Exhibit (a)(ii)
EXECUTION VERSION
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TELEFONAKTIEBOLAGET LM ERICSSON
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS FROM TIME TO TIME OF
AMERICAN
DEPOSITARY RECEIPTS
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Amendment No. 2
to
Amended and Restated Deposit Agreement
Dated as of October 23, 2002
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AMENDMENT NO. 2 TO AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 2 TO AMENDED AND RESTATED DEPOSIT AGREEMENT, is made as of
October 23, 2002 (the "Amendment"), by and among TELEFONAKTIEBOLAGET LM ERICSSON
a company organized and existing under the laws of Sweden (the "Company"),
CITIBANK, N.A., a national banking association organized under the laws of the
United States of America and acting solely as depositary (the "Depositary"), and
all Holders from time to time of American Depositary Receipts issued under the
Deposit Agreement.
W I T N E S S E T H T H A T
WHEREAS, the parties hereto entered into that certain Amended and Restated
Deposit Agreement, dated as of September 26, 1995, as amended by Amendment No. 1
to Amended and Restated Deposit Agreement, dated as of February 10, 1997, (as so
amended the "Deposit Agreement"), for the creation of American Depositary
Receipts ("ADRs") evidencing American Depositary Shares ("ADSs") representing
the Shares so deposited and for the execution and delivery of such ADRs
evidencing such ADSs;
WHEREAS, the Company has changed (A) the par value of the Shares (as set
forth in Section 1.05 of the Deposit Agreement) from Skr 2.5 to Skr 1 and (B)
the ratio of Shares to ADSs (as set forth in Section 1.08 of the Deposit
Agreement) from (i) one (1) Share to one (1) ADSs to (ii) ten (10) Shares to one
(1) ADS, and desires to amend the Deposit Agreement to reflect such changes; and
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement and the form of ADR annexed thereto as Exhibit A for the purposes set
forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS,
SECTION 1.01 Definitions. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning
given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT,
SECTION 2.01 Deposit Agreement. All references in the Deposit Agreement to
the term "Deposit Agreement" shall, as of the Effective Date (as herein
defined), refer to the Amended and Restated Deposit Agreement, dated as of
September 26, 1995, as amended by Amendment No. 1 to the Amended and Restated
Deposit Agreement, dated as of February 10, 1997, and as further amended by this
Amendment.
SECTION 2.02 Change of Par Value. All references made in the Deposit
Agreement to par value of the Shares of Skr 2.5 shall, as of the Effective Date,
refer to par value of the Shares of Skr 1.
SECTION 2.03 Change of Ratio. All references made in the Deposit Agreement
to each American Depositary Share representing one (1) Share shall, as of the
Effective Date, refer to each American Depositary Share representing ten (10)
Shares.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01 Reference to the Deposit Agreement. The Form of face of ADR
attached hereto as Exhibit A is hereby amended by deleting the first sentence of
Paragraph (1) and inserting the following in its stead:
"This American Depositary Receipt is one of an issue (herein called
the Receipts), all issued and to be issued upon the terms and
conditions set forth in the Amended and Restated Deposit Agreement,
dated as of September 26, 1995 (as amended from time to time, the
"Deposit Agreement"), by and among the Company, the Depositary and
all Holders from time to time of Receipts issued thereunder, each of
whom by accepting a Receipt agrees to become a party thereto and be
bound by all the terms and provisions thereof."
SECTION 3.02 Par Value Change. All references made in the ADRs issued and
outstanding to par value of Shares of Skr 2.5 shall, as of the Effective Date,
refer to par value of the Shares of Skr 1.
SECTION 3.03 Change of Ratio. All references made in the ADRs issued and
outstanding to each American Depositary Share representing one (1) Share shall,
as of the Effective Date, refer to each American Depositary Share representing
ten (10) Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been, respectively,
duly and validly authorized, executed and delivered by the Company, and
constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and any other document furnished hereunder or thereunder
in Sweden, neither of such agreements need to be filed or recorded with
any court or other authority in Sweden, nor does any stamp or similar tax
need to be paid in Sweden on or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS,
SECTION 5.01 Effective Date. This Amendment is dated as of the date set
forth above and shall be effective as of such date (the "Effective Date").
SECTION 5.02 New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRs printed or amended that reflect the changes to
the form of ADRs effected by this Amendment. All ADRs issued hereunder after the
Effective Date, once such new ADRs are available, whether upon the deposit of
Shares or other Deposited Securities or upon the transfer, combination or
split-up of existing ADRs, shall be substantially in the form of the specimen
ADRs attached as Exhibit A hereto. However, ADRs issued prior or subsequent to
the date hereof, which do not reflect the changes to the form of ADRs effected
hereby, do not need to be called in for exchange and may remain outstanding
until such time as the Holders thereof choose to surrender them for any reason
under the Deposit Agreement. The Depositary is authorized and directed to take
any and all actions deemed necessary to effect the foregoing.
SECTION 5.03 Notice of Amendment to Holders. The Depositary is hereby
directed to send notices informing the Holders of (i) the terms of this
Amendment, (ii) the Effective Date of this Amendment and (iii) that the Holders
shall be given the opportunity, but that it is unnecessary, to surrender
outstanding ADRs.
SECTION 5.04 Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Deposit Agreement as originally executed shall
remain in full force and effect.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
TELEFONAKTIEBOLAGET LM ERICSSON (PUBL.)
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: President & Chief Executive Officer
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Executive Vice President & Chief
Financial Officer
CITIBANK, N.A., as Depositary
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Vice President
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED B SHARES OF
TELEFONAKTIEBOLAGET LM ERICSSON
(A Public Company Incorporated Under The Laws Of Sweden)
No.
CITIBANK, N.A., a national banking association organized and
existing under the laws of the United States of America, as Depositary (herein
called the Depositary), hereby certifies that ________is the owner of________
American Depositary Shares, representing deposited B shares(such B shares are
hereinafter referred to as Shares), without nominal value, of
TELEFONAKTIEBOLAGET LM ERICSSON, a public company incorporated under the laws of
Sweden (herein called the Company). At the date hereof, each American Depositary
Share represents ten (10) Shares (or evidence of rights to receive ten Shares)
deposited under the Deposit Agreement at the principal Stockholm office either
of Skandinaviska Enskilda Banken or of Svenska Handelsbanken (herein called the
Custodian or, together, the Custodians). The address of the Depositary's
principal executive office is 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(1) The Deposit Agreement. This American Depositary Receipt is one
of an issue of American Depositary Receipts ("Receipts" or "ADRs"), all issued
and to be issued upon the terms and conditions set forth in the Amended and
Restated Deposit Agreement dated as of September 26, 1995, as amended by
Amendment No. 1 to Amended and Restated Deposit Agreement, dated as of February
10, 1997, as further amended by Amendment No. 2 to Amended and Restated Deposit
Agreement, dated as of October 23, 2002 (as so amended and supplemented from
time to time, the "Deposit Agreement"), by and among the Company, the Depositary
and all Holders from time to time of ADSs issued thereunder, each of whom by
accepting an ADS becomes bound by all the terms and provisions thereof. The
Deposit Agreement sets forth the rights of Holders of the Receipts and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property and cash are hereinafter referred to as Deposited Securities). Copies
of the Deposit Agreement are on file at the principal offices of the Depositary
and the Custodians. The statements made on the face and the reverse of this
Receipt are summaries of certain provisions of the Deposit Agreement and are
qualified by and subject to the detailed provisions of the' Deposit Agreement,
to which reference is hereby made. The terms "deposit", "surrender", "deliver",
"transfer" or "withdraw" when used with respect to Shares, shall refer, where
the context requires, to an entry or entries or an electronic transfer or
transfers in an account or accounts maintained by institutions authorized under
applicable law to effect transfers of securities (which may but need not be the
VPC (as defined in paragraph (3) below)), and not to the physical transfer of
certificates representing the Shares.
(2) Surrender of Receipts and Withdrawal of Shares. Upon surrender
at the Principal Office of the Depositary of this Receipt, and upon payment of
the fee of the Depositary provided in paragraph (6) of this Receipt, and subject
to the terms and conditions of the Deposit Agreement, the Holder hereof is
entitled to delivery, to him or upon his order, of the Deposited Securities at
the time represented by the American Depositary Shares for which this Receipt is
issued. Delivery of such Deposited Securities may be made by the delivery of
certificates in the name of the Holder hereof or as ordered by him or by the
delivery of certificates endorsed or accompanied by proper instruments of
transfer. Such delivery will be made without unreasonable delay and, at the
option of the Holder hereof, either at the office of any Custodian or at the
Principal Office of the Depositary, provided that the forwarding of certificates
for Shares or other Deposited Securities for such delivery at the Principal
office of the Depositary in the Borough of Manhattan, The City of New York shall
be at the risk and expense of the Holder hereof.
(3) Transfers, Split-ups and Combinations. This Receipt is
transferable on the books of the Depositary by the Holder hereof in person or by
duly authorized attorney, upon surrender of this Receipt properly endorsed or
accompanied by proper instruments of transfer and duly stamped as may be
required by law; provided, however, that the Depositary may close the transfer
books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties under the Deposit Agreement. This
Receipt may be split into other Receipts or may be combined with other Receipts
into one Receipt, representing the same aggregate number of American Depositary
Shares as the Receipt or Receipts surrendered. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination or
surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary or the Custodian may require payment of a sum sufficient to reimburse
it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto and payment of any applicable fees as
provided in paragraph (6) of this Receipt, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary may
establish consistent with the provisions of the Deposit Agreement.
The Depositary may refuse to execute and deliver Receipts, register
the transfer of any Receipt, make any distribution of, or related to, Deposited
Securities until it has received such proof of citizenship, residence, exchange
control approval or other information as it may deem necessary or proper. The
delivery of Receipts against deposits of Shares generally may be suspended, or
the delivery of Receipts against the deposit of particular Shares may be
withheld, or the registration of transfer of Receipts in particular instances
may be refused, or the registration of transfers or surrenders of Outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Depositary or the Company (or the appointed agent of the Company for
transfer and registration of Shares, which may but need not be the
Vardepapperscentralen VPC AB (the "VPC") or its successor as agent of the
Company for the transfer and registration for Shares) are closed, or if any such
action is deemed necessary or advisable by the Depositary or the Company at any
time or from time to time due to compliance with any requirement of applicable
law or governmental regulation relating to Receipts or to the withdrawal of any
Deposited Securities. Without limitation of the foregoing, the Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares which,
if sold by the holder thereof in the United States or its territories, would be
subject to the registration provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares.
(4) Liability of Holder for Taxes. If any tax or other governmental
charge shall become payable with respects to any Deposited Securities
represented hereby, such tax or other governmental charge shall be payable by
the Holder hereof to the Depositary. The Depositary may refuse to effect any
registration of transfer of this Receipt or any withdrawal of Deposited
Securities represented hereby until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Holder
hereof any part or all of the Deposited Securities represented hereby, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge, the Holder hereof remaining
liable for any deficiency.
(5) Warranties by Depositor. Every person depositing Shares under
the Deposit Agreement shall be deemed thereby to represent and warrant that such
Shares and each certificate therefore are valid and that the person making such
deposit is duly authorized so to do. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts.
(6) Charges of Depositary. The Depositary shall charge the following
fees:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares, a fee up to U.S. $5.00
per 100 ADSs (or fraction thereof) so issued under the terms
of the Deposit Agreement (excluding issuances pursuant to
paragraph (iv) below);
(ii) Cancellation Fee: to any person surrendering ADSs for
cancellation and withdrawal of Deposited Securities, a fee up
to U.S. $5.00 per 100 ADSs (or fraction thereof) so
surrendered;
(iii) Cash Distribution Fee: to any Holder of ADS(s), a fee up to
U.S. $5.00 per 100 ADSs (or fraction thereof) held for the
distribution of cash dividends or other cash distributions
(i.e., upon the sale of rights and other entitlements);
(iv) Stock Distribution/Rights Exercise Fee: to any Holder of
ADS(s), a fee up to U.S. $5.00 per 100 ADSs (or fraction
thereof) held for the distribution of stock dividends or other
free stock distributions or upon the exercise of rights to
purchase additional ADSs;
(v) Other Distribution Fee: to any Holder of ADS(s), a fee up to
U.S. $5.00 per unit of 100 ADSs (or fraction thereof) held for
the distribution of securities other than ADSs or rights to
purchase additional ADSs (i.e., spin-off shares);
(vi) Depositary Services Fee: to any Holder of ADS(s), a fee up to
U.S. $5.00 per 100 ADSs (or fraction thereof) held on the
applicable record date(s) established by the Depositary; and
(vii) ADR Transfer Fee: to any person presenting an ADR for
transfer, a fee not in excess of U.S. $1.50 per ADR so
presented for transfer.
In addition, Holders, Beneficial Owners, persons depositing Shares
and persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
(a) taxes (including applicable interest and penalties) and other
governmental charges;
(b) 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;
(c) 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;
(d) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(e) 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
(f) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities.
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 paragraph (20) of this ADR and as contemplated in the Deposit
Agreement. The Depositary will provide, without charge, a copy of its fees and
charges of the Depositary to anyone upon request.
Depositary fees payable upon (i) deposit of Shares against issuance
of ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC (as
defined in the Deposit Agreement) or presented to the Depositary via DTC, the
ADS issuance and cancellation fees will be payable to the Depositary by the DTC
Participant(s) (as defined in the Deposit Agreement) receiving the ADSs from the
Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary for
cancellation, as the case may be, on behalf of the Beneficial Owner(s) and will
be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable ADS record date established by the Depositary. In
the case of distributions of cash, the amount of the applicable Depositary fees
is deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the ADS record date established by the
Depositary. For ADSs held through DTC, the Depositary fees for distributions
other than cash and the Depositary service fee are charged by the Depositary to
the DTC Participants in accordance with the procedures and practices prescribed
by DTC from time to time and the DTC Participants in turn charge the amount of
such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may [remit to the Company all or a portion of the
Depositary fees charged for the reimbursement of][reimburse the Company for]
certain expenses incurred by the Company in respect of the ADR program
established pursuant to the Deposit Agreement upon such terms and conditions as
the Company and the Depositary may agree from time to time. The Company agrees
to promptly pay to the Depositary such fees and charges and reimburse the
Depositary for such out-of-pocket expenses as the Depositary and the Company may
agree from time to time. Responsibility for payment of such charges and
reimbursements 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
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.04 of the Deposit Agreement, such right
shall extend for those fees, charges and expenses incurred prior to the
effectiveness of such resignation or removal.
(7) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each Certificated ADSs evidenced
hereby) shall be transferable upon the same terms as a certificated security
under the laws of the State of New York, provided that, in the case of
Certificated ADSs, the Receipt has been properly endorsed or is accompanied by
properly executed instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of an ADS
(that is, the person in whose name an ADS 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 the Deposit Agreement to any holder of a Receipt or any
beneficial owners unless such holder is registered as the Holder of such Receipt
on the books of the Depositary or in the case of a Beneficial Owner, such
Beneficial Owner or Beneficial Owner's representative is registered as the
Holder on the books of the Depositary.
(8) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if a Registrar for the Receipts shall
have been appointed, by the manual signature of a duly authorized officer of
such Registrar.
(9) Pre-release. Pursuant to the Deposit Agreement, the Depositary
may issue Receipts for evidence of rights to receive Shares from the Company, or
any Custodian, Registrar, transfer agent, clearing agency or other entity
involved in ownership records or transaction records in respect of the Shares.
Such evidence of rights is required to consist of written blanket or specific
guarantees of ownership of Shares furnished on behalf of the holder thereof. The
Depositary is not permitted to lend Shares or Receipts; except that the
Depositary may (i) issue Receipts prior to the receipt of Shares pursuant to
Section 2.02 of the Deposit Agreement and (ii) deliver Shares prior to the
receipt and cancellation of Receipts pursuant to Section 2.05 of the Deposit
Agreement, including Receipts which were issued under (i) above but for which
Shares may not have been received, The Depositary may receive Receipts in lieu
of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. The Depositary is required to cause each such transaction to be (a)
accompanied by (x) a written representation from the person to whom Receipts or
Shares are to be delivered that such person, or its customer, owns the Shares or
Receipts to be remitted, as the case may be, or (y) such other evidence of
ownership of shares or Receipts, as the case may be, as the Depositary deems
appropriate, (b) at all times fully collateralized (marked to market daily) with
cash, United States Government securities or other collateral of comparable
safety and liquidity, (c) terminable by the Depositary on not more than five (5)
business days' notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. Pursuant to the Deposit
Agreement, the Depositary has agreed to limit the number of Receipts and Shares
involved in such transactions at any one time to thirty percent (30%) of the
face amount of Receipts outstanding (without giving effect to Receipts
outstanding under (i) above), or principal amount of Shares actually deposited
under the Deposit Agreement, respectively. Pursuant to the Deposit Agreement,
the - Depositary is required to set limits with respect to the number of
Receipts and Shares involved in such transactions with any one person on a
case-by-case basis as it deems appropriate. Pursuant to the Deposit Agreement
collateral (but not any earnings thereon) is required to be held for the benefit
of the Holder only. The Depositary may retain for its own account any
compensation received by it in connection with the foregoing.
(10) Power of Attorney. The Holder hereby agrees that, upon
acceptance of this Receipt issued in accordance with the terms of the Deposit
Agreement, the Holder appoints the Depositary its attorney-in-fact, with full
power to delegate, to act on its behalf and to take any and all steps or action
provided for or contemplated herein and in the Deposit Agreement with respect to
the Deposited Securities, including but not limited to those set forth in
Article IV of the Deposit Agreement, and to take such further steps or action as
the Depositary in its sole discretion may deem necessary or appropriate to carry
out the purposes hereof and of the Deposit Agreement.
(11) Disclosure of Interest. The Holder of this Receipt agrees to
comply with the Company's Articles of Association, as they may be amended from
time to time, and the laws of Sweden, with respect to disclosure requirements,
if any, regarding ownership of Deposited Securities and shares in and other
securities and debt obligations of the Company, all as if this Receipt was to
the extent practicable the Shares represented hereby.
The Depositary shall, at the Company's request, send to any Holder
specified by the Company a notice requiring such Holder to notify the Depositary
as to whether any of such Holder's American Depositary Shares represented by any
of the Receipts held by or registered in the name of such Holder are being held,
directly or indirectly, for some person other than such Holder and, if so, the
name, address and citizenship of such other person or persons. Each Holder will
provide to the Depositary at the Depositary's principal office the information
requested in the Depositary's notice within five (5) business days after the
date of the notice and the. Depositary shall forthwith furnish the Company with
the information provided. Should any Holder fail to provide the information
sought within such five (5) business days, the Depositary shall notify the
Company accordingly and, upon receipt of written instructions from the Company
to that effect, the Depositary shall (i) discontinue the registration of
transfers of all Receipts registered in the name of such Holder; (ii) suspend
the distribution of payments of dividends to such Holder; and (iii) not give any
further notices to such Holder; until such information is provided pursuant to
Section 3.04 of the Deposit Agreement.
(12) Compliance with U.S. Securities Laws. Pursuant to the Deposit
Agreement, the Company and the Depositary are required to exercise any rights
they have under the Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would not violate the United States
securities laws, including, without being limited to, General Instruction LA(l)
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
Dated:
Countersigned CITIBANK, N.A.,
as Depositary
By _______________________________ By _______________________________
Authorized Officer Vice President
The address of the principal office of the Depositary is 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Dividends and Distributions; Rights. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Deposited
Securities, the Depositary will, if at the time of receipt thereof any amounts
received in a foreign currency can in the judgment of the Depositary be
Converted on a reasonable basis into United States dollars transferable to the
United States and, subject to the provisions of the Deposit Agreement, convert
such dividend or distribution into United States dollars and will distribute the
amount thus received to the Holders of Receipts entitled thereto, in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by them respectively; provided, however, that the amount
distributed will be reduced by any amounts required to be withheld by the
Company or the Depositary on account of taxes. If in the judgment of the
Depositary amounts received in foreign currency may not be converted on a
reasonable basis into United States dollars transferable to the United States,
or may not be so convertible for all of the Holders of Receipts entitled
thereto, the Depositary may in its discretion make such conversion, if any, and
distribution in United States dollars to the extent permissible to the Holders
of Receipts entitled thereto and may distribute the balance of the foreign
currency received and not so convertible by the Depositary to, or hold such
balance for the account of, the Holders of Receipts entitled thereto. If in the
opinion of the Depositary any distribution other than cash or Shares upon any
Deposited Securities cannot be made proportionately among the Holders of
Receipts entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus received, or
any part thereof, and the net proceeds of any such sale will be distributed by
the Depositary to the Holders of Receipts entitled thereto as in the case of a
distribution received in cash. If any distribution upon any Deposited Securities
consists of a dividend in, or free distribution of, Shares, the Depositary may
with the Company's approval, and shall if the Company shall so request,
distribute to the Holders of outstanding Receipts entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the number of Shares
received as such dividend or free distribution. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary may
sell the number of Shares represented by the aggregate of such fractions and
distribute the net proceeds, converted into United States dollars if not in such
dollars (if such conversion may in the judgment of the Depositary be achieved on
a reasonable basis), to the Holders of Receipts entitled thereto. If additional
Receipts are not so distributed (except as pursuant to the preceding sentence),
each American Depositary Share shall thenceforth also represent the additional
Shares distributed upon the Deposited securities represented thereby. In the
event that the Company shall offer or cause to be offered to the holders of any
Deposited Securities any rights to subscribe for additional Shares or any rights
of any nature, the Depositary shall have discretion as to whether such rights
are to be made available to the Holders of Receipts; provided, however, that the
Depositary will, if requested by the Company, either (a) make such rights
available to Holders of Receipts by means of warrants or otherwise, if lawful
and feasible, or (b) if making such rights available is not lawful or not
feasible, or if the rights represented by such warrants or other instruments are
not exercised and appear to be about to lapse, sell such warrants or other
instruments at public or private sale, at such place or places and upon such
terms as the Depositary may deem proper, and allocate the proceeds of such sales
for account of the Holders of Receipts otherwise entitled thereto upon an
averaged or other practicable basis without regard to any distinctions among
such Holders because of exchange restrictions, or the date of delivery of any
Receipt or Receipts, or otherwise.
(14) Record Dates. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or whenever rights shall be issued, with respect to the Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of
holders of Shares or other Deposited Securities, the Depositary will fix a
record date for the determination of the Holders of Receipts who shall be
entitled to receive such dividend, distribution or rights, or the net proceeds
of the sale thereof, or to give instructions for the exercise of voting rights
at any such meeting, subject to the provisions of the Deposit Agreement.
(15) Voting of Deposited Securities. Upon receipt of notice of any
meeting of holders of Deposited Securities, the Depositary will mail to the
Holders of Receipts a notice which will contain (a) such information as is
contained in such notice of meeting and (b) a statement that the Holders of
Receipts at the close of business on a specified record date will be entitled to
instruct the Depositary as to the exercise of voting rights, if any, pertaining
to the amount of Deposited Securities represented by their respective American
Depositary Shares, and a brief statement as to the manner in which such
instructions may be given. Upon the written request of a Holder of a Receipt or
Receipts on such record date, received on or before the date established by the
Depositary for such purpose, together with (i) such Holder's Receipt or Receipts
for such Shares as to which voting instructions are being given and (ii) such
Holder's instructions that such Receipt or Receipts are to be held in a blocked
account until the Shares represented by such Receipt or Receipts are voted, the
Depositary will endeavor insofar as practicable to vote or cause to be voted the
amount of Deposited Securities represented by such Receipt or Receipts in
accordance with such instructions. The Depositary agrees not to vote the Shares
or other Deposited Securities represented by a Receipt unless it receives
instructions from the Holder of such Receipts.
(16) Changes Affecting Deposited Securities. Upon any change in par
value, split-up, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and the American Depositary
Shares shall thenceforth represent the new Deposited Securities so received in
exchange or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may with the Company's
approval, and shall if the Company shall so request, execute and deliver
additional Receipts as in the case of a stock dividend, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts.
(17) Reports; Inspection of Transfer Books. The Depositary will make
available for inspection by Holders of Receipts at its Principal office any
reports and communications received from the Company, including any proxy
soliciting material, which are both (a) received by the Depositary as the holder
of the Deposited Securities, and (b) made generally available to the holders of
such Deposited Securities by the Company. The Depositary will also send to
Holders of Receipts copies of such reports when furnished by the Company as
provided in the Deposit Agreement. The Depositary will keep books for the
registration of Receipts and their transfer which at all reasonable times will
be open for inspection by the Holders of Receipts, provided that such inspection
shall not be for the purpose of communicating with Holders of Receipts in the
interest of a business or object other than the business of the Company or a
matter related to the Deposit Agreement or the Receipts.
(18) Liability of the Company and the Depositary. Neither the
Depositary nor the Company shall incur any liability to any Holder of this
Receipt, if by reason of any provision of any present or future law of any
country or of any governmental authority, or by reason of any provision, present
or future, of the Articles of Association of the Company, or by reason of any
act of God or war or other circumstance beyond its control, the Depositary or
the Company shall be prevented or forbidden from doing or performing any act or
thing which by the terms of the Deposit Agreement it is provided shall be done
or performed. Neither the Company nor the Depositary assumes any obligation or
shall be subject to any liability under the Deposit Agreement to Holders of
Receipts, except that they agree to use their best judgment and good faith in
the performance of such duties as are specifically set forth in the Deposit
Agreement. Neither the Depositary nor the Company 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 and liability, unless indemnity satisfactory
to it against all expense and liability 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 Custodians being solely to the
Depositary. Neither the Depositary nor the Company shall be liable for any
action or non-action by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Holder
of a Receipt, or any other person believed by it in good faith to be competent
to give such advice or information. The Depositary will not be responsible for
any failure to carry out any instructions to vote any of the Deposited
Securities, or for the manner in which any such vote is cast or effect of any
such vote, provided that any such action or non-action is in good faith. The
Depositary may own and deal in any class of securities of the Company and its
affiliates and in Receipts. The Company agrees to indemnify the Depositary and
each Custodian against, and hold each of them harmless from, any inability or
expense which may arise out of acts performed in accordance with the provisions
of the Deposit Agreement and of the Receipts, as the same may be amended,
modified or supplemented from time to time, (i) by either the Depositary or any
Custodian, except for any liability arising out of the negligence or bad faith
of either of them, or (ii) by the Company or any of its agents.
(19) Resignation and Removal of Depositary; Substitution of
Custodian. The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal, effective 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 appoint a substitute or additional custodian and the
term "Custodian" shall also refer to such substitute or additional custodian.
(20) Amendment of Deposit Agreement and Receipts. The Receipts and
the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary. Any amendment which shall
impose or increase any fees or charges (other than the fees of the Depositary
for the execution and delivery or the cancellation of Receipts and taxes or
other governmental charges), or which shall otherwise prejudice any substantial
existing right of Holders of Receipts, shall, however, not become effective as
to outstanding Receipts until the expiration of three months after notice of
such amendment shall have been given to the Holders of outstanding Receipts.
Every Holder of a Receipt at the time any amendment so becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Holder hereof to surrender
this Receipt and receive therefor the Deposited Securities represented hereby.
(21) Termination of Deposit Agreement. The Depositary will at any
time at the direction of the Company terminate the Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination, The
Depositary may likewise terminate the Deposit Agreement at any time 60 days
after the Depositary shall have resigned, if a successor depositary shall not
have been appointed and accepted its appointment. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter will
discontinue the registration of transfers of Receipts, will suspend the
distribution of dividends to the holders thereof, and will not give any further
notices or perform any further acts under the Deposit Agreement, except the
collection of dividends and other distributions pertaining to Deposited
Securities, the sale of rights and the delivery of Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary. At any time after the expiration of
one year from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may thereafter hold the net
proceeds of any such sale, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, for the pro rata benefit
of the Holders of Receipts not theretofore surrendered. After making such sale,
the Depositary shall be discharged from all obligations under the Deposit
Agreement, except for its obligations under Section 5.08 thereof and except to
account for the claims of Holders, as creditors of the Depositary, for such net
proceeds and other cash, after deducting, or charging, as the case may be, the
fees of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes or governmental charges or
assessments. Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations under the Deposit Agreement, except for the
Company's obligations under Section 5.08 thereof.
(22) Available Information. The Company currently is subject to the
periodic reporting requirements of the Securities Exchange Act of 1934 and
accordingly files certain reports with the Securities and Exchange Commission
(hereinafter the Commission). Such reports and other information may be
inspected and copied at public reference facilities maintained by the Commission
in Washington, D.C.
