emptive rights
of the holders of outstanding Shares and that the person making such deposit is
duly authorized so to do. Every such person shall also be deemed to represent
that the deposit of such Shares and the sale of Receipts evidencing American
Depositary Shares representing such Shares by that person are not restricted
under the Securities Act of 1933. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts.
ARTICLE 13. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Holder of a Receipt may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may reasonably require by written request to the Depositary
consistent with its obligations thereunder. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made. The Depositary shall provide the Company with copies or originals of any
such proofs of citizenship or residence, exchange control approval and any other
information or documents which the Company may reasonably request and which the
Depositary shall request and receive from any Holder or person presenting Shares
for deposit. No Share
- 6 -
shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary (which may be an opinion of counsel) that any necessary approval has
been granted by, or there has been compliance with the rules and regulations of,
the governmental agency in Luxembourg, if any, which is then performing the
function of the regulation of currency exchange.
ARTICLE 14. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3 of the Deposit Agreement), or by Holders, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Shares generally on the
Share register of the Company or Foreign Registrar and applicable to transfers
of Shares to or from the name of the Depositary or its nominee or the Custodian
or its nominee on the making of deposits or withdrawals hereunder, (3) such
cable, telex and facsimile transmission expenses as are expressly provided in
the Deposit Agreement, (4) such expenses as are incurred by the Depositary in
the conversion of foreign currency pursuant to Section 4.5 of the Deposit
Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares (or
portion thereof) for the execution and delivery of Receipts pursuant to Section
2.3, 4.3 or 4.4 of the Deposit Agreement and the surrender of Receipts pursuant
to Section 2.5 or 6.2 of the Deposit Agreement, (6) a fee of $.02 or
- 7 -
less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to the Deposit Agreement, including, but not limited
to Sections 4.1 through 4.4 thereof, (7) a fee for the distribution of
securities pursuant to Section 4.2 of the Deposit Agreement, such fee being in
an amount equal to the fee for the execution and delivery of American Depositary
Shares referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause 7 treating all such
securities as if they were Shares) but which securities are instead distributed
by the Depositary to Holder, (8) a fee of $.02 or less per American Depositary
Share (or portion thereof)for depositary services, which will accrue on the last
day of each calendar year and which will be payable as provided in clause (9)
below; provided, however, that no fee will be assessed under this clause (8) if
a fee was charged pursuant to clause (6) above during that calendar year and (9)
any other charge payable by the Depositary, any of the Depositary's agents,
including the Custodian, or the agents of the Depositary's agents in connection
with the servicing of Shares or other Deposited Securities (which charge shall
be assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.6 of the Deposit Agreement and shall be payable at the
sole discretion of the Depositary by billing such Owners for such charge or by
deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Article (8) hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
ARTICLE 15. PRE-RELEASE OF RECEIPTS.
The Depositary may issue Receipts against the delivery by the Company (or
any agent of the Company recording Share ownership) of rights to receive Shares
from the Company (or any such agent). No such issue of Receipts will be deemed a
"Pre-Release" that is subject to the restrictions of the following paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.3 of the Deposit Agreement, execute
and deliver Receipts
- 8 -
prior to the receipt of shares pursuant to Section 2.2 thereof ("Pre-Release").
The Depositary may, pursuant to Section 2.5 of the Deposit Agreement, deliver
Shares upon the receipt and cancellation of Receipts which have been
Pre-Released, whether or not such cancellation is prior to the termination of
such Pre-Release or the Depositary knows that such Receipt has been
Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Holders, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in satisfaction of such Pre-Release, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited hereunder; provided, however, that the Depositary reserves the right
to disregard such limit from time to time as it deems reasonably appropriate,
and may, with the prior written consent of the Company, change such limit for
purposes of general application. The Depositary will also set Dollar limits with
respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Holders under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for
- 9 -
the performance of the Pre-Releasee's obligations to the Depositary in
connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
ARTICLE 16. 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 when properly endorsed or accompanied by proper instruments of transfer,
is transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary, notwithstanding any notice
to the contrary, may treat the person in whose name this Receipt is registered
on the books of the Depositary as the absolute owner hereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes.
ARTICLE 17. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
ARTICLE 18. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Securities and Exchange Commission (hereinafter called the "Commission"). Such
reports and
- 10 -
communications will be available for inspection and copying at the public
reference facilities maintained by the Commission located at 000 Xxxxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Holders of Receipts
at its Corporate Trust Office any reports and communications, including any
proxy soliciting material, received from the Company which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall also, upon written request, send to the Holders of Receipts
copies of such reports furnished by the Company pursuant to the Deposit
Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English.
The Depositary 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 Holders of Receipts, provided that such inspection shall
not be for the purpose of communicating with Holders of Receipts in the interest
of a business or object other than the business of the Company or a matter
related to the Deposit Agreement or the Receipts.
ARTICLE 19. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution by the Company in respect of any Deposited Securities, the
Depositary shall, as promptly as practicable, if at the time of receipt thereof
any amounts received in a foreign currency can in the judgment of the Depositary
be converted on a reasonable basis into United States dollars transferable to
the United States, and subject to the Deposit Agreement, convert such dividend
or distribution into Dollars and shall distribute the amount thus received (net
of the fees of the Depositary as provided in the Deposit Agreement, if
applicable) to the Holders of Receipts entitled thereto, provided, however,
- 11 -
that in the event that the Company or the Depositary shall be required to
withhold and does withhold from such cash dividend or such other cash
distribution in respect of any Deposited Securities an amount on account of
taxes or other governmental charges, the amount distributed to the Holders of
the Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary shall cause the securities or property received by it to be
distributed to the Holders of Receipts entitled thereto, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution, net of the fees and expenses of the Depositary, provided, however,
that if in the opinion of the Depositary such distribution cannot be made
proportionately among the Holders of Receipts entitled thereto, or if for any
other reason the Depositary deems such distribution not to be feasible, the
Depositary may adopt such method as it may deem equitable and practicable for
the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees of the
Depositary as provided in Section 5.9 of the Deposit Agreement) shall be
distributed by the Depositary to the Holders of Receipts entitled thereto as in
the case of a distribution received in cash, as provided in Section 4.1 of the
Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, upon consultation with
the Company to the extent practicable, distribute to the Holders of outstanding
Receipts entitled thereto, additional Receipts evidencing an aggregate number of
American Depositary Shares representing the amount of Shares received as such
dividend or free distribution, subject to the terms and conditions of the
Deposit Agreement with respect to the deposit of Shares and the issuance of
American Depositary Shares evidenced by Receipts, including the withholding of
any tax or other governmental charge as provided in Section 4.11 of
- 12 -
the Deposit Agreement and the payment of the fees of the Depositary as provided
in Section 5.9 of the Deposit Agreement. In lieu of delivering Receipts for
fractional American Depositary Shares in any such case, the Depositary shall
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions set
forth in the Deposit Agreement. If additional Receipts are not so distributed,
each American Depositary Share shall thenceforth also represent the additional
Shares distributed upon the Deposited Securities represented thereby.
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 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 any 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 of Receipts
entitled thereto.
ARTICLE 20. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, 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 such Dollars shall be distributed, as promptly as praticable, to the Holders
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any
- 13 -
distinctions among Holders on account of exchange restrictions, the date of
delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9 of
the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Holders entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Holders entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Holders entitled thereto.
ARTICLE 21. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Holders or in
- 14 -
disposing of such rights on behalf of any Holders and making the net proceeds
available to such Holders or, if by the terms of such rights offering or for any
other reason, the Depositary may not either make such rights available to any
Holders or dispose of such rights and make the net proceeds available to such
Holders, then the Depositary shall allow the rights to lapse. If at the time of
the offering of any rights the Depositary determines in its discretion that it
is lawful and feasible to make such rights available to all Holders or to
certain Holders but not to other Holders, the Depositary may distribute, to any
Holder to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Holder,
warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if a
Holder of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Holder under the Deposit Agreement, the Depositary will make such rights
available to such Holder upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) such Holder has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
In the case of a distribution pursuant to this paragraph, such Receipts shall be
legended in accordance with applicable U.S. laws, and shall be subject to the
appropriate restrictions on sale, deposit, cancellation and transfer under such
laws.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Holders, then upon receipt of instructions pursuant to such
warrants or other instruments to the Depositary from such Holder to exercise
such rights, upon payment by such Holder to the Depositary for the account of
such Holder of an amount equal to the purchase price of the Shares to be
received upon the exercise of the rights, and upon payment of the fees of the
Depositary and any other charges as set forth in such warrants or other
instruments or as may be requested by the Company to the Depositary in writing,
the Depositary shall, on behalf of such Holder, exercise the rights and purchase
the
- 15 -
Shares, and the Company shall cause the Shares so purchased to be delivered to
the Depositary on behalf of such Holder. As agent for such Holder, the
Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.3 of the
Deposit Agreement, execute and deliver Receipts to such Holder.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Holders, the Depositary
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Holders to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.9 of the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such Holders otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Holders because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Holders unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to Holders or
are registered under the provisions of such Act; provided, however, that the
Company shall have no obligation to file any such registration statement. If a
Holder of Receipts requests distribution of warrants or other instruments,
notwithstanding that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has received an opinion
from recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Holder is exempt from such
registration.
- 16 -
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Holders in general
or any Holder in particular.
ARTICLE 22. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary and the Company 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 holders of Shares or other Deposited
Securities, the Depositary shall fix a record date (which shall be the same date
as, to the extent practicable to, any corresponding record date set by the
Company) (a) for the determination of the Holders of Receipts who shall be (i)
entitled to receive such dividend, distribution or rights or the net proceeds of
the sale thereof or (ii) entitled to give instructions for the exercise of
voting rights at any such meeting, or (b) on or after which each American
Depositary Share will represent the changed number of Shares, subject to the
provisions of the Deposit Agreement.
ARTICLE 23. VOTING OF DEPOSITED SECURITIES.
Each of the Company's Class B shares entitles the holder thereof to cast
one vote at any shareholder's meeting. Class A and Class B shares shall normally
vote as one class at any shareholders' meeting provided that any resolutions
affecting the respective rights of particular classes must be approved
separately by the quorum and majority requirements established by law for each
class.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Holders of Receipts a
notice, the form of which notice shall be approved by the Company, which shall
contain (a) such information as is contained in such notice of meeting, (b) a
statement that the Holders of Receipts as of the
- 17 -
close of business on a specified record date will be entitled, subject to any
applicable provision of Luxembourg law, the Articles of Incorporation of the
Company and the provisions of or governing the Deposited Securities, to instruct
the Depositary as to the exercise of the voting rights, if any, pertaining to
the amount of Shares or other Deposited Securities represented by their
respective American Depositary Shares and (c) a statement as to the manner in
which such instructions may be given or deemed given in accordance with the last
sentence of this paragraph if no instruction is received. Upon the written
request of an Holder of a Receipt on such record date, received on or before the
date established by the Depositary for such purpose (the "Instruction Date"),
the Depositary shall endeavor, in so far as practicable to vote or cause to be
voted the amount of Shares or other Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions or deemed
instructions. If no instructions are received by the Depositary from any Holder
with respect to any of the Deposited Securities represented by the American
Depositary Shares evidenced by such Holder's Receipt on or before the date
established by the Depositary for such purpose, the Depositary shall deem such
Holder to have instructed the Depositary to give a discretionary proxy to the
Chairman of the Board of Directors of the Company or to a person designated by
the Company with respect to such Deposited Securities and the Depositary shall
give a discretionary proxy to the Chairman of the Board of Directors of the
Company or to a person designated by the Company to vote such Deposited
Securities, provided, that no such instruction shall be given with respect to
any matter as to which the Company informs the Depositary (and the Company
agrees to provide such information as promptly as practicable in writing) that
(x) the Company does not wish such proxy given, (y) substantial shareholder
opposition exists or (z) such matter materially and adversely affects the rights
of holders of Shares.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described in the preceding paragraph
sufficiently prior to the
- 18 -
Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
ARTICLE 24. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, 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 a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent or additionally represent the right to receive the
new Deposited Securities so received in exchange, conversion or otherwise,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may, and shall if the Company shall so request,
execute and deliver additional Receipts as in the case of a dividend in Shares,
or call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities. If requested in
writing by the Company, upon the occurrence of any such change, conversion or
exchange covered by Section 4.8 of the Deposit Agreement in respect of Deposited
Securities, the Depositary shall give notice thereof to all Holders, at the
Company's expense (unless otherwise agreed in writing by the Company and the
Depositary).
ARTICLE 25. LIABILITY AND INDEMNIFICATION OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Holder or Beneficial Owner of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States, Luxembourg or any
other country, or of any governmental or regulatory authority or stock exchange,
or by reason of any provision, present or future,
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of the Articles of Incorporation of the Company, or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or its
agents or the Company or its agents shall be prevented or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any
act or thing which by the terms of the Deposit Agreement it is provided shall be
done or performed; nor shall the Depositary or its agents or the Company or its
agents incur any liability to any Holder or Beneficial Owner of a Receipt by
reason of any non-performance or delay, caused as aforesaid, in the performance
of any act or thing which by the terms of the Deposit Agreement it is provided
shall or may be done or performed, or by reason of any exercise of, or failure
to exercise, any discretion provided for in the Deposit Agreement or in the
Articles of Incorporation or provisions of or governing any Deposited
Securities. Where, by the terms of a distribution pursuant to Sections 4.1, 4.2
or 4.3 of the Deposit Agreement, or an offering or distribution pursuant to
Section 4.4 of the Deposit Agreement, or for any other reason, such distribution
or offering may not be made available to Holders of Receipts, and the Depositary
may not dispose of such distribution or offering on behalf of such Holders and
make the net proceeds available to such Holders, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse.
Neither the Company, the Depositary nor their respective directors,
employees, agents and affiliates assume any obligation nor shall be subject to
any liability under the Deposit Agreement or Receipts to Holders or Beneficial
Owners of Receipts or any other persons, except that they agree to perform their
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. The Depositary shall not be subject to any liability with respect
to the validity or worth of the Deposited Securities.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates 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
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respect of the Receipts, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
shall be furnished as often as may be required, and the Custodian shall not be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Holder or
holder of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information. Each of the Depositary, the
Company and their directors, employees, agents and controlling persons may rely
and shall be protected in acting upon any written notice, request, direction or
other document believed by such person to be genuine and to have been signed or
presented by the proper party or parties.
The Depositary 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 that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
The Company agrees to indemnify the Depositary, its directors, employees,
agents and affiliates and any Custodian against, and hold each of them harmless
from, any liability or expense (including, but not limited to, the fees and
expenses of counsel)
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which may arise out of acts performed or omitted, in accordance with the
provisions of the Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of either of them, or (ii) by the Company or any of its directors,
employees, agents and affiliates.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of the Deposit Agreement.
ARTICLE 26. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by 30 Business Days prior
written notice of such removal, effective upon the later of (i) the 30th
Business Day after delivery of the notice of the Depositary or (ii) the
appointment by the Company of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. Whenever the Depositary in its
discretion determines that it is in the best interest of the Holders of Receipts
to do so, it may appoint substitute or additional custodian or custodians.
ARTICLE 27. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than
taxes and other governmental charges, registration fees, cable, telex or
facsimile transmission costs, delivery costs or other such expenses), or which
shall otherwise prejudice any substantial
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existing right of Holders of Receipts, shall, however, not become effective as
to outstanding Receipts until the expiration of thirty days after notice of such
amendment shall have been given to the Holders of outstanding Receipts. Every
Holder of a Receipt at the time any amendment so becomes effective shall be
deemed, by continuing to hold such Receipt, 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 of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
ARTICLE 28. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company terminate
the Deposit Agreement by mailing notice of such termination to the Holders of
all Receipts then outstanding at least 60 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Holders
of all Receipts then outstanding if at any time 60 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in the Deposit Agreement. On and after the
date of termination, the Holder of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5 of
the Deposit Agreement and (c) 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 the American Depositary Shares evidenced by
such Receipt. If any Receipts shall remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter shall
discontinue the registration of transfers of Receipts, 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
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to Deposited Securities, shall sell rights as provided in the Deposit Agreement,
and shall continue to deliver Deposited Securities, 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, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Holder of such
Receipt in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges). 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 under the Deposit
Agreement and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it thereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Holders of
Receipts which have not theretofore been surrendered, such Holders thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under the Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Holder of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except for its obligations to the Depositary under Sections
5.8 and 5.9 of the Deposit Agreement.
ARTICLE 29. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under the Deposit Agreement to prevent the withdrawal or
delivery of Deposited Securities in a manner which would violate the United
States securities laws, including, but not limited to, 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 of 1933.
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ARTICLE 30. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF
PROCESS.
The Company hereby (i) irrevocably designates and appoints National
Registered Agents, Inc., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
in the State of New York, as the Company's authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to the Shares
or Deposited Securities, the American Depositary Shares, the Receipts or this
Agreement, (ii) consents and submits to the jurisdiction of any state or federal
court in the State of New York in which any such suit or proceeding may be
instituted, and (iii) agrees that service of process upon said authorized agent
shall be deemed in every respect effective service of process upon the Company
in any such suit or proceeding. The Company agrees to deliver, upon the
execution and delivery of the Deposit Agreement, a written acceptance by such
agent of its appointment as such agent. The Company further agrees to take any
and all action, including the filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in
full force and effect for so long as any American Depositary Shares or Receipts
remain outstanding or the Deposit Agreement remains in force. In the event the
Company fails to continue such designation and appointment in full force and
effect, the Company hereby waives personal service of process upon it and
consents that any such service of process may be made by certified or registered
mail, return receipt requested, directed to the Company at its address last
specified for notices hereunder, and service so made shall be deemed completed
seven (7) days after the same shall have been so mailed.
ARTICLE 31. DISCLOSURE OF INTEREST
Each Holder and Beneficial Owner agrees to comply with requests from the
Company which are made pursuant to applicable law or the Company's Articles of
Incorporation or other such corporate document of the Company to provide
information as to the capacity in which such Holders or Beneficial Owners owns
American Depositary Shares and regarding the identity of any other person
interested in such American Depositary Shares and regarding the nature of such
interest, all as if such
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American Depositary Shares were to the extent practicable the underlying Shares.
The Depositary agrees to use its reasonable efforts to forward to any Holder, at
the written request and expense of the Company, any written request by the
Company for such information. If the Company requests information from the
Depositary, the Custodian or the nominee of either, as the registered owner of
the Shares, the obligations of the Depositary, Custodian or such nominee, as the
case may be, shall be limited to disclosing to the Company the information
contained in the register.
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