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BHP BILLITON LIMITED
AND
JPMORGAN CHASE BANK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Amended and Restated Deposit Agreement
Dated as of November , 2003
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TABLE OF CONTENTS
Page
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PARTIES......................................................................... 1
RECITALS........................................................................ 1
Section 1. Certain Definitions
(a) ADR Register............................................ 1
(b) ADRs; Direct Registration ADRs.......................... 1
(c) ADS..................................................... 1
(d) Custodian............................................... 2
(e) Deliver, execute, issue et al........................... 2
(f) Delivery Order.......................................... 2
(g) Deposited Securities.................................... 2
(h) Direct Registration System.............................. 2
(i) Holder.................................................. 2
(j) Securities Act of 1933.................................. 2
(k) Securities Exchange Act of 1934......................... 2
(l) Shares.................................................. 2
(m) Transfer Office......................................... 2
(n) Withdrawal Order........................................ 2
Section 2. ADRs............................................................ 2
Section 3. Deposit of Shares............................................... 3
Section 4. Issue of ADRs................................................... 3
Section 5. Distributions on Deposited Securities........................... 4
Section 6. Withdrawal of Deposited Securities.............................. 4
Section 7. Substitution of ADRs............................................ 4
Section 8. Cancellation and Destruction of ADRs............................ 4
Section 9. The Custodian................................................... 4
Section 10. Co-Registrars and Co-Transfer Agents............................ 5
Section 11. Lists of Holders................................................ 5
Section 12. Depositary's Agents............................................. 5
Section 13. Successor Depositary............................................ 5
Section 14. Reports......................................................... 5
Section 15. Additional Shares............................................... 6
Section 16. Indemnification................................................. 6
Section 17. Notices......................................................... 7
Section 18. Amendment and Restatement of Original Deposit Agreement......... 7
Section 19. Miscellaneous................................................... 7
TESTIMONIUM..................................................................... 8
SIGNATURES...................................................................... 8
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EXHIBIT A
FORM OF FACE OF ADR............................................................ A-1
Introductory Paragraph.................................................... A-1
(1) Issuance of ADRs.................................................. A-2
(2) Withdrawal of Deposited Securities................................ A-2
(3) Transfers of ADRs................................................. A-2
(4) Certain Limitations............................................... A-3
(5) Taxes............................................................. A-4
(6) Disclosure of Interests........................................... A-4
(7) Charges of Depositary............................................. A-4
(8) Available Information............................................. A-5
(9) Execution......................................................... A-6
Signature of Depositary................................................... A-6
Address of Depositary's Office ........................................... A-6
FORM OF REVERSE OF ADR......................................................... A-7
(10) Distributions on Deposited Securities............................. A-7
(11) Record Dates...................................................... A-7
(12) Voting of Deposited Securities.................................... A-8
(13) Changes Affecting Deposited Securities............................ A-8
(14) Exoneration....................................................... A-8
(15) Resignation and Removal of Depositary; the
Custodian......................................................... A-9
(16) Amendment......................................................... A-9
(17) Termination....................................................... A-10
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AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of November , 2003 (the
"Deposit Agreement") among BHP BILLITON LIMITED and its successors (the
"Company"), JPMORGAN CHASE BANK, as depositary hereunder (the "Depositary"), and
all holders from time to time of American Depositary Receipts issued hereunder
("ADRs") evidencing American Depositary Shares ("ADSs") representing deposited
Shares (defined below).
WITNESSETH
WHEREAS, the Company and the Depositary entered into an amended and
restated deposit agreement dated as of May 24, 1991, as amended as of May 29,
1996 (the "Original Deposit Agreement");
WHEREAS, the Company and the Depositary desire to amend certain terms
of the Original Deposit Agreement in accordance with Section 6.01 thereof and to
reflect such amendments pursuant to the terms and conditions set forth in this
Deposit Agreement;
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the continued deposit of Shares of the Company from time
to time with the Custodian for the purposes set forth herein, and for the
issuance of ADRs, in respect of the Shares so deposited; and
NOW THEREFORE, in consideration of the premises, subject to Section 18
hereof, the parties hereto hereby amend and restate the Original Deposit
Agreement and the American depositary receipts issued thereunder in their
entirety as follows:
1. Certain Definitions.
(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
(b) "ADRs" mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct
Registration ADRs. ADRs in physical certificated form, and the terms and
conditions governing the Direct Registration ADRs (as hereinafter defined),
shall be substantially in the form of Exhibit A annexed hereto (the "form of
ADR"). The term "Direct Registration ADR" means an ADR, the ownership of which
is recorded on the Direct Registration System. References to "ADRs" shall
include certificated ADRs and Direct Registration ADRs, unless the context
otherwise requires. The form of ADR is hereby incorporated herein and made a
part hereof; the provisions of the form of ADR shall be binding upon the parties
hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced by
an ADR represents the right to receive two Shares and a pro rata share in any
other Deposited Securities.
(d) "Custodian" means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
(e) The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to Direct Registration ADRs,
shall refer to an entry or entries or an electronic transfer or transfers in the
Direct Registration System.
(f) "Delivery Order" is defined in Section 3.
(g) "Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(h) "Direct Registration System" means the system for the uncertificated
registration of ownership of securities established by The Depository Trust
Company ("DTC") and utilized by the Depositary pursuant to which the Depositary
may record the ownership of ADRs without the issuance of a certificate, which
ownership shall be evidenced by periodic statements issued by the Depositary to
the Holders entitled thereto. For purposes hereof, the Direct Registration
System shall include access to the Profile Modification System maintained by DTC
which provides for automated transfer of ownership between DTC and the
Depositary.
(i) "Holder" means the person or persons in whose name an ADR is registered
on the ADR Register.
(j) "Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
(k) "Securities Exchange Act of 1934" means the United States Securities
Exchange Act of 1934, as from time to time amended.
(l) "Shares" mean the ordinary shares of the Company and shall include the
rights to receive Shares specified in paragraph (1) of the form of ADR.
(m) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(n) "Withdrawal Order" is defined in Section 6.
2. ADRs. (a) ADRs in certificated form shall be engraved, printed or
otherwise reproduced at the discretion of the Depositary in accordance with its
customary practices in its American depositary receipt business, or at the
request of the Company typewritten
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and photocopied on plain or safety paper, and shall be substantially in the form
set forth in the form of ADR, with such changes as may be required by the
Depositary or the Company to comply with their obligations hereunder, any
applicable law, regulation or usage or to indicate any special limitations or
restrictions to which any particular ADRs are subject. ADRs may be issued in
denominations of any number of ADSs. ADRs in certificated form shall be executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary. ADRs in certificated form bearing the facsimile
signature of anyone who was at the time of execution a duly authorized officer
of the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold such office prior to the delivery of such ADRs.
(b) Direct Registration ADRs. Notwithstanding anything in this Deposit
Agreement or in the form of ADR to the contrary, ADSs shall be evidenced by
Direct Registration ADRs, unless certificated ADRs are specifically requested by
the Holder.
(c) Holders shall be bound by the terms and conditions of this Deposit
Agreement and of the form of ADR, regardless of whether their ADRs are Direct
Registration ADRs or certificated ADRs.
3. Deposit of Shares. In connection with the deposit of Shares hereunder,
the Depositary or the Custodian may require the following in form satisfactory
to it: (a) a written order directing the Depositary to issue to, or upon the
written order of, the person or persons designated in such order a Direct
Registration ADR or ADRs evidencing the number of ADSs representing such
deposited Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer in respect of such deposited Shares; (c) instruments
assigning to the Custodian or its nominee any distribution on or in respect of
such deposited Shares or indemnity therefor; and (d) proxies entitling the
Custodian to vote such deposited Shares. As soon as practicable after the
Custodian receives Deposited Securities pursuant to any such deposit or pursuant
to paragraph (10) or (13) of the form of ADR, the Custodian shall present such
Deposited Securities for registration of transfer into the name of the Custodian
or its nominee, to the extent such registration is practicable, at the cost and
expense of the person making such deposit (or for whose benefit such deposit is
made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities shall be held by the Custodian for the account and to the
order of the Depositary at such place or places and in such manner as the
Depositary shall determine. Deposited Securities may be delivered by the
Custodian to any person only under the circumstances expressly contemplated in
this Deposit Agreement. To the extent that the provisions of or governing the
Shares make delivery of certificates therefor impracticable, Shares may be
deposited hereunder by such delivery thereof as the Depositary or the Custodian
may reasonably accept, including, without limitation, by causing them to be
credited to an account maintained by the Custodian for such purpose with the
Company or an accredited intermediary, such as a bank, acting as a registrar for
the Shares, together with delivery of the documents, payments and Delivery Order
referred to herein to the Custodian or the Depositary.
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall
notify the Depositary of such deposit and of the information contained in any
related Delivery Order by
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letter, first class airmail postage prepaid, or, at the request, risk and
expense of the person making the deposit, by cable, telex or facsimile
transmission. After receiving such notice from the Custodian, the Depositary,
subject to this Deposit Agreement, shall properly issue at the Transfer Office,
to or upon the order of any person named in such notice, an ADR or ADRs
registered as requested and evidencing the aggregate ADSs to which such person
is entitled.
5. Distributions on Deposited Securities. To the extent that the Depositary
determines in its discretion that any distribution pursuant to paragraph (10) of
the form of ADR is not practicable with respect to any Holder, the Depositary
may make such distribution as it so deems practicable, including the
distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender of
an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the Depositary may require proper endorsement in blank of
such ADR (or duly executed instruments of transfer thereof in blank) and the
Holder's written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered to, or upon the written order of, any person designated in such order
(a "Withdrawal Order"). Directions from the Depositary to the Custodian to
deliver Deposited Securities shall be given by letter, first class airmail
postage prepaid, or, at the request, risk and expense of the Holder, by cable,
telex or facsimile transmission. Delivery of Deposited Securities may be made by
the delivery of certificates (which, if required by law shall be properly
endorsed or accompanied by properly executed instruments of transfer or, if such
certificates may be registered, registered in the name of such Holder or as
ordered by such Holder in any Withdrawal Order) or by such other means as the
Depositary may deem practicable, including, without limitation, by transfer of
record ownership thereof to an account designated in the Withdrawal Order
maintained either by the Company or an accredited intermediary, such as a bank,
acting as a registrar for the Deposited Securities.
7. Substitution of ADRs. The Depositary shall execute and deliver a new
Direct Registration ADR in exchange and substitution for any mutilated
certificated ADR upon cancellation thereof or in lieu of and in substitution for
such destroyed, lost or stolen certificated ADR, unless the Depositary has
notice that such ADR has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary a request for such execution and delivery and
a sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary.
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the
Depositary shall be cancelled by the Depositary. The Depositary is authorized to
destroy ADRs in certificated form so cancelled in accordance with its customary
practices.
9. The Custodian. Any Custodian in acting hereunder shall be subject to the
directions of the Depositary and shall be responsible solely to it. The
Depositary may from time to time appoint one or more agents to act for it as
Custodian hereunder. Each Custodian so appointed
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(other than JPMorgan Chase Bank) shall give written notice to the Company and
the Depositary accepting such appointment and agreeing to be bound by the
applicable terms hereof. Any Custodian may resign from its duties hereunder by
at least 30 days written notice to the Depositary. The Depositary may discharge
any Custodian at any time upon notice to the Custodian being discharged. Any
Custodian ceasing to act hereunder as Custodian shall deliver, upon the
instruction of the Depositary, all Deposited Securities held by it to a
Custodian continuing to act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may appoint and
remove (i) co-registrars to register ADRs and transfers, combinations and
split-ups of ADRs and to countersign ADRs in accordance with the terms of any
such appointment and (ii) co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices in
addition to the Transfer Office on behalf of the Depositary. Each co-registrar
or co-transfer agent (other than JPMorgan Chase Bank) shall give notice in
writing to the Company and the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
11. Lists of Holders. The Company shall have the right to inspect transfer
records of the Depositary and its agents and the ADR Register, take copies
thereof and require the Depositary and its agents to supply copies of such
portions of such records as the Company may request. The Depositary or its agent
shall furnish to the Company promptly upon the written request of the Company, a
list of the names, addresses and holdings of ADSs by all Holders as of a date
within seven days of the Depositary's receipt of such request.
12. Depositary's Agents. The Depositary may perform its obligations under
this Deposit Agreement through any agent appointed by it, provided that the
Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed.
13. 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. The Depositary may at any time be removed by the Company by written
notice of such removal. Notwithstanding anything to the contrary contained
herein, in case at any time the Depositary acting hereunder shall resign or be
removed, it shall continue to act as Depositary for the purpose of terminating
this Deposit Agreement pursuant to paragraph (17) of the form of ADR, the
effective date of such termination being no sooner than the earlier of (i) 60
days from the date of such resignation or removal and (ii) the date in which the
Company has appointed a depositary other than JPMorgan Chase Bank to act for it.
Any bank or trust company into or with which the Depositary may be merged or
consolidated, or to which the Depositary shall transfer substantially all its
American depositary receipt business, shall be the successor of the Depositary
without the execution or filing of any document or any further act.
14. Reports. On or before the first date on which the Company makes any
communication available to holders of Deposited Securities or any securities
regulatory authority or stock exchange, by publication or otherwise, the Company
shall transmit to the Depositary a copy thereof in English or with an English
translation or summary. The Company has delivered
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to the Depositary, the Custodian and any Transfer Office, a copy of all
provisions of or governing the Shares and any other Deposited Securities issued
by the Company or any affiliate of the Company and, promptly upon any change
thereto, the Company shall deliver to the Depositary, the Custodian and any
Transfer Office, a copy (in English or with an English translation) of such
provisions as so changed. The Depositary and its agents may rely upon the
Company's delivery thereof for all purposes of this Deposit Agreement.
15. Additional Shares. Neither the Company nor any company controlling,
controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933. The Depositary will
use reasonable efforts to comply with written instructions of the Company not to
accept for deposit hereunder any Shares identified in such instructions at such
times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with securities
laws in the United States.
16. Indemnification. The Company shall indemnify, defend and save harmless
each of the Depositary and its agents against any loss, liability or expense
(including reasonable fees and expenses of counsel) which may arise out of acts
performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the ADRs, as the same may be amended, modified or supplemented
from time to time in accordance herewith (i) by either the Depositary or its
agents or their respective directors, employees, agents and affiliates, except
for any liability or expense directly arising out of its (i.e. the Depositary or
the particular agent's) negligence or bad faith, or (ii) by the Company or any
of its directors, employees, agents or affiliates.
The indemnities set forth in the preceding paragraph shall apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the Depositary or its agents (other than the Company), as
applicable, furnished in writing by the Depositary and not changed or altered by
the Company expressly for use in any of the foregoing documents or (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
The Depositary shall indemnify, defend and save harmless the Company
against any loss, liability or expense incurred by the Company in respect of
this Deposit Agreement to the extent such loss, liability or expense is due to
the negligence or bad faith of the Depositary or its agents appointed and acting
hereunder. In no event shall the Depositary or any of its agents be liable for
any indirect, special, punitive or consequential damages.
The obligations set forth in this Section 16 shall survive the termination
of this Deposit Agreement and the succession or substitution of any indemnified
person.
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17. Notices. Notice to any Holder shall be deemed given when first mailed,
first class postage prepaid, to the address of such Holder on the ADR Register
or received by such Holder. Notice to the Depositary or the Company shall be
deemed given when first received by it at the address or facsimile transmission
number set forth in (a) or (b), respectively, or at such other address or
facsimile transmission number as either may specify to the other by written
notice:
(a) JPMorgan Xxxxx Xxxx
0 Xxx Xxxx Xxxxx (00xx Xxxxx)
New York, New York 10004
Attention: ADR Administration
Fax: (000) 000-0000
(b) BHP Billiton Limited
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxxx 0000
Xxxxxxxxx
Attention: Company Secretary
Fax: 00-0-0000-0000
18. Amendment and Restatement of Original Deposit Agreement. This Deposit
Agreement amends and restates as of November , 2003 the Original Deposit
Agreement. Holders of American depositary receipts issued under the Original
Deposit Agreement shall have all the rights and be subject to all of the
obligations of Holders of ADRs issued hereunder, provided that the Deposit
Agreement will not be effective as of the date hereof with respect to any
provisions which prejudice any substantial existing rights of holders of
American depositary receipts issued under the Original Deposit Agreement. Any
such provisions shall be effective after the expiration of three months after
notice of this amendment has been made to such holders.
19. Miscellaneous. This Deposit Agreement is for the exclusive benefit of
the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and owners of ADRs from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable in
any respect, the remaining provisions shall in no way be affected thereby. This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one instrument.
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IN WITNESS WHEREOF, BHP BILLITON LIMITED and JPMORGAN CHASE BANK have duly
executed this Deposit Agreement as of the day and year first above set forth and
all holders of ADRs shall become parties hereto upon acceptance by them of ADRs
issued in accordance with the terms hereof.
BHP BILLITON LIMITED
By:
--------------------
Name:
Title:
JPMORGAN CHASE BANK
By:
---------------------
Name:
Title: Vice President
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
--------- No. of ADSs:
Number
------------
Each ADS represents
Two Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
BHP BILLITON LIMITED
(Incorporated under the
laws of Victoria, Australia)
JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder (the
"Depositary"), hereby certifies that is the registered owner (a "Holder") of
American Depositary Shares ("ADSs"), each (subject to paragraph (13))
representing two ordinary shares (including the rights to receive Shares
described in paragraph (1), "Shares" and, together with any other securities,
cash or property from time to time held by the Depositary in respect or in lieu
of deposited Shares, the "Deposited Securities"), of BHP BILLITON LIMITED, a
corporation organized under the laws of Victoria, Australia (the "Company"),
deposited under the Amended and Restated Deposit Agreement dated as of
November , 2003 (as amended from time to time, the "Deposit Agreement") among
the Company, the Depositary and all Holders from time to time of American
Depositary Receipts issued thereunder ("ADRs"), each of whom by accepting an
ADR becomes a party thereto. The Deposit Agreement and this ADR (which
includes the provisions set forth on the reverse hereof) shall be governed
by and construed in accordance with the laws of the State of New York.
A-1
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs for
delivery at the Transfer Office (defined in paragraph (3)) only against deposit
with the Custodian of: (a) Shares in form satisfactory to the Custodian; (b)
rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not more
than 30% of all ADSs (excluding those evidenced by Pre-released ADRs), provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary may retain for
its own account any earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. At the request, risk and expense of the person depositing
Shares, the Depositary may accept deposits for forwarding to the Custodian and
may deliver ADRs at a place other than its office. Every person depositing
Shares under the Deposit Agreement represents and warrants that such Shares are
validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly authorized so to
do and that such Shares (A) are not "restricted securities" as such term is
defined in Rule 144 under the Securities Act of 1933 unless at the time of
deposit they may be freely transferred in accordance with Rule 144(k) and may
otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance of ADRs. The Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares required
to be registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company's compliance with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5),
upon surrender of (i) a certificated ADR in form satisfactory to the Depositary
at the Transfer Office or (ii) proper instructions and documentation in the case
of a Direct Registration ADR, the Holder hereof is entitled to delivery at the
Custodian's office of the Deposited Securities at the time represented by the
ADSs evidenced by this ADR. At the request, risk and expense of the Holder
hereof, the Depositary may deliver such Deposited Securities at such other place
as may have been requested by the Holder. Notwithstanding any other provision of
the Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only for the reasons set forth in General Instruction I.A.(1) of Form
F-6 (as such instructions may be amended from time to time) under the Securities
Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, and,
in the case of Direct Registration ADRs, shall include the Direct Registration
A-2
System, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Deposit Agreement and (b)
facilities for the delivery and receipt of ADRs. The term ADR Register includes
the Direct Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of negotiable instruments under the laws of the State of New
York; provided that the Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this ADR is registered on the ADR Register as
the absolute owner hereof for all purposes. Subject to paragraphs (4) and (5),
this ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by duly authorized attorney upon
surrender of this ADR at the Transfer Office properly endorsed (in the case of
ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer and duly stamped as may be required by applicable law;
provided that the Depositary may close the ADR Register at any time or from time
to time when deemed expedient by it or requested by the Company. At the request
of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct Registration ADR, or vice versa, execute and
deliver a certificated ADR or a Direct Registration ADR, as the case may be, for
any authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Securities, and from time to time in the case of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed advisable by
the Depositary or the Company.
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(5) Taxes. If any tax or other governmental charge shall become payable by
or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. If the Depositary determines that any distribution
in property other than cash (including Shares or rights) on Deposited Securities
is subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto.
(6) Disclosure of Interests. To the extent that the provisions of or
governing any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary in the Depositary's compliance with any Company
instructions in respect thereof, and the Depositary will use reasonable efforts
to comply with such Company instructions.
(7) Charges of Depositary. The Depositary may charge each person to whom
ADSs are issued against deposits of Shares, including deposits in respect of
Share Distributions, Rights and Other Distributions (as such terms are defined
in paragraph (10)), and each person surrendering ADSs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
delivered or surrendered. The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions prior to such deposit to pay such charge. The
following additional charges shall be incurred by the Holders, by any party
depositing or withdrawing Shares or by any party surrendering ADRs or to whom
ADRs 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 ADRs or the Deposited Securities or a distribution of ADRs
pursuant to paragraph (10)), whichever is applicable (i) a fee of $.02 or less
per ADS (or portion thereof) for any Cash distribution made pursuant to the
Deposit Agreement, (ii) to the extent not prohibited by the rules of any stock
exchange or interdealer quotation system upon which the ADSs are traded, a fee
of $1.50 per
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ADR or ADRs for transfers made pursuant to paragraph (3) hereof and (iii) a fee
for the distribution of securities pursuant to paragraph (10) hereof, such fee
being in an amount equal to the fee for the execution and delivery of ADSs
referred to above which would have been charged as a result of the deposit of
such securities (for purposes of this paragraph (7) treating all such securities
as if they were Shares) but which securities or the net cash proceeds from the
sale thereof are instead distributed by the Depositary to Holders entitled
thereto. The Company will pay all other charges and expenses of the Depositary
and any agent of the Depositary (except the Custodian) pursuant to agreements
from time to time between the Company and the Depositary, except (i) stock
transfer or other taxes and other governmental charges (which are payable by
Holders or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders delivering Shares, ADRs or Deposited Securities (which are payable by
such persons or Holders), (iii) transfer or registration fees for the
registration of transfer of Deposited Securities on any applicable register in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date of
the Deposit Agreement), (iv) expenses of the Depositary in connection with the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency)and (v) such fees and expenses as are incurred by the
Depositary (including without limitation expenses incurred on behalf of Holders
in connection with compliance with foreign exchange control regulations or any
law or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation. These charges may be changed
in the manner indicated in paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will distribute copies of
such communications (or English translations or summaries thereof) to Holders
when furnished by the Company. The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and accordingly files
certain reports with the United States Securities and Exchange Commission (the
"Commission"). Such reports and other information may be inspected and copied at
public reference facilities maintained by the Commission located at the date
hereof at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
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(9) Execution. This ADR shall not be valid for any purpose unless executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By ...........................
Authorized Officer
The Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and
(5), to the extent practicable, the Depositary will distribute by mail to each
Holder entitled thereto on the record date set by the Depositary therefor at
such Holder's address shown on the ADR Register, in proportion to the number of
Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of
any other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible or
impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that
it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means
as the Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) Shares. (i) Additional ADRs evidencing whole ADSs representing any
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) Rights. (i) Warrants or other instruments in the discretion of
the Depositary representing rights to acquire additional ADRs in respect of any
rights to subscribe for additional Shares or rights of any nature available to
the Depositary as a result of a distribution on Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute the
same (the Company has no obligation to so furnish such evidence), or (ii) to the
extent the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights as in the case of Cash, or (iii) to the extent the Company
does not so furnish such evidence and such sales cannot practicably be
accomplished by reason of the nontransferability of the Rights, limited markets
therefor, their short duration or otherwise, nothing (and any Rights may lapse).
(d) Other Distributions. (i) Securities or property available to the Depositary
resulting from any distribution on Deposited Securities other than Cash, Share
Distributions and Rights ("Other Distributions"), by any means that the
Depositary may deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents (any fractional cents being withheld without
liability for interest and added to future Cash distributions).
(11) Record Dates. The Depositary may, after consultation with the Company
if practicable, fix a record date (which shall be as near as practicable to any
corresponding record
A-7
date set by the Company) for the determination of the Holders who shall be
entitled to receive any distribution on or in respect of Deposited Securities,
to give instructions for the exercise of any voting rights, to receive any
notice or to act in respect of other matters and only such Holders shall be so
entitled.
(12) Voting of Deposited Securities. As soon as practicable after receipt
from the Company of notice of any meeting or solicitation of consents or proxies
of holders of Shares or other Deposited Securities, the Depositary shall
distribute to Holders a notice stating (a) such information as is contained in
such notice and any solicitation materials, (b) that each Holder on the record
date set by the Depositary therefor will be entitled to instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs and (c) the
manner in which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and
(5), the Depositary may, in its discretion after consultation with the Company
if practicable, amend this ADR or distribute additional or amended ADRs (with or
without calling this ADR for exchange) or cash, securities or property on the
record date set by the Depositary therefor to reflect any change in par value,
split-up, consolidation, cancellation or other reclassification of Deposited
Securities, any Share Distribution or Other Distribution not distributed to
Holders or any cash, securities or property available to the Depositary in
respect of Deposited Securities from (and the Depositary is hereby authorized to
surrender any Deposited Securities to any person and to sell by public or
private sale any property received in connection with) any recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy or
sale of all or substantially all the assets of the Company, and to the extent
the Depositary does not so amend this ADR or make a distribution to Holders to
reflect any of the foregoing, or the net proceeds thereof, whatever cash,
securities or property results from any of the foregoing shall constitute
Deposited Securities and each ADS evidenced by this ADR shall automatically
represent its pro rata interest in the Deposited Securities as then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, regulation, the provisions of or
governing any Deposited Securities, act of God, war or other circumstance beyond
its control shall prevent, delay or subject to any civil or criminal penalty any
act which the Deposit Agreement or this ADR provides shall be done or performed
by it, or (ii) by reason of any exercise or failure to exercise any discretion
given it in the Deposit Agreement or this ADR; (b) assume no liability except to
perform its obligations to the extent they are specifically set forth in this
ADR and the Deposit Agreement without gross negligence or bad faith; (c) in the
case of the Depositary and its agents, be under no obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this ADR; (d) in the case of the Company and its agents
hereunder be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in
A-8
respect of any Deposited Securities or this ADR, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense (including fees and disbursements of counsel) and liability be
furnished as often as may be required; or (e) not be liable for any action or
inaction by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, or any other
person believed by it to be competent to give such advice or information. The
Depositary, its agents and the Company may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by them
to be genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, for the
manner in which any such vote is cast or for the effect of any such vote. The
Depositary and its agents may own and deal in any class of securities of the
Company and its affiliates and in ADRs. The Company has agreed to indemnify the
Depositary and its agents under certain circumstances and the Depositary has
agreed to indemnify the Company against losses incurred by the Company to the
extent such losses are due to the negligence or bad faith of the Depositary. In
no event shall the Depositary or any of its agents be liable for any indirect,
special, punitive or consequential damages. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The Depositary
may resign as Depositary by written notice of its election to do so delivered to
the Company, or be removed as Depositary by the Company by written notice of
such removal delivered to the Depositary. The Depositary may appoint substitute
or additional Custodians and the term "Custodian" refers to each Custodian or
all Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs and
the Deposit Agreement may be amended by the Company and the Depositary, provided
that any amendment that imposes or increases any fees or charges (other than
stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
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(17) Termination. Upon the resignation or removal of the Depositary
pursuant to the Deposit Agreement or sixty days after such resignation if the
Company has not appointed a depositary (other than the Depositary) to act for
it, the Depositary may, and shall at the written direction of the Company,
terminate the Deposit Agreement and this ADR by mailing notice of such
termination to the Holders at least 30 days prior to the date fixed in such
notice for such termination. After the date so fixed for termination, the
Depositary and its agents will perform no further acts under the Deposit
Agreement and this ADR, except to receive and hold (or sell) distributions on
Deposited Securities and deliver Deposited Securities being withdrawn. As soon
as practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account the
net proceeds of such sales, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, in trust for the pro rata
benefit of the Holders of ADRs not theretofore surrendered. After making such
sale, the Depositary shall be discharged from all obligations in respect of the
Deposit Agreement and this ADR, except to account for such net proceeds and
other cash. After the date so fixed for termination, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary and its agents.
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