Exhibit 2.1
CITIBANK, N.A. - DRAFT OF MARCH 15, 2001
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DEPOSIT AGREEMENT
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by and among
ABB LTD
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of ___________, 2001
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS...................................................................1
SECTION 1.1 "AFFILIATE".................................................2
SECTION 1.2 "AMERICAN DEPOSITARY SHARE(S)" AND "ADS(S)".................2
SECTION 1.3 "ADS RECORD DATE"...........................................2
SECTION 1.4 "APPLICANT".................................................2
SECTION 1.5 "BENEFICIAL OWNER"..........................................2
SECTION 1.6 "BUSINESS DAY"..............................................2
SECTION 1.7 "COMMISSION"................................................2
SECTION 1.8 "COMPANY"...................................................2
SECTION 1.9 "CUSTODIAN".................................................2
SECTION 1.10 "DELIVER" AND "DELIVERY" ..................................2
SECTION 1.11 "DEPOSIT AGREEMENT" .......................................3
SECTION 1.12 "DEPOSITARY" ..............................................3
SECTION 1.13 "DEPOSITED SECURITIES" ....................................3
SECTION 1.14 "DOLLARS" AND "$" .........................................3
SECTION 1.15 "DTC" .....................................................3
SECTION 1.16 "DTC PARTICIPANT" .........................................3
SECTION 1.17 "EXCHANGE ACT" ............................................3
SECTION 1.18 "FOREIGN CURRENCY" ........................................3
SECTION 1.19 "FULL ENTITLEMENT ADR(S)," "FULL ENTITLEMENT
ADS(S)" AND "FULL ENTITLEMENT SHARE(S)" ..................3
SECTION 1.20 "HOLDER(S)" ...............................................3
SECTION 1.21 "PARTIAL ENTITLEMENT ADR(S)," "PARTIAL
ENTITLEMENT ADS(S)" AND "PARTIAL ENTITLEMENT
SHARE(S)".................................................4
SECTION 1.22 "PRE-RELEASE TRANSACTION" .................................4
SECTION 1.23 "PRINCIPAL OFFICE" ........................................4
SECTION 1.24."RECEIPT(S)"; "AMERICAN DEPOSITARY RECEIPT(S)"
AND "ADR(S)" .............................................4
SECTION 1.25 "REGISTRAR" ...............................................4
SECTION 1.26 "RESTRICTED ADR(S)" AND "RESTRICTED ADS(S)" ...............4
SECTION 1.27 "RESTRICTED SECURITIES" ...................................4
SECTION 1.28 "RESTRICTED SHARES(S)" ....................................5
SECTION 1.29 "SECURITIES ACT" ..........................................5
SECTION 1.30 "SEGA" ....................................................5
SECTION 1.31 ."SHARE REGISTRAR" ........................................5
SECTION 1.32 "SHARES" ..................................................5
SECTION 1.33 "SWISS FRANCS" OR "CHF" ...................................5
SECTION 1.34 "SWX SWISS EXCHANGE" ......................................5
SECTION 1.35 "UNITED STATES" ...........................................5
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ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.............................5
SECTION 2.1 APPOINTMENT OF DEPOSITARY..................................5
SECTION 2.2 FORM AND TRANSFERABILITY OF RECEIPTS.......................6
SECTION 2.3 DEPOSIT WITH CUSTODIAN.....................................7
SECTION 2.4 REGISTRATION AND SAFEKEEPING OF DEPOSITED SECURITIES.......8
SECTION 2.5 EXECUTION AND DELIVERY OF RECEIPTS.........................9
SECTION 2.6 TRANSFER, COMBINATION AND SPLIT-UP OF RECEIPTS.............9
SECTION 2.7 SURRENDER OF ADSS AND WITHDRAWAL OF DEPOSITED SECURITIES..10
SECTION 2.8 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, ETC.
OF RECEIPTS; SUSPENSION OF DELIVERY, TRANSFER, ETC........12
SECTION 2.9 LOST RECEIPTS, ETC........................................13
SECTION 2.10 CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS; MAINTENANCE OF RECORDS ........................13
SECTION 2.11 PARTIAL ENTITLEMENT ADSS ................................13
SECTION 2.12 RESTRICTED ADSS .........................................14
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSS...............................................15
SECTION 3.1 PROOFS, CERTIFICATES AND OTHER INFORMATION................15
SECTION 3.2 LIABILITY FOR TAXES AND OTHER CHARGES.....................16
SECTION 3.3 REPRESENTATIONS AND WARRANTIES ON DEPOSIT OF SHARES.......16
SECTION 3.4 COMPLIANCE WITH INFORMATION REQUESTS......................16
SECTION 3.5 OWNERSHIP RESTRICTIONS....................................17
ARTICLE IV
THE DEPOSITED SECURITIES....................................................18
SECTION 4.1 CASH DISTRIBUTIONS........................................18
SECTION 4.2 DISTRIBUTION IN SHARES....................................18
SECTION 4.3 ELECTIVE DISTRIBUTIONS IN CASH OR SHARES..................19
SECTION 4.4 DISTRIBUTION OF RIGHTS TO PURCHASE ADDITIONAL ADSS........20
SECTION 4.5 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS
TO PURCHASE SHARES. ......................................21
SECTION 4.6 DISTRIBUTIONS WITH RESPECT TO DEPOSITED SECURITIES
IN BEARER FORM 22
SECTION 4.7 REDEMPTION................................................22
SECTION 4.8 CONVERSION OF FOREIGN CURRENCY............................23
SECTION 4.9 FIXING OF ADS RECORD DATE.................................24
SECTION 4.10 VOTING OF DEPOSITED SECURITIES...........................24
SECTION 4.11 CHANGES AFFECTING DEPOSITED SECURITIES...................26
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SECTION 4.12 AVAILABLE INFORMATION ...................................26
SECTION 4.13 REPORTS..................................................27
SECTION 4.14 LIST OF HOLDERS..........................................27
SECTION 4.15 TAXATION.................................................27
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY...............................28
SECTION 5.1 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE REGISTRAR.28
SECTION 5.2 EXONERATION...............................................28
SECTION 5.3 STANDARD OF CARE..........................................29
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY;
APPOINTMENT OF SUCCESSOR DEPOSITARY.......................30
SECTION 5.5 THE CUSTODIAN.............................................31
SECTION 5.6 NOTICES AND REPORTS.......................................31
SECTION 5.7 ISSUANCE OF ADDITIONAL SHARES, ADSS ETC...................32
SECTION 5.8 INDEMNIFICATION...........................................33
SECTION 5.9 FEES AND CHARGES OF DEPOSITARY............................34
SECTION 5.10 PRE-RELEASE TRANSACTIONS.................................34
SECTION 5.11 LIST OF RESTRICTED SECURITIES OWNERS.....................35
ARTICLE VI
AMENDMENT AND TERMINATION...................................................35
SECTION 6.1 AMENDMENT/SUPPLEMENT......................................35
SECTION 6.2 TERMINATION...............................................36
ARTICLE VII
MISCELLANEOUS...............................................................37
SECTION 7.1 COUNTERPARTS..............................................37
SECTION 7.2 NO THIRD-PARTY BENEFICIARIES..............................37
SECTION 7.3 SEVERABILITY..............................................38
SECTION 7.4 HOLDERS AND BENEFICIAL OWNERS AS PARTIES; BINDING EFFECT..38
SECTION 7.5 NOTICES...................................................38
SECTION 7.6 GOVERNING LAW AND JURISDICTION............................38
SECTION 7.7 ASSIGNMENT................................................41
SECTION 7.8 COMPLIANCE WITH U.S. SECURITIES LAWS......................41
SECTION 7.9 TITLES AND REFERENCES.....................................41
EXHIBITS
Exhibit A Form of Receipt
Exhibit B Fee Schedule
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ___________, 2001, by and among (i) ABB
Ltd, a company organized under the laws of Switzerland, and its successors (the
"Company"), (ii) CITIBANK, N.A., a national banking association organized under
the laws of the United States of America acting in its capacity as depositary,
and any successor depositary hereunder (the "Depositary"), and (iii) all Holders
and Beneficial Owners of American Depositary Shares evidenced by American
Depositary Receipts issued hereunder (all such capitalized terms as hereinafter
defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide for the deposit of the Shares (as hereinafter defined) and
the creation of American Depositary Shares representing the Shares so deposited
and for the execution and delivery of American Depositary Receipts evidencing
such American Depositary Shares; and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are to
be substantially in the form of Exhibit A attached hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement; and
WHEREAS, the Shares are listed on the SWX Swiss Exchange, the OM Stockholm
Exchange, the Frankfurt Stock Exchange and the London Stock Exchange and
American Depositary Shares to be issued pursuant to the terms of this Deposit
Agreement are to be listed for trading on The New York Stock Exchange, Inc.; and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement, the execution and delivery of this Deposit
Agreement on behalf of the Company, and the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1 "AFFILIATE" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined), or under any successor regulation
thereto.
SECTION 1.2 "AMERICAN DEPOSITARY SHARE(S)" and "ADS(S)" shall mean the
rights and interests in the Deposited Securities granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement
and the American Depositary Receipts issued hereunder to evidence such ADSs.
Four (4) ADSs shall represent one (1) Share, until there shall occur a
distribution upon Deposited Securities referred to in Section 4.2 or a change in
Deposited Securities referred to in Section 4.11 with respect to which
additional ADSs are not issued, and thereafter each ADS shall represent the
Deposited Securities determined in accordance with the terms of such Sections.
Except as specifically provided in this Deposit Agreement or the applicable
American Depositary Receipt(s), the term American Depositary Share(s) includes
Restricted ADS(s) issued under the terms of Section 2.12 of this Deposit
Agreement.
SECTION 1.3 "ADS RECORD DATE" shall have the meaning given to such term in
Section 4.9.
SECTION 1.4 "APPLICANT" shall have the meaning given to such term in
Section 5.10.
SECTION 1.5 "BENEFICIAL OWNER" shall mean, as to any ADS, any person or
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner of ADSs may or may not be the Holder of the ADR(s) evidencing
such ADSs. A Beneficial Owner shall be able to exercise any right or receive any
benefit hereunder solely through the person who is the Holder of the ADR(s)
evidencing the ADSs owned by such Beneficial Owner. Except as specifically
provided in this Deposit Agreement or the applicable American Depositary
Receipt(s), the term Beneficial Owner(s) shall include Beneficial Owner(s) of
Restricted ADSs.
SECTION 1.6 "BUSINESS DAY" shall mean any day on which both the banks in
Zurich, Switzerland and the banks in New York, New York are open for business.
SECTION 1.7 "COMMISSION" shall mean the Securities and Exchange Commission
of the United States or any successor governmental agency thereto in the United
States.
SECTION 1.8 "COMPANY" shall mean ABB Ltd, a company organized and existing
under the laws of Switzerland, and its successors.
SECTION 1.9 "CUSTODIAN" shall mean, as of the date hereof, Citibank
(Switzerland) Zurich, having its principal office at Xxxxxxxxxx 00, X.X. Xxx
0000, XX-0000, Xxxxxx, Xxxxxxxxxxx, as the custodian for the purposes of this
Deposit Agreement, and any other entity that may be appointed by the Depositary
pursuant to the terms of Section 5.5 as successor, substitute or additional
custodian hereunder. The term "Custodian" shall mean any Custodian individually
or all Custodians collectively, as the context requires.
SECTION 1.10 "DELIVER" and "DELIVERY" shall mean, when used in respect of
ADSs, Deposited Securities and Shares, either (i) the physical delivery of the
certificate(s) representing
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such securities, or (ii) the electronic delivery of such securities by means of
book-entry transfer, if available.
SECTION 1.11 "DEPOSIT AGREEMENT" shall mean this Deposit Agreement and all
exhibits hereto, as the same may from time to time be amended and supplemented
from time to time in accordance with the terms hereof.
SECTION 1.12 "DEPOSITARY" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States, in its capacity as
depositary under the terms of this Deposit Agreement, and any successor
depositary hereunder.
SECTION 1.13 "DEPOSITED SECURITIES" shall mean Shares at any time
deposited under this Deposit Agreement and any and all other securities,
property and cash held by the Depositary or the Custodian in respect thereof,
subject, in the case of cash, to the provisions of Section 4.8. The collateral
delivered in connection with Pre-Release Transactions described in Section 5.10
hereof shall not constitute Deposited Securities. Except as specifically
provided in this Deposit Agreement or the applicable American Depositary
Receipt(s), the term American Depositary Share(s) includes Restricted ADS(s)
issued under the terms of Section 2.12 of this Deposit Agreement.
SECTION 1.14 "DOLLARS" and "$" shall refer to the lawful currency of the
United States.
SECTION 1.15 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
SECTION 1.16 "DTC PARTICIPANT" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
SECTION 1.17 "EXCHANGE ACT" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.18 "FOREIGN CURRENCY" shall mean any currency other than
Dollars.
SECTION 1.19 "FULL ENTITLEMENT ADR(S)," "FULL ENTITLEMENT ADS(S)" AND
"FULL ENTITLEMENT SHARE(S)" shall have the respective meanings set forth in
Section 2.11.
SECTION 1.20 "HOLDER(S)" shall mean the person(s) in whose name a Receipt
is registered on the books of the Depositary (or the Registrar, if any)
maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADSs evidenced by the Receipt
registered in its name, such person shall be deemed to have all requisite
authority to act on behalf of the Beneficial Owners of the ADSs evidenced by
such Receipt. Except as specifically provided in this Deposit Agreement or the
applicable American Depositary Receipt(s), the term Holder(s) shall include
Holder(s) of Restricted ADSs.
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SECTION 1.21 "PARTIAL ENTITLEMENT ADR(S)," "PARTIAL ENTITLEMENT ADS(S)"
AND "PARTIAL ENTITLEMENT SHARE(S)" shall have the respective meanings set forth
in Section 2.11.
SECTION 1.22 "PRE-RELEASE TRANSACTION" shall have the meaning set forth in
Section 5.10.
SECTION 1.23 "PRINCIPAL OFFICE" shall mean, when used with respect to the
Depositary, the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of this Deposit Agreement, is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
SECTION 1.24 "RECEIPT(S)"; "AMERICAN DEPOSITARY RECEIPT(S)" and "ADR(S)"
shall mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of this Deposit Agreement, as such
Receipts may be amended from time to time in accordance with the provisions of
this Deposit Agreement. A Receipt may evidence any number of American Depositary
Shares and may, in the case of American Depositary Shares held through a central
depository such as DTC, be in the form of a "Balance Certificate." Except as
specifically provided in this Deposit Agreement or the applicable American
Depositary Receipt(s), the terms Receipt(s), American Depositary Receipt(s) and
ADR(s) include Restricted ADR(s) issued under the terms of Section 2.12 of this
Deposit Agreement.
SECTION 1.25 "REGISTRAR" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary with notice to the Company to
register issuances, transfers and cancellations of Receipts as herein provided,
and shall include any co-registrar appointed by the Depositary for such
purposes. Registrars (other than the Depositary) may be removed and substitutes
appointed by the Depositary with the consent of the Company. Each Registrar
(other than the Depositary) appointed pursuant to this Deposit Agreement shall
be required to give notice in writing to the Depositary accepting such
appointment and agreeing to be bound by the applicable terms of this Deposit
Agreement. SECTION 1.26 "RESTRICTED ADR(S)" AND "RESTRICTED ADS(S)" shall have
the meaning set forth in Section 2.12.
SECTION 1.27 "RESTRICTED SECURITIES" shall mean Shares, Deposited
Securities or ADSs which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules promulgated thereunder, or (ii) are held by an
officer or director (or persons performing similar functions) or other Affiliate
of the Company, or (iii) are subject to other restrictions on sale or deposit
under the laws of the United States, Switzerland, or under a shareholder
agreement or the Articles of Incorporation of the Company or under the
regulations of an applicable securities exchange unless, in each case, such
Shares, Deposited Securities or ADSs are being transferred or sold to persons
other than an Affiliate of the Company in a transaction (i) covered by an
effective resale registration statement, or (ii) exempt from the registration
requirements of the Securities Act (as hereinafter defined), and the
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Shares, Deposited Securities or ADSs are not, when held by such person(s),
Restricted Securities.
SECTION 1.28 "RESTRICTED SHARES(S)" shall have the meaning set forth in
Section 2.12.
SECTION 1.29 "SECURITIES ACT" shall mean the United States Securities Act
of 1933, as from time to time amended.
SECTION 1.30 "SEGA" shall mean the Schweizerische Effekten-Giro
Aktiengesellschaft, which acts as book-entry securities registry system for
publicly-traded securities in Switzerland, and any successor thereto.
SECTION 1.31 "SHARE REGISTRAR" shall mean any entity appointed by the
Company to carry out the duties of registrar for the Shares, and any successor
thereto.
SECTION 1.32 "SHARES" shall mean the Company's registered shares, par
value CHF 10 per share, validly issued and outstanding and fully paid and may,
if the Depositary so agrees after consultation with the Company, include
evidence of the right to receive Shares; PROVIDED THAT in no event shall Shares
include evidence of the right to receive Shares with respect to which the full
purchase price has not been paid or Shares as to which preemptive rights have
theretofore not been validly waived or exercised; PROVIDED further, HOWEVER,
THAT, if there shall occur any change in par value, split-up, consolidation,
reclassification, conversion or any other event described in Section 4.11 in
respect of the Shares of the Company, the term "Shares" shall thereafter, to the
maximum extent permitted by law, represent the successor securities resulting
from such change in par value, split-up, consolidation, exchange, conversion,
reclassification or event. Except as specifically set forth in this Deposit
Agreement or the applicable American Depositary Receipt(s), the term Share(s)
includes Restricted Shares.
SECTION 1.33 "SWISS FRANCS" OR "CHF" shall mean the lawful currency of the
Swiss Confederation.
SECTION 1.34 "SWX SWISS EXCHANGE" shall mean the SWX Swiss Exchange on
which the Shares are listed.
SECTION 1.35 "UNITED STATES" shall have the meaning assigned to it in
Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 APPOINTMENT OF DEPOSITARY. The Company hereby appoints the
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms and conditions set
forth in this Deposit Agreement and the applicable ADRs. Each Holder and each
Beneficial Owner, upon acceptance
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of any ADSs (or any interest therein) issued in accordance with the terms and
conditions of this Deposit Agreement, shall be deemed for all purposes to (a) be
a party to and bound by the terms of this Deposit Agreement and applicable
ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated in
this Deposit Agreement and the applicable ADR(s), to adopt any and all
procedures necessary to comply with applicable law and to take such action as
the Depositary in its sole discretion may deem necessary or appropriate to carry
out the purposes of this Deposit Agreement and the applicable ADR(s), the taking
of such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
SECTION 2.2 FORM AND TRANSFERABILITY OF RECEIPTS.
(a) FORM. ADSs shall be evidenced by definitive Receipts which shall be
engraved, printed, lithographed or produced in such other manner as may be
agreed upon by the Company and the Depositary. Receipts may be issued under this
Deposit Agreement in denominations of any whole number of ADSs. The Receipts
shall be substantially in the form set forth in EXHIBIT A to this Deposit
Agreement, with any appropriate insertions, modifications and omissions, in each
case as otherwise contemplated in this Deposit Agreement or required by law.
Receipts shall be (i) dated, (ii) signed by the manual or facsimile signature of
a duly authorized signatory of the Depositary, (iii) countersigned by the manual
or facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of Receipts. No Receipt and no ADS evidenced thereby
shall be entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such
Receipt shall have been so dated, signed, countersigned and registered. Receipts
bearing the facsimile signature of a duly authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the execution of such Receipts by the Registrar (in the
event of a manual signature) or the delivery of such Receipt by the Depositary.
The Receipts shall bear a CUSIP number that is different from any CUSIP number
that was, is or may be assigned to any depositary receipts previously or
subsequently issued pursuant to any other arrangement between the Depositary (or
any other depositary) and the Company and which are not Receipts issued
hereunder.
(b) LEGENDS. The Receipts may be endorsed with, or have incorporated in
the text thereof, such legends or recitals not inconsistent with the provisions
of the Deposit Agreement (i) as may be necessary to enable the Depositary and
the Company to perform their respective obligations hereunder, (ii) as may be
required to comply with any applicable laws or regulations, or with the rules
and regulations of any securities exchange or market upon which ADSs may be
traded, listed or quoted, or to conform with any usage with respect thereto,
(iii) as may be necessary to indicate any special limitations or restrictions to
which any particular Receipts or ADSs are subject by reason of the date of
issuance of the Deposited Securities or otherwise, or (iv) as may be required by
any book-entry system in which the ADSs are held. Holders and Beneficial Owners
shall be deemed, for all purposes, to have notice of, and to be bound by, the
terms and conditions of the legends set forth, in the case of Holders, on the
ADR registered in the
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name of the applicable Holders or, in the case of Beneficial Owners, on the ADR
representing the ADSs owned by such Beneficial Owners.
(c) TITLE. Subject to the limitations contained herein and in the Receipt,
title to a Receipt (and to each ADS evidenced thereby) shall be transferable
upon the same terms as a certificated security under the laws of the State of
New York, provided that such Receipt has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of a
Receipt (that is, the person in whose name a Receipt is registered on the books
of the Depositary) as the absolute owner thereof for all purposes. Neither the
Depositary nor the Company shall have any obligation or be subject to any
liability under this Deposit Agreement or any Receipt to any holder of a Receipt
or any Beneficial Owner unless such holder is the Holder of such Receipt
registered on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner, or the Beneficial Owner's representative, is the Holder
registered on the books of the Depositary.
(d) BOOK-ENTRY SYSTEMS. The Depositary shall make arrangements for the
acceptance of the ADSs into DTC. A single ADR in the form of a "Balance
Certificate" will evidence all ADSs held through DTC and will be registered in
the name of the nominee for DTC (currently "Cede & Co.") and will provide that
it represents the aggregate amount of ADSs from time to time indicated in the
records of the Depositary as being issued hereunder and that the aggregate
amount of ADSs represented thereby may from time to time be increased or
decreased by making adjustments on such records of the Depositary and of DTC or
its nominee as hereinafter provided. As such, the nominee for DTC will be the
only "Holder" of the ADR evidencing all ADSs held through DTC. Citibank, N.A.
(or such other entity as is appointed by DTC or its nominee) may hold the
"Balance Certificate" as custodian for DTC. Each Beneficial Owner of ADSs held
through DTC must rely upon the procedures of DTC and the DTC Participants to
exercise or be entitled to any rights attributable to such ADSs. The DTC
Participants shall for all purposes be deemed to have all requisite power and
authority to act on behalf of the Beneficial Owners of the ADSs held in the DTC
Participants' respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given to it
by DTC Participants on behalf of Beneficial Owners of ADSs. So long as ADSs are
held through DTC or unless otherwise required by law, ownership of beneficial
interests in the ADR registered in the name of the nominee for DTC will be shown
on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC or its nominee (with respect to the interests of DTC
Participants), or (ii) DTC Participants or their nominees (with respect to the
interests of clients of DTC Participants).
SECTION 2.3 DEPOSIT WITH CUSTODIAN. Subject to the terms and conditions of
this Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares (other than Restricted Securities) may be deposited by any person
(including the Depositary in its individual capacity but subject, however, in
the case of the Company or any Affiliate of the Company, to Section 5.7 hereof)
at any time, whether or not the transfer books of the Company or the Share
Registrar, if any, are closed, by Delivery of the Shares to the Custodian,
provided that Restricted Shares may be deposited only upon the terms expressly
permitted by Section 2.12 of the Deposit Agreement. Every deposit of Shares
shall be accompanied by the following: (A) (i) IN THE CASE
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OF SHARES REPRESENTED BY CERTIFICATES ISSUED IN REGISTERED FORM, appropriate
instruments of transfer or endorsement, in a form satisfactory to the Custodian,
(ii) IN THE CASE OF SHARES REPRESENTED BY CERTIFICATES IN BEARER FORM, the
requisite coupons and talons pertaining thereto, and (III) IN THE CASE OF SHARES
DELIVERED BY BOOK-ENTRY TRANSFER, confirmation of such book-entry transfer to
the Custodian or that irrevocable instructions have been given to cause such
Shares to be so transferred, (B) such certifications and payments (including,
without limitation, the Depositary's fees and related charges referred to in
Exhibit B hereto) or evidence of such payments (including, without limitation,
stamping or otherwise marking such Shares by way of receipt) as may be
reasonably required by the Depositary or the Custodian in accordance with the
provisions of this Deposit Agreement and applicable law, (C) if the Depositary
so requires, a written order directing the Depositary to execute and deliver to,
or upon the written order of, the person(s) stated in such order a Receipt or
Receipts for the number of ADSs representing the Shares so deposited, (D)
evidence, if any is required by the Depositary or the Custodian, reasonably
satisfactory to the Depositary (which may be an opinion of counsel) that all
necessary approvals have been granted by, or there has been compliance with the
rules and regulations of, any applicable governmental agency in Switzerland, and
(E) if the Depositary so requires, (i) an agreement, assignment or instrument
reasonably satisfactory to the Depositary or the Custodian which provides for
the prompt transfer by any person in whose name the Shares are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall be
reasonably satisfactory to the Depositary or the Custodian and (ii) if the
Shares are registered in the name of the person on whose behalf they are
presented for deposit, a proxy or proxies entitling the Custodian to exercise
voting rights in respect of the Deposited Securities for any and all purposes
until the Shares so deposited are registered in the name of the Depositary, the
Custodian or any nominee.
Without limiting any other provision of this Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities, except as
contemplated by Section 2.12 of this Deposit Agreement, nor (b) any fractional
Shares or fractional Deposited Securities nor (c) a number of Shares or
Deposited Securities which upon application of the ADS to Shares ratio would
give rise to fractional ADSs. No Share shall be accepted for deposit unless
accompanied by evidence, if any is required by the Depositary, that is
reasonably satisfactory to the Depositary or the Custodian that all conditions
to such deposit have been satisfied by the person depositing such Shares under
the laws and regulations of Switzerland and any necessary approval has been
granted by any applicable governmental body in Switzerland, if any. The
Depositary may issue ADSs against evidence of rights to receive Shares from the
Company, any agent of the Company or any custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares. Such evidence of rights shall consist of written blanket
or specific guarantees of ownership of Shares furnished by the Company or any
such custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares.
SECTION 2.4 REGISTRATION AND SAFEKEEPING OF DEPOSITED SECURITIES. The
Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Shares being deposited hereunder with the Custodian (or
other Deposited Securities pursuant to Article
-8-
IV hereof), together with the other documents above specified, to present such
certificate(s), together with the appropriate instrument(s) of transfer or
endorsement, duly stamped, to the Share Registrar for transfer and registration
of the Shares (as soon as transfer and registration can be accomplished and at
the expense of the person for whom the deposit is made) in the name of the
Depositary, the Custodian or a nominee of either. Deposited Securities shall be
held by the Depositary or by a Custodian for the account and to the order of the
Depositary or a nominee in each case on behalf of the Holders and Beneficial
Owners, at such place or places as the Depositary or the Custodian shall
determine.
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,
unless a registration statement is in effect as to such Shares or other
Deposited Securities, or any Shares or other Deposited Securities the deposit of
which would violate any provisions of the Articles of Incorporation of the
Company.
SECTION 2.5 EXECUTION AND DELIVERY OF RECEIPTS. The Depositary has made
arrangements with the Custodian to confirm to the Depositary (i) that a deposit
of Shares has been made pursuant to Section 2.3 hereof, (ii) that such Deposited
Securities have been recorded in the name of the Depositary, the Custodian or a
nominee of either on the shareholders' register maintained by or on behalf of
the Company by the Share Registrar if registered Shares have been deposited or,
if deposit is made by book-entry transfer, confirmation of such transfer in the
books of the SEGA, (iii) that all required documents have been received, and
(iv) the person(s) to whom or upon whose order ADSs are deliverable in respect
thereof and the number of ADSs to be so delivered thereby. Such notification may
be made by letter, cable, telex, SWIFT message or, at the request, risk and
expense of the person making the deposit, by facsimile or other means of
electronic transmission. Upon receiving such notice from the Custodian, the
Depositary, subject to the terms and conditions of this Deposit Agreement and
applicable law, shall issue the ADSs representing the Shares so deposited to or
upon the order of the person(s) named in the notice delivered to the Depositary
and shall execute and deliver at its Principal Office Receipt(s) registered in
the name(s) requested by such person(s) and evidencing the aggregate number of
ADSs to which such person(s) are entitled, but only upon payment to the
Depositary of the charges of the Depositary for accepting a deposit, issuing
ADSs and executing and delivering such Receipt(s) (as set forth in Section 5.9
and Exhibit B hereto) and all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Shares and the issuance of
the Receipt(s). The Depositary shall only issue ADSs in whole numbers and
deliver ADRs evidencing whole numbers of ADSs. Nothing herein shall prohibit any
Pre-Release Transaction upon the terms set forth in this Deposit Agreement.
SECTION 2.6 TRANSFER, COMBINATION AND SPLIT-UP OF RECEIPTS.
(a) TRANSFER. The Registrar shall register the transfer of Receipts (and
of the ADSs represented thereby) on the books maintained for such purpose and
the Depositary shall cancel such Receipts and execute new Receipts evidencing
the same aggregate number of ADSs as those evidenced by the Receipts canceled by
the Depositary, shall cause the Registrar to countersign such new Receipts and
shall Deliver such new Receipts to or upon the order of the person entitled
thereto, if each of the following conditions has been satisfied: (i) the
Receipts
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have been duly Delivered by the Holder (or by a duly authorized attorney of the
Holder) to the Depositary at its Principal Office for the purpose of effecting a
transfer thereof, (ii) the surrendered Receipts have been properly endorsed or
are accompanied by proper instruments of transfer (including signature
guarantees in accordance with standard securities industry practice), (iii) the
surrendered Receipts have been duly stamped (if required by the laws of the
State of New York or of the United States), and (iv) all applicable fees and
charges of, and reasonable out-of-pocket expenses incurred by, the Depositary
and all applicable taxes and governmental charges (as are set forth in Section
5.9 and Exhibit B hereto) have been paid, SUBJECT, HOWEVER, IN EACH CASE, to the
terms and conditions of the applicable Receipts, of the Deposit Agreement and of
applicable law, in each case as in effect at the time thereof.
(b) COMBINATION & SPLIT UP. The Registrar shall register the split-up or
combination of Receipts (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall cancel such Receipts and
execute new Receipts for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by the Receipts cancelled by the
Depositary, shall cause the Registrar to countersign such new Receipts and shall
Deliver such new Receipts to or upon the order of the Holder thereof, if each of
the following conditions has been satisfied: (i) the Receipts have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination thereof, and (ii) all applicable fees and charges of, and reasonable
out-of-pocket expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 and Exhibit B hereto) have
been paid, SUBJECT, HOWEVER, IN EACH CASE, to the terms and conditions of the
applicable Receipts, of the Deposit Agreement and of applicable law, in each
case as in effect at the time thereof.
(c) CO-TRANSFER AGENTS. The Depositary may, with the consent of the
Company, appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of Receipts at designated transfer offices
on behalf of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to such Receipts and will be
entitled to protection and indemnity to the same extent as the Depositary. Such
co-transfer agents may be removed and substitutes appointed by the Depositary
with the consent of the Company. Each co-transfer agent appointed under this
Section 2.6 (other than the Depositary) shall give notice in writing to the
Depositary and the Company accepting such appointment and agreeing to be bound
by the applicable terms of the Deposit Agreement.
SECTION 2.7 SURRENDER OF ADSS AND WITHDRAWAL OF DEPOSITED SECURITIES. The
Holder of ADSs shall be entitled to Delivery (at the Custodian's designated
office) of the Deposited Securities at the time represented by the ADS(s) upon
satisfaction of each of the following conditions: (i) the Holder (or a duly
authorized attorney of the Holder) has duly Delivered ADSs to the Depositary at
its Principal Office (and if applicable, the Receipts evidencing such ADSs) for
the purpose of withdrawal of the Deposited Securities represented thereby, (ii)
if so required by the Depositary, the Receipts Delivered to the Depositary for
such purpose have been properly endorsed in blank or are accompanied by proper
instruments of transfer in blank (including signature guarantees in accordance
with standard securities industry practice), (iii) if so required by the
Depositary, the Holder of the ADSs has executed and
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delivered 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 the person(s) designated in such order, and (iv) all applicable fees
and charges of, and reasonable out-of-pocket expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 and Exhibit B hereof) have been paid, SUBJECT, HOWEVER, IN EACH
CASE, TO the terms and conditions of the Receipts evidencing the surrendered
ADSs, of the Deposit Agreement, of the Company's Articles of Incorporation and
of any applicable laws and the rules of SEGA, and to any provisions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipts evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so cancelled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, SUBJECT HOWEVER, IN EACH CASE, to the terms and
conditions of the Deposit Agreement, of the Receipts evidencing the ADSs so
cancelled, of the Articles of Incorporation of the Company, of applicable laws
and of the rules of SEGA, and to the terms and conditions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of the Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADS(s) so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and reasonable out-of-pocket
expenses incurred by, the Depositary and (b) taxes withheld) to the person
surrendering the ADSs.
Notwithstanding anything else contained in any Receipt or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by air
courier, cable, telex or facsimile transmission.
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SECTION 2.8 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, ETC. OF
RECEIPTS; SUSPENSION OF DELIVERY, TRANSFER, ETC.
(a) ADDITIONAL REQUIREMENTS. As a condition precedent to the execution and
delivery, registration, registration of issuance or transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of a Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or Deposited Securities being withdrawn) and payment of any applicable
fees and charges of the Depositary as provided in Section 5.9 and Exhibit B
hereof, (ii) the production of proof reasonably satisfactory to it as to the
identity and genuineness of any signature or any other matter contemplated by
Section 3.1 hereof, and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of Receipts or ADSs or to the
withdrawal of Deposited Securities and (B) such reasonable regulations, if any,
as the Depositary and the Company may establish consistent with the provisions
of the applicable Receipt, this Deposit Agreement and applicable law.
(b) ADDITIONAL LIMITATIONS. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be suspended, or
the issuance of ADSs against the deposit of particular Shares may be refused, or
the registration of transfer of Receipts in particular instances may be refused,
or the registration of transfers of Receipts generally may be suspended, during
any period when the transfer books of the Company, the Depositary, a Registrar
or the Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange on which the ADSs or Shares are
listed, or under any provision of the Company's Articles of Incorporation, this
Deposit Agreement or the applicable Receipt(s) or under any provision of, or
governing, the Deposited Securities, or because of a meeting of shareholders of
the Company or for any other reason, subject, in all cases, to Section 7.8
hereof.
(c) REGULATORY RESTRICTIONS. Notwithstanding any provision of this Deposit
Agreement or any Receipt(s) to the contrary, Holders are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities at any time subject only
to (i) temporary delays caused by closing the transfer books of the Depositary
or the Company or the deposit of Shares in connection with voting at a
shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
Without limiting the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any Shares required to be registered
under the provisions of the Securities Act unless a registration statement is in
effect as to such Shares or unless procedures therefor have been established by
the Company and the Depositary pursuant to Section 2.12 of
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this Deposit Agreement. The Depositary shall use its commercially reasonable
efforts to comply with written instructions from the Company to not accept for
deposit hereunder any Shares identified in such instructions in order to
facilitate compliance with the requirements of law or of any government or
governmental body or commission, including the securities laws of the United
States or the requirements of the Articles of Incorporation of the Company.
SECTION 2.9 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 at the expense of the Holder (a) IN THE CASE OF A
MUTILATED RECEIPT, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) IN THE CASE OF A DESTROYED, LOST OR STOLEN
RECEIPT, in lieu of and in substitution for such destroyed, lost, or stolen
Receipt, after the Holder thereof (i) has submitted to the Depositary a written
request for such exchange and substitution before the Depositary has notice that
the Receipt has been acquired by a bona fide purchaser, (ii) has provided such
security or indemnity (including an indemnity bond) as may be reasonably
required by the Depositary to save it and any of its agents harmless, and (iii)
has satisfied any other reasonable requirements imposed by the Depositary,
including, without limitation, evidence satisfactory to the Depositary of such
destruction, loss or theft of such Receipt, the authenticity thereof and the
Holder's ownership thereof.
SECTION 2.10 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS;
MAINTENANCE OF RECORDS. All Receipts surrendered to the Depositary shall be
canceled by the Depositary. Canceled Receipts shall not be entitled to any
benefits under this Deposit Agreement or be valid or enforceable against the
Depositary for any purpose. The Depositary is authorized to destroy Receipts so
canceled, provided the Depositary maintains a record of all destroyed Receipts.
Any ADSs held in book-entry form (I.E., through accounts at DTC) shall be deemed
canceled when the Depositary causes the number of ADSs evidenced by the Balance
Certificate to be reduced by the number of ADSs surrendered (without the need to
physically destroy the Balance Certificate).
SECTION 2.11 PARTIAL ENTITLEMENT ADSS. In the event any Shares are
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Deposit
Agreement, issue ADSs and deliver ADRs representing Partial Entitlement Shares
which are separate and distinct from the ADSs and ADRs representing Full
Entitlement Shares, by means of separate CUSIP numbering and legending (if
necessary) ("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to
exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the
Custodian to transfer the Partial Entitlement Shares into the account of the
Full Entitlement Shares, and (c) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and
Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the
entitlements of Partial
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Entitlement Shares. Holders and Beneficial Owners of Full Entitlement ADSs shall
be entitled only to the entitlements of Full Entitlement Shares. All provisions
and conditions of this Deposit Agreement shall apply to Partial Entitlement ADRs
and ADSs to the same extent as Full Entitlement ADRs and ADSs, except as
contemplated by this Section 2.11. The Depositary is authorized to take any and
all other actions as may be necessary (including, without limitation, making the
necessary notations on Receipts) to give effect to the terms of this Section
2.11. The Company agrees to give timely written notice to the Depositary if any
Shares issued or to be issued are Partial Entitlement Shares and shall assist
the Depositary with the establishment of procedures enabling the identification
of Partial Entitlement Shares upon Delivery to the Custodian.
SECTION 2.12 RESTRICTED ADSS. The Depositary shall, at the request and
expense of the Company, establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Restricted Securities to hold its ownership interests in such Restricted
Securities in the form of Restricted ADSs issued under the terms hereof (such
Shares, "Restricted Shares"). Upon receipt of a written request from the Company
to accept Restricted Shares for deposit hereunder, the Depositary agrees to
establish procedures permitting the deposit of such Restricted Shares and the
issuance of one or more series of ADSs representing such deposited Restricted
Shares (such ADSs, the "Restricted ADSs," and the ADRs evidencing such
Restricted ADSs, the "Restricted ADRs"). The Company shall assist the Depositary
in the establishment of such procedures and agrees that it shall take all steps
necessary and reasonably satisfactory to the Depositary to ensure that the
establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such Restricted
Shares and the Holders of the Restricted ADSs may be required prior to the
deposit of such Restricted Shares, the transfer of the Restricted ADRs and the
Restricted ADSs evidenced thereby or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory to
the Depositary and (ii) contain the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit
of Restricted Shares shall be separately identified on the books of the
Depositary and the Restricted Shares so deposited shall be held separate and
distinct from the other Deposited Securities held hereunder. The Restricted
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions described in Section 5.10. The Restricted ADSs shall not be
eligible for inclusion in any book-entry settlement system, including, without
limitation, DTC and shall not in any way be fungible with the ADSs issued under
the terms hereof that are not Restricted ADSs. The Restricted ADRs and the
Restricted ADSs evidenced thereby shall be transferable only by the Holder
thereof upon delivery to the Depositary of (i) all documentation otherwise
contemplated by this Deposit Agreement and (ii) an opinion of counsel reasonably
satisfactory to the Depositary setting forth, inter alia, the conditions upon
which the Restricted ADR presented is, and the Restricted ADSs evidenced thereby
are, transferable by the Holder thereof under applicable securities laws and the
transfer restrictions contained in the legend set forth on the Restricted ADR
presented for transfer. Except as (i) set forth in this Section 2.12 and the
applicable Restricted ADR and (ii) required by applicable law, the Restricted
ADRs and the Restricted ADSs evidenced thereby shall be treated
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as ADRs and ADSs issued and outstanding under the terms of the Deposit
Agreement. In the event that the Company makes any distributions upon Deposited
Securities described in Article IV of this Deposit Agreement, the Depositary
shall (i) make the determinations contemplated in Article IV with respect to the
Restricted ADSs independently from the determination for ADSs that are not
Restricted ADSs and (ii) shall make distributions under Article IV to Holders of
Restricted ADSs only on the basis of the distributions received from the Company
in respect of the Restricted Shares corresponding to the Restricted ADSs held by
such Holders. In the event that, in determining the rights and obligations of
parties hereto with respect to any Restricted ADSs, any conflict arises between
(a) the terms of this Deposit Agreement (other than this Section 2.12) and (b)
the terms of (i) this Section 2.12 or (ii) the applicable Restricted ADR, the
terms and conditions set forth in this Section 2.12 and of the Restricted ADR
shall be controlling and shall govern the rights and obligations of the parties
to this Deposit Agreement pertaining to the deposited Restricted Shares, the
Restricted ADSs and Restricted ADRs.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSS
SECTION 3.1 PROOFS, CERTIFICATES AND OTHER INFORMATION. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
this Deposit Agreement or the Receipt(s) evidencing the ADS(s) and the
provisions of, or governing, the Deposited Securities, to execute such
certifications and to make such representations and warranties, and to provide
such other information and documentation (or, in the case of Shares in
registered form presented for deposit, such information relating to the
registration on the books of the Company or of the Share Registrar) as the
Depositary or the Custodian may reasonably deem necessary or proper or as the
Company may reasonably require by written request to the Depositary consistent
with its obligations under this Deposit Agreement and the applicable Receipt(s).
The Depositary and the Registrar, as applicable, may withhold the execution or
delivery or registration of transfer of any Receipt or the distribution or sale
of any dividend or distribution of rights or of the proceeds thereof or, to the
extent not limited by the terms of Section 7.8 hereof, the delivery of any
Deposited Securities until such proof or other information is filed or such
certifications are executed, or such representations are made, or such other
documentation or information provided, in each case to the Depositary's, the
Registrar's and the Company's reasonable satisfaction. The Depositary shall
provide the Company, in a timely manner, with copies (or originals if necessary
and appropriate) of (i) any such proofs of citizenship or residence, taxpayer
status, or exchange control approval which it receives from Holders and
Beneficial Owners, and (ii) any other information or documents which the Company
may reasonably request and which the Depositary shall request and receive from
any Holder or Beneficial Owner or any person presenting Shares for deposit or
ADSs for cancellation, transfer or withdrawal. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if not provided by
-15-
the Holders or Beneficial Owners, or (ii) verify or vouch for the accuracy of
the information so provided by the Holders or Beneficial Owners.
SECTION 3.2 LIABILITY FOR TAXES AND OTHER CHARGES. Any tax or other
governmental charge payable with respect to any ADR or any Deposited Securities
or ADSs shall be payable by the Holders and Beneficial Owners to the Depositary.
The Company, the Custodian and/or the Depositary may withhold or deduct from any
distributions made in respect of Deposited Securities and may sell for the
account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, the Holder and
the Beneficial Owner remaining liable for any deficiency. The Custodian may
refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to
deliver ADRs, register the transfer, split-up or combination of ADRs and
(subject to Section 7.8) the withdrawal of Deposited Securities until payment in
full of such tax, charge, penalty or interest is received. Every Holder and
Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian,
and any of their agents, officers, employees and Affiliates for, and to hold
each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES ON DEPOSIT OF SHARES. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, and are not, and the ADSs issuable upon such deposit will not
be, Restricted Securities and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Except as contemplated by Section 2.12
of this Deposit Agreement, each such person shall also be deemed to represent
that Shares deposited by that person are not Restricted Securities, and that the
deposit of Shares or sale of ADSs by that person is not restricted, under the
Securities Act. Such representations and warranties shall survive the deposit
and withdrawal of Shares, the issuance and cancellation of ADSs in respect
thereof and the transfer of such ADSs. If any such representations or warranties
are false in any way, the Company and the Depositary shall be authorized, at the
cost and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
SECTION 3.4 COMPLIANCE WITH INFORMATION REQUESTS. Notwithstanding any
other provision of this Deposit Agreement or any Receipt(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable law, the rules and requirements of the SWX Swiss Exchange, and any
other stock exchange on which the Shares or ADSs are, or will be, registered,
traded or listed or the Articles of Incorporation of the Company, which are made
to provide information, inter alia, as to the capacity in which such Holder or
Beneficial Owner owns ADSs (and Shares as the case may be) and regarding the
identity of any other person(s) interested in such ADSs and the nature of such
interest and various other matters, whether or not they are Holders and/or
Beneficial Owners at the time of such request. The
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Depositary agrees to use commercially reasonable best efforts to forward, upon
the request of the Company and at the Company's expense, any such request from
the Company to the Holders and to forward to the Company any such responses to
such requests received by the Depositary.
SECTION 3.5 OWNERSHIP RESTRICTIONS. Notwithstanding any other provision in
this Deposit Agreement or any Receipt, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
imposed by applicable law or the Articles of Incorporation of the Company. The
Company may also restrict, in such manner as it deems appropriate, transfers of
the ADSs where such transfer may result in the total number of Shares
represented by the ADSs owned by a single Holder or Beneficial Owner to exceed
any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including, but not limited to, the imposition
of restrictions on the transfer of ADSs, the removal or limitation of voting
rights or mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the ADSs held by such Holder or Beneficial
Owner in excess of such limitations, if and to the extent such disposition is
permitted by applicable law and the Articles of Incorporation of the Company.
The Depositary shall, subject to applicable law, use commercially reasonable
efforts to comply with the Company's instructions as to Receipts in respect of
any such enforcement or limitation, and Holders and Beneficial Owners shall
comply with all such disclosure requirements and ownership limitations and shall
cooperate with the Depositary to comply with such instructions.
Each Holder and each Beneficial Owner of a Receipt agrees to comply with
all applicable provisions of Swiss law as in effect from time to time with
respect to the notification to the Company and the SWX Swiss Exchange of such
Holder's or Beneficial Owner's interest in Shares, as if such Holder or
Beneficial Owner were an owner of the Shares represented by the ADSs owned by
such Holder or Beneficial Owner. Each Holder and each Beneficial Owner
acknowledges that failure to provide on a timely basis any required notification
of an interest in Shares may result in withholding of certain rights, including
voting and dividend rights in respect of the Shares in which such Holder or
Beneficial Owner has an interest.
According to Swiss law, as in effect on the date hereof, anyone who
(directly, indirectly or acting in concert with third parties) for their own
account acquires or disposes of Shares of the Company, whether held directly or
in ADR form, and who thereby reaches, exceeds or falls below the thresholds of
5, 10, 20, 33, 50, or 66 percent of the voting rights of the Company, whether or
not such voting rights may be exercised, must report such holdings to the
Company and to the exchange(s) on which the Shares are listed. A group of
shareholders organized by contract or otherwise must comply with the disclosure
obligation under the preceding sentence as a group. The group must report (a)
its aggregate share holdings; (b) the identity of its members; (c) the nature of
the arrangement among the group members; and (d) the representations of the
group. The Company is required to publish the information it receives relating
to changes in ownership of voting rights in its Shares. In addition, according
to Swiss law, as in effect on the date hereof, anyone who (directly, indirectly
or acting in concert with third parties) acquires Shares of the Company, whether
held directly or in ADR form, and who thereby exceeds 33% of the voting rights
of the Company, whether or not such voting rights may
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be exercised, must make a bid to all remaining shareholders of the Company,
subject to limited exceptions granted on a case-by-case basis by the Swiss
Takeover Board no later than two months after the percentage threshold has been
exceeded and not below 75% of the highest price paid by the Offeror for any
purchase of Shares of the Company in the twelve months preceding the
announcement of the offer.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 CASH DISTRIBUTIONS. Whenever the Depositary receives
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Deposited Securities or any other entitlements held in respect of
Deposited Securities under the terms hereof, the Depositary will (i) if any
amounts are received in a Foreign Currency, promptly convert or cause to be
converted such cash dividend, distribution or proceeds into Dollars (subject to
the terms and conditions of Section 4.8), (ii) if applicable, establish the ADS
Record Date upon the terms described in Section 4.9, and (iii) distribute
promptly the amount thus received (net of (a) the applicable fees and charges
of, and reasonable out-of-pocket expenses incurred by, the Depositary and (b)
taxes withheld) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date. The Depositary
shall distribute only such amount, however, as can be distributed without
attributing to any Holder a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of ADSs outstanding at the time of the
next distribution. If the Company, the Custodian or the Depositary is required
to withhold and does withhold from any cash dividend or other cash distribution
in respect of any Deposited Securities an amount on account of taxes, duties or
other governmental charges, the amount distributed to Holders on the ADSs
representing such Deposited Securities shall be reduced accordingly. Such
withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment thereof
by the Company shall be forwarded by the Company to the Depositary upon request.
SECTION 4.2 DISTRIBUTION IN SHARES. If any distribution upon any Deposited
Securities consists of a dividend in, or free distribution of, Shares, the
Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
their respective nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and shall, subject to Section 5.9 hereof, distribute to
the Holders as of the ADS Record Date in proportion to the number of ADSs held
as of the ADS Record Date, additional ADSs, which represent in the aggregate the
number of Shares received as such dividend, or free distribution, subject to the
other terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and reasonable out-of-pocket expenses incurred
by, the Depositary and (b) taxes). If additional ADSs are not so distributed,
each ADSs issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent the additional integral number of
Shares distributed upon the
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Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and reasonable out-of-pocket expenses incurred by, the Depositary
and (b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell
the number of Shares or ADSs, as the case may be, represented by the aggregate
of such fractions and distribute the net proceeds upon the terms described in
Section 4.1. In the event that the Depositary determines that any distribution
in property (including Shares) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, or, if the Company in the
fulfillment of its obligation under Section 5.7 hereof, has furnished an opinion
of U.S. counsel determining that Shares must be registered under the Securities
Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable, and the Depositary
shall distribute the net proceeds of any such sale (after deduction of such (a)
taxes and (b) fees and charges of, and reasonable out-of-pocket expenses
incurred by, the Depositary) to Holders entitled thereto upon the terms
described in Section 4.1. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of this Deposit
Agreement.
SECTION 4.3 ELECTIVE DISTRIBUTIONS IN CASH OR SHARES. Whenever the Company
intends to distribute a dividend payable at the election of the holders of
Shares in cash or in additional Shares, the Company shall promptly give notice
thereof to the Depositary stating whether or not it wishes such elective
distribution to be made available to Holders of ADSs. Upon the timely receipt of
the Company's notice indicating that the Company wishes such elective
distribution to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs and the
means by which such elective distribution can be made available. The Depositary
shall make such elective distribution available to Holders only if (i) the
Depositary shall have determined that such distribution is reasonably
practicable and (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7. If the above conditions are not
satisfied, the Depositary shall, to the extent permitted by law, distribute to
the Holders, on the basis of the same determination as is made in Switzerland in
respect of the Shares for which no election is made, either (X) cash upon the
terms described in Section 4.1 or (Y) additional ADSs representing such
additional Shares upon the terms described in Section 4.2. If the above
conditions are satisfied, the Depositary shall establish an ADS Record Date (on
the terms described in Section 4.9) and establish, after consultation with the
Company, procedures to enable Holders to elect the receipt of the proposed
dividend in cash or in additional ADSs. The Company shall assist the Depositary
in establishing such procedures to the extent necessary. If a Holder elects to
receive the proposed dividend (X) in cash, the dividend shall be distributed
upon the terms described in Section 4.1, or (Y) in ADSs, the dividend shall be
distributed upon the terms described in Section 4.2. Nothing herein shall
obligate the Depositary to make available to Holders a method to receive the
elective dividend in Shares (rather than ADSs). There can be no assurance that
Holders generally, or any Holder in particular, will be given the opportunity to
receive elective distributions on the same terms and conditions as the holders
of Shares.
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SECTION 4.4 DISTRIBUTION OF RIGHTS TO PURCHASE ADDITIONAL ADSS.
(a) DISTRIBUTION TO ADS HOLDERS. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall promptly give notice thereof to the
Depositary stating whether or not it wishes such rights to be made available to
Holders of ADSs. Upon the timely receipt of the Company's notice indicating that
the Company wishes such rights to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such rights available to the Holders and the means of making
such rights available to the Holders. The Depositary shall make such rights
available to Holders only if (i) the Company shall have timely requested that
such rights be made available to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary shall have determined that such distribution of rights is
reasonably practicable. In the event any of the conditions set forth above are
not satisfied or if the Company requests that the rights not be made available
to Holders of ADSs, the Depositary shall proceed with the sale of the rights as
contemplated in Section 4.4(b) below. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date (upon the
terms described in Section 4.9) and establish, after consultation with the
Company, procedures to (x) distribute rights to purchase additional ADSs (by
means of warrants or otherwise), (y) to enable the Holders to exercise such
rights (upon payment of the subscription price and of the applicable (a) fees
and charges of, and reasonable out-of-pocket expenses incurred by, the
Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise of
such rights. The Company shall assist the Depositary to the extent necessary in
establishing such procedures. Nothing herein shall obligate the Depositary to
make available to the Holders a method to exercise rights to subscribe for
Shares (rather than ADSs).
(b) SALE OF RIGHTS. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines it is
not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public or private sale) as it may deem practicable. The Company
shall assist the Depositary to the extent necessary to determine such legality
and practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and reasonable
out-of-pocket expenses incurred by, the Depositary and (b) taxes) upon the terms
set forth in Section 4.1.
(c) LAPSE OF RIGHTS. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), in each
case after making a good faith effort to perform its obligations under such
Sections 4.4(a) and (b), the Depositary shall allow such rights to lapse.
The Depositary, absent negligence and provided the Depositary has made a
good faith effort to perform its obligations under this Agreement relevant to
the specified circumstances,
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shall not be responsible for (i) any failure to determine that it may be lawful
or practicable to make such rights available to Holders in general or any
Holders in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or exercise, or (iii) the content of any materials
forwarded to the Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for the
Company in the United States and counsel to the Company in any other applicable
country in which rights would be distributed, in each case satisfactory to the
Depositary, to the effect that the offering and sale of such securities to
Holders and Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws.
In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
SECTION 4.5 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS TO PURCHASE
SHARES.
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give timely notice thereof to the Depositary and shall
indicate whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes such
distribution be made to Holders of ADSs, the Depositary shall consult with the
Company, and the Company shall assist the Depositary, to determine whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have requested the
Depositary to make such distribution to Holders, (ii) the Depositary shall have
received satisfactory documentation within
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the terms of Section 5.7, and (iii) the Depositary shall have determined that
such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record, as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may, after consultation with the Company, deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and reasonable out-of-pocket expenses incurred
by, the Depositary, and (ii) net of any taxes withheld. The Depositary may
dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable, the Depositary shall sell or cause
such property to be sold in a public or private sale, at such place or places
and upon such terms as it may deem practicable and shall (i) cause the proceeds
of such sale, if any, to be converted into Dollars and (ii) distribute the
proceeds of such conversion received by the Depositary (net of applicable (a)
fees and charges of, and reasonable out-of-pocket expenses incurred by, the
Depositary and (b) taxes) to the Holders as of the ADS Record Date upon the
terms of Section 4.1. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
SECTION 4.6 DISTRIBUTIONS WITH RESPECT TO DEPOSITED SECURITIES IN BEARER
Form. Subject to the terms of this Article IV, distributions in respect of
Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of Receipts
with respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such
coupons, talons or certificates, as the case may be, in connection with any such
distribution.
SECTION 4.7 REDEMPTION. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall
promptly give notice thereof to the Depositary which notice shall set forth the
particulars of the proposed redemption. Upon the timely receipt of (i) such
notice and (ii) satisfactory documentation given by the Company to the
Depositary within the terms of Section 5.7, and only if the Depositary shall
have determined that such proposed redemption is practicable, the Depositary
shall provide to each Holder a notice setting forth the intended exercise by the
Company of the redemption rights and any other particulars set forth in the
Company's notice to the Depositary. The Depositary shall instruct the Custodian
to present to the Company the Deposited Securities in respect of which
redemption
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rights are being exercised against payment of the applicable redemption price.
Upon receipt of confirmation from the Custodian that the redemption has taken
place and that funds representing the redemption price have been received, the
Depositary shall convert, transfer, and distribute the proceeds (net of
applicable (a) fees and charges of, and the reasonable out-of-pocket expenses
incurred by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs upon
delivery of such ADSs by Holders thereof and the terms set forth in Sections 4.1
and 6.2 hereof. If less than all outstanding Deposited Securities are redeemed,
the ADSs to be retired will be selected by lot or on a pro rata basis, as may be
determined by the Depositary. The redemption price per ADS shall be the per
share amount received by the Depositary upon the redemption of the Deposited
Securities represented by ADSs (subject to the terms of Section 4.8 hereof and
the applicable fees and charges of, and reasonable out-of-pocket expenses
incurred by, the Depositary, and taxes) multiplied by the number of Deposited
Securities represented by each ADS redeemed.
SECTION 4.8 CONVERSION OF FOREIGN CURRENCY. Whenever the Depositary or the
Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the reasonable judgment of the Depositary can at such time be
converted on a practicable basis, by sale or in any other manner that it may
determine in accordance with applicable law, into Dollars transferable to the
United States and distributable to the Holders entitled thereto, the Depositary
shall promptly convert or cause to be converted, by sale or in any other manner
that it may reasonably determine, such Foreign Currency into Dollars, and shall
distribute such Dollars (net of any applicable fees, any reasonable and
customary out-of-pocket expenses incurred in such conversion and any expenses
incurred on behalf of the Holders in complying with currency exchange control or
other governmental requirements) in accordance with the terms of the applicable
sections of this Deposit Agreement. If the Depositary shall have distributed
warrants or other instruments that entitle the holders thereof to such Dollars,
the Depositary shall promptly distribute such Dollars to the holders of such
warrants and/or instruments upon surrender thereof for cancellation, in either
case without liability for interest thereon. Such distribution may be made upon
an averaged or other practicable basis without regard to any distinctions among
Holders on account of any application of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall promptly file such
application for approval or license, if any, as is necessary and desirable. In
no event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its reasonable
judgment the conversion of any Foreign Currency and the transfer and
distribution of proceeds of such conversion received by the Depositary is not
practical or lawful, or if any approval or license of any governmental authority
or agency thereof that is required for such conversion, transfer and
distribution is denied or, in the opinion of the Depositary, not obtainable at a
reasonable cost or within a reasonable period, the Depositary may, in its
reasonable discretion, (i) make such conversion and distribution in Dollars to
the Holders for whom such conversion, transfer and distribution is lawful and
practicable, (ii) distribute the Foreign Currency (or an appropriate document
evidencing the right to receive such Foreign Currency) to Holders for whom this
is lawful and practicable or (iii) hold (or cause the Custodian to hold) such
Foreign Currency
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(without liability for interest thereon) for the respective accounts of the
Holders entitled to receive the same.
SECTION 4.9 FIXING OF ADS RECORD DATE. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of, or solicitation of consents or of proxies, of holders
of Shares or other Deposited Securities, or whenever the Depositary shall find
it necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary, upon
consultation with the Company (to the extent reasonably practicable), shall fix
a record date (the "ADS Record Date") for the determination of the Holders of
Receipts who shall be entitled to receive such distribution, to give
instructions for the exercise of voting rights at any such meeting, to give or
withhold such consent, to receive such notice or solicitation or to otherwise
take action, or to exercise the rights of Holders with respect to such changed
number of Shares represented by each ADS. The Depositary shall make reasonable
efforts to establish the ADS Record Date as closely as possible to the
applicable record date for the Deposited Securities (if any) set by the Company
or, if not practicable, as near as reasonably practicable to the record date for
the Deposited Securities (if any). Subject to applicable law and the Company's
Articles of Incorporation and the provisions of Section 4.1 through 4.8 and to
the other terms and conditions of this Deposit Agreement, only the Holders of
Receipts at the close of business in New York on such ADS Record Date shall be
entitled to receive such distribution, to give such voting instructions, to
receive such notice or solicitation, or otherwise take action. The Depositary
shall promptly notify The New York Stock Exchange, Inc. and any other exchange
on which the ADSs are listed of any action to fix the ADS Record Date.
SECTION 4.10 VOTING OF DEPOSITED SECURITIES. As soon as practicable after
receipt of notice of any meeting at which the holders of Deposited Securities
are entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy in accordance with Section 4.9.
The Depositary shall, if requested by the Company in writing in a timely manner
(the Depositary having no obligation to take any further action if the request
shall not have been received by the Depositary at least 30 days prior to the
date of such vote or meeting), at the Company's expense and provided no U.S.
legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a)
such notice of meeting or solicitation of consent or proxy, (b) a statement that
the Holders at the close of business on the ADS Record Date will be entitled,
subject to any applicable law, the provisions of this Deposit Agreement, the
Articles of Incorporation of the Company and the provisions of or governing the
Deposited Securities (which provisions, if any, shall be summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Deposited Securities represented by
such Holder's ADSs, and (c) a brief statement as to the manner in which such
voting instructions may be given. In the event that the Depositary shall have
received such a request from the Company less than 30 days but at least 10 days
prior to the date of such meeting or proxy or consent solicitation, the
Depositary shall at the Company's expense and provided no U.S. legal
prohibitions exist, distribute to Holders as of the ADS Record Date an
informational
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statement which describes for such Holders' information only the matters to be
voted on at such meeting. By distributing such information statements the
Depositary shall comply with its obligations under this Section 4.10 and shall
not be responsible for any inability of any Holder to exercise its voting rights
with respect to the Deposited Securities. Voting instructions may be given only
in respect of a number of ADSs representing an integral number of Deposited
Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record
Date of voting instructions in the manner specified by the Depositary, the
Depositary shall endeavor, insofar as practicable and permitted under applicable
law, the provisions of this Deposit Agreement, the Articles of Incorporation of
the Company and the provisions of the Deposited Securities, to vote, or cause
the Custodian to vote, the Deposited Securities (in person or by proxy)
represented by such Holder's ADSs in accordance with such voting instructions.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of for purposes of establishing a quorum or otherwise, the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein. If the Depositary timely receives voting instructions from a Holder
which fail to specify the manner in which the Depositary is to vote the
Deposited Securities represented by such Holder's ADSs, the Depositary will deem
such Holder (unless otherwise specified in the notice distributed to Holders) to
have instructed the Depositary to vote in favor of the items set forth in such
voting instructions. Deposited Securities represented by ADSs for which no
timely voting instructions are received by the Depositary from the Holder shall
not be voted.
Notwithstanding anything else contained in this Deposit Agreement or any
Receipt, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Deposited Securities if the taking of such action would violate U.S. laws. The
Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so requested by the Depositary.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
The Depositary will endeavor to ensure that on any date on which it votes
or causes to be voted Deposited Securities pursuant to this Section 4.10, it
will have on deposit under this Deposit Agreement the number of Deposited
Securities with respect to which it has received voting instructions from
Holders. If the Depositary has on deposit less than the number of Deposited
Securities with respect to which the Depositary has received voting
instructions, the Depositary will vote or cause to be voted such Deposited
Securities in accordance with such instructions adjusting the number of
Deposited Securities voted on a pro-rata basis.
The Depositary shall retain all records relating to the voting of
Deposited Securities pursuant to this Section 4.10 as may be required under
applicable Swiss law. In connection
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therewith, the Company agrees to inform the Depositary of such requirements and
any changes thereto as soon as such requirements or changes come to the
Company's knowledge.
SECTION 4.11 CHANGES AFFECTING DEPOSITED SECURITIES. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. Upon receipt of notice of any such event, the
Depositary shall consult with the Company prior to taking any actions hereunder.
The Depositary may, with the Company's approval, and shall, if the Company shall
so request, subject to the terms of the Deposit Agreement and receipt of an
opinion of counsel to the Company satisfactory to the Depositary that such
distributions are not in violation of any applicable laws or regulations,
execute and deliver additional Receipts as in the case of a stock dividend on
the Shares, or call for the surrender of outstanding Receipts to be exchanged
for new Receipts, in either case, as well as in the event of newly deposited
Shares, with necessary modifications to the form of Receipt contained in Exhibit
A hereto, specifically describing such new Deposited Securities or corporate
change. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of Receipts. Notwithstanding the foregoing, in the
event that any security so received may not be lawfully distributed to some or
all Holders, the Depositary may, with the Company's approval, and shall, if the
Company requests, subject to receipt of an opinion of Company's counsel
reasonably satisfactory to the Depositary that such action is not in violation
of any applicable laws or regulations, sell such securities at public or private
sale, at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and
reasonable out-of-pocket expenses incurred by, the Depositary and (b) taxes) for
the account of the Holders otherwise entitled to such securities upon an
averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.1. The Depositary, absent negligence and provided the Depositary has
made a good faith effort to perform its obligations under this Agreement
relevant to the specified circumstances, shall not be responsible for (i) any
failure to determine that it may be lawful or feasible to make such securities
available to Holders in general or to any Holder in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale, or (iii) any
liability to the purchaser of such securities.
SECTION 4.12 AVAILABLE INFORMATION. The Company will be, on or before the
date of the initial deposit of Shares hereunder, subject to certain periodic
reporting requirements of the Exchange Act and accordingly will file certain
information with the Commission. These reports and documents can be inspected
and copied at the public reference facilities maintained by the Commission
located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000.
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SECTION 4.13 REPORTS. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
provide to Holders copies of such reports when furnished by the Company pursuant
to Section 5.6.
SECTION 4.14 LIST OF HOLDERS. Promptly upon written request (including a
request made by facsimile transmission or by other electronic means) by the
Company, the Depositary shall furnish to it a list, as of the most recent date
practicable, of the names, addresses and holdings of ADSs of all Holders.
SECTION 4.15 TAXATION. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of ADSs may be required from time
to time, and in a timely manner, to file such proof of taxpayer status,
residence and beneficial ownership (as applicable), to execute such certificates
and to make such representations and warranties, or to provide any other
information or documents, as the Depositary or the Custodian may deem necessary
or proper to fulfill the Depositary's or the Custodian's obligations under
applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any
amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (I.E., stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form reasonably
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is
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provided by the Company to the Depositary or the Custodian, as applicable.
Neither the Depositary nor the Custodian shall be liable for the failure by any
Holder or Beneficial Owner to obtain the benefits of credits on the basis
non-U.S. tax paid against such Holder's or Beneficial Owner's income tax
liability.
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
ADSs, including without limitation, tax consequences resulting from the Company
(or any of its subsidiaries) being treated as a "Foreign Personal Holding
Company," or as a "Passive Foreign Investment Company" (in each case as defined
in the U.S. Internal Revenue Code and the regulations issued thereunder) or
otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE REGISTRAR.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration of issuances,
registration of transfers, combination and split-up of Receipts, and the
surrender of Receipts for the purpose of withdrawal of Deposited Securities in
accordance with the provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
this Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section 7.8
hereof.
If any Receipts or the ADSs evidenced thereby are listed on one or more
stock exchanges or automated quotation systems in the United States, the
Depositary shall act as Registrar or appoint a Registrar or one or more
co-registrars for registration of Receipts and transfers, combinations and
split-ups, and to countersign such Receipts in accordance with any requirements
of such exchanges or systems. Such Registrar or co-registrars may be removed and
a substitute or substitutes appointed by the Depositary.
SECTION 5.2 EXONERATION. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
this Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or
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delayed in, doing or performing any act or thing required by the terms of this
Deposit Agreement, by reason of any provision of any present or future law or
regulation of the United States, Switzerland or any other country, or of any
other governmental authority or regulatory authority or stock exchange, or on
account of the possible criminal or civil penalties or restraint, or by reason
of any provision, present or future, of the 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 other circumstances beyond its control (including,
without limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the Articles of
Incorporation of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice or information from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of ADSs, or (v) for any consequential or
punitive damages for any breach of the terms of this Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.3 STANDARD OF CARE. The Company and the Depositary assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or any Receipts to any Holder(s) or Beneficial Owner(s), except that
the Company and the Depositary agree to perform their respective obligations
specifically set forth in this Deposit Agreement or the applicable Receipts
without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability shall be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
Neither the Depositary, nor the Company, nor any of their respective
agents shall be liable to any Holder or Beneficial Owner for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effect of any vote, provided that any
such action or omission is in good faith and in accordance with the terms of
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this Deposit Agreement. The Depositary shall not incur any liability, absent
negligence or bad faith, for any failure to determine that any distribution or
action may be lawful or reasonably practicable. The Depositary shall not incur
any liability for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company to the Depositary.
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 60th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the earlier of (i) the 60th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2 hereof), or (ii) upon
the appointment by the Company 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 reasonable 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 be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due
it and on the written request of the Company shall, (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities and any proxies relating thereto to such successor, and (iii) deliver
to such successor a list of the Holders of all outstanding Receipts and such
other information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly provide notice
of its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
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SECTION 5.5 THE CUSTODIAN. The Depositary has initially appointed Citibank
(Switzerland) Zurich as Custodian for the purpose of this Deposit Agreement. The
Custodian or its successors in acting hereunder shall be subject at all times
and in all respects to the direction of the Depositary for the Shares for which
the Custodian acts as custodian and shall be responsible solely to it. If any
Custodian resigns or is discharged from its duties hereunder with respect to any
Deposited Securities and no other Custodian has previously been appointed
hereunder, the Depositary shall promptly appoint a substitute custodian that is
organized under the laws of Switzerland and reasonably acceptable to the
Company. The Depositary shall require such resigning or discharged Custodian to
deliver the Deposited Securities held by it, together with all such records
maintained by it as Custodian with respect to such Deposited Securities as the
Depositary may request, to the Custodian designated by the Depositary. Whenever
the Depositary determines, in its discretion and after consultation with the
Company (to the extent reasonably practicable), that it is appropriate to do so,
it may appoint an additional custodian reasonably acceptable to the Company with
respect to any Deposited Securities, or discharge the Custodian with respect to
any Deposited Securities and appoint a substitute custodian reasonably
acceptable to the Company, which shall thereafter be Custodian hereunder with
respect to the Deposited Securities. Immediately upon any such change, the
Depositary shall give notice thereof in writing to all Holders of Receipts, each
other Custodian and the Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
SECTION 5.6 NOTICES AND REPORTS. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Articles of Incorporation of the Company that may
be relevant or pertain to such notice of meeting or be the subject of a vote
thereat.
The Depositary shall promptly arrange, at the request of the Company and
at the Company's expense, to provide copies thereof to all Holders or make such
notices, reports and other communications available to all Holders on a basis
similar to that for holders of Shares or other Deposited Securities or on such
other basis as the Company may advise the Depositary or as may be required by
any applicable law, regulation or stock exchange requirement.
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The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the Receipts
evidencing the ADSs representing such Shares governed by such provisions at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
SECTION 5.7 ISSUANCE OF ADDITIONAL SHARES, ADSS ETC. The Company agrees
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger or
consolidation or transfer of assets, or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, it will obtain U.S. legal advice and take all
steps necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions of
the Securities Act, or any other applicable laws (including, without limitation,
the Investment Company Act of 1940, as amended, the Exchange Act or the
securities laws of the states of the United States). In support of the
foregoing, the Company will furnish to the Depositary (a) a written opinion of
U.S. counsel (reasonably satisfactory to the Depositary) stating whether or not
application of such transaction to Holders and Beneficial Owners (1) requires a
registration statement under the Securities Act to be in effect or (2) is exempt
from the registration requirements of the Securities Act and (b) an opinion of
Swiss counsel stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of Switzerland and
(2) all requisite regulatory consents and approvals have been obtained in
Switzerland. If the filing of a registration statement is required, the
Depositary shall not have any obligation to proceed with the transaction unless
it shall have received evidence reasonably satisfactory to it that such
registration statement has been declared effective. If, being advised by
counsel, the Company determines that a transaction is required to be registered
under the Securities Act, the Company will either (i) register such transaction
to the extent necessary, (ii) alter the terms of the transaction to avoid the
registration requirements of the Securities Act or (iii) direct the Depositary
to take specific measures, in each case as contemplated in this Deposit
Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act. The Company agrees with the Depositary that
neither the Company nor any of its Affiliates will at any time (i) deposit any
Shares or other Deposited Securities, either upon original issuance or upon a
sale of Shares or other Deposited Securities previously issued and reacquired by
the Company or by any such Affiliate, or (ii) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities, unless such transaction and
the securities issuable in such transaction are exempt from registration under
the Securities Act and, if applicable, the Exchange Act or have been registered
under the Securities Act and, if applicable, the Exchange Act (and such
registration statement has been declared effective).
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Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
SECTION 5.8 INDEMNIFICATION. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
by (i) the Depositary due to its negligence or bad faith and (ii) any Custodian
acting hereunder that is a branch or subsidiary of the Depositary, due to the
negligence or bad faith of such Custodian.
The Company agrees to indemnify the Depositary, the Custodian and any of
their respective directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of Receipts,
ADSs, the Shares, or other Deposited Securities, as the case may be, except to
the extent that such loss, liability, tax, charge or expense arises out of (i)
information concerning the Depositary or Custodian provided by the Depositary or
the Custodian, as the case may be, or (ii) the negligence or bad faith of the
Depositary or Custodian, as the case may be, (b) out of or as a result of any
offering documents in respect thereof, except to the extent that such loss,
liability, tax, charge or expense arises out of (i) information concerning the
Depositary or Custodian, or (ii) the negligence or bad faith of the Depositary
or Custodian, as the case may be, or (c) out of acts performed or omitted,
including, but not limited to, any delivery by the Depositary on behalf of the
Company of information regarding the Company in connection with this Deposit
Agreement, the Receipts, the ADSs, the Shares, or any Deposited Securities, in
any such case (i) by the Depositary, the Custodian or any of their respective
directors, officers, employees, agents and Affiliates, except to the extent such
loss, liability, tax, charge or expense is due to the negligence or bad faith of
any of them, or (ii) by the Company or any of its directors, officers,
employees, agents and Affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which may arise out of any Pre-Release Transaction,
other than a Pre-Release Transaction entered into at the request of the Company.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give
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rise to an indemnity hereunder, which defense shall be reasonable in the
circumstances. No indemnified person shall compromise or settle any action or
claim that may give rise to an indemnity hereunder without the consent of the
indemnifying person, which consent shall not be unreasonably withheld.
SECTION 5.9 FEES AND CHARGES OF DEPOSITARY. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such reasonable out-of-pocket
expenses as the Depositary and the Company may agree to in writing from time to
time. Responsibility for payment of such charges may at any time and from time
to time be changed by agreement between the Company and the Depositary. Unless
otherwise agreed, the Depositary shall present its statement for such expenses
and fees or charges to the Company once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
reasonable out-of-pocket expenses as provided above shall survive the
termination of this Deposit Agreement. As to any Depositary, upon the
resignation or removal of such Depositary as described in Section 5.4 hereof,
such right shall extend for those fees, charges and reasonable out-of-pocket
expenses incurred prior to the effectiveness of such resignation or removal.
SECTION 5.10 PRE-RELEASE TRANSACTIONS. Subject to the further terms and
provisions of this Section 5.10, the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its Affiliates and in ADSs. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; PROVIDED, HOWEVER, that the Depositary
may, except in the case of Restricted ADSs, (i) issue ADSs prior to the receipt
of Shares pursuant to Section 2.3 and (ii) deliver Shares prior to the receipt
of ADSs for withdrawal of Deposited Securities pursuant to Section 2.7,
including ADSs which were issued under (i) above but for which Shares may not
have been received (each such transaction a "Pre-Release Transaction"). The
Depositary may receive ADSs in lieu of Shares under (i) above and receive Shares
in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will be (a)
subject to a written agreement whereby the person or entity (the "Applicant") to
whom ADSs or Shares are to be delivered (v) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(w) agrees to assign all beneficial right, title and interest in such Shares or
ADSs, as the case may be, to the Depositary in its capacity as such and for the
benefit of the Holders and to hold such Shares or ADSs in trust for the
Depositary until such Shares or ADSs are delivered to the Depositary or the
Custodian, (x) agrees it will not take any action with
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respect to such Shares or ADSs, 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 ADSs, as the case may be, other than in
satisfaction of such Pre-Release Transaction), (y) unconditionally guarantees to
deliver to the Depositary or the Custodian, as applicable, such Shares or ADSs,
and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash or
United States government securities or such other collateral as the Depositary
reasonably deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days' notice and (d) subject to such further indemnities and
credit regulations as the Depositary reasonably deems appropriate. The
Depositary will limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate.
The Depositary may also set limits with respect to the number of ADSs and
Shares involved in Pre-Release Transactions with any one person on a case by
case basis as it deems appropriate. The Depositary may retain for its own
account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held by the Depositary as security for the performance of the Applicant's
obligations to the Depositary in connection with a Pre-Release Transaction,
including the Applicant's obligation to deliver Shares or ADSs upon termination
of a Pre-Release Transaction (and shall not, for the avoidance of doubt,
constitute Deposited Securities hereunder) for the benefit of the Holders (other
than the Applicant).
SECTION 5.11 LIST OF RESTRICTED SECURITIES OWNERS. The Company shall (i)
advise in writing each person to whom Restricted Securities are issued or who
holds Restricted Securities as of date of this Deposit Agreement that such
Restricted Securities are not eligible for deposit hereunder (except, to the
extent applicable, as contemplated by Section 2.12 hereof) and (ii) obtain from
each such person, to the extent possible, a written undertaking that such person
will not deposit such Restricted Securities (or any securities obtained upon
conversion of such Restricted Securities) hereunder (except as contemplated in
Section 2.12) so long as such securities constitute "Restricted Securities" and
will use reasonable endeavors to obtain from their respective transferees a
similar undertaking.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 AMENDMENT/SUPPLEMENT. Subject to the terms and conditions of
this Section 6.1 and applicable law, the Receipts outstanding at any time, the
provisions of this Deposit Agreement and the form of Receipt attached hereto as
Exhibit A and to be issued under the terms hereof may at any time and from time
to time be amended or supplemented by written agreement between the Company and
the Depositary in any respect which they may deem necessary or desirable without
the prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other
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governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADS(s) to
be traded solely in electronic book-entry form and (ii) do not in either such
case impose or increase any fees or charges to be borne by Holders, shall be
deemed not to materially prejudice any substantial rights of Holders or
Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment
or supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s), to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and the Receipt as amended and supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require an amendment of or supplement to the
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and the Receipts at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement and the Receipts in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, rules or regulations.
SECTION 6.2 TERMINATION. The Depositary shall, at any time at the written
direction of the Company, terminate this Deposit Agreement by providing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.4, the Depositary may
terminate this Deposit Agreement by providing notice of such termination to the
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed for such termination. On and after the date of termination of this Deposit
Agreement, the Holder of a Receipt will, upon surrender of such Receipt at the
Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the surrender of Receipts referred to in Section 2.7 and subject
to the conditions and restrictions therein set forth, and upon payment of any
applicable taxes or governmental charges, be entitled to Delivery, to him or
upon his order, of the amount of Deposited Securities represented by such
Receipt. If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of Receipts, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under 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, subject
to the conditions and restrictions set forth in Section 2.7, together with any
dividends or other
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distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes or governmental charges or
assessments). At any time after the expiration of six months 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, in an unsegregated account, without liability for interest, for the
pro rata benefit of the Holders whose Receipts have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement with respect to the Receipts, the
Deposited Securities and the ADSs, except to account for such net proceeds and
other cash (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes or governmental charges or
assessments) and its obligations under Sections 5.8 and 7.6 hereof. 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, 5.9 and 7.6 hereof.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 COUNTERPARTS. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
SECTION 7.2 NO THIRD-PARTY BENEFICIARIES. This Deposit Agreement is for
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates from engaging in such transactions or establishing or maintaining
such relationships, (b) obligate the Depositary or any of its Affiliates to
disclose such transactions or relationships or to account for any profit made or
payment received in such transactions or relationships.
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SECTION 7.3 SEVERABILITY. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 HOLDERS AND BENEFICIAL OWNERS AS PARTIES; BINDING EFFECT. The
Holders and Beneficial Owners from time to time of ADSs shall be parties to the
Deposit Agreement and shall be bound by all of the terms and conditions thereof
and of any Receipt by acceptance thereof or any beneficial interest therein.
SECTION 7.5 NOTICES. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter
personally delivered or sent by mail or air courier, addressed to Asea Xxxxx
Boveri Inc., 501 Xxxxxxx 7, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxxx 00000-0000,
Attention: Xxxx Xxxxxxxx, Director - Investor Relations, facsimile number: (203)
750-2262, or to any other address which the Company may specify in writing to
the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter personally delivered or
sent by mail or air courier, addressed to Citibank, N.A., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, U.S.A., ATTENTION: Depositary Receipts Department, or to
any other address which the Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission, confirmed by letter, addressed to such Holder at the address of
such Holder as it appears on the transfer books of the Depositary or, if such
Holder shall have filed with the Depositary a request that notices intended for
such Holder be mailed to some other address, at the address specified in such
request. Notice to Holders shall be deemed to be notice to Beneficial Owners for
all purposes of this Deposit Agreement. Failure to notify a Holder or any defect
in the notification to a Holder shall not affect the sufficiency of notification
to other Holders or to the Beneficial Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail, air courier 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, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian or the Company,
notwithstanding that such cable, telex or facsimile transmission shall not be
subsequently confirmed by letter.
SECTION 7.6 GOVERNING LAW AND JURISDICTION. This Deposit Agreement and the
Receipts shall be interpreted in accordance with, and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, the laws of
the State of New York without
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reference to the principles of choice of law thereof. Notwithstanding anything
contained in this Deposit Agreement, any Receipt or any present or future
provisions of the laws of the State of New York, the rights of holders of Shares
and of any other Deposited Securities and the obligations and duties of the
Company in respect of the holders of Shares and other Deposited Securities, as
such, shall be governed by the laws of Switzerland (or, if applicable, such
other laws as may govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal courts in the City of New York
shall have jurisdiction to hear and determine any suit, action or proceeding and
to settle any dispute between them that may arise out of or in connection with
this Deposit Agreement and, for such purposes, each irrevocably submits to the
non-exclusive jurisdiction of such courts. The Company hereby irrevocably
designates, appoints and empowers Asea Xxxxx Boveri Inc. (the "Agent") now at
000 Xxxxxxx 0, Xxxxxxx, XX 00000-0000, Attention: E. Xxxxx Xxxx, Assistant
General Counsel, as its authorized agent to receive and accept for and on its
behalf, and on behalf of its properties, assets and revenues, service by mail of
any and all legal process, summons, notices and documents that may be served in
any suit, action or proceeding brought against the Company in any federal court
as described in the preceding sentence or in the next paragraph of this Section
7.6. If for any reason the Agent shall cease to be available to act as such, the
Company agrees to designate a new agent in New York or Connecticut on the terms
and for the purposes of this Section 7.6 reasonably satisfactory to the
Depositary. The Company further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding against the Company, by service by mail of a copy
thereof upon the Agent (whether or not the appointment of such Agent shall for
any reason prove to be ineffective or such Agent shall fail to accept or
acknowledge such service), with a copy mailed to the Company by registered or
certified air mail, postage prepaid, to its address provided in Section 7.5
hereof. The Company agrees that the failure of the Agent to give any notice of
such service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
The Depositary hereby irrevocably consents to receive and accept at its
office at the address provided in Section 7.5 hereof (the "Depositary Agent")
service by mail of any and all legal process, summons, notices and documents
that may be served in any suit, action or proceeding brought against the
Depositary in any federal court as described in this Section 7.6. If for any
reason the Depositary Agent shall cease to be available to receive such service,
the Depositary agrees to designate a new Depositary Agent in New York on the
terms and for the purposes of this Section 7.6 reasonably satisfactory to the
Company. The Depositary further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding against the Depositary, by service by mail of a copy
thereof upon the Depositary Agent (whether or not the appointment of such
Depositary Agent shall for any reason prove to be ineffective or such Depositary
Agent shall fail to accept or acknowledge such service), and, in the event that
the Depositary Agent appointed by the Depositary is no longer the Depositary
itself, with a copy mailed to the Depositary by registered or certified air
mail, postage prepaid, to its address provided in Section 7.5 hereof. The
Depositary agrees that, in the event that the Depositary Agent appointed by the
Depositary is no longer the Depositary itself, the failure of the Depositary
Agent to give any notice of such
-39-
service to it shall not impair or affect in any way the validity of such service
or any judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. Each of the Company and the Depositary agrees that
service of process upon the Agent or the Depositary Agent, as the case may be,
in the manner set forth in this Section 7.6 shall be effective service upon it
for any suit, action or proceeding brought against it as described in this
paragraph.
The consent in the immediately preceding two paragraphs is to be strictly
construed in accordance with its terms and shall not be deemed a waiver by (a)
the Company of any jurisdictional or venue (including FORUM-NON-CONVENIENS)
defenses it may have with respect to any suit or proceeding brought by any
person other than the Depositary or with respect to any claim or course of
action asserted by the Depositary that does not arise under this Deposit
Agreement or (b) the Depositary of any jurisdictional or venue (including
FORUM-NON-CONVENIENS) defenses it may have with respect to any suit or
proceeding brought by any person other than the Company or with respect to any
claim or course of action asserted by the Company that does not arise under this
Deposit Agreement.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have against the
Depositary to the laying of venue of any actions, suits or proceedings brought
in any court as provided in this Section 7.6, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim against the Depositary
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
The Depositary irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have against
the Company to the laying of venue of any actions, suits or proceedings brought
in any court as provided in this Section 7.6, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim against the Company in
any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, and agrees not to plead or claim, any right of immunity from
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
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giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any Receipt or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in part.
SECTION 7.7 ASSIGNMENT. Subject to the provisions of Section 5.4 hereof,
this Deposit Agreement may not be assigned by either the Company or the
Depositary.
SECTION 7.8 COMPLIANCE WITH U.S. SECURITIES LAWS. Notwithstanding anything
in this Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
SECTION 7.9 TITLES AND REFERENCES. All references in this Deposit
Agreement to exhibits, articles, sections, subsections, and other subdivisions
refer to the exhibits, articles, sections, subsections and other subdivisions of
this Deposit Agreement unless expressly provided otherwise. The words "this
Deposit Agreement", "herein", "hereof", "hereby", "hereunder", and words of
similar import refer to the Deposit Agreement as a whole as in effect between
the Company, the Depositary and the Holders and Beneficial Owners of ADSs and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless the context otherwise requires. Titles to sections of this
Deposit Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement. References to
"applicable laws and regulations" shall refer to laws and regulations applicable
to ADRs, ADSs or Deposited Securities as in effect at the relevant time of
determination, unless otherwise required by law or regulation. Restatements of
legal limitations and requirements in this Deposit Agreement are provided by the
Company for the convenience of the Depositary and the Holders and Beneficial
Owners. While these restatements are accurate as of the date of this Deposit
Agreement, the legal limitations and requirements may change after the date
hereof. Neither the Company nor the Depositary has any obligation hereunder to
update any such restatement after the date hereof.
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IN WITNESS WHEREOF, ABB Ltd and CITIBANK, N.A. have duly executed this
Deposit Agreement as of the day and year first above set forth and all Holders
and Beneficial Owners shall become parties hereto upon acceptance by them of
ADSs evidenced by Receipts issued in accordance with the terms hereof, or upon
acquisition of any beneficial interest therein.
ABB Ltd
By:
----------------------------------------
Name:
Title:
CITIBANK, N.A.
By:
----------------------------------------
Name:
Title:
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EXHIBIT A
[FORM OF RECEIPT]
Number CUSIP NUMBER:
------------- ---------
American Depositary Shares
Four (4) American Depositary
Shares Representing One (1) Fully
Paid Registered Share, Par Value
CHF 10, of ABB Ltd
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED FULLY PAID REGISTERED SHARES
of
ABB Ltd
(Organized under the laws of Switzerland)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that is the owner of
------------- -------------
American Depositary Shares (hereinafter "ADSs"), representing deposited fully
paid, validly issued and outstanding registered shares, par value CHF 10 per
share, including evidence of rights to receive such par value CHF 10 each shares
(the "Shares"), of ABB Ltd, a corporation organized under the laws of
Switzerland (the "Company"). As of the date of the Deposit Agreement (as
hereinafter defined), four (4) American Depositary Shares represent one (1)
Share deposited under the Deposit Agreement with the Custodian, which at the
date of execution of the Deposit Agreement is Citibank (Switzerland) Zurich (the
"Custodian"). The ADS(s) to Share(s) ratio is subject to amendment as provided
in Article IV of the Deposit Agreement. The Depositary's Principal Office is
located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
(1) THE DEPOSIT AGREEMENT. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("Receipts"), all issued and to be issued
upon the terms and conditions set forth in the Deposit Agreement, dated as of
, 2001 (as amended from
---------
A-1
time to time, the "Deposit Agreement"), by and among the Company, the
Depositary, and all Holders and Beneficial Owners from time to time of ADSs
evidenced by Receipts issued thereunder. The Deposit Agreement sets forth the
rights and obligations of Holders and Beneficial Owners of Receipts and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Principal Office of the Depositary and with
the Custodian. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms and
conditions of the Deposit Agreement, shall be deemed for all purposes to (a) be
a party to and bound by the terms of the Deposit Agreement and applicable
ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated in
the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement and the applicable ADR(s), the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Articles of Incorporation
of the Company (as in effect on the date of the signing of the Deposit
Agreement) and are qualified by and subject to the detailed provisions of the
Deposit Agreement and the Articles of Incorporation, to which reference is
hereby made. All capitalized terms used herein which are not otherwise defined
herein shall have the meanings ascribed thereto in the Deposit Agreement. The
Depositary makes no representation or warranty as to the validity or worth of
the Deposited Securities. The Depositary has made arrangements for the
acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held through DTC
must rely on the procedures of DTC and the DTC Participants to exercise and be
entitled to any rights attributable to such ADSs.
(2) SURRENDER OF RECEIPTS AND WITHDRAWAL OF DEPOSITED SECURITIES. The
Holder of this Receipt (and of the ADSs evidenced hereby) shall be entitled to
Delivery (at the Custodian's designated office) of the Deposited Securities at
the time represented by the ADS(s) evidenced hereby upon satisfaction of each of
the following conditions: (i) the Holder (or a duly authorized attorney of the
Holder) has duly Delivered to the Depositary at its Principal Office the ADSs
evidenced hereby (and, if applicable, this Receipt) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if so required
by the Depositary, this Receipt has been properly endorsed in blank or is
accompanied by proper instruments of transfer in blank (including signature
guarantees in accordance with standard securities industry practice), (iii) if
so required by the Depositary, the Holder of the ADSs has executed and delivered
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 the person(s) designated in such order, and (iv) all applicable fees
and charges of, and reasonable out-of-pocket expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid,
SUBJECT, HOWEVER, IN EACH CASE, to the terms and conditions of this Receipt, of
the Deposit Agreement, of the Company's Articles of
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Incorporation, of any applicable laws and the rules of SEGA, and to any
provisions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipt evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, SUBJECT HOWEVER, IN EACH CASE, to the terms and
conditions of the Deposit Agreement, of this Receipt, of the Articles of
Incorporation of the Company, of any applicable laws and the rules of the SEGA,
and to the terms and conditions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of Delivery to it of ADSs representing other than a whole
number of Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be Delivered in accordance with the terms hereof, and shall,
at the discretion of the Depositary, either (i) return to the person
surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Share represented by the
ADS(s) so surrendered and remit the proceeds of such sale (net of (a) applicable
fees and charges of, and reasonable out-of-pocket expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in this Receipt or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs represented by this Receipt, and for
the account of such Holder, the Depositary shall direct the Custodian to forward
(to the extent permitted by law) any cash or other property (other than
securities) held by the Custodian in respect of the Deposited Securities
represented by such ADSs to the Depositary for delivery at the Principal Office
of the Depositary. Such direction shall be given by letter or, at the request,
risk and expense of such Holder, by air courier, cable, telex or facsimile
transmission.
(3) TRANSFER, COMBINATION AND SPLIT-UP OF RECEIPTS. The Registrar shall
register the transfer of this Receipt (and of the ADSs represented hereby) on
the books maintained for such purpose and the Depositary shall cancel this
Receipt and execute new Receipts evidencing the same aggregate number of ADSs as
those evidenced by this Receipt when canceled, shall cause the Registrar to
countersign such new Receipts, and shall Deliver such new Receipts to or upon
the order of the person entitled thereto, if each of the following conditions
has been satisfied: (i) this Receipt has been duly Delivered by the Holder (or
by a duly authorized attorney of the Holder) to the Depositary at its Principal
Office for the purpose of effecting a transfer thereof, (ii) this Receipt has
been properly endorsed or is accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities
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industry practice), (iii) this Receipt has been duly stamped (if required by the
laws of the State of New York or of the United States), and (iv) all applicable
fees and charges of, and reasonable out-of-pocket expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid,
SUBJECT, HOWEVER, IN EACH CASE, to the terms and conditions of this Receipt, of
the Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
The Registrar shall register the split-up or combination of this Receipt
(and of the ADSs represented hereby) on the books maintained for such purpose
and the Depositary shall cancel this Receipt and execute new Receipts for the
number of ADSs requested, but in the aggregate not exceeding the number of ADSs
evidenced by this Receipt (when canceled), shall cause the Registrar to
countersign such new Receipts, and shall Deliver such new Receipts to or upon
the order of the Holder thereof, if each of the following conditions has been
satisfied: (i) this Receipt has been duly Delivered by the Holder (or by a duly
authorized attorney of the Holder) to the Depositary at its Principal Office for
the purpose of effecting a split-up or combination hereof, and (ii) all
applicable fees and charges of, and reasonable out-of-pocket expenses incurred
by, the Depositary and all applicable taxes and government charges (as are set
forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been
paid, SUBJECT, HOWEVER, IN EACH CASE, to the terms and conditions of this
Receipt, of the Deposit Agreement and of applicable law, in each case as in
effect at the time thereof.
(4) PRE-CONDITIONS TO REGISTRATION, TRANSFER, ETC. As a condition
precedent to the execution and delivery, registration of issuance or transfer,
split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon, or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of Shares
or presenter of ADSs or of a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or Deposited Securities being withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof reasonably
satisfactory to it as to the identity and genuineness of any signature or any
other matters contemplated in the Deposit Agreement, and (iii) compliance with
(A) any laws or governmental regulations relating to the execution and delivery
of Receipts or ADSs or to the withdrawal of Deposited Securities and (B) such
reasonable regulations, if any, as the Depositary and the Company may establish
consistent with the provisions of this Receipt and the Deposit Agreement and
applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs against
the deposit of particular Shares may be refused, or the registration of 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 Company, the Depositary, a Registrar or the Share
Registrar are closed or if any such action is deemed necessary or advisable by
the Depositary or the Company, in good faith, at any time or from time to time
because of any requirement of law, any government or governmental body or
commission or any securities exchange upon which the Shares or ADSs are listed,
or under any provision of the Company's Articles of Incorporation, the Deposit
Agreement or this Receipt, or under any provision of, or
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governing, the Deposited Securities, or because of a meeting of shareholders of
the Company or for any other reason, subject in all cases to Article (24)
hereof. Notwithstanding any provision of the Deposit Agreement or this Receipt
to the contrary, Holders are entitled to surrender outstanding ADSs to withdraw
the Deposited Securities at any time subject only to (i) temporary delays caused
by closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance
with any U.S. or foreign laws or governmental regulations relating to the
Receipts or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Section I.A.(l) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time). (5) COMPLIANCE WITH INFORMATION REQUESTS. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to applicable Swiss law, the rules and requirements of SWX
Swiss Exchange, and of any stock exchange on which Shares or ADSs are, or will
be, registered, traded or listed, or the Articles of Incorporation of the
Company, which are made to provide information, INTER ALIA, as to the capacity
in which such Holder or Beneficial Owner owns ADSs (and Shares, as the case may
be) and regarding the identity of any other person(s) interested in such ADSs
and the nature of such interest and various other matters, whether or not they
are Holders and/or Beneficial Owners at the time of such request.
(6) OWNERSHIP RESTRICTIONS. Notwithstanding any provision of this Receipt
or of the Deposit Agreement, the Company may restrict transfers of the Shares
where such transfer might result in ownership of Shares exceeding limits imposed
by applicable law or the Articles of Incorporation of the Company. The Company
may also restrict, in such manner as it deems appropriate, transfers of ADSs
where such transfer may result in the total number of Shares represented by the
ADSs owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Incorporation of the Company.
Each Holder and each Beneficial Owner of a Receipt agrees to comply with
all applicable provisions of Swiss law as in effect from time to time with
respect to the notification to the Company and the SWX Swiss Exchange of such
Holder's or Beneficial Owner's interest in Shares, as if such Holder or
Beneficial Owner were an owner of the Shares represented by the ADSs owned by
such Holder or Beneficial Owner. Each Holder and each Beneficial Owner
acknowledges that failure to provide on a timely basis any required notification
of an interest in Shares may result in withholding of certain rights, including
voting and dividend rights in respect of the Shares in which such Holder or
Beneficial Owner has an interest.
A-5
According to Swiss law, as in effect on the date of the Deposit Agreement,
anyone who (directly, indirectly or acting in concert with third parties) for
their own account acquires or disposes of Shares of the Company, whether held
directly or in ADR form, and who thereby reaches, exceeds or falls below the
thresholds of 5, 10, 20, 33, 50, or 66 percent of the voting rights of the
Company, whether or not such voting rights may be exercised, must report such
holdings to the Company and to the exchange(s) on which the Shares are listed. A
group of shareholders organized by contract or otherwise must comply with the
disclosure obligation under the preceding sentence as a group. The group must
report (a) its aggregate share holdings; (b) the identity of its members; (c)
the nature of the arrangement among the group members; and (d) the
representations of the group. The Company is required to publish the information
it receives relating to changes in ownership of voting rights in its Shares. In
addition, according to Swiss law, as in effect on the date hereof, anyone who
(directly, indirectly or acting in concert with third parties) acquires Shares
of the Company, whether held directly or in ADR form, and who thereby exceeds
33% of the voting rights of the Company, whether or not such voting rights may
be exercised, must make a bid to all remaining shareholders of the Company,
subject to limited exceptions granted on a case-by-case basis by the Swiss
Takeover Board no later than two months after the percentage threshold has been
exceeded and not below 75% of the highest price paid by the Offeror for any
purchase of Shares of the Company in the twelve months preceding the
announcement of the offer.
(7) LIABILITY OF HOLDER FOR TAXES AND OTHER CHARGES. Any tax or other
governmental charge payable with respect to any Receipt or any Deposited
Securities or ADSs shall be payable by the Holders and Beneficial Owners to the
Depositary. The Company, the Custodian and/or Depositary may withhold or deduct
from any distributions made in respect of Deposited Securities and may sell for
the account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, the Holder and
the Beneficial Owner hereof remaining liable for any deficiency. The Custodian
may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to
deliver ADRs, register the transfer, split-up or combination of ADRs and
(subject to Article (24) hereof) the withdrawal of Deposited Securities until
payment in full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the
Custodian, and any of their agents, officers, employees and Affiliates for, and
hold each of then harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
(8) REPRESENTATIONS AND WARRANTIES OF DEPOSITORS. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares and the certificates therefor are duly authorized,
validly issued, fully paid, non-assessable and legally obtained by such person,
(ii) all preemptive (and similar) rights, if any, with respect to such Shares
have been validly waived or exercised, (iii) the person making such deposit is
duly authorized so to do, (iv) the Shares presented for deposit are free and
clear of any lien, encumbrance, security interest, charge, mortgage or adverse
claim, and are not, and the ADSs issuable upon such deposit will not be,
Restricted Securities and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Except as contemplated by Section 2.12
of the Deposit Agreement, each such person shall also be deemed to represent
that Shares
A-6
deposited by that person are not Restricted Securities, and that the deposit of
Shares or sale of ADSs by that person is not restricted, under the Securities
Act. Such representations and warranties shall survive the deposit and
withdrawal of Shares, the issuance and cancellation of ADSs in respect thereof
and the transfer of such ADSs. If any such representations or warranties are
false in any way, the Company and Depositary shall be authorized, at the cost
and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
(9) FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations and
warranties, and to provide such other information and documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration of Shares on the books of the Shares Registrar) as
the Depositary or the Custodian may reasonably deem necessary or proper or as
the Company may reasonably require by written request to the Depositary
consistent with its obligations under the Deposit Agreement. The Depositary and
the Registrar, as applicable, may withhold the execution or delivery or
registration of transfer of any Receipt or the distribution or sale of any
dividend or other distribution of rights or of the proceeds thereof or, to the
extent not limited by Article (24) hereof, the delivery of any Deposited
Securities until such proof or other information is filed or such certificates
are executed, or such representations are made or such information and
documentation are provided, in each case to the Depositary's, the Registrar's
and the Company's reasonable satisfaction.
(10) CHARGES OF DEPOSITARY. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or
portion thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraphs (iv) and
(v) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of
U.S. $ 5.00 per 100 ADSs (or portion thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00 per
100 ADSs (or portion thereof) held for the distribution of
cash proceeds (I.E., upon the sale of rights and other
entitlements);
(iv) to any Holder of ADRs, a fee not in the excess of U.S. $ 5.00
per 100 ADSs (or portion thereof) issued upon the exercise of
rights; and
A-7
(v) No fee shall be payable upon distribution of (a) cash
dividends or (b) ADSs pursuant to stock dividends (or other
free distributions of stock) so long as the changing of such
fee is prohibited by the exchange upon which the ADSs are
listed. If charging of such fees is not prohibited, the fees
specified in (i) above shall be payable in respect of ADS
distribution and the fees specified in (iii) above shall be
payable in respect of distributions of cash.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(11) 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
A-8
(and to each ADS evidenced hereby) shall be transferable upon the same terms as
a certificated security under the laws of the State of New York, provided that
the Receipt has been properly endorsed or is accompanied by proper instruments
of transfer. Notwithstanding any notice to the contrary, the Depositary and the
Company may deem and treat the Holder of this Receipt (that is, the person in
whose name this Receipt is registered on the books of the Depositary) as the
absolute owner thereof for all purposes. Neither the Depositary nor the Company
shall have any obligation nor be subject to any liability under the Deposit
Agreement or this Receipt to any holder of this Receipt or any Beneficial Owner
unless such holder is the Holder of this Receipt registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or the
Beneficial Owner's representative is the Holder registered on the books of the
Depositary.
(12) VALIDITY OF RECEIPT. The Holder(s) of this Receipt (and the ADSs
represented hereby) shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company unless this Receipt has been (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of Receipts. Receipts
bearing the facsimile signature of a duly-authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the execution of such Receipts by the Registrar (in the
event of a manual signature) or delivery of such Receipt by the Depositary.
(13) AVAILABLE INFORMATION; REPORTS; INSPECTION OF TRANSFER BOOKS. The
Company will be, on or before the date of the initial deposit of Shares under
the terms of the Deposit Agreement, subject to certain periodic reporting
requirements of the Exchange Act and accordingly files certain information with
the Commission. These reports and documents can be inspected and copied at the
public reference facilities maintained by the Commission located at Judiciary
Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000. The Depositary shall make
available for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the
A-9
performance of its duties hereunder, or at the reasonable written request of the
Company subject, in all cases, to Article (24) hereof.
Dated:
CITIBANK, N.A. CITIBANK, N.A.,
Transfer Agent and Registrar as Depositary
By:______________________ By:_________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-10
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) DIVIDENDS AND DISTRIBUTIONS IN CASH, SHARES, ETC. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will (i) if any amounts are received in a Foreign Currency, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
into Dollars (subject to the terms and conditions of the Deposit Agreement),
(ii) if applicable, establish the ADS Record Date upon the terms described in
Section 4.9 of the Deposit Agreement, and (iii) will distribute promptly the
amount thus received (net of (a) applicable fees and charges of, and reasonable
out-of-pocket expenses incurred by, the Depositary and (b) taxes withheld) to
the Holders entitled thereto as of the ADS Record Date in proportion to the
number of ADS held as of the ADS Record Date. The Depositary shall distribute
only such amount, however, as can be distributed without attributing to any
Holder a fraction of one cent, and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and become part of the next sum received by the Depositary for
distribution to Holders of ADSs then outstanding at the time of the next
distribution. If the Company, the Custodian or the Depositary is required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes, duties or
other governmental charges, the amount distributed to Holders on the ADSs
representing such Deposited Securities shall be reduced accordingly. Such
withheld amounts shall be forwarded by the Company to the relevant governmental
authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares to be
deposited with the Custodian and registered, as the case may be, in the name of
the Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
and distribute to the Holders as of the ADS Record Date in proportion to the
number of ADSs held as of the ADS Record Date, additional ADSs, which represent
in aggregate the number of Shares received as such dividend, or free
distribution, subject to the terms of the Deposit Agreement (including, without
limitation, (a) the applicable fees and charges of, and reasonable out-of-pocket
expenses incurred by, the Depositary and (b) taxes), or (ii) if additional ADSs
are not so distributed, each ADS issued and outstanding after the ADS Record
Date shall, to the extent permissible by law, thenceforth also represent the
additional integral number of Shares distributed upon the Deposited Securities
represented thereby (net (a) of the applicable fees and charges of, and
reasonable out-of-pocket expenses incurred by, the Depositary, and (b) taxes).
In lieu of delivering fractional ADSs, the Depositary shall sell the number of
Shares or ADSs, as the case may be, represented by the aggregate of such
fractions and distribute the net proceeds upon the terms set forth in the
Deposit Agreement.
A-11
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable, and the Depositary
shall distribute the net proceeds of any such sale (after deduction of (a) taxes
and (b) fees and charges of, and reasonable out-of-pocket expenses incurred by,
the Depositary) to Holders entitled thereto upon the terms of the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold balance of
such property in accordance with the provisions of the Deposit Agreement.
Upon timely receipt of a notice from the Company indicating that the
Company wishes an elective distribution to be made available to Holders upon the
terms described in the Deposit Agreement, the Company and the Depositary shall
determine whether such distribution is lawful and reasonably practicable and the
means by which such elective distribution can be made available. If so, the
Depositary shall, subject to the terms and conditions of the Deposit Agreement,
establish an ADS record date according to Article (16) and establish
procedures to enable the Holder hereof to elect to receive the proposed
distribution in cash or in additional ADSs. If a Holder elects to receive the
distribution in cash, the dividend shall be distributed as in the case of a
distribution in cash. If the Holder hereof elects to receive the distribution in
additional ADSs, the distribution shall be distributed as in the case of a
distribution in Shares. If such elective distribution is not lawful or not
reasonably practicable, the Depositary shall, to the extent permitted by law,
distribute to Holders, on the basis of the same determination as is made in
Switzerland in respect of the Shares for which no election is made, either (x)
cash or (y) additional ADSs representing such additional Shares, in each case,
upon the terms described in the Deposit Agreement. Nothing herein or in the
Deposit Agreement shall obligate the Depositary to make available to the Holder
hereof a method to receive the elective distribution in Shares (rather than
ADSs). There can be no assurance that the Holder hereof will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Shares.
Upon timely receipt by the Depositary of a notice from the Company
indicating that the Company wishes rights to subscribe for additional Shares to
be made available to Holders of ADSs, the Depositary upon consultation with the
Company, shall determine, whether it is lawful and reasonably practicable to
make such rights available to the Holders and the means of making such rights
available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the Depositary shall sell the
rights as described below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in the Deposit Agreement) and establish procedures (x) to distribute
rights to purchase additional ADSs (by means of warrants
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or otherwise), (y) to enable the Holders to exercise the rights (upon payment of
the subscription price and of the applicable (a) fees and charges of, and
reasonable out-of-pocket expenses incurred by, the Depositary and (b) taxes),
and (z) to deliver ADSs upon the valid exercise of such rights. Nothing herein
or in the Deposit Agreement shall obligate the Depositary to make available to
the Holders a method to exercise rights to subscribe for Shares (rather than
ADSs). If (i) the Company does not timely request the Depositary to make the
rights available to Holders or if the Company requests that the rights not be
made available to Holders, (ii) the Depositary fails to receive the
documentation required by the Deposit Agreement or determines it is not
reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public and private sale) as it may deem practicable. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of applicable fees and charges of, and reasonable out-of-pocket expenses
incurred by, the Depositary and taxes) upon the terms hereof and of the Deposit
Agreement. If the Depositary is unable to make any rights available to Holders
or to arrange for the sale of the rights upon the terms described above, in each
case after making a good faith effort to perform its obligations under Sections
4.4(a) and (b) of the Deposit Agreement, the Depositary shall allow such rights
to lapse. The Depositary, absent negligence and provided the Depositary has made
a good faith effort to perform its obligations under the Deposit Agreement
relevant to the specified circumstances, shall not be responsible for (i) any
failure to determine that it may be lawful or practicable to make such rights
available to Holders in general or any Holders in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale or exercise, or
(iii) the content of any materials forwarded to the ADR Holders on behalf of the
Company in connection with the rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of ADSs representing
such Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges.
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There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute the property so
received to the Holders of record, as of the ADS Record Date, in proportion to
the number of ADSs held by them respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and reasonable
out-of-pocket expenses incurred by, the Depositary, and (ii) net of any taxes
withheld. The Depositary may dispose of all or a portion of the property so
distributed and deposited, in such amounts and in such manner (including public
or private sale) as the Depositary may deem practicable or necessary to satisfy
any taxes (including applicable interest and penalties) or other governmental
charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem proper and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of applicable
(a) fees and charges of, and reasonable out-of-pocket expenses incurred by, the
Depositary and (b) taxes) to the Holders upon the terms hereof and of the
Deposit Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
(15) REDEMPTION. Upon the timely receipt of notice from the Company that
it intends to exercise its right of redemption in respect of any of the
Deposited Securities, and a satisfactory opinion of counsel, and upon
determining that such proposed redemption is practicable, the Depositary shall
(to the extent practicable) provide to each Holder a notice setting forth the
Company's intention to exercise the redemption rights and any other particulars
set forth in the Company's notice to the Depositary. Upon receipt of
confirmation that the redemption has taken place and that funds representing the
redemption price have been received, the Depositary shall convert, transfer,
distribute the proceeds (net of applicable (a) fees and charges of, and
reasonable out-of-pocket expenses incurred by, the Depositary, and (b) taxes),
retire ADSs and cancel ADRs upon delivery of such ADSs by Holders thereof upon
the terms of the Deposit Agreement. If less than all outstanding Deposited
Securities are redeemed, the ADSs to be retired will be selected by lot or on a
pro rata basis, as may be determined by the Depositary. The redemption price per
ADS shall be the dollar equivalent of per share amount received by the
Depositary upon the redemption of the Deposited Securities represented by ADSs
(subject to the
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terms of the Deposit Agreement and the applicable fees and charges of, and
reasonable out-of-pocket expenses incurred by, the Depositary, and taxes)
multiplied by the number of Shares or other Deposited Securities represented by
each ADS redeemed.
(16) FIXING OF ADS RECORD DATE. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, or any other matter, the Depositary
shall fix a record date ("ADS Record Date") for the determination of the Holders
of Receipts who shall be entitled to receive such distribution, to give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each ADS. Subject to applicable law, the
Company's Articles of Incorporation, and the terms and conditions of this
Receipt and the Deposit Agreement, only the Holders of Receipts at the close of
business in New York on such ADS Record Date shall be entitled to receive such
distributions, to give such instructions, to receive such notice or
solicitation, or otherwise take action.
(17) VOTING OF DEPOSITED SECURITIES. As soon as practicable after receipt
of notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of such consent or proxy. The Depositary shall if
requested in writing in a timely manner by the Company, at the Company's expense
and provided no U.S. legal prohibitions exist distribute to Holders as of the
ADS Record Date: (a) such notice of meeting or solicitation of consent or
proxies, (b) a statement that the Holders as of the ADS Record Date will be
entitled, subject to any applicable law, the Company's Articles of Incorporation
and the provisions of or governing Deposited Securities (which provisions, if
any, shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by such Holder's ADSs and (c) a brief statement
as to the manner in which such voting instructions may be given. In the event
that the Depositary shall have received such a request from the Company after
the expiration of the period of time set in the Deposit Agreement, the
Depositary shall at the Company's expense and provided no U.S. legal
prohibitions exist, distribute to Holders as of the ADS Record Date an
informational statement which describes for such Holders' information only the
matters to be voted on at such meeting. Voting instructions may be given only in
respect of a number of ADSs representing an integral number of Deposited
Securities. Upon the timely receipt of voting instructions from a Holder of ADSs
as of the ADS Record Date in the manner specified by the Depositary, the
Depositary shall endeavor, insofar as practicable and permitted under applicable
law and the provisions of the Articles of Incorporation of the Company and the
provisions of the Deposited Securities, to vote, or cause the Custodian to vote,
the Deposited Securities represented by such Holder's ADSs in accordance with
such instructions.
A-15
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein. If the Depositary timely receives voting instructions from a Holder
which fail to specify the manner in which the Depositary is to vote the
Deposited Securities represented by such Holder's ADSs, the Depositary will deem
such Holder (unless otherwise specified in the notice distributed to Holders) to
have instructed the Depositary to vote in favor of the items set forth in such
instructions. Deposited Securities represented by ADSs for which no timely
voting instructions are received by the Depositary from the Holder shall not be
voted.
Notwithstanding anything else contained in the Deposit Agreement or this
Receipt, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation or consents or proxies, of holders of
Shares or other Deposited Securities if the taking of such action would violate
U.S. laws. The Company agrees to take any and all actions reasonably necessary
to enable Holders and Beneficial Owners to exercise the voting rights accruing
to the Deposited Securities and to deliver to the Depositary an opinion of U.S.
counsel addressing any actions requested to be taken if so requested by the
Depositary. There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
The Depositary will endeavor to ensure that on any date on which it votes
or causes to be voted Deposited Securities pursuant to this Article (17), it
will have on deposit under the Deposit Agreement the number of Deposited
Securities with respect to which it has received voting instructions from
Holders. If the Depositary has on deposit less than the number of Deposited
Securities with respect to which the Depositary has received voting
instructions, the Depositary will vote or cause to be voted such Deposited
Securities in accordance with such instructions adjusting the number of
Deposited Securities voted on a pro-rata basis.
(18) CHANGES AFFECTING DEPOSITED SECURITIES. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the Receipts shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. Upon receipt
of notice of any such event, the Depositary shall consult with the Company prior
to taking any actions hereunder. The Depositary may, with the Company's
approval, and shall, if the Company shall so request, subject to the terms of
the Deposit Agreement and receipt of satisfactory documentation contemplated by
the Deposit Agreement, execute and deliver additional Receipts as in the case of
a stock dividend on the Shares, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts, in either case, as well as in the
event of newly deposited Shares, with necessary modifications to the form of
A-16
Receipt contained in this Exhibit A to the Deposit Agreement, specifically
describing such new Deposited Securities or corporate change. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall if the Company requests, subject to receipt of satisfactory
legal documentation contemplated in the Deposit Agreement, sell such securities
at public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and reasonable out-of-pocket expenses incurred by, the Depositary
and (b) taxes) for the account of the Holders otherwise entitled to such
securities and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to the
Deposit Agreement. The Depositary, absent negligence and provided the Depositary
has made a good faith effort to perform its obligations under the Deposit
Agreement relevant to the specified circumstances, shall not be responsible for
(i) any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or any Holder in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
(19) EXONERATION. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, Switzerland or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or by reason
of any provision, present or future, of the 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 other circumstances beyond its control (including,
without limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Articles of
Incorporation of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for any inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement or this Receipt.
(20) STANDARD OF CARE. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
Receipt to any Holder(s)
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or Beneficial Owner(s), except that the Company and Depositary agree to perform
their respective obligations specifically set forth in the Deposit Agreement and
this Receipt without negligence or bad faith. Neither the Depositary, nor the
Company, nor any of their respective agents shall be liable to any Holder or
Beneficial Owner for any failure to carry out any instructions to vote any of
the Deposited Securities, or for the manner in which any vote is cast or the
effect of any vote, provided that any such action or omission is in good faith
and in accordance with the terms of the Deposit Agreement. The Depositary shall
not incur any liability, absent any negligence or bad faith, for any failure to
determine that any distribution or action may be lawful or reasonably
practicable. The Depositary shall not incur any liability for the content of any
information submitted to it by the Company for distribution to the Holders or
for any inaccuracy of any translation thereof, for any investment risk
associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon the
terms of the Deposit Agreement or for the failure or timeliness of any notice
from the Company.
(21) RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
DEPOSITARY. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal which notice shall be effective on the earlier of (i) the
60th day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its reasonable 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 (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor. The predecessor depositary, upon payment of
all sums due it and on the written request of the Company, shall (i) execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder (other than as contemplated in the Deposit
Agreement), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities and any proxies relating thereto to such successor,
and (iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly provide notice of its appointment to such Holders. Any corporation into
or with which the Depositary may be merged or consolidated shall be the
successor of the Depositary without the execution or filing of any document or
any further act.
(22) AMENDMENT/SUPPLEMENT. Subject to the terms and conditions of this
Article 22, the Deposit Agreement and applicable law, this Receipt and any
provisions of the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem
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necessary or desirable without the prior written consent of the Holders or
Beneficial Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than the charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding Receipts until the expiration of 30 days
after notice of such amendment or supplement shall have been given to the
Holders of outstanding Receipts. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs to be traded solely in electronic book-entry form
and (ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to materially prejudice any substantial
rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner at the
time any amendment or supplement so becomes effective shall be deemed, by
continuing to hold such ADS(s), to consent and agree to such amendment or
supplement and to be bound by the Deposit Agreement as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of or
supplement to the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and this
Receipt at any time in accordance with such changed laws, rules or regulations.
Such amendment or supplement to the Deposit Agreement in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, or rules or regulations.
(23) TERMINATION. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by providing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holders' Receipt(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADSs referred to in
Article (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to Delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the
X-00
Xxxxxxx Xxxxxxxxx, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
rights as provided in the Deposit Agreement, and shall continue to deliver
Deposited Securities, subject to the conditions and restrictions set forth in
the Deposit Agreement, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of the Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest, for the pro rata benefit of the Holders whose
Receipts have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
with respect to the Receipts, the Deposited Securities and the ADSs, except to
account for such net proceeds and other cash (after deducting, or charging, as
the case may be, in each case the charges of the Depositary for the surrender of
a Receipt, any expenses for the account of the Holder in accordance with the
terms and conditions of the Deposit Agreement and any applicable taxes or
governmental charges or assessments) and its obligations under Sections 5.8 and
7.6 of the Deposit Agreement. Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
(24) COMPLIANCE WITH U.S. SECURITIES LAWS. Notwithstanding any provisions
in this Receipt or the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
(25) CERTAIN RIGHTS OF THE DEPOSITARY; LIMITATIONS. Subject to the further
terms and provisions of this Article (25), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
of the Company and its Affiliates and in ADSs. The Depositary may issue ADSs
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, HOWEVER, that the Depositary may, except in the
case of Restricted ADSs, (i) issue ADSs prior to the receipt of Shares pursuant
to Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the
receipt of ADSs for withdrawal of Deposited Securities pursuant to Section 2.7
of the Deposit Agreement, including ADSs which were issued under (i) above but
for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) accompanied by or subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or Shares
are to be
A-20
delivered (v) represents that at the time of the Pre-Release Transaction the
Applicant or its customer owns the Shares or ADSs that are to be delivered by
the Applicant under such Pre-Release Transaction, (w) agrees to assign all
beneficial right, title and interest in such Shares or ADSs, as the case may be,
to the Depositary in its capacity as such and for the benefit of the Holders and
to hold such Shares or ADSs in trust for the Depositary until such Shares or
ADSs are delivered to the Depositary or the Custodian, (x) agrees it will not
take any action with respect to such Shares or ADSs, 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 ADSs, as the case may be,
other than in satisfaction of such Pre-Release Transaction), (y) unconditionally
guarantees to deliver to the Depositary or the Custodian, as applicable, such
Shares or ADSs and (z) agrees to any additional restrictions or requirements
that the Depositary reasonably deems appropriate, (b) at all times fully
collateralized with cash or U.S. government securities or such other collateral
as the Depositary deems appropriate, (c) terminable by the Depositary on not
more than five (5) business days' notice and (d) subject to such further
indemnities and credit regulations as the Depositary reasonably deems
appropriate. The Depositary will limit the number of ADSs and Shares involved in
such Pre-Release Transactions at any one time to thirty percent (30%) of the
ADSs outstanding (without giving effect to ADSs outstanding under (i) above),
PROVIDED, HOWEVER, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate. The Depositary may also
set limits with respect to the number of ADSs and Shares involved in Pre-Release
Transactions with any one person on a case by case basis as it deems
appropriate. The Depositary may retain for its own account any compensation
received by it in conjunction with the foregoing. Collateral provided pursuant
to (b) above, but not earnings thereon, shall be held by the Depositary as
security for the performance of the Applicant's obligations to the Depositary in
connection with a Pre-Release Transaction, including the Applicant's obligation
to deliver Shares or ADSs upon termination of a Pre-Release Transaction (and
shall not, for the avoidance of doubt, constitute Deposited Securities
hereunder) for the benefit of the Holders (other than the Applicant).
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(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto whose taxpayer identification
-----------------------------
number is and whose address including postal zip code is
------------------------
, the within Receipt and all rights thereunder, hereby
----------------
irrevocably constituting and appointing
------------------------
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated: Name:
--------------------------------
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an
attorney, executor, administrator, trustee
or guardian, the person executing the
endorsement must give his/her full title in
such capacity and proper evidence of
authority to act in such capacity, if not on
file with the Depositary, must be forwarded
with this Receipt.
--------------------------
SIGNATURE GUARANTEED
All endorsements or assignments of Receipts
must be guaranteed by a member of a
Medallion Signature Program approved by the
Securities Transfer Association, Inc.
LEGENDS
-------
[THE RECEIPTS ISSUED IN RESPECT OF PARTIAL ENTITLEMENT AMERICAN DEPOSITARY
SHARES SHALL BEAR THE FOLLOWING LEGEND ON THE FACE OF THE RECEIPT: "THIS
RECEIPT EVIDENCES AMERICAN DEPOSITARY SHARES REPRESENTING PARTIAL
ENTITLEMENT' REGISTERED SHARES, PAR VALUE CHF 10 PER SHARE ("SHARES") OF
ABB LTD AND AS SUCH DO NOT ENTITLE THE HOLDERS THEREOF TO THE SAME
PER-SHARE ENTITLEMENT AS OTHER SHARES (WHICH ARE "FULL ENTITLEMENT"
SHARES) ISSUED AND OUTSTANDING AT SUCH TIME. THE AMERICAN DEPOSITARY
SHARES REPRESENTED BY THIS RECEIPT SHALL ENTITLE HOLDERS TO DISTRIBUTIONS
AND ENTITLEMENTS IDENTICAL TO OTHER AMERICAN DEPOSITARY SHARES WHEN THE
SHARES REPRESENTED BY SUCH AMERICAN DEPOSITARY SHARES BECOME "FULL
ENTITLEMENT" SHARES.]
A-22
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I DEPOSITARY FEES
The Company, the Holders, the Beneficial Owners and the persons
depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
SERVICE RATE BY WHOM PAID
------- ---- ------------
(1) ISSUANCE OF ADSS UP TO $5.00 PER 100 ADSS PERSON FOR WHOM DEPOSITS
UPON DEPOSIT OF (OR FRACTION THEREOF)ISSUED. ARE MADE OR PERSON
SHARES (EXCLUDING RECEIVING ADSS.
ISSUANCES
CONTEMPLATED BY
PARAGRAPHS (3) AND
(5) BELOW).
(2) DELIVERY OF UP TO $5.00 PER 100 ADSS PERSON SURRENDERING ADSS
DEPOSITED (OR FRACTION THEREOF) OR MAKING WITHDRAWAL.
SECURITIES, SURRENDERED.
PROPERTY AND CASH
AGAINST SURRENDER
OF ADSS.
(3) DISTRIBUTION OF (A) NO FEE, SO LONG AS PROHIBITED BY PERSON TO WHOM DISTRIBUTION
CASH DIVIDEND OR (B) THE EXCHANGE UPON WHICH THE IS MADE.
ADSS PURSUANT TO STOCK ADSS ARE LISTED. IF THE CHANGING
DIVIDENDS (OR OTHER SUCH FEE IS NOT PROHIBITED, THE
FREE DISTRIBUTION OF FEES SPECIFIED IN (1)ABOVE SHALL BE
STOCK) PAYABLE IN RESPECT OF A
DISTRIBUTION OF ADSS PURSUANT TO
STOCK DIVIDENDS (OR OTHER FREE
DISTRIBUTION OF STOCK) AND THE FEES
SPECIFIED IN (4)BELOW SHALL BE
PAYABLE IN RESPECT OF DISTRIBUTIONS
OF CASH.
(4) DISTRIBUTION OF UP TO $2.00 PER 100 ADSS PERSON TO WHOM
CASH PROCEEDS (OR FRACTION THEREOF)HELD. DISTRIBUTION IS MADE.
(I.E., UPON SALE
OF RIGHTS AND
OTHER ENTITLEMENTS).
(5) DISTRIBUTION OF UP TO $5.00 PER 100 ADSS PERSON TO WHOM
ADSS PURSUANT TO (OR FRACTION THEREOF) DISTRIBUTION IS MADE.
EXERCISE OF RIGHTS. ISSUED.
B-1
II. CHARGES
Holders, Beneficial Owners, persons depositing Shares for deposit
and persons surrendering ADSs for cancellation and for the purpose of
withdrawing Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other governmental
charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities.
B-2
