____________________________________________________________
FRONTLINE LTD.
(F/K/A LONDON & OVERSEAS FREIGHTERS LIMITED)
AND
THE BANK OF NEW YORK
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of November 24, 1993
Amended and Restated as of May 29, 2001
____________________________________________________________
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS......................................1
Section 1.01 American Depositary Shares................1
Section 1.02 Commission................................2
Section 1.03 Company...................................2
Section 1.04 Custodian.................................2
Section 1.05 Deposit Agreement.........................2
Section 1.06 Depositary; Corporate Trust Office........2
Section 1.07 Deposited Securities......................3
Section 1.08 Dollars...................................3
Section 1.09 Foreign Registrar.........................3
Section 1.10 Holder....................................3
Section 1.11 Receipts..................................3
Section 1.12 Registrar.................................3
Section 1.13 Securities Act of 1933....................3
Section 1.14 Securities Exchange Act of 1934...........4
Section 1.15 Shares....................................4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.....4
Section 2.01 Form and Transferability of Receipts......4
Section 2.02 Deposit of Shares.........................5
Section 2.03 Execution and Delivery of Receipts........6
Section 2.04 Transfer of Receipts; Combination and Split-up
of Receipts...............................7
Section 2.05 Surrender of Receipts and Withdrawal of
Shares....................................8
Section 2.06 Limitations on Execution and Delivery,
Transfer and Surrender of
Receipts.........................................9
Section 2.07 Lost Receipts, etc........................10
Section 2.08 Cancellation and Destruction of Surrendered
Receipts..................................10
Section 2.09 Pre-Release of Receipts...................11
ARTICLE 3. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.......11
Section 3.01 Filing Proofs, Certificates and Other
Information...............................11
Section 3.02 Liability of Holder for Taxes.............12
Section 3.03 Warranties on Deposit of Shares...........12
ARTICLE 4. THE DEPOSITED SECURITIES.........................13
Section 4.01 Cash Distributions........................13
Section 4.02 Distributions Other Than Cash, Shares or
Rights....................................13
Section 4.03 Distributions in Shares...................14
Section 4.04 Rights....................................15
Section 4.05 Conversion of Foreign Currency............17
Section 4.06 Fixing of Record Date.....................18
Section 4.07 Voting of Deposited Securities............19
Section 4.08 Changes Affecting Deposited Securities....20
Section 4.09 Reports...................................21
Section 4.10 Lists of Holders..........................21
(2)
Section 4.11 Withholding...............................21
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY...21
Section 5.01 Maintenance of Office and Transfer Books by
the Depositary............................21
Section 5.02 Prevention or Delay in Performance by the
Depositary or the Company.................
..........................................22
Section 5.03 Obligations of the Depositary, the Custodian
and the Company...........................23
Section 5.04 Resignation and Removal of the Depositary;
Appointment of Successor Depositary.......24
Section 5.05 The Custodians............................25
Section 5.06 Notices and Reports.......................26
Section 5.07 Distribution of Additional Shares, Rights,
etc.......................................26
Section 5.08 Indemnification...........................27
Section 5.09 Charges of Depositary.....................28
Section 5.10 Certain Rights of the Depositary; Limitations.
29
Section 5.11 Retention of Depositary Documents.........29
Section 5.12 Exclusivity...............................29
ARTICLE 6. AMENDMENT AND TERMINATION........................29
Section 6.01 Amendment.................................29
Section 6.02 Termination...............................30
ARTICLE 7. MISCELLANEOUS....................................31
Section 7.01 Counterparts..............................31
Section 7.02 No Third Party Beneficiaries..............31
Section 7.03 Severability..............................32
Section 7.04 Holders as Parties; Binding Effect.......32
Section 7.05 Notices...................................32
Section 7.06 Governing Law.............................33
Section 7.07 Compliance with U.S. Securities Laws......33
(3)
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of November 24, 1993, as amended
and restated as of __________, 2001 among Frontline Ltd. (f/k/a
London & Overseas Freighters Limited), incorporated under the
laws of Bermuda (herein called the Company), THE BANK OF NEW
YORK, a New York banking corporation (herein called the
Depositary), and all Holders from time to time of American
Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set
forth in this Deposit Agreement, for the deposit of Shares (as
hereinafter defined) of the Company from time to time with the
Depositary or with the Custodian (as hereinafter defined) as
agent of the Depositary for the purposes set forth in this
Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts evidencing the American
Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be
substantially in the form of Exhibit A annexed hereto, with
appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is
agreed by and between the parties hereto as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless
otherwise clearly indicated, apply to the respective terms used
in this Deposit Agreement:
Section 1.01 American Depositary Shares.
The term "American Depositary Shares" shall mean the
securities representing the interests in the Deposited Securities
and evidenced by the Receipts issued hereunder. Each American
Depositary Share shall represent the number of Shares specified
in Exhibit A annexed hereto, until there shall occur a
distribution upon Deposited Securities covered by Section 4.03 or
a change in Deposited Securities covered by Section 4.08 with
respect to which additional Receipts are not executed and
delivered, and thereafter American Depositary Shares shall
evidence the amount of Shares or Deposited Securities specified
in such Sections.
Section 1.02 Commission.
The term "Commission" shall mean the Securities and
Exchange Commission of the United States or any successor
governmental agency in the United States.
Section 1.03 Company.
The term "Company" shall mean London & Overseas
Freighters Limited, incorporated under the laws of Bermuda, and
its successors.
Section 1.04 Custodian.
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The term "Custodian" shall mean the London, England
office of The Bank of New York, as agent of the Depositary for
the purposes of this Deposit Agreement, and any other firm or
corporation which may hereafter be appointed by the Depositary
pursuant to the terms of Section 5.05, as a substitute or
additional custodian or custodians hereunder, as the context
shall require and shall also mean all of them collectively.
Section 1.05 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement,
as the same may be amended from time to time in accordance with
the provisions hereof and all instruments supplemental hereto.
Section 1.06 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a
New York banking corporation, and any successor as depositary
hereunder. The term "Corporate Trust Office", when used with
respect to the Depositary, shall mean the office of the
Depositary which at the date of this Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 1.07 Deposited Securities.
The term "Deposited Securities" as of any time shall
mean Shares at such time deposited under this Deposit Agreement
and any and all other securities, property and cash received by
the Depositary or the Custodian in respect thereof and at such
time held hereunder, subject as to cash to the provisions of
Section 4.05.
3
Section 1.08 Dollars.
The term "Dollars" shall mean United States dollars.
Section 1.09 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that
presently carries out the duties of registrar for the Shares or
any successor as registrar for the Shares and any other appointed
agent of the Company for the transfer and registration of Shares.
Section 1.10 Holder.
The term "Holder" shall mean the person in whose name a
Receipt is registered on the books of the Depositary maintained
for such purpose.
Section 1.11 Receipts.
The term "Receipts" shall mean the American Depositary
Receipts issued hereunder evidencing American Depositary Shares.
Section 1.12 Registrar.
The term "Registrar" shall mean any bank or trust
company having an office in the Borough of Manhattan, The City of
New York, which shall be appointed to register Receipts and
transfers of Receipts as herein provided and shall include any
co-registrar appointed by the Depositary, upon consultation with
the Company, for such purposes.
Section 1.13 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United
States Securities Act of 1933, as from time to time amended, and
the rules and regulations thereunder.
4
Section 1.14 Securities Exchange Act of 1934.
The term "Securities Exchange Act of 1934" shall mean
the United States Securities and Exchange Act of 1934, as from
time to time amended, and the rules and regulations thereunder.
Section 1.15 Shares.
The term "Shares" shall mean Ordinary Shares in
registered form of the Company, heretofore validly issued and
outstanding and fully paid and nonassessable or hereafter validly
issued and outstanding and fully paid and interim certificates
representing such Shares and shall include rights to receive
Shares.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.
Section 2.01 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form
set forth in Exhibit A annexed to this Deposit Agreement, with
appropriate insertions, modifications and omissions, as
hereinafter provided. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by
the Depositary by the manual signature of a duly authorized
signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts
shall have been appointed and such Receipts are countersigned by
the manual signature of a duly authorized officer of the
Registrar. The Depositary shall maintain books on which each
5
Receipt so executed and delivered as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts
bearing the manual or facsimile signature of a duly authorized
signatory of the Depositary who was at any time a proper
signatory of the Depositary shall bind the Depositary,
notwithstanding that such signatory has ceased to hold such
position as a duly authorized signatory prior to the execution
and delivery of such Receipts by the Registrar or did not hold
such position on the date of issuance of such Receipts.
The Receipts may be endorsed with or have incorporated
in the text thereof such legends or recitals or modifications not
inconsistent with the provisions of this Deposit Agreement as may
be required by the Depositary to perform its obligations
hereunder or required to comply with any applicable law or
regulations thereunder or with the rules and regulations of any
securities exchange upon which American Depositary Shares may be
listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any
particular Receipts are subject by reason of the date of issuance
of the underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary
Shares evidenced thereby), when properly endorsed or accompanied
by proper instruments of transfer, shall be transferable by
delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary,
6
notwithstanding any notice to the contrary, may treat the Holder
thereof as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or
other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes.
The register of the Holders of Receipts shall be
maintained in the City of New York and shall not be maintained in
the United Kingdom.
Section 2.02 Deposit of Shares.
Subject to the terms and conditions of this Deposit
Agreement, Shares may be deposited by delivery thereof to any
Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form satisfactory to
such Custodian, together with all such certifications as may be
required by the Depositary or such Custodian in accordance with
the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary
to execute and deliver to, or upon the written order of, the
person or persons stated in such order a Receipt or Receipts for
the number of American Depositary Shares representing such
deposit. No Share shall be accepted for deposit unless
accompanied by evidence satisfactory to the Depositary (which may
be an opinion of counsel) that any necessary approval has been
granted by any governmental body in Bermuda which is then
performing the function of the regulation of currency exchange.
7
If required by the Depositary, Shares presented for deposit at
any time, whether or not the transfer books of the Company or the
Foreign Registrar, if applicable, are closed, shall also be
accompanied by an agreement or assignment, or other instrument
satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend or right to subscribe
for additional Shares or to receive other property which any
person in whose name the Shares are or have been recorded may
thereafter receive upon or in respect of such deposited Shares,
or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of any person
proposing to deposit Shares, and for the account of such person,
the Depositary may receive certificates for Shares to be
deposited, together with the other instruments herein specified,
for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or
certificates for Shares to be deposited hereunder, together with
the other documents above specified, such Custodian shall, as
soon as transfer and recordation can be accomplished, present
such certificate or certificates to the Company or the Foreign
Registrar, if applicable, for transfer and recordation of the
Shares being deposited in the name of the Depositary or its
nominee or such Custodian or its nominee.
8
Deposited Securities shall be held by the Depositary or
by a Custodian for the account and to the order of the Depositary
or at such other place or places as the Depositary shall
determine.
Section 2.03 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to
Section 2.02 hereunder (and in addition, if the transfer books of
the Company or the Foreign Registrar, if applicable, are open,
the Depositary may in its sole discretion require a proper
acknowledgment or other evidence from the Company that any
Deposited Securities have been recorded upon the books of the
Company or the Foreign Registrar, if applicable, in the name of
the Depositary or its nominee or such Custodian or its nominee),
together with the other documents required as above specified,
such Custodian shall notify the Depositary of such deposit and
the person or persons to whom or upon whose written order a
Receipt or Receipts are deliverable in respect thereof and the
number of American Depositary Shares to be evidenced thereby.
Such notification shall be made by letter or, at the request,
risk and expense of the person making the deposit, by cable,
telex or facsimile transmission. Upon receiving such notice from
such Custodian, or upon the receipt of Shares by the Depositary,
the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver at its Corporate
Trust Office, to or upon the order of the person or persons
9
entitled thereto, a Receipt or Receipts, registered in the name
or names requested by such person or persons and evidencing in
the aggregate, the number of American Depositary Shares to which
such person or persons are entitled, but only upon payment to the
Depositary of the fees of the Depositary for the execution and
delivery of such Receipt or Receipts as provided in Section 5.09,
and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Deposited
Securities.
Section 2.04 Transfer of Receipts; Combination and Split-up of
Receipts.
The Depositary, subject to the terms and conditions of
this Deposit Agreement, shall register transfers of Receipts on
its transfer books, from time to time, upon any surrender of a
Receipt by the Holder in person or by a duly authorized attorney,
properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the
State of New York and of the United States of America. Thereupon
the Depositary shall execute a new Receipt or Receipts and
deliver the same to or upon the order of the person entitled
thereto.
The Depositary, subject to the terms and conditions of
this Deposit Agreement, shall upon surrender of a Receipt or
Receipts for the purpose of effecting a split-up or combination
of such Receipt or Receipts, execute and deliver a new Receipt or
Receipts for any authorized number of American Depositary Shares
10
requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer
agents for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of
the Depositary. In carrying out its functions, a co-transfer
agent may require evidence of authority and compliance with
applicable laws and other requirements by Holders or persons
entitled to Receipts and will be entitled to protection and
indemnity to the same extent as the Depositary.
Section 2.05 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the
Depositary of a Receipt for the purpose of withdrawal of the
Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt, and upon payment of the fee of
the Depositary for the surrender of Receipts as provided in
Section 5.09 and payment of all taxes and governmental charges
payable in connection with such surrender and withdrawal of the
Deposited Securities, and subject to the terms and conditions of
this Deposit Agreement, the Holder of such Receipt shall be
entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American
Depositary Shares evidenced by such Receipt. Delivery of such
Deposited Securities (a) may be made by the delivery of
certificates in the name of such Holder or as ordered by him or
11
certificates properly endorsed or accompanied by proper
instruments of transfer to such Holder or as ordered by him and
(b) shall include any other securities, property and cash to
which such Holder is then entitled in respect of such Receipts to
such Holder or as ordered by him. Such delivery shall be made,
as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required
by the Depositary to be properly endorsed in blank or accompanied
by proper instruments of transfer endorsed in blank, and if the
Depositary so requires, the Holder thereof shall executed and
deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to
be delivered to or upon the written order of a person or persons
designated in such order. Thereupon the Depositary shall direct
the Custodian to deliver at the London, England office of such
Custodian, subject to Sections 2.06, 3.01 and 3.02 and to the
other terms and conditions of this Deposit Agreement, to or upon
the written order of the person or persons designated in the
order delivered to the Depositary as above provided, the amount
of Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt, except that the Depositary may
make delivery to such person or persons at the Corporate Trust
Office of the Depositary of any dividends or distributions with
respect to the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, or of any proceeds
12
of sale of any dividends, distributions or rights, which may at
the time be held by the Depositary.
At the request, risk and expense of any Holder so
surrendering a Receipt, and for the account of such Holder, the
Depositary shall direct the Custodian to forward any cash or
other property (other than rights) comprising, and forward a
certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt to the Depositary for
delivery at the Corporate Trust Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and
expense of such Holder, by cable, telex or facsimile
transmission.
Section 2.06 Limitations on Execution and Delivery, Transfer and
Surrender of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of
any Receipt or withdrawal of any Deposited Securities, the
Depositary, Custodian or Registrar may require payment from the
depositor of Shares or the presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental
charge (including without limitation any tax or other
governmental charge provided for in Section 2.02, 2.03, 2.04, or
3.02) and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to
Shares being deposited or withdrawn) and payment of any
13
applicable fees as herein provided, may require the production of
proof satisfactory to it as to the identity and genuineness of
any signature and may also require compliance with any
regulations the Depositary may establish consistent with the
provisions of this Deposit Agreement, including, without
limitation, this Section 2.06, and subject in all cases to
Section 7.07 hereof.
The delivery of Receipts against deposits of Shares
generally or against deposits of particular Shares may be
suspended, 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 Depositary or
the Company are closed, or if any such action is deemed necessary
or advisable by the Depositary or the Company at any time or from
time to time because of any requirement of law or of any
government or governmental body or commission, or under any
provision of this Deposit Agreement, or for any other reason,
subject to the provisions of the following sentence. The
surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended, except for (i) temporary delays
caused by closing the transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a
shareholders' meeting, or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance
14
with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited
Securities. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under this Deposit
Agreement any Shares required to be registered under the
provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares.
Section 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost
or stolen, the Depositary shall execute and deliver a new Receipt
of like tenor in exchange and substitution for such mutilated
Receipt upon the Holder thereof having (a) filed with the
Depositary (i) a request for such execution and delivery before
the Depositary has notice that the Receipt has been acquired by a
bona fide purchaser and (ii) a sufficient indemnity bond and (b)
satisfied any other reasonable requirements imposed by the
Depositary.
Section 2.08 Cancellation and Destruction of Surrendered
Receipts.
All Receipts surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to
destroy Receipts so cancelled.
Section 2.09 Pre-Release of Receipts.
Notwithstanding Section 2.03 hereof, the Depositary may
execute and deliver Receipts prior to the receipt of Shares
pursuant to Section 2.02 ("Pre-Release"). The Depositary may,
15
pursuant to Section 2.05, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre- Released, whether
or not such cancellation is prior to the termination of such
Pre-Release or the Depositary knows that such Receipt has been
Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre- Release. Each Pre-Release will
be (a) preceded or accompanied by a written representation from
the person to whom Receipts are to be delivered that such person,
or its customer, owns the Shares or Receipts to be remitted, as
the case may be, (b) at all times fully collateralized with cash
or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The
number of American Depositary Shares which are outstanding at any
time as a result of Pre-Release will not normally exceed thirty
percent (30%) of the Shares deposited hereunder then outstanding;
provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems
appropriate.
The Depositary may retain for its own account any
compensation received by it in connection with the foregoing.
16
ARTICLE 3. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.
Section 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Holder
of a Receipt may be required from time to time to file with the
Depositary or the Custodian such proof of citizenship or
residence, exchange control approval, or such information
relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates
and to make such representations and warranties, as (i) the
Depositary may deem necessary or proper or (ii) the Company may
reasonably require by written notice to the Depositary. The
Depositary may withhold the delivery or registration of transfer
of any Receipt or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery
of any Deposited Securities until such proof or other information
is filed or such certificates are executed or such
representations and warranties made. If requested in writing,
the Depositary shall provide to the Company, in a timely manner,
copies of the information it receives pursuant to this Section
3.01.
Section 3.02 Liability of Holder for Taxes.
If any tax or other governmental charge shall become
payable with respect to any Receipt or any Deposited Securities
represented by American Depositary Shares evidenced by a Receipt,
such tax or other governmental charge shall be payable by the
17
Holder of such Receipt to the Depositary. The Depositary may
refuse to effect any transfer of such Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may
withhold any dividends or other distributions, or may sell for
the account of the Holder thereof any part or all of the
Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment
of such tax or other governmental charge and the Holder of such
Receipt shall remain liable for any deficiency.
Section 3.03 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit
Agreement shall be deemed thereby to represent and warrant that
such Shares and each certificate therefor are validly issued and
that such Shares are fully paid and nonassessable and that the
person making such deposit is duly authorized so to do. Every
such person shall also be deemed to represent that the deposit of
such Shares and the sale of Receipts evidencing American
Depositary Shares representing such Shares by that person are not
restricted under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of
Shares and issuance of Receipts.
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ARTICLE 4. THE DEPOSITED SECURITIES.
Section 4.01 Cash Distributions.
Whenever the Depositary or Custodian shall receive any
cash dividend or other cash distribution on any Deposited
Securities, the Depositary or Custodian shall, subject to the
provisions of Section 4.05, convert such dividend or
distribution, if received in any currency other than Dollars,
into Dollars and shall distribute the amount thus received (net
of the expenses of the Depositary as provided in Section 5.09) to
the Holders entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities
held by them respectively; provided, however, that in the event
that the Company, the Custodian or the Depositary shall be
required to withhold and does withhold from such cash dividend or
such other cash distribution an amount on account of taxes, the
amount distributed to the Holder of the Receipts evidencing
American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute
only such amount, however, as can be distributed without
attributing to any Holder a fraction of one cent. Any such
fractional amounts shall be rounded to the nearest whole cent and
so distributed to Holders entitled thereto. The Company or its
agent will remit to the appropriate governmental authority or
19
agency in Bermuda all amounts withheld and owing to such
authority or agency. The Depositary will forward to the Company
or its agent such information from its records as the Company may
reasonably request to enable the Company or its agent to file
necessary reports with governmental authorities or agencies, and
the Depositary or the Company or its agent may file any such
reports necessary to obtain benefits under the applicable tax
treaties for the Holders of Receipts.
Section 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and 5.09,
whenever the Depositary or the Custodian shall receive any
distribution other than a distribution described in
Sections 4.01, 4.03 or 4.04, the Depositary shall cause the
securities or property received by it to be distributed to the
Holders entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by
them respectively, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution;
provided, however, that if in the opinion of the Depositary it
cannot cause such securities or property to be distributed or
such distribution cannot be made proportionately among the
Holders entitled thereto, or if for any other reason (including,
but not limited to, any requirement that the Company or the
Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered
20
under the Securities Act of 1933 in order to be distributed to
Holders) the Depositary deems such distribution not to be
feasible, the Depositary may adopt such method as it may deem
equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or
private sale of the securities or property thus received, or any
part thereof, and the net proceeds of any such sale (net of the
fees of the Depositary as provided in Section 5.09) shall be
distributed by the Depositary to the Holders entitled thereto as
in the case of a distribution received in cash.
Section 4.03 Distributions in Shares.
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
evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or
free distribution, subject to the terms and conditions of this
Deposit Agreement with respect to the deposit of Shares and the
issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge
as provided in Section 4.11 and the payment of the fees of the
21
Depositary as provided in Section 5.09. In lieu of delivering
Receipts for fractional American Depositary Shares in any such
case, the Depositary shall sell the amount of Shares represented
by the aggregate of such fractions and distribute the net
proceeds in Dollars, all in the manner and subject to the
conditions described in Section 4.01. If additional Receipts are
not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon
the Deposited Securities represented thereby.
Section 4.04 Rights.
(a) In the event that the Company shall offer or cause to be
offered to the holders of any Deposited Securities any rights to
subscribe for additional Shares or any rights of any other
nature, the Depositary shall have discretion as to the procedure
to be followed in making such rights available to any Holders or
in disposing of such rights on behalf of any Holders and making
the net proceeds available to such Holders in Dollars; provided,
however, that the Depositary will, if requested by the Company,
take action as follows:
(i) if at the time of the offering of any rights the
Depositary determines in its discretion that it is lawful and
feasible to make such rights available to all or certain Holders
but not to other Holders, the Depositary shall distribute to any
Holder to whom it determines the distribution to be lawful and
feasible, in proportion to the number of American Depositary
22
Shares held by such Holder, warrants or other instruments
therefor in such form as it deems appropriate; and
(ii) if the Depositary determines in its discretion that
it is not lawful and feasible to make such rights available to
all or certain Holders by means of warrants or otherwise, it
shall to the extent practicable, subject to the provisions of
this Deposit Agreement, sell the rights, warrants or other
instruments in proportion to the number of American Depositary
Shares held by the Holders to whom it has determined it may not
lawfully or feasibly make such rights available, and distribute
the net proceeds of such sales (net of the fees of the Depositary
as provided in Section 5.09 and all taxes and governmental
charges payable in connection with such rights and subject to the
terms and conditions of this Deposit Agreement) to the Holders
otherwise entitled to such rights, warrants or other instruments,
upon an averaged or other practical basis without regard to any
distinctions among such Holders because of exchange restrictions
or the date of delivery of any Receipt or otherwise.
If by the terms of such rights offering or for any other
reason, the Depositary may not either make such rights available
to any Holders or dispose of such rights and make the net
proceeds available to such Holders, then the Depositary may allow
the rights to lapse.
(b) In circumstances in which rights would otherwise not be
made available to all or certain Holders, if a Holder of Receipts
23
requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary
Shares of such Holder hereunder, the Depositary will make such
rights available to such Holder upon written notice from the
Company to the Depositary that (i) the Company has elected in its
sole discretion to permit such rights to be exercised and (ii)
such Holder has executed such documents as the Company has
determined in its sole discretion are reasonably required under
applicable law.
The Depositary will not offer rights to Holders unless
the offer and issuance of such rights and the offer, issuance and
sale of the securities to which such rights relate are either
exempt from registration under the Securities Act of 1933 with
respect to a distribution to all Holders or are registered under
the provisions of such Act. If a Holder of Receipts requests the
distribution of warrants or other instruments, notwithstanding
that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has
received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such
distribution to such Holder is exempt from such registration.
The Company shall have no obligation to register such offer,
issuance or sale or to effect any such issuance, offer or sale
pursuant to any such exemption. In the case of a distribution
pursuant to an exemption from registration under the Securities
24
Act of 1933, such Receipts shall be legended in accordance with
applicable U.S. laws, and shall be subject to the appropriate
restrictions on sale, deposit, cancellation, and transfer under
such laws.
(c) If the Depositary has distributed warrants or other
instruments for rights to all or certain Holders, then upon
instruction from such a Holder pursuant to such warrants or other
instruments to the Depositary from such Holder to exercise such
rights, upon payment by such Holder to the Depositary for the
account of such Holder of an amount equal to the purchase price
of the Shares to be received upon the exercise of the rights, and
upon payment of the fees of the Depositary and any other charges
as set forth in such warrants or other instruments, the
Depositary shall, on behalf of such Holder, exercise the rights
and purchase the Shares, and the Company shall cause the Shares
so purchased to be delivered to the Depositary on behalf of such
Holder. As agent for such Holder, the Depositary will cause the
Shares so purchased to be deposited pursuant to Section 2.02 of
this Deposit Agreement, and shall, pursuant to Section 2.03 of
this Deposit Agreement, execute and deliver Receipts to such
Holder. If the rights represented by such warrants or such other
instruments are not exercised and appear to be about to lapse,
the Depositary in its discretion shall, to the extent
practicable, sell such rights or such warrants or other
instruments at public or private sale, at such place or places
25
and upon such terms as it may deem proper, and distribute the
proceeds of such sales to the Holders of Receipts otherwise
entitled to such rights, warrants or other instruments 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.
(d) The Depositary shall not be responsible for any failure
to determine that it may be lawful or feasible to make rights
available to Holders in general or any Holder in particular.
Section 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive
foreign currency (i.e. currency other than Dollars), by way of
dividends or other distributions or the net proceeds from the
sale of securities, property or rights, and if at the time of the
receipt thereof the foreign currency so received can in the
judgment of the Depositary be converted on a reasonable basis
into Dollars and the resulting Dollars transferred to the United
States, the Depositary shall convert or cause to be converted, by
sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars shall be distributed to
the Holders entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the
holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or
26
other practicable basis without regard to any distinctions among
Holders on account of exchange restrictions, the date of delivery
of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in
Section 5.09.
If such conversion or distribution can be effected only
with the approval or license of any government or authority or
agency thereof, the Depositary shall file such application for
approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in
its judgment any foreign currency received by the Depositary is
not convertible on a reasonable basis into Dollars transferable
to the United States, or if any approval or license of any
government or authority or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is
not obtainable, or if any such approval or license is not
obtained within a reasonable period as determined by the
Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such
foreign currency) received by the Depositary to, or in its
discretion may hold such foreign currency uninvested and without
liability for interest thereon for the respective accounts of,
the Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or
in part, cannot be effected for distribution to certain of the
27
Holders entitled thereto, the Depositary may in its discretion
make such conversion and distribution in Dollars to the extent
permissible to the Holders for whom such conversion and
distribution is practicable and may distribute the balance of the
foreign currency received by the Depositary to, or hold such
balance uninvested and without liability for interest thereon for
the respective accounts of, the Holders entitled thereto.
Section 4.06 Fixing of Record Date.
Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be
made, or whenever rights shall be issued with respect to the
Deposited Securities, or whenever for any reason there is a
change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other
Deposited Securities, the Depositary shall fix a record date
(a) for the determination of the Holders who shall be
(i) entitled to receive such dividend, distribution or rights or
the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such
meeting, or (b) on or after which each American Depositary Share
will represent the changed number of Shares. Subject to the
provisions of Sections 4.01 through 4.05 and to the other terms
and conditions of this Deposit Agreement, the Holders on such
record date shall be entitled, as the case may be, to receive the
28
amount distributable by the Depositary with respect to such
dividend or other distribution or such rights or the net proceeds
of sale thereof in proportion to the number of American
Depositary Shares held by them respectively and to give voting
instructions and to act in respect of any other such matter.
Section 4.07 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of
Shares or other Deposited Securities, if requested in writing by
the Company, the Depositary shall, as soon as practicable
thereafter, mail to the Holders a notice, the form of which
notice shall be in the sole discretion of the Depositary which
shall consult with the Company as to the form of such notice,
which notice shall contain (a) such information as is contained
in such notice of meeting (provided that in the event the
Depositary shall summarize such information as in contained in
the notice of meeting, such summary shall be approved by the
Company), (b) a statement that the Holders as of the close of
business on a specified record date will be entitled, subject to
any applicable provision of Bermuda law and of the Bye-laws of
the Company, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the amount of Shares or
other Deposited Securities represented by their respective
American Depositary Shares and (c) a brief statement as to the
manner in which such instructions may be given, including an
express indication that instructions may be given to the
29
Depositary to give a discretionary proxy to a person designated
by the Board of Directors of the Company. Upon the written
request of a Holder on such record date, received on or before
the date established by the Depositary for such purpose, the
Depositary shall endeavor, in so far as practicable, to vote or
cause to be voted the amount of Shares or other Deposited
Securities represented by the American Depositary Shares
evidenced by such Receipt in accordance with the instructions set
forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or
other Deposited Securities, other than in accordance with such
instructions.
If after complying with the procedures set forth in this
Section the Depositary does not receive instructions from the
Holder of a Receipt on or before the date established by the
Depositary for such purpose, the Depositary shall give a
discretionary proxy for the Shares evidenced by such Receipt to a
person designated by the Board of Directors of the Company.
Section 4.08 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 do
not apply, upon any change in nominal value, change in par value,
split-up, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, any securities
30
which shall be received by the Depositary or a Custodian in
exchange for or in conversion of or in respect of Deposited
Securities, shall be treated as new Deposited Securities under
this Deposit Agreement, and American Depositary Shares shall
thenceforth represent 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 dividend in Shares, or call for the surrender
of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
Section 4.09 Reports.
The Depositary shall make available for inspection by
Holders at its Corporate Trust Office any reports and
communications, including any proxy soliciting material, received
from the Company which are both (a) received by the Depositary as
the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the
Company. The Depositary shall also send to the Holders copies of
such reports when furnished by the Company pursuant to
Section 5.06.
31
Section 4.10 Lists of Holders.
Promptly upon request by the Company, the Depositary
shall, at the expense of the Company, furnish to it a list, as of
a recent date, of the names, addresses and holdings of American
Depositary Shares by all persons in whose names Receipts are
registered on the books of the Depositary.
Section 4.11 Withholding.
Notwithstanding any other provision of this Deposit
Agreement, in the event that the Depositary determines that any
distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental
charge which the Depositary is obligated to withhold, the
Depositary may by public or private sale dispose of all or a
portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay any such taxes
or charges and the Depositary shall distribute the net proceeds
of any such sale after deduction of such taxes or charges to the
Holders entitled thereto in proportion to the number of American
Depositary Shares held by them respectively.
32
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.
Section 5.01 Maintenance of Office and Transfer Books by the
Depositary.
Until termination of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain in the
Borough of Manhattan, The City of New York, facilities for the
execution and delivery, registration, registration of transfers
and surrender of Receipts in accordance with the provisions of
this Deposit Agreement.
The Depositary shall keep books for the registration of
Receipts and transfers of Receipts in the City of New York which
at all reasonable times shall be open for inspection by the
Holders; provided that such inspection shall not be for the
purpose of communicating with Holders in the interest of a
business or object other than the business of the Company of a
matter related to this Deposit Agreement or the Receipts. Such
books shall not be maintained in the United Kingdom.
The Depositary may close the transfer books, at any time
or from time to time, when deemed expedient by it in connection
with the performance of its duties hereunder.
If any Receipts or the American Depositary Shares
evidenced thereby are listed on one or more stock exchanges in
the United States (including the NASDAQ National Market System),
the Depositary shall act as Registrar or appoint a Registrar or
one or more co-registrars for registry of such Receipts in
33
accordance with any requirements of such exchange or exchanges.
Such Registrar or co-registrars may be removed and a substitute
or substitutes appointed by the Depositary upon consultation with
the Company.
Section 5.02 Prevention or Delay in Performance by the
Depositary or the Company.
Neither the Depositary nor the Company shall incur any
liability to any Holder of any Receipt, if by reason of any
provision of any present or future law or regulation of the
United States, Bermuda, the United Kingdom or any other country,
or of any governmental or regulatory authority or stock exchange,
or by reason of any provision, present or future, of the Bye-laws
of the Company, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or the Company
shall be prevented or forbidden from, or be subject to any civil
or criminal penalty on account of, doing or performing any act or
thing which by the terms of this Deposit Agreement it is provided
shall be done or performed; nor shall the Depositary or the
Company incur any liability to any Holder of any Receipt by
reason of any nonperformance or delay, caused as aforesaid, in
the performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement.
Where, by the terms of a distribution pursuant to Sections 4.01,
4.02, or 4.03 of the Deposit Agreement, or an offering or
34
distribution pursuant to Section 4.04 of the Deposit Agreement,
or for any other reason, such distribution or offering may not be
made available to Holders, and the Depositary may not dispose or
such distribution or offering on behalf of such Holders and make
the net proceeds available to such Holders, then the Depositary
shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
Section 5.03 Obligations of the Depositary, the Custodian and
the Company.
The Company assumes no obligation nor shall it be
subject to any liability under this Deposit Agreement to Holders
of Receipts, except that it agrees to use its best judgment and
to act in good faith in the performance of its obligations
specifically set forth in this Deposit Agreement.
The Depositary assumes no obligation nor shall it be
subject to any liability under this Deposit Agreement to any
Holder of any Receipt (including, without limitation, liability
with respect to the validity or worth of the Deposited
Securities), except that it agrees to use its best judgment and
to act in good faith in the performance of its obligations
specifically set forth in this 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 or liability, unless indemnity satisfactory to it against
35
all expense 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 shall be liable
for any action or nonaction by it in reliance upon the advice of
or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder or any other person
believed by it in good faith to be competent to give such advice
or information.
The Depositary shall not be liable for any acts or
omissions made by a successor depositary whether in connection
with a previous act or omission of the Depositary or in
connection with any matter arising wholly after the removal or
resignation of the Depositary, provided that in connection with
the issue out of which such potential liability arises the
Depositary performed its obligations without negligence or bad
faith while it acted as Depositary.
The Depositary shall not be responsible for any failure
to carry out any instructions to vote any of the Deposited
Securities, or for the manner in which any such vote is cast or
the effect of any such vote, provided that any such action or
nonaction is in good faith.
No disclaimer of liability under the Securities Act of
1933 is intended by any provision of this Deposit Agreement.
36
Section 5.04 Resignation and Removal of the Depositary;
Appointment of Successor Depositary.
The Depositary may at any time resign as Depositary
hereunder by written notice of its election so to do delivered to
the Company, such resignation to take effect upon the appointment
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 effective upon the appointment
of a successor depositary and its acceptance of such appointment
as hereinafter provided.
In case at any time the Depositary acting hereunder
shall resign or be removed, the Company shall use its best
efforts to appoint a successor depositary, which shall be a bank
or trust company having an office in the Borough of Manhattan,
The City of New York. Every successor depositary shall execute
and deliver to its predecessor and to the Company an instrument
in writing accepting its appointment hereunder, and thereupon
such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and
obligations of its predecessor; but such predecessor,
nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument
transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Deposited Securities to such
37
successor, and shall deliver to such successor a list of the
Holders of all outstanding Receipts. Any such successor
depositary shall promptly mail notice of its appointment to the
Holders.
Any corporation into or with which the Depositary may be
merged or consolidated shall be the successor of the Depositary
without the execution or filing of any document or any further
act.
Section 5.05 The Custodians.
Each Custodian shall be subject at all times and in all
respects to the directions of the Depositary and shall be
responsible solely to it. Any Custodian may resign and be
discharged from its duties hereunder by notice of such
resignation delivered to the Depositary at least 30 days prior to
the date on which such resignation is to become effective. If
upon such resignation there shall be no Custodian acting
hereunder, the Depositary shall, promptly after receiving such
notice, appoint a substitute custodian or custodians, each of
which shall thereafter be a Custodian hereunder. Whenever the
Depositary in its discretion determines that it is in the best
interest of the Holders to do so, it may appoint substitute or
additional custodian or custodians, which shall thereafter be one
of the Custodians hereunder. Upon demand of the Depositary any
Custodian shall deliver such of the Deposited Securities held by
it as are requested of it to any other Custodian or such
38
substitute or additional custodian or custodians. Each such
substitute or additional custodian shall deliver to the
Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary
hereunder, each Custodian then acting hereunder shall forthwith
become, without any further act or writing, the agent hereunder
of such successor depositary and the appointment of such
successor depositary shall in no way impair the authority of each
Custodian hereunder; but the successor depositary so appointed
shall, nevertheless, on the written request of any Custodian,
execute and deliver to such Custodian all such instruments as
may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
Section 5.06 Notices and Reports.
On or before the first date on which the Company gives
notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting
of such holders, or of the taking of any action in respect of any
cash or other distributions or the offering of any rights in
respect of Deposited Securities, the Company agrees to transmit
to the Depositary and the Custodian a copy of the notice thereof
in the form given or to be given to holders of Shares or other
Deposited Securities.
39
The Company will arrange for the prompt transmittal to
the Depositary and the Custodian of such notices and any other
reports and communications which are made generally available by
the Company to holders of its Shares. If requested in writing by
the Company, the Depositary will arrange for the mailing, at the
Company's expense, of copies of such notices, reports and
communications to all Holders. The Company will timely provide
the Depositary with the quantity of such notices, reports, and
communications, as requested by the Depositary from time to time,
in order for the Depositary to effect such mailings.
Section 5.07 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance to
holders of Shares generally or distribution of (1) additional
Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such
securities (each a "Distribution"), the Company will promptly
furnish to the Depositary upon the request of the Depositary a
written opinion from U.S. counsel for the Company, which counsel
shall be satisfactory to the Depositary, stating whether or not
the Distribution requires a Registration Statement under the
Securities Act of 1933 to be in effect prior to making such
Distribution available to Holders entitled thereto. If in the
opinion of such counsel a Registration Statement is required,
such counsel shall furnish to the Depositary a written opinion as
40
to whether or not there is a Registration Statement in effect
which will cover such Distribution.
The Company agrees with the Depositary that neither the
Company nor any company controlled by, controlling or under
common control with the Company will at any time deposit any
Shares, either originally issued or previously issued and
reacquired by the Company or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the
Securities Act of 1933.
The Depositary will comply with written instructions of
the Company not to accept for deposit hereunder any Shares
identified in such instructions in order to facilitate the
Company's compliance with the securities laws of the United
States.
Section 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its
directors, employees, agents and affiliates and any Custodian
against, and to hold each of them harmless from, any liability or
expense (including, but not limited to, the fees and expenses of
counsel) which may arise out of any registration with the
Commission of Receipts, American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or
out of acts performed or omitted, in accordance with the
provisions of this Deposit Agreement and of the Receipts, as the
same may be amended, modified or supplemented from time to time,
41
(i) by either the Depositary or a Custodian or their respective
directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith
of either of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Company, its
directors, employees, agents and affiliates and hold them
harmless from any liability or expense which may arise out of
acts performed or omitted by the Depositary or its Custodian or
their respective directors, employees, agents and affiliates due
to their negligence or bad faith.
Section 5.09 Charges of Depositary.
The Company agrees to pay the fees, charges and
reasonable out-of-pocket expenses of the Depositary and those of
any Registrar in accordance with and only to the extent provided
for in written agreements entered into between the Depositary and
the Company from time to time. The Depositary shall present its
statement for such charges and expenses to the Company once every
three months. The charges and expenses of the Custodian are for
the sole account of the Depositary.
The following charges shall be incurred by any party
depositing or withdrawing Shares or by any party surrendering
Receipts or to whom Receipts are issued (including, without
limitation, issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the
42
Receipts or Deposited Securities or a distribution of Receipts
pursuant to Section 4.03), whichever applicable: (1) taxes and
other governmental charges, (2) such registration fees as may
from time to time be in effect for the registration of transfers
of Shares generally on the Share register of the Company or
Foreign Registrar and applicable to transfers of Shares to the
name of the Depositary or its nominee or the Custodian or its
nominee on the making of deposits or withdrawals hereunder,
(3) such cable, telex and facsimile transmission expenses as are
expressly provided in this Deposit Agreement, (4) such expenses
as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee not in excess of
$5.00 per 100 American Depositary Shares (or portion thereof) for
the execution and delivery of Receipts pursuant to Sections 2.03
or 4.03 and the surrender of Receipts pursuant to Section 2.05,
(6) a fee not in excess of $2.00 per 100 American Depositary
Receipts for any cash distributions pursuant to Section 4.01 and
(7) a fee for the distribution of proceeds of sales of securities
or rights pursuant to Section 4.02 or 4.04, respectively, such
fee being in an amount equal to the fee for the issuance of
American Depositary Shares referred to above which would have
been charged as a result of the deposit by Holders of securities
(for purposes of this clause (7) treating all such securities as
if they were Shares) or Shares received in exercise of rights
distributed to them pursuant to Section 4.02 or 4.04,
43
respectively, but which securities or rights are instead sold by
the Depositary and the net proceeds distributed, which fee shall
be deducted from the proceeds distributed.
Section 5.10 Certain Rights of the Depositary; Limitations.
The Depositary, subject to Section 2.09 hereof, may own
and deal in any class of securities of the Company and its
affiliates and in Receipts.
Section 5.11 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents,
records, bills and other data compiled during the term of this
Deposit Agreement at the times permitted by the laws or
regulations governing the Depositary unless the Company requests
that such papers be retained for a longer period or turned over
to the Company or to a successor depositary.
Section 5.12 Exclusivity.
Subject to Section 5.04 hereof, the Company agrees not
to appoint any other depositary for issuance of American
Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder.
ARTICLE 6. AMENDMENT AND TERMINATION.
Section 6.01 Amendment.
The form of the Receipts and any provisions of this
Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in
any respect which they may deem necessary or desirable. Any
44
amendment which shall impose or increase any fees or charges
(other than taxes and other governmental charges, registration
fees, cable, telex or facsimile transmission costs, delivery
costs or other such expenses), or which shall otherwise prejudice
any substantial existing right of Holders, shall, however, not
become effective as to outstanding Receipts until the expiration
of sixty (60) days after notice of such amendment shall have been
given to the Holders of outstanding Receipts. Every Holder at
the time any amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the
Holder of any Receipt to surrender such Receipt and receive
therefor the Deposited Securities represented by American
Depositary Shares evidenced thereby, except for such amendments
as are made in order to comply with mandatory provisions of
applicable law.
Section 6.02 Termination.
The Depositary shall at any time at the direction of the
Company, terminate this Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding
at least ninety (90) days prior to the date fixed in such notice
for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of such termination to the
Company and the Holders of all Receipts then outstanding if at
45
any time ninety (90) days shall have expired after the Depositary
shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in
Section 5.04. On and after the date of termination, the Holder
of a Receipt will, upon (a) surrender of such Receipt at the
Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in
Section 2.05, and (c) payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination,
the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends
and other distributions pertaining to Deposited Securities, shall
sell rights as provided in this Deposit Agreement, and shall
continue to deliver Deposited Securities, together with any
dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property,
in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the
46
surrender of a Receipt, any expenses for the account of the
Holder of such Receipt in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or
governmental charges). At any time after the expiration of one
year from the date of termination, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, unsegregated and without
liability for interest, for the pro rata benefit of the Holders
of Receipts which have not theretofore been surrendered, such
Holders thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under this
Deposit Agreement, except to account for such net proceeds and
other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the
account of the Holder of such Receipt in accordance with the
terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination
of this Deposit Agreement, the Company shall be discharged from
all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.08 and 5.09
hereof.
47
ARTICLE 7. MISCELLANEOUS.
Section 7.01 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all
of such counterparts shall constitute one and the same
instrument. Copies of this Deposit Agreement shall be filed with
the Depositary and each Custodian and shall be open to inspection
by any Holder of a Receipt during business hours.
Section 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of
the parties hereto and shall not be deemed to give any legal or
equitable right, remedy or claim whatsoever to any other person.
Section 7.03 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 7.04 Holders as Parties; Binding Effect.
The Holders of Receipts from time to time shall by
accepting or holding a Receipt or by seeking or accepting
registration of a Receipt on the books of the Depositary shall be
parties to this Deposit Agreement and shall be bound by all of
the terms and conditions hereof and of the Receipts.
48
Section 7.05 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 or air courier or cable, telex or facsimile transmission
confirmed by letter, addressed to Xxxxxxxxxx Xxxxx, 0 Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx XX00, Xxxxxxx, or any other place to which
the Company may have transferred its principal office.
Any and all notices to be given to the Depositary shall
be deemed to have been duly given if in English and personally
delivered or sent by mail or air courier or by cable, telex or
facsimile transmission confirmed by letter, addressed to The Bank
of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: American Depositary Receipt Administration, or any
other place to which the Depositary may have transferred its
Corporate Trust Office.
Any and all notices to be given to any Holder shall be
deemed to have been duly given if personally delivered or sent by
mail or air courier or by cable, telex or facsimile transmission
confirmed by letter, addressed to such Holder at the address of
such Holder as it appears on the transfer books for Receipts of
the Depositary, or, if such Holder shall have filed with the
Depositary a written request that notices intended for such
Holder be mailed to some other address, at the address designated
in such request.
49
Delivery of a notice sent by mail or air courier or by
cable, telex or facsimile transmission shall be deemed to be
effective at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a cable, telex or
facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service.
The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding
that such cable, telex or facsimile transmission shall not
subsequently be confirmed by letter as aforesaid.
Section 7.06 Governing Law.
This Deposit Agreement and the Receipts shall be
interpreted and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by the laws of
the State of New York.
Section 7.07 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to
the contrary, the Company and the Depositary each agrees that it
will not exercise any rights it has under this Deposit Agreement
to prevent the withdrawal or delivery of Deposited Securities in
a manner which would violate the United States securities laws,
including, but not limited to, Section I A(1) of the General
Instructions to the Form F-6 Registration Statement, as amended
from time to time, under the Securities Act of 1933.
50
IN WITNESS WHEREOF, FRONTLINE LTD. LIMITED and THE BANK
OF NEW YORK have duly executed this agreement as of the day and
year first set forth above, and all Holders shall become parties
hereto upon acceptance by them of Receipts issued in accordance
with the terms hereof.
FRONTLINE LTD.
By:______________________
THE BANK OF NEW YORK,
as Depositary
By:____________________
51
Exhibit A to Deposit Agreement
___________________________
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents one
deposited Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF THE
PAR VALUE OF $2.50 EACH OF
FRONTLINE LTD.
(INCORPORATED UNDER THE LAWS OF BERMUDA)
The Bank of New York as depositary (hereinafter called the
"Depositary"), hereby certifies that _______________________
_____________________________________________________________
_________________________________________, or registered assigns
IS THE HOLDER OF _______________________________________________
AMERICAN DEPOSITARY SHARES
representing deposited Ordinary Shares (herein called "Shares")
of Frontline Ltd., incorporated under the laws of Bermuda (herein
called the "Company"). At the date hereof, each American
Depositary Share represents one (1) Share which are either
deposited or subject to deposit under the deposit agreement at
the London, England office of The Bank of New York ( herein
called the "Custodian"). The Depositary's Corporate Trust Office
is located at a different address than its principal executive
office. Its Corporate Trust Office is located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive office
is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein
called "Receipts"), all issued and to be issued upon the terms
and conditions set forth in the deposit agreement, dated as of
November 24, 1993, amended and restated as of _______, 2001
(herein called 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 or holding
a Receipt agrees to become a party thereto and become bound by
all the terms and conditions thereof. The Deposit Agreement sets
forth the rights of Holders of the Receipts and the rights and
duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash
from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property, and cash are
herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Depositary's Corporate Trust Office
in New York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are
qualified by and subject to the detailed provisions of the
Deposit Agreement, to which reference is hereby made. Capitalized
terms not defined herein shall have the meanings set forth in the
Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the
Depositary of this Receipt, and upon payment of the fee of the
Depositary provided in this Receipt and all applicable taxes and
governmental charges, and subject to the terms and conditions of
the Deposit Agreement, the Holder hereof is entitled to delivery,
to him or upon his order, of the amount Deposited Securities at
the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities
(a) 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 properly endorsed or accompanied by proper
instruments of transfer and (b) shall include any other
securities, property and cash to which such Holder is then
entitled in respect of this Receipt. Such delivery will be made
at the option of the Holder hereof, either at the office of the
Custodian or at the Corporate Trust Office of the Depositary,
provided that the forwarding of certificates for Shares or other
Deposited Securities for such delivery at the Corporate Trust
Office of the Depositary shall be at the risk and expense of the
Holder hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of
the Depositary at its Corporate Trust Office by the Holder hereof
in person or by a duly authorized attorney, upon surrender of
this Receipt properly endorsed for transfer or accompanied by
proper instruments of transfer and funds sufficient to pay any
applicable transfer taxes and governmental charges and the
expenses of the Depositary and upon compliance with such
regulations, if any, as the Depositary may establish for such
purpose. This Receipt may be split into other such Receipts, or
may be combined with other such Receipts into one Receipt,
evidencing the same aggregate number of American Depositary
Shares as the Receipt or Receipts surrendered. As a condition
precedent to the execution and delivery, registration of
2
transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the
Custodian, or Registrar may require payment from the presentor of
the Receipt of a sum sufficient to reimburse it for any tax or
other governmental charge (including without limitation any tax
or governmental charge provided for in Section 2.02, 2.03, 2.04,
2.05 or 3.02) of the Deposit Agreement and any stock transfer or
registration fee with respect thereto (including any such tax or
charge and fee with respect to Shares being deposited or
withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it
as to the identity and genuineness of any signature and may also
require compliance with any regulations the Depositary may
establish consistent with the provisions of the Deposit Agreement
or this Receipt, including, without limitation, paragraph ( 3) of
this Receipt and subject in all cases to paragraph (22) of this
Receipt.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, 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 Depositary or the Company are closed, or if
any such action is deemed necessary or advisable by the
Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or
governmental body or commission, or under any provision of the
Deposit Agreement or this Receipt, or for any other reason,
subject to the provisions of the following sentence. The
surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended, except for ( i) temporary delays
caused by closing the transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a
shareholders' meeting, or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance
with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited
Securities. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under the Deposit
Agreement any Shares required to be registered under the
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 respect to any Receipt or any Deposited Securities
represented by American Depositary Shares evidenced hereby, such
tax or other governmental charge shall be payable by the Holder
hereof to the Depositary. The Depositary may refuse to effect
3
any transfer of this Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of
the Holder hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this
Receipt, and may apply such dividends or other distributions or
the proceeds of any such sale in payment of such tax or other
governmental charge and the Holder hereof shall remain liable for
any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares
and each certificate therefor are validly issued and that such
Shares are fully paid and non assessable and that the person
making such deposit is duly authorized so to do. Every such
person shall also be deemed to represent that the deposit of such
Shares and the sale of Receipts evidencing American Depositary
Shares representing such Shares by that person are not restricted
under the Securities Act of 1933. Such representations and
warranties shall survive the deposit of Shares and issuance of
Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Holder of a
Receipt may be required from time to time to file with the
Depositary or the Custodian such proof of citizenship or
residence, exchange control approval, or such information
relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates
and to make such representations and warranties, as (i) the
Depositary may deem necessary or proper or (ii) the Company may
reasonably require by written notice to the Depositary. The
Depositary may withhold the delivery or registration of transfer
of any Receipt or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery
of any Deposited Securities until such proof or other information
is filed or such certificates are executed or such
representations and warranties made. No Share shall be accepted
for deposit unless accompanied by evidence satisfactory to the
Depositary (which may be an opinion of counsel) that any
necessary approval has been granted by any governmental body in
Bermuda which is then performing the function of the regulation
of currency exchange.
4
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, charges, and reasonable
out-of-pocket expenses of the Depositary and those of any
Registrar in accordance with and only to the extent provided for
in written agreements entered into between the Depositary and the
Company from time to time. The Depositary shall present its
statement for such charges and expenses to the Company once every
three months. The charges and expenses of the Custodian are for
the sole account of the Depositary.
The following charges shall be incurred by any party
depositing or withdrawing Shares or by any party surrendering
Receipts or to whom Receipts are issued (including, without
limitation, issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts
pursuant to Section 4.03 [Distribution in Shares] of the Deposit
Agreement), whichever applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time
to time be in effect for the registration of transfers of Shares
generally on the Share register of the Company or Foreign
Registrar and applicable to transfers of Shares to the name of
the Depositary or its nominee or the Custodian or its nominee on
the making of deposits or withdrawals hereunder, (3) such cable,
telex and facsimile transmission expenses as are expressly
provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency
pursuant to Section 4.05 [Conversion of Foreign Currency] of the
Deposit Agreement, (5) a fee not in excess of $5.00 per 100
American Depositary Shares (or portion thereof) for the execution
and delivery of Receipts pursuant to Sections 2.03 [Execution and
Delivery of Receipts], or 4.03 [Distribution in Shares], and the
surrender of Receipts pursuant to Section 2.05 [Surrender of
Receipts and Withdrawal of Shares] of the Deposit Agreement, (6)
a fee not in excess of $2.00 per 100 American Depositary Receipts
for any cash distributions pursuant to Section 4.01 [Cash
Distributions] of the Deposit Agreement and (7) a fee for the
distribution of proceeds of sales of securities or rights
pursuant to Sections 4.02 [Distributions other than Cash Shares
or Rights] or 4.04 [Rights], respectively, of the Deposit
Agreement, such fee being in an amount equal to the fee for the
issuance of American Depositary Shares referred to above which
would have been charged as a result of the deposit by Holders of
securities (for purposes of this clause (7) treating all such
securities as if they were Shares) or Shares received in exercise
of rights distributed to them pursuant to Sections 4.02
[Distributions other than Cash Shares or Rights] or 4.04 [Shares]
respectively, of the Deposit Agreement, but which securities
rights are instead sold by the Depositary, and the net proceeds
5
distributed, which fee shall be deducted from the proceeds
distributed.
The Depositary, subject to Paragraph (8) hereof, may own and deal
in any class of securities of the Company and its affiliates and
in Receipts.
8. PRE-RELEASE OF SHARES AND RECEIPTS.
Notwithstanding Section 2.03 [Execution and Delivery of
Receipts] of the Deposit Agreement, the Depositary may execute
and deliver Receipts prior to the receipt of Shares pursuant to
Section 2.02 [Deposit of Shares] of the Deposit Agreement
("Pre-Release"). The Depositary may, pursuant to Section 2.05
[Surrender of Receipts and Withdrawal of Shares] of the Deposit
Agreement, deliver Shares upon the receipt and cancellation of
Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or
the Depositary knows that such Receipt has been Pre-Released.
The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a)
preceded or accompanied by a written representation from the
person to whom Receipts are to be delivered that such person, or
its customer, owns the Shares or Receipts to be remitted, as the
case may be, (b) at all times fully collateralized with cash or
such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The
number of American Depositary Shares which are outstanding at any
time as a result of Pre-Release will not normally exceed thirty
percent (30%) of the Shares deposited under the Deposit
Agreement; provided, however, that the Depositary reserves the
right to change or disregard such limit from time to time as it
deems appropriate.
The Depositary may retain for its own account any
compensation received by it in connection with the foregoing.
9. 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 the American Depositary
Shares evidenced hereby) when properly endorsed or accompanied by
proper instruments of transfer, is transferable by delivery with
the same effect as in the case of a negotiable instrument;
provided, however, that the Depositary, notwithstanding any
notice to the contrary, may treat the person in whose name this
Receipt is registered on the books of the Depositary as the
absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or
6
to any notice provided for in the Deposit Agreement and for all
other purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed by the Depositary by
the manual or facsimile signature of a duly authorized signatory
of the Depositary and, if a Registrar for the Receipts shall have
been appointed, countersigned by the manual signature of a duly
authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements
of the Securities Exchange Act of 1934 and, accordingly, files
certain reports with the Securities and Exchange Commission
(hereinafter called the "Commission").
Such reports and communications will be available for inspection
and copying by Holders at the public reference facilities
maintained by the Commission located at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Holders
of Receipts at its Corporate Trust Office any reports and
communications, including any proxy soliciting material, received
from the Company which are both (a) received by the Depositary as
the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the
Company. The Depositary will also send to Holders of Receipts
copies of such reports when furnished by the Company pursuant to
the Deposit Agreement.
The Depositary will keep books for the registration of
Receipts and transfers of Receipts in the City of New York, which
at all reasonable times shall 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.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary or the Custodian receives any cash
dividend or other cash distribution on any Deposited Securities,
the Depositary or the Custodian will, subject to the Deposit
Agreement, convert such dividend or distribution, if received in
a foreign currency (i.e. a currency other than Dollars), and
such amounts received in a foreign currency can in the judgment
7
of the Depositary be converted on a reasonable basis into United
States Dollars transferable to the United States, and will
distribute the amount thus received (net of expenses in the case
of amounts converted from foreign currency) to the Holders of
Receipts entitled thereto, provided, however, that in the event
that 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, the amount distributed to the Holders of the
Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly.
Subject to the provisions of Section 4.11 [Withholding] and
5.09 [Charges of the Depositary] of the Deposit Agreement,
whenever the Depositary or the Custodian receives any
distribution (other than a distribution of cash, Shares, rights
to subscribe for Shares or rights of any other nature), the
Depositary will cause the securities or property received by it
to be distributed to the Holders of Receipts entitled thereto, in
any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution; provided, however, that if
in the opinion of the Depositary it cannot cause such securities
or property to be distributed or such distribution cannot be made
proportionately among the Holders of Receipts entitled thereto,
or if for any other reason the Depositary deems such distribution
not to be feasible, the Depositary may adopt such method as it
may deem equitable and practicable for the purpose of effecting
such distribution, including, but not limited to, the public or
private sale of the securities or property thus received, or any
part thereof, and the net proceeds of any such sale (net of the
fees of the Depositary as provided in Section 5.09 [Charges of
the Depositary] of the Deposit Agreement) shall be distributed by
the Depositary to the Holders of Receipts entitled thereto as in
the case of a distribution received in cash.
If any distribution 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,
additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as
such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit
of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or
other governmental charge as provided in Section 4.11
[Withholding] of the Deposit Agreement and the payment of the
fees of the Depositary as provided in Section 5.09 of the Deposit
Agreement. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary will
sell the amount of Shares represented by the aggregate of such
8
fractions and distribute the net proceeds in Dollars, all in the
manner and subject to the conditions set forth in Section 4.01
[Cash Distributions] of the Deposit Agreement. If additional
Receipts are not so distributed, each American Depositary Share
shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
Notwithstanding any other provision of the Deposit Agreement
or this Receipt, in the event that the Depositary determines that
any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental
charge which the Depositary is obligated to withhold, the
Depositary may by public or private sale dispose of all or a
portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay any such taxes
or charges, and the Depositary shall distribute the net proceeds
of any such sale after deduction of such taxes or charges to the
Holders of Receipts entitled thereto.
13. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive
foreign currency (i.e. currency other than Dollars), by way of
dividends or other distributions or the net proceeds from the
sale of securities, property or rights, and if at the time of the
receipt thereof the foreign currency so received can in the
judgment of the Depositary be converted on a reasonable basis
into Dollars and the resulting Dollars transferred to the United
States, the Depositary shall convert or cause to be converted, by
sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars shall be distributed to
the Holders entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the
holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or
other practicable basis without regard to any distinctions among
Holders on account of exchange restrictions, the date of delivery
of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in
Section 5.09 [Charges of the Depositary] of the Deposit
Agreement.
If such conversion or distribution can be effected only with
the approval or license of any government or authority or agency
thereof, the Depositary shall file such application for approval
or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its
judgment any foreign currency received by the Depositary is not
9
convertible on a reasonable basis into Dollars transferable to
the United States, or if any approval or license of any
government or authority or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is
not obtainable, or if any such approval or license is not
obtained within a reasonable period as determined by the
Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such
foreign currency) received by the Depositary to, or in its
discretion may hold such foreign currency uninvested and without
liability for interest thereon for the respective accounts of,
the Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or in
part, cannot be effected for distribution to certain of the
Holders entitled thereto, the Depositary may in its discretion
make such conversion and distribution in Dollars to the extent
permissible to the Holders for whom such conversion and
distribution is practicable and may distribute the balance of the
foreign currency received by the Depositary to, or hold such
balance uninvested and without liability for interest thereon for
the respective accounts of, the Holders entitled thereto.
14. RIGHTS.
(a) In the event that the Company shall offer or cause to be
offered to the holders of any Deposited Securities any rights to
subscribe for additional Shares or any rights of any other
nature, the Depositary shall have discretion as to the procedure
to be followed in making such rights available to any Holders or
in disposing of such rights on behalf of any Holders and making
the net proceeds available to such Holders in Dollars; provided,
however, that the Depositary will, if requested by the Company,
take action as follows:
(i) if at the time of the offering of any rights the
Depositary determines in its discretion that it is lawful and
feasible to make such rights available to all or certain Holders
but not to other Holders, the Depositary shall distribute to any
Holder to whom it determines the distribution to be lawful and
feasible, in proportion to the number of American Depositary
Shares held by such Holder, warrants or other instruments
therefor in such form as it deems appropriate; and
(ii) if the Depositary determines in its discretion that
it is not lawful and feasible to make such rights available to
all or certain Holders by means of warrants or otherwise, it
shall to the extent practicable, subject to the provisions of the
Deposit Agreement, sell the rights, warrants or other instruments
in proportion to the number of American Depositary Shares held by
the Holders to whom it has determined it may not lawfully or
10
feasibly make such rights available, and distribute the net
proceeds of such sales (net of the fees of the Depositary as
provided in Section 5.09 [Charges of the Depositary] of the
Deposit Agreement and all taxes and governmental charges payable
in connection with such rights and subject to the terms and
conditions of the Deposit Agreement) to the Holders otherwise
entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any
distinctions among such Holders because of exchange restrictions
or the date of delivery of any Receipt or otherwise.
If by the terms of such rights offering or for any other
reason, the Depositary may not either make such rights available
to any Holders or dispose of such rights and make the net
proceeds available to such Holders, then the Depositary may allow
the rights to lapse.
(b) In circumstances in which rights would otherwise not be
made available to all or certain Holders, if a Holder of Receipts
requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary
Shares of such Holder hereunder, the Depositary will make such
rights available to such Holder upon written notice from the
Company to the Depositary that (i) the Company has elected in
its sole discretion to permit such rights to be exercised and
(ii) such Holder has executed such documents as the Company has
determined in its sole discretion are reasonably required under
applicable law.
In the case of a distribution pursuant to an exemption from
registration under the Securities Act of 1933, such Receipts
shall be legended in accordance with applicable U.S. laws, and
shall be subject to the appropriate restrictions on sale,
deposit, cancellation, and transfer under such laws.
The Depositary will not offer rights to Holders unless the
offer and issuance of such rights and the offer, issuance and
sale of the securities to which such rights relate are either
exempt from registration under the Securities Act of 1933 with
respect to a distribution to all Holders or are registered under
the provisions of such Act. If a Holder of Receipts requests the
distribution of warrants or other instruments, notwithstanding
that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has
received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such
distribution to such Holder is exempt from such registration.
The Company shall have no obligation to register such offer,
issuance or sale or to effect any such issuance, offer or sale
pursuant to any such exemption.
11
(c) If the Depositary has distributed warrants or other
instruments for rights to all or certain Holders, then upon
instruction from such a Holder pursuant to such warrants or other
instruments to the Depositary from such Holder to exercise such
rights, upon payment by such Holder to the Depositary for the
account of such Holder of an amount equal to the purchase price
of the Shares to be received upon the exercise of the rights, and
upon payment of the fees of the Depositary and any other charges
as set forth in such warrants or other instruments, the
Depositary shall, on behalf of such Holder, exercise the rights
and purchase the Shares, and the Company shall cause the Shares
so purchased to be delivered to the Depositary on behalf of such
Holder. As agent for such Holder, the Depositary will cause the
Shares so purchased to be deposited pursuant to Section 2.02 of
the Deposit Agreement, and shall, pursuant to Section 2.03 of the
Deposit Agreement, execute and deliver Receipts to such Holder.
If the rights represented by such warrants or such other
instruments are not exercised and appear to be about to lapse,
the Depositary in its discretion shall, to the extent
practicable, sell such rights or such warrants or other
instruments at public or private sale, at such place or places
and upon such terms as it may deem proper, and distribute the
proceeds of such sales to the Holders of Receipts otherwise
entitled to such rights, warrants or other instruments 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.
(d) The Depositary shall not be responsible for any failure
to determine that it may be lawful or feasible to make rights
available to Holders in general or any Holder in particular.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made,
or whenever rights shall be issued with respect to the Deposited
Securities, or whenever for any reason there is a change in the
number of Shares that are represented by each American Depositary
Share, or whenever the Depositary shall receive notice of any
meeting of holders of Shares or other Deposited Securities, the
Depositary shall fix a record date (a) for the determination of
the Holders of Receipts who shall be (i) entitled to receive such
dividend, distribution or rights or the net proceeds of the sale
thereof or (ii) entitled to give instructions for the exercise of
voting rights at any such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of
Shares, subject to the provisions of the Deposit Agreement.
12
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or
other Deposited Securities, if requested in writing by the
Company, the Depositary shall, as soon as practicable thereafter,
mail to the Holders of Receipts a notice, the form of which
notice shall be in the sole discretion of the Depositary which
shall consult with the Company, as to the form of such notice,
which notice shall contain (a) such information as is contained
in such notice of meeting, (provided that in the event the
Depositary shall summarize such information as is contained in
the notice of meeting, such summary shall be approved by the
Company) (b) a statement that the Holders of Receipts as of the
close of business on a specified record date will be entitled,
subject to any applicable provision of Bermuda law and of the
Bye-laws of the Company, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount
of Shares or other Deposited Securities represented by their
respective American Depositary Shares and (c) a brief statement
as to the manner in which such instructions may be given,
including an express indication that instructions may be given to
the Depositary to give a discretionary proxy to a person
designated by the Board of Directors of the Company. Upon the
written request of a Holder of a Receipt on such record date,
received on or before the date established by the Depositary for
such purpose, the Depositary shall endeavor in so far as
practicable to vote or cause to be voted the amount of Shares or
other Deposited Securities represented by such American
Depositary Shares evidenced by such Receipt in accordance with
the instructions set forth in such request.
If after complying with the procedures set forth in the above
paragraph the Depositary does not receive instructions from the
Holder of a Receipt on or before the date established by the
Depositary for such purpose, the Depositary will give a
discretionary proxy for the Shares evidenced by such Receipt to a
person designated by the Board of Directors of the Company.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03
[Distribution in Shares] of the Deposit Agreement do not apply,
upon any change in nominal value, change in par value, split-up,
consolidation, or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger
or consolidation, or sale of assets affecting the Company or to
which it is a party, any securities which shall be received by
the Depositary or a Custodian in exchange for or in conversion of
or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent the new Deposited
13
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
dividend in Shares, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company shall incur any
liability to any Holder of any Receipt, if by reason of any
provision of any present or future law or regulation of the
United States, Bermuda, the United Kingdom or any other country,
or of any other governmental or regulatory authority or stock
exchange, or by reason of any provision, present or future, of
the Bye-laws of the Company, or by reason of any act of God or
war or other circumstances beyond its control, the Depositary or
the Company shall be prevented or forbidden from or be subject to
any civil or criminal penalty on account of, doing or performing
any act or thing which by the terms of the Deposit Agreement it
is provided shall be done or performed; nor shall the Depositary
or the Company incur any liability to any Holder of a Receipt by
reason of any nonperformance or delay, caused as aforesaid, in
the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement.
Where, by the terms of a distribution pursuant to Sections 4.01
[Cash Distributions], 4.02 [Distributions Other Than Cash Shares
or Rights], or 4.03 [Distributions in Shares] of the Deposit
Agreement, or an offering or distribution pursuant to Section
4.04 [Rights] of the Deposit Agreement or for any other reason,
such distribution or offering may not be made available to
Holders of Receipts, and the Depositary may not dispose of such
distribution or offering on behalf of such Holders and make the
net proceeds available to such Holders, then the Depositary shall
not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the
Depositary assumes any obligation nor shall either of them be
subject to any liability under the Deposit Agreement to Holders
of Receipts, except that they agree to use their best judgment
and to act in good faith in the performance of their obligations
specifically set forth in the Deposit Agreement. The Depositary
shall not be subject to any liability with respect to the
validity or worth of the Deposited Securities. Neither the
Depositary nor the Company 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
14
or liability, unless indemnity satisfactory to it against all
expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility
of the Custodian being solely to the Depositary. Neither the
Depositary nor the Company 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 shall not be responsible for any
failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any such vote is
cast or the effect of any such vote, provided that any such
action or non-action is in good faith. The Depositary shall not
be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission
of the Depositary or in connection with a matter arising wholly
after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential
liability arises the Depositary performed its obligations without
negligence or bad faith while it acted as Depositary. The
Company has agreed to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and
to hold each of them harmless from, any liability or expense
(including, but not limited to, the fees and expenses of counsel)
which may arise out of any registration with Securities and
Exchange Commission of Receipts, American Depositary Shares or
Deposited Securities or the offer and sale thereof in the United
States or out of acts performed or omitted, in accordance with
the provisions of the Deposit Agreement and of the Receipts, as
the same may be amended, modified, or supplemented from time to
time, (i) by either the Depositary or a Custodian or their
respective directors, employees, agents and affiliates, except
for any liability or expense arising out of the negligence or bad
faith of either of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates. No disclaimer of
liability under the Securities Act of 1933 is intended by any
provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary hereunder
by written notice of its election so to do delivered to the
Company, such resignation to take effect upon the appointment 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. Whenever the Depositary in its discretion determines
15
that it is in the best interest of the Holders of Receipts to do
so, it may appoint a substitute or additional custodian or
custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit
Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable. Any amendment which
shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex
or facsimile transmission costs, delivery costs or other such
expenses), or which shall otherwise prejudice any substantial
existing right of Holders of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of
sixty (60) days after notice of such amendment shall have been
given to the Holders of outstanding Receipts. Every Holder of a
Receipt at the time any amendment so becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree
to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the
right of the Holder of any Receipt to surrender such Receipt and
receive therefor the Deposited Securities represented by American
Depositary Shares evidenced thereby, except for such amendments
as are made in order to comply with mandatory provisions of
applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the
Company terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at
least ninety (90) days prior to the date fixed in such notice for
such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the
Company and the Holders of all Receipts then outstanding if at
any time ninety (90) days shall have expired after the Depositary
shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in the Deposit
Agreement. On and after the date of termination, the Holder of a
Receipt, will, upon (a) surrender of such Receipt at the
Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in
Section 2.05 of the Deposit Agreement, and (c) payment of any
applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited
Securities represented by the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain
outstanding after the date of termination, the Depositary
16
thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that
the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell
rights as provided in the Deposit Agreement, and shall continue
to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, in
each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder of such
Receipt in accordance with the terms and conditions of the
Deposit Agreement, and any applicable taxes or governmental
charges). At any time after the expiration of one year from the
date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may
thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it thereunder,
unsegregated and without liability for interest, for the pro
rata benefit of the Holders of Receipts which have not
theretofore been surrendered, such Holders thereupon becoming
general creditors of the Depositary with respect to such net
proceeds. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash (after
deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the
Holder of such Receipt in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or
governmental charges). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations
under the Deposit Agreement except for its obligations to the
Depositary with respect to indemnification, charges, and
expenses.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything herein or in the Deposit Agreement
to the contrary, the Company and the Depositary each agrees that
it will not exercise any rights it has under the Deposit
Agreement to prevent the withdrawal or delivery of Deposited
Securities in a manner which would violate the United States
Securities laws, including, but not limited to, Section I A(1) of
the General Instructions to the Form F-6 Registration Statement,
as amended from time to time, under the Securities Act of 1933.
17
02089009.AE9
