FORM OF SUPPLEMENTAL AGREEMENT TO DEPOSIT AGREEMENT
SUPPLEMENTAL AGREEMENT TO DEPOSIT AGREEMENT, dated as of _____________
(this "Agreement"), to the Deposit Agreement (as defined below), by and among
Xxxxx Offshore S.A., a company incorporated and existing under the laws of
Luxembourg, and its successors (the "Company"), Deutsche Bank Trust Company
Americas, a New York banking corporation and an indirect wholly owned subsidiary
of Deutsche Bank AG, in its capacity as the successor depositary (the
"Depositary"), and all Holders and Beneficial Owners from time to time of
American Depositary Shares evidenced by American Depositary Receipts issued
thereunder (as defined in the Deposit Agreement).
W I T N E S S E T H T H A T:
WHEREAS, the Company and Citibank, N.A. (the "Predecessor Depositary")
entered into the Amended and Restated Deposit Agreement, dated as of June 7,
2002 (the "Deposit Agreement"), for the purposes set forth therein;
WHEREAS, by written notice dated February 16, 2005 addressed to the
Predecessor Depositary, the Company, pursuant to Section 5.4 of the Deposit
Agreement, has given notice of its intention to remove the Predecessor
Depositary under the Deposit Agreement and appoint Deutsche Bank Trust Company
Americas as Depositary in accordance with and subject to the conditions of the
Deposit Agreement, as amended and supplemented by this Agreement;
WHEREAS, the Company and the Predecessor Depositary have agreed that the
Predecessor Depositary, in consideration of the payment of certain fees and
expenses of the Predecessor Depositary, will be removed as depositary under the
Deposit Agreement with effect from the Effective Date (as defined in Section
6.01 herein);
WHEREAS, the Company and the Depositary have agreed that the Predecessor
Depositary shall duly assign, transfer and deliver to the Depositary the
information, records, property and cash referred to in Section 5.4 of the
Deposit Agreement;
WHEREAS, Deutsche Bank Trust Company Americas has accepted its appointment,
with effect from the Effective Date, as Depositary in accordance with and
subject to the conditions of the Deposit Agreement, as amended and supplemented
by this Agreement;
WHEREAS, the Company desires to provide for the deposit of Shares of the
Company with the Depositary or the Custodian as agent for the Depositary and for
the execution and delivery of Receipts evidencing American Depositary Shares
representing beneficial interests in the Shares so deposited; and
WHEREAS, the Company and the Depositary desire to amend and supplement the
terms of the Deposit Agreement and form of Receipts, in accordance with Section
6.1 of the Deposit Agreement, inter alia to reflect the removal by the Company
of Citibank, N.A., in its capacity as the predecessor depositary, and the
appointment of Deutsche Bank Trust Company Americas, in its capacity as the
successor depositary, in accordance with Section 5.4 of the Deposit Agreement.
NOW, THEREFORE, the Company and the Depositary hereby amend and supplement
the Receipts and the Deposit Agreement, effective as of the Effective Date, as
follows:
ARTICLE I
CONFIRMATION OF APPOINTMENT AND ACCEPTANCE OF DEPOSITARY
Section 1.01 The Company hereby confirms its appointment of the Depositary
as successor Depositary under the Deposit Agreement.
Section 1.02 The Depositary hereby accepts the appointment referred to
above and agrees to observe and be bound by the terms of the Deposit Agreement,
as amended and supplemented by this Agreement, as if the Depositary had been
originally appointed as Depositary under the Deposit Agreement.
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ARTICLE II
DEFINITIONS
Section 2.01 Definitions Generally. Unless otherwise defined in this
Agreement, terms used herein and defined in the Deposit Agreement are used
herein as so defined.
ARTICLE III
AMENDMENTS TO DEPOSIT AGREEMENT
Section 3.01 All references in the Deposit Agreement to "Citibank, N.A."
are hereby replaced with references to "Deutsche Bank Trust Company Americas".
All references in the Deposit Agreement to "Citibank, N.A." or the "Depositary"
shall be read and construed as references to "Deutsche Bank Trust Company
Americas."
Section 3.02 All references in the Deposit Agreement to the "Deposit
Agreement" shall hereby mean the Deposit Agreement, as amended and supplemented
by this Agreement and as further amended and supplemented from time to time.
Section 3.03 The Deposit Agreement is hereby amended and supplemented by
deleting the words "Citibank, N.A., a national banking association organized
under the laws of the United States of America" from the preamble of the Deposit
Agreement, and replacing them with the words "Deutsche Bank Trust Company
Americas, a New York banking corporation and an indirect wholly owned subsidiary
of Deutsche Bank AG."
Section 3.04 The Deposit Agreement is hereby amended and supplemented by
deleting the words "Citibank, N.A., a national banking association organized
under the laws of the United States of America" from the definition of
"Depositary" in Article I of the Deposit Agreement, and replacing them with the
words "Deutsche Bank Trust Company Americas, a New York banking corporation and
an indirect wholly owned subsidiary of Deutsche Bank AG".
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Section 3.05 The Deposit Agreement is hereby amended and supplemented by
deleting the words "Deposited Securities" and replacing them with the words
"Deposited Property".
Section 3.06 The Deposit Agreement is hereby amended and supplemented by
replacing the definition of Principal Office in Article I in its entirety with
the following paragraph:
Principal Office. The term "Principal Office", when used with respect to
the Depositary, shall mean the principal office of the Depositary at which
at any particular time its depositary receipts business shall be
administered, which, at the date of this Deposit Agreement, is located at
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America.
Section 3.07 The Deposit Agreement is hereby amended and supplemented by
replacing the last sentence in Section 4.2 with the following:
Holders and Beneficial Owners understand that in converting foreign
currency, amounts received on conversion are calculated at a rate which
exceeds four decimal places (the number of decimal places used by the
Depositary to report distribution rates). The excess amount may be retained
by the Depositary as an additional cost of conversion, irrespective of any
other fees and expenses payable or owing hereunder and shall not be subject
to escheatment.
Section 3.08 The Deposit Agreement is hereby amended and supplemented by
inserting the following sentence at the end of Section 4.7:
Holders and Beneficial Owners understand that in converting foreign
currency, amounts received on conversion are calculated at a rate which may
exceed the number of decimal places used by the Depositary to report
distribution rates (which in any case will not be less than two decimal
places). Any excess amount may be retained by the Depositary as an
additional cost of conversion, irrespective of any other fees and expenses
payable or owing hereunder and shall not be subject to escheatment.
Section 3.12 The Deposit Agreement is hereby amended and supplemented by
deleting the second sentence of the fourth paragraph of Section 5.3 in its
entirety.
Section 3.13 The Deposit Agreement is hereby amended and supplemented by
replacing the word "affiliate" with the word "Affiliate" in Section 5.8
Section 3.14 The Deposit Agreement is hereby amended and supplemented by
replacing the penultimate sentence in the fourth paragraph of Section 5.1 with
the following:
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Any Registrar or co-registrar may be removed and a substitute or
substitutes appointed at the discretion of the Depositary with prior
written notice to the Company.
Section 3.15 The Deposit Agreement is hereby amended and supplemented by
adding the following to the end of the first sentence of Section 5.9:
; provided, however, that no fees shall be payable upon distribution of
cash dividends so long as the charging of such fee is prohibited by the
exchange, if any, upon which the American Depositary Receipts are listed.
Section 3.16 The Deposit Agreement is hereby amended and supplemented by
inclusion of the following address for notices to the Depositary in Section 7.5:
"60 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, U.S.A., Attention: ADR
Department".
Section 3.17 The Deposit Agreement is hereby amended and supplemented by
replacing "Xxxxx-Xxxxxxx Inc. (the "Agent") now at 0 Xxxxx Xxxxx Xxxxx, X.X. Xxx
0000, Xxxxxxxxx, Xxxxxxxxxxx 00000" with "Xxxxx Offshore Inc. (the "Agent"),
Attn: Xxxxx Xxxxxx, now at 00000 Xxxx Xxxx, Xxxxxxx, Xxxxx 00000", in Section
7.6.
Section 3.18 All references in the Deposit Agreement to "deliver",
"deposit", "surrender", "transfer", or "withdraw", when used with respect to the
Shares refer, where the context requires, to an entry or entries or an
electronic transfer or transfers, including through the DRS/Profile, as well as
to the physical transfer of certificates representing the Shares.
ARTICLE IV
AMENDMENTS TO FORM OF RECEIPT
Section 4.01 The form of Receipt attached as Annex A to the Deposit
Agreement (the "Form of Receipt") is amended and restated in its entirety to
read as Exhibit A attached hereto, with such amendments reflecting the
appointment of the Depositary.
Section 4.02 All references in the Form of Receipt to "deliver", "deposit",
"surrender", "transfer", or "withdraw", when used with respect to the Shares
refer, where the context requires, to
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any entry or entries or an electronic transfer or transfers as well as to the
physical transfer of certificates representing the Shares.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations and Warranties. The Company and the Depositary
mutually represent and warrant to each other and to the Holders, that this
Agreement, when executed and delivered by each of the Company and the
Depositary, and the Deposit Agreement, as amended and supplemented by this
Agreement and all other documentation executed and delivered by the Company and
the Depositary in connection therewith, will be duly and validly authorized,
executed and delivered by the Company and the Depositary, and constitute the
legal, valid and binding obligations of the Company and the Depositary,
enforceable against the Company and the Depositary in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Effective Date. This Agreement is dated as of the date first
set forth above and shall be effective on the date on which the U.S. Securities
and Exchange Commission declares effective the Registration Statement on Form
F-6 to be filed by the Depositary, on behalf of the legal entity created by the
Deposit Agreement, as amended and supplemented by this Agreement in connection
with its appointment as successor depositary, the removal of the Predecessor
Depositary to be effective simultaneously therewith (the "Effective Date"). From
and after the Effective Date, all references in the Deposit Agreement and the
Form of Receipt shall be deemed to be references to the Deposit Agreement and
Form of Receipt, as amended and supplemented by this Agreement.
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Section 6.02 Outstanding Receipts. Receipts issued prior to the date
hereof, which do not reflect the changes to the Receipts effected hereby, do not
need to be called in for exchange and may remain outstanding until such time as
the Holders thereof choose to surrender them for any reason under the Deposit
Agreement, as amended and supplemented by this Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
The Company hereby instructs the Depositary (i) to promptly send notice of
the execution of the Deposit Agreement, as amended and supplemented by this
Agreement, to all holders of American Depositary Receipts outstanding under the
Deposit Agreement as of the date hereof and (ii) to promptly inform holders of
American Depositary Receipts outstanding under the Deposit Agreement as of the
date hereof that they have the opportunity, but are not required, to exchange
their Receipts for one or more Receipts issued pursuant to the Deposit
Agreement, as amended and supplemented by this Agreement.
Holders and Beneficial Owners of Receipts issued pursuant to the Deposit
Agreement issued prior to the date hereof and outstanding as of the date hereof,
shall, from and after the date hereof, be deemed Holders and Beneficial Owners
of Receipts issued pursuant and subject to all of the terms and conditions of
the Deposit Agreement, as amended and supplemented by this Agreement, in all
respects, provided, however, that any amendment to the Deposit Agreement
effectuated by this Agreement that prejudices any substantial existing right of
Holders or Beneficial Owners of Receipts issued under the Deposit Agreement
shall not become effective as to Holders and Beneficial Owners until 30 days
after notice of the amendment and supplement effectuated by this Agreement shall
have been given to holders of Receipts outstanding as of the date hereof.
Section 6.03 Undertaking of Depositary. The Depositary hereby undertakes
promptly to mail notice of its appointment as Depositary under the Deposit
Agreement, as amended and supplemented by this Agreement, to the Holders of
Receipts outstanding as of the date hereof.
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Section 6.04 Indemnification. The parties hereto shall be entitled to the
benefits of the indemnification provisions of Section 5.8 of the Deposit
Agreement in connection with any and all liability it or they may incur as a
result of the terms of this Agreement and the transactions contemplated herein.
Nothing herein shall obligate Deutsche Bank Trust Company Americas to indemnify
or hold harmless the Company or any of its directors, employees, agents and
affiliates for any liability or expense arising out of acts performed or omitted
by Citibank, N.A., as Predecessor Depositary, the Custodian or their respective
directors, employees, agents and affiliates.
Section 6.05 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
Section 6.06 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Agreement to be executed by their respective representatives thereunto duly
authorized as of the date set forth above.
XXXXX OFFSHORE S.A., as the Company
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Depositary
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF RECEIPT]
Number CUSIP Number __________
American Depositary Shares
(1 American Depositary Share
Represents 1 Fully Paid Common
Share, par value
$2.00 per Share)
AMERICAN DEPOSITARY RECEIPT
EVIDENCING
AMERICAN DEPOSITARY SHARES
representing
COMMON SHARES, PAR VALUE $2.00 PER SHARE,
OF
XXXXX OFFSHORE S.A.
(Incorporated under the laws of Luxembourg)
DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation and an
indirect wholly owned subsidiary of Deutsche Bank AG, as Depositary (the
"Depositary"), hereby certifies that, or registered assigns, is the owner of
American Depositary Shares, representing deposited Common Shares, par value
$2.00 per share, including evidence of rights to receive Common Shares, par
value $2.00 per share (the "Shares"), of Xxxxx Offshore S.A., a company
incorporated under the laws of Luxembourg (the "Company").
At the date of the Deposit Agreement (hereinafter referred to) each
American Depositary Share represents one Share deposited under the Deposit
Agreement with the Custodian which at the date of execution of the Deposit
Agreement is Den norske Bank ASA, Oslo, Norway (the "Custodian"). The ratio
of American Depositary Shares to Shares is subject to change as provided in
Article IV of the Deposit Agreement. The Depositary's principal executive office
is located at 00 Xxxx Xxxxxx, Xxx Xxxx, XX, 00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of an issue
(herein called the "Receipts"), executed and delivered pursuant to the
Amended and Restated Deposit Agreement, dated as of June 7, 2002 (the
"Amended and Restated Deposit Agreement"), as amended, by and among the
Company, the Depositary and all Holders and Beneficial Owners from time to
time of Receipts issued thereunder, each of whom by accepting a Receipt
agrees to become a party thereto and becomes bound by all the terms and
provisions thereof. The Deposit Agreement sets forth the rights and
obligations of Holders and Beneficial Owners 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 Property"). Copies of the
Deposit Agreement are on file at the Principal Office of the Depositary.
The statements made on the face and the reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Company's
Articles of Association (as in effect on the date of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
Agreement, to which reference is hereby made. All capitalized terms used
and not defined herein shall have the same meaning as in the Deposit
Agreement. The Depositary makes no representation or warranty as to the
validity or worth of the Deposited Property.
(2) Surrender of Receipts and Withdrawal of Deposited Property. Upon surrender
at the Principal Office of the Depositary of a Receipt for the purpose of
withdrawal of the Deposited Property
represented thereby, and upon payment of (i) the charges of the Depositary
for the making of withdrawals and cancellation of Receipts (as set forth in
Article (10) hereof and Section 5.9 and Annex B of the Deposit Agreement)
and (ii) all fees, taxes and governmental charges payable in connection
with such surrender and withdrawal, and subject to the terms and conditions
of the Deposit Agreement, the Company's Articles of Association, Article
(25) of this Receipt and the provisions of or governing the Deposited
Property and other applicable laws, the Holder hereof shall be entitled to
delivery, to him or upon his order, of the Deposited Property at the time
represented by this Receipt. Subject to the last sentence of this
paragraph, such Deposited Property may be delivered in registered form or
by electronic delivery. An ADS may be surrendered for the purpose of
withdrawing Deposited Property by delivery of a Receipt evidencing such ADS
(if held in registered form) or by book-entry delivery of such ADS to the
Depositary. Such Deposited Property may be delivered by the delivery of (a)
certificates in the name of the Holder or as ordered by him or by
certificates properly endorsed or accompanied by proper instruments of
transfer to the Holder or as ordered by him and (b) any other securities,
property and cash to which such Holder is then entitled in respect of this
Receipts. Delivery shall be made at the office of the Custodian or at the
Principal Office of the Depositary for further delivery to such Holder,
provided that the forwarding of certificates for Shares or other Deposited
Property for such delivery at the Principal Office of the Depositary shall
be at the request, risk and expense of the Holder hereof, and for the
account of such Holder.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary so requires, the
Holder thereof shall execute and deliver to the Depositary a written order
directing the Depositary to cause the Deposited Property being withdrawn to
be delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to deliver at the
designated office of the Custodian, subject to the terms and conditions of
the Deposit Agreement, the Articles of Association of the Company, and to
the provisions of or governing the Deposited Property and other applicable
laws, now or hereafter in effect, to or upon the written order of the
person or persons designated in the order delivered to the Depositary if so
required by the Depositary as provided above, the Deposited Property
represented by such Receipt together with any certificate or other proper
documents of or relating to title for the Deposited Property, or evidence
of the electronic transfer thereof, as the case may be, to or for the
account of such person. The Depositary may make delivery to such person or
persons at the Principal Office of the Depositary of any dividends or
distributions with respect to the Deposited Property represented by such
Receipt, or of any proceeds of sale of any dividends, distributions or
rights, which may at the time be held by the Depositary.
The Depositary shall not accept for surrender a Receipt evidencing American
Depositary Shares representing less than one Share. The Depositary may, in
its discretion, refuse to accept for surrender a number of ADSs
representing a number of Shares other than a whole number of Shares. In the
case of surrender of a Receipt evidencing a number of American Depositary
Shares representing other than a whole number of Shares, the Depositary
shall cause ownership of the appropriate whole number of Shares to be
delivered in accordance with the terms hereof, and shall, at the discretion
of the Depositary, either (i) issue and deliver to the person surrendering
such Receipt a new Receipt evidencing American Depositary Shares
representing any remaining fractional Share, or (ii) sell or cause to be
sold the fractional Shares represented by the Receipt so surrendered and
remit the proceeds thereof (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes withheld) to the person
surrendering the Receipt.
(3) Transfers, Split-ups and Combinations of Receipts. Subject to the
limitations set forth herein and in the Deposit Agreement, the transfer of
this Receipt is registrable on the books of the Registrar upon surrender of
this Receipt by the Holder hereof in person or by duly authorized attorney,
to the Principal Office of the Depositary, properly endorsed for transfer
or accompanied by proper instruments of transfer and (i) duly stamped as
may be required by the laws of the State of New York and of the United
States of America, and (ii) accompanied by funds sufficient to pay any
applicable transfer taxes or duties and the fees and expenses of the
Depositary including the fees set forth in Article (10) hereof, subject to
Article (24) of this Receipt. This Receipt may be split into other Receipts
or may be combined with other Receipts into one Receipt, representing the
same aggregate number of American Depositary Shares as the Receipt or
Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition precedent to
the execution and delivery, registration, registration of transfer,
split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon or withdrawal of any Deposited Property, the
Depositary, the Custodian or any Registrar may require (a) payment from the
depositor of Shares or presenter of the Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock
transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or Deposited
Property withdrawn) and payment of any applicable fees and charges as
provided in the Deposit Agreement or in Annex B thereto, (b) the production
of proof satisfactory to it as to the identity and genuineness of any
signature or any other matter contemplated by Section 3.1 of the Deposit
Agreement and (c) compliance with (i)
any laws or governmental regulations relating to Receipts or American
Depositary Shares or to the withdrawal of Deposited Property and (ii) such
reasonable regulations, if any, as the Depositary and the Company may
establish consistent with the provisions of the Deposit Agreement.
The Depositary may refuse to execute and to deliver Receipts, register
the transfer of any Receipt or make any distribution of, or related to,
Deposited Property until it has received such proof of citizenship,
residence, exchange control approval or other information as it may deem
necessary or proper in accordance with applicable laws and regulations and
the terms of the Deposit Agreement.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the delivery of
Receipts against the deposit of particular Shares may be withheld, or the
registration of transfer of Receipts in particular instances may be
refused, or the registration of transfer generally may be suspended during
any period when the transfer books of the Depositary or the Company (or any
other agent for the transfer and registration of Shares) are closed, or if
any such action is deemed necessary or advisable by the Depositary, the
Company, or the Share Registrar or at any time or from time to time because
of any requirement of law or of any government or governmental authority,
body or commission or any securities exchange on which the Receipts or
Shares are listed, or in accordance with the Deposit Agreement, or the
provisions of or governing Deposited Property, or any meeting of
shareholders of the Company or for any reason, subject in all cases to
Article (24) hereof.
Notwithstanding any provision of the Deposit Agreement or the Receipts
to the contrary, the surrender of outstanding Receipts and withdrawal of
Deposited Property may not be
suspended or refused, except as permitted in General Instruction I.A.(1) to
Form F-6 (as such instruction may be amended from time to time) under the
Securities Act in connection with (i) temporary delays caused by the
closing of the transfer books of the Depositary or the Company (or the
Share Registrar) 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 Property.
(5) Compliance With Information Requests. Notwithstanding any other provision
of the Deposit Agreement or this Receipt, the Company may from time to time
request Holders or former Holders to provide information as to the capacity
in which they hold or held Receipts and regarding the identity of any other
persons then or previously interested in such Receipts and the nature of
such interest and various other matters. Each Holder agrees to provide any
such information reasonably requested by the Company or the Depositary,
whether or not they are Holders at the time of such request.
(6) Ownership Restrictions. The Company may restrict transfers of the Shares
where such transfer might result in ownership of Shares exceeding limits
under applicable law or the Articles of Association of the Company. The
Company may also restrict, in such manner as it deems appropriate,
transfers of the American Depositary Shares where such transfer may result
in the total number of Shares represented by the American Depositary Shares
owned by a single Holder or Beneficial Owner to exceed the limits under any
applicable law or the Company's Articles of Association. The Company may,
in its sole discretion, instruct the Depositary to take action with respect
to the ownership interest of any Holder or Beneficial Owner in excess of
the limitation set
forth in the preceding sentence, including but not limited to the
imposition of restrictions of transfer of ADSs, the removal or limitation
of voting rights or a mandatory sale or disposition on behalf of a Holder
of the Shares represented by the American Depositary Shares held by such
Holder in excess of such limitation, if and to the extent such disposition
is permitted by applicable law and the Company's Articles of Association.
(7) Liability of Holder For Taxes, Duties and Other Charges; Withholding. If
any tax or other governmental charge imposed under applicable laws shall
become payable with respect to this Receipt or any Deposited Property
represented hereby, such tax or other governmental charge shall be payable
by the Holder hereof to the Depositary. The Depositary may refuse, and the
Company shall be under no obligation, to effect any transfer, split-up or
combination of this Receipt or any deposit or withdrawal of Deposited
Property represented hereby until such payment is made, and may withhold or
deduct any dividends or other distributions, or may sell for the account of
the Holder hereof any part or all of the Deposited Property represented
hereby, and may apply such dividends or other distributions or the proceeds
of any such sale in payment of such tax, other governmental charge or
expense, the Holder hereof remaining liable for any deficiency.
In connection with any distribution to Holders, the Company will remit
to the appropriate governmental authority or agency all amounts (if any)
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, the Custodian or the Company or its agents may file any such
reports necessary to obtain benefits under applicable
tax treaties for the Holders. In accordance with instructions from the
Company and to the extent practicable, the Depositary or the Custodian will
take reasonable administrative actions to apply reduced withholding of tax
at source on dividends, if applicable, and to obtain other benefits under
applicable tax treaties with respect to dividends and other distributions
on the Deposited Property. Holders of American Depositary Shares evidenced
by Receipts representing Deposited Property may be required from time to
time to file such proof of taxpayer status or residence, to execute such
certificates and to make such representations and warranties or to provide
any other information or documents as the Depositary may deem necessary or
proper to fulfill the Depositary's obligations under applicable law.
Holders shall provide the Depositary, in a timely manner, with copies, or
originals if necessary and appropriate, of any such proofs of residence,
taxpayer status, beneficial ownership and any other information or
documents which the Depositary may reasonably request. The Holder shall
indemnify the Depositary, the Company, the Custodian and any of their
respective directors, employees, agents and affiliates against, and hold
each of them harmless from any claims by any governmental authority with
respect to taxes, additions to tax, penalties or interest arising out of
any refund of taxes, reduced rate of withholding at source or other tax
benefit obtained for such Holder pursuant to Section 4.14 of the Deposit
Agreement.
Notwithstanding any other provisions of the Deposit Agreement, in the
event that the Depositary determines that any distribution in property
(including Shares or other securities and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of
such property (including Shares or other securities and rights to subscribe
therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and
practicable to pay any such taxes or charges, and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes
or charges to Holders entitled thereto in proportion to the number of
American Depositary Shares held by them respectively and the Depositary
shall distribute any unsold balance of such property in accordance with the
provisions of the Deposit Agreement.
(8) Representations and Warranties of Depositors. Each person depositing Shares
under the Deposit Agreement shall be deemed thereby to represent and
warrant that such Shares represented thereby and each certificate therefor,
if any, are validly issued and outstanding, fully paid and non-assessable
and free of any preemptive rights, if any, and that the person making such
deposit is duly authorized to do so. Each such person shall also be deemed
to acknowledge complete responsibility for the report of any false
information relating to foreign exchange transactions to the Depositary,
the Custodian or any governmental authority in Luxembourg in connection
with the issuance of Receipts and the deposit, transfer, surrender or
withdrawal of Shares or Receipts. Such person shall also be deemed to
represent that Shares deposited by that person are not, and the American
Depositary Shares issuable upon such deposit will not be, Restricted
Securities. In addition, such person shall be deemed to represent that such
Shares are not liable to disenfranchisement or disposal by the Company
pursuant to the Articles of Association of the Company. Such
representations and warranties shall survive the deposit of Shares and
issuance and cancellation of Receipts.
(9) Filing Proofs, Certificates, and Other Information. Any person presenting
Shares for deposit or any Holder or Beneficial Owner may be required from
time to time to file such proof of citizenship, taxpayer status, residence
or exchange control approval, compliance with applicable
laws and the terms of the Deposit Agreement or other information (or, in
the case of Shares in registered form presented for deposit, such
information relating to the registration on the books of the Company or of
the appointed agent of the Company for the registration and the transfer of
Shares), to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the
Company may reasonably require by written request to the Depositary
consistent with its obligations under the Deposit Agreement. The Depositary
and the Registrar, as applicable, may withhold the execution or delivery or
registration of transfer of any Receipt or the distribution or sale of any
dividend or distribution or rights or of the proceeds thereof or the
delivery of any Deposited Property until such proof or other information is
filed or such certificates are executed to the Depositary, the Registrar
and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following fees for
the services performed under the terms of the Deposit Agreement; provided,
however, that no fees shall be payable upon distribution of cash dividends
so long as the charging of such fee is prohibited by the exchange, if any,
upon which the Receipts are listed. The Depositary shall charge any party
who makes a deposit or to whom Receipts are issued (including, without
limitation, deposit or issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock for the Shares or Deposited
Property, or a distribution of Receipts pursuant to Section 4.4 or 4.10 of
the Deposit Agreement), or who surrenders Receipts a fee of $5.00 or less
per 100 American Depositary Shares (or portion thereof) for the issuance or
surrender, respectively, of a Receipt. In addition the Depositary shall
charge to the Holders a fee of $2.00 or less per 100 American Depositary
Shares (or portion thereof) for any cash distribution made pursuant to the
Deposit Agreement, including but not limited to, Sections 4.2 through 4.5
thereof, and $5.00 or less per
100 American Depositary Shares (or portion thereof) in case of a stock
dividend made pursuant to the Deposit Agreement including, but not limited
to Section 4.2 through 4.5 thereof. The Depositary shall also charge the
holder hereof a fee of $1.50 per certificate for a Receipt or Receipts for
transfers made pursuant to the terms of the Deposit Agreement. In addition,
Holders, Beneficial Owners and persons depositing shares will pay taxes and
other governmental charges, registration fees, cable, telex and facsimile
transmission and delivery expenses, and customary and other expenses
incurred by the Depositary in connection with its obligations and duties
under the Deposit Agreement and Annex E thereof. Any other charges and
expenses of the Depositary under the Deposit Agreement will be paid by the
Company after consultation and agreement between the Depositary and the
Company concerning the nature and amount of such charges and expenses. All
fees and charges may at any time and from time to time be changed by
agreement between the Company and the Depositary. The charges and expenses
of the Custodian, nominee or any other agent of the Depositary are for the
sole account of the Depositary. The provisions in respect of these charges
may be changed in the manner indicated in Article (22) of this Receipt.
(11) Title to Receipts. It is a condition of this Receipt, and every successive
Holder hereof by accepting or holding the same consents and agrees, that
title to this Receipt (and to 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 under the laws of the State of New York;
provided, however, that the Company and the Depositary, notwithstanding any
notice to the contrary, may deem and treat the Holder hereof as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided
for in the Deposit Agreement and for all other purposes.
(12) 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
facsimile signature of a duly authorized officer of the Depositary or by
the facsimile signature of a duly authorized officer of a Registrar and
dated by such employee.
(13) Available Information. The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and accordingly is
required to file certain reports with the Commission. Such reports and
information will be available for inspection and copying by Holders at the
public reference facilities maintained by the Commission located at the
date hereof at Judiciary Plaza, 000 Xxxxx Xxxxxx (Xxxx 0000), X.X.,
Xxxxxxxxxx, X.X. 00000, at the principal office of the Depositary and,
where made available by the Commission, on the Commission's website
(xxx.xxx.xxx).
Dated:
DEUTSCHE BANK TRUST COMPANY AMERICAS
Countersigned as Depositary
By: By:
------------------------- -------------------------
Authorized Officer Vice President
The address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx,
Xxx Xxxx, XX 00000.
(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Reports; Inspection of Transfer Books. The Depositary will make available
for inspection during business hours by Holders at its Principal Office and
at the principal office of each Custodian copies of the Deposit Agreement,
any notices, reports or communications received from the Company, which are
both (a) received by the Depositary, the Custodian or the nominee of
either, as the holder of the Deposited Property, and (b) made generally
available to the holders of such Deposited Property by the Company. The
Depositary will also send to Holders copies of such notices, reports and
communications when furnished by the Company to the Depositary as provided
in the Deposit Agreement. The Depositary will keep books for the
registration of Receipts and their transfer which at all reasonable times
will be open for inspection by the Company and 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
or a matter related to the Deposit Agreement, Receipts or Shares. Subject
to Article (24) hereof, 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.
(15) Dividends and Distributions; Rights. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other
cash distribution on any Deposited Property, the Depositary shall as to any
distribution in a foreign currency, subject to the provisions of Section
4.7 of the Deposit Agreement, promptly convert such dividend or
distribution into dollars
and distribute such amount to the Holders entitled thereto in proportion to
the number of American Depositary Shares representing such Deposited
Property held by them respectively without liability for interest thereon,
after deduction or upon payment of the fees, if any, and expenses of the
Depositary; provided, however, that the Depositary (i) shall make
appropriate adjustments in the amounts so distributed in respect of any
such Deposited Property being not entitled, by reason of date of issuance
or otherwise, to receive all or any portion of such distribution and (ii)
in the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Property an amount on account of
taxes or other governmental charges, the amount distributed to the Holders
on the American Depositary Shares representing such Deposited Property
shall be reduced accordingly. Holders and Beneficial Owners understand that
in converting foreign currency, amounts received on conversion are
calculated at a rate which exceeds four decimal places (the number of
decimal places used by the Depositary to report distribution rates). The
excess amount may be retained by the Depositary as an additional cost of
conversion, irrespective of any other fees and expenses payable or owing
hereunder and shall not be subject to escheatment.
If any distribution upon any Deposited Property consists of a dividend
in, or free distribution of, Shares, the Depositary may, subject to Section
5.7 of the Deposit Agreement, and shall, if the Company shall so request,
(i) instruct the Company to deposit or cause such Shares to be deposited
with and registered in the name of the Custodian and (ii) distribute to the
Holders entitled thereto, as of the record date fixed pursuant to Section
4.8 of the Deposit Agreement, in proportion to the number of American
Depositary Shares representing such Deposited Property held by them
respectively, additional Receipts for American Depositary Shares, which
represent
in aggregate the number of Shares received as such dividend, or free
distribution, subject to the terms of the Deposit Agreement. In lieu of
delivering Receipts for fractional American Depositary Shares in any such
case, the Depositary shall sell the number of Shares represented by the
aggregate of such fractions and distribute the net proceeds, all in the
manner and subject to the conditions described in Section 4.2 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 Property represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, or, if the Company,
in the fulfillment of its obligations under the Deposit Agreement, has
furnished an opinion of U.S. counsel determining that Shares must be
registered under the Securities Act or other laws in order to be
distributed to Holders (and no such registration statement has been
declared effective), the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such
amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable and the Depositary shall
distribute the net proceeds of any such sale (after deduction of taxes and
fees and charges of, and expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Property any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary may,
after consultation with the Company to the extent practicable, and, if
requested in writing by the Company, shall, take action, subject to the
terms of the Deposit Agreement, as follows:
(1) if at any time of the offering of any rights, the Depositary
determines, after obtaining, at the Company's expense, opinion(s) of
United States and Luxembourg counsel, as applicable, reasonably
satisfactory to the Depositary, in its discretion that it is lawful
and feasible to make such rights available to all or certain Holders
or Beneficial Owners but not to others, by means of warrants or
otherwise, the Depositary may distribute warrants or other instruments
therefor in such form as it may determine, to the Holders entitled
thereto, in proportion to the number of American Depositary Shares
representing such Deposited Property held by them respectively, or
employ such other method as it may deem feasible after obtaining
opinion(s) of United States and Luxembourg counsel, as applicable,
reasonably satisfactory to the Depositary in order to facilitate the
exercise, sale or transfer of rights of such Holders or Beneficial
Owners; or
(2) if at the time of the offering of any rights, the Depositary
determines in its discretion after obtaining, at the Company's
expense, opinion(s) of United States and Luxembourg counsel, as
applicable, reasonably satisfactory to the Depositary, that it is not
lawful or not feasible to make such rights available to certain
Holders or Beneficial Owners by means of warrants or otherwise, or if
the rights represented by such warrants or such other instruments are
not exercised and appear to be about to lapse, the Depositary may, in
its discretion, sell such rights or such warrants or other instruments
at public or private sale, in a risk less principal capacity, at such
place or places and upon
such terms as it may deem proper, and allocate the proceeds of such
sales for the account of the Holders 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, and distribute such net
proceeds so allocated to the extent practicable as in the case of a
distribution of cash pursuant to Section 4.2 of the Deposit Agreement.
The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such rights
available to Holders in general or any Holder or Holders in
particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, (iii) any liability to the purchaser of
such rights, warrants or other instruments or (iv) the content of any
materials forwarded to the Holders on behalf of the Company in
connection with the rights distribution.
If the Depositary does not receive such written request from the
Company, the Depositary shall, after consultation with the Company to the
extent practicable, and after obtaining opinion(s) of United States and
Luxembourg counsel, as applicable, reasonably satisfactory to the
Depositary, have discretion as to the procedure to be followed (i) in
making such rights available to the Holders, or (ii) in disposing of such
rights on behalf of such Holders and distributing the net proceeds
available in dollars to such Holders as in the case of a distribution of
cash pursuant to Section 4.2 of the Deposit Agreement, or (iii) in allowing
such rights to lapse in the event such rights may not be made available to
Holders or be disposed of and the net proceeds thereof made available to
Holders.
Notwithstanding anything to the contrary in this Article (15) if
registration (under the Securities Act or any other applicable law) of the
securities to which any rights relate may be required in order for the
Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not offer such
rights to the Holders (i) unless and until a registration statement under
the Securities Act covering such offering is in effect, or (ii) unless the
Company furnishes the Depositary opinion(s) of counsel for the Company in
the United States and counsel to the Company in any other applicable
jurisdiction in which rights would be distributed, satisfactory to the
Depositary or other evidence satisfactory to the Depositary to the effect
that the offering and sale of such securities to the Holders of such
Receipts are exempt from or do not require registration under the
provisions of the Securities Act or any other applicable laws.
Whenever the Depositary or the Custodian shall receive any
distribution other than cash, Shares or rights upon any Deposited Property,
the Depositary shall, after consultation with the Company to the extent
practicable, and upon receipt, at the Company's expense, of opinion(s) of
United States and Luxembourg counsel, as applicable, satisfactory to the
Depositary that the proposed distribution does not violate any applicable
laws or regulations, cause the securities or property so received to be
distributed to the Holders entitled thereto, as of a record date fixed
pursuant to Section 4.8 of the Deposit Agreement, in proportion to the
number of American Depositary Shares representing such Deposited Property
held by them respectively, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution, net of
applicable fees and charges of, and expenses of the Depositary; provided,
however, that, if in the opinion of the Depositary or its counsel, 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 without limitation
any requirement (i) that the Company, the Depositary or the Custodian
withhold an amount on account of taxes or other governmental charges or
(ii) that under applicable securities or exchange control regulations or
law such securities must be registered under the Securities Act or other
law in order to be distributed to Holders), the Depositary deems all or any
portion of such distribution not to be feasible, the Depositary may obtain
opinion(s) of United States and Luxembourg counsel, as applicable, as to an
equitable and practicable method of effecting such distribution and may
rely on such advice, which method shall include but not be limited to the
sale (at public or private sale) of the securities or property thus
received, or any part thereto, and the distribution of the net proceeds of
any such sale (net of taxes, fees and expenses of the Depositary set forth
in Section 5.9 of and Annex B to the Deposit Agreement) by the Depositary
to the Holders entitled thereto as in the case of a distribution received
in cash.
(16) Record Dates. Whenever the Depositary shall receive notice of the fixing of
a record date by the Company for the determination of holders of Deposited
Property entitled to receive any cash dividend or other cash distribution
or any distribution other than cash, or any rights to be issued, or
whenever for any reason the Depositary causes a change in the number of
Shares that are represented by each American Depositary Share with respect
to the Deposited Property, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall,
after consultation with the Company to the extent practicable, fix a record
date for the determination of the Holders who shall be entitled to receive
such dividend, distribution, rights or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any
such meeting, or to give or withhold such consent, or to receive such
notice or solicitation or to otherwise take action, or
whose Receipts shall evidence such changed number of Shares, subject to the
provisions of the Deposit Agreement. Subject to the provisions of Section
4.2 through 4.7 of the Deposit Agreement and to the other terms and
conditions of this Receipt and the Deposit Agreement, only the Holders of
Receipts at the close of business on such record date shall be entitled to
receive the amount distributable by the Depositary with respect to such
dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by
them respectively, or to give such voting instructions, to receive such
notice or solicitation, or otherwise take action.
(17) Voting of Deposited Property. As soon as practicable after receipt of
notice of any meeting at which the holders of Shares are entitled to vote,
or of solicitation of consents or proxies from holders of Shares or other
Deposited Property, the Depositary shall fix a record date in respect of
such meeting for the giving of instructions for voting or such consent or
proxy. The Depositary shall, if requested in writing in a timely manner
(which notice shall have been received by the Depositary at least 20 days
prior to such vote or meeting or the Depositary shall have no obligation to
so notify Holders hereunder) by the Company and at the Company's expense,
mail to Holders (a) such notice of meeting or a summary of such information
as is contained in such notice of meeting, (b) a statement that the Holders
at the close of business on the specified record date will be entitled,
subject to any applicable law, the Company's Articles of Association and
the provisions of or governing Deposited Property (which provisions, if
any, shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights-, if any, pertaining to
the Shares or other Deposited Property represented by American Depositary
Shares and (c) a brief statement as to the manner in which such
instructions may be given. Voting instructions may be given only in respect
of a number of American Depositary Shares
representing an integral number of Shares or other Deposited Property. Upon
the written request of a Holder of American Depositary Shares evidenced by
a Receipt on such record date received on or before the date established by
the Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law and the provisions of the
Articles of Association and the provisions of the Deposited Property, to
vote or cause the Custodian to vote the Shares and/or other Deposited
Property in person or by proxy represented by American Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in
such request.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote or attempt to exercise the right to vote Shares or
other Deposited Property represented by American Depositary Shares except
pursuant to and in accordance with such written instructions from Holders.
Shares or other Deposited Property represented by American Depositary
Shares for which no specific voting instructions are-received by the
Depositary from the Holder shall not be voted.
(18) Changes Affecting Deposited Property. Upon any change in nominal or par
value, split-up, cancellation, consolidation or any other reclassification
of Deposited Property, 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 replacement or otherwise
in respect of, such Deposited Property shall be treated as new Deposited
Property under the Deposit Agreement, and the American Depositary Shares
representing or previously representing such Deposited Property shall,
subject to the Deposit Agreement and applicable law, thenceforth represent
the right to
receive such additional securities. Alternatively, the Depositary may, with
the Company's approval, which approval shall not be unreasonably withheld,
and shall, if the Company shall so request, subject to the terms of the
Deposit Agreement and receipt of an opinion of the Company's counsel
reasonably satisfactory to the Depositary that such distributions are not
in violation of any applicable laws or regulations, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or
call for the surrender of outstanding Receipts to be exchanged for new
Receipts, in either case, as well as in the event of newly deposited
Shares, with necessary modifications to the form of Receipt contained in
this Annex A to the Deposit Agreement, specifically describing such new
Deposited Property or corporate change. The Company agrees to, jointly with
the Depositary, amend the Registration Statement on Form F-6 as filed with
the Commission to permit the issuance of such new form of Receipts.
Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company's approval, which approval shall not be
unreasonably withheld, and shall if the Company requests, subject to
receipt of an opinion of the Company's counsel reasonably satisfactory to
the Depositary that such action is not in violation of any applicable laws
or regulations, sell such securities at public or private sale, at such
place or places and upon such terms as it may deem proper and may allocate
the net proceeds of such sales for the account of the Holders otherwise
entitled to such securities upon an averaged or other practicable basis
without regard to any distinctions among such Holders and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to Section 4.2 of the Deposit
Agreement. The Depositary shall not be liable for (i) any failure to
determine that it may be lawful or feasible to make such securities
available to Holders in general or any Holders in particular, (ii) any
foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any
liability to the purchaser of such securities.
(19) Indemnification. The Company agrees to indemnify the Depositary, the
Custodian and any of their respective directors, employees, agents and
Affiliates against, and hold each of them harmless from, any loss,
liability, tax, charge or expense of any kind whatsoever (including, but
not limited to, the reasonable fees and expenses of counsel) that may arise
(a) out of or in connection with any offer, issuance, sale, resale,
transfer, deposit or withdrawal of Receipts, American Depositary Shares, or
other Deposited Property, as the case may be, or any offering documents in
respect thereof or (b) out of acts performed or omitted, including but not
limited to any delivery by the Depositary on behalf of the Company of
information regarding the Company, in connection with the Deposit
Agreement, the Receipts, the American Depositary Shares or any Deposited
Property, as the same may be amended, modified or supplemented from time to
time, in any such case (i) by the Depositary, the Custodian or any of their
respective directors, employees, agents and Affiliates, except to the
extent such loss, liability, tax, charge or expense is due to negligence or
bad faith of any of them, or (ii) by the Company or any of its directors,
employees, agents and Affiliates.
The Depositary agrees to indemnify the Company and its directors,
employees, agents and Affiliates and hold them harmless from any liability
or expense (including, without limitation, reasonable fees and expenses of
counsel) which may arise out of acts performed or omitted, including, but
not limited to, any delivery by the Depositary on behalf of the Company of
information regarding the Company, in connection with the Deposit
Agreement, the Receipts, the American Depositary Shares or any Deposited
Property, as the same may be amended,
modified or supplemented from time to time by the Depositary due to the
negligence or bad faith of the Depositary. The obligations set forth in
this Article (19) shall survive the termination of the Deposit Agreement
and the succession or substitution of any party thereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or
claim promptly after such indemnified person becomes aware of such
commencement (provided that the failure to make such notification shall not
affect such indemnified person's rights to seek indemnification except to
the extent the indemnifying person is materially prejudiced by such
failure) and shall consult in good faith with the indemnifying person as to
the conduct of the defense of such action or claim, which defense shall be
reasonable in the circumstances. No indemnified person shall compromise or
settle any action or claim without the consent of the indemnifying person,
which consent shall not be unreasonably withheld.
(20) Liability of the Company and Depositary. Neither the Depositary nor the
Company nor any of their respective directors, employees, agents or
Affiliates shall incur any liability to any Holder, Beneficial Owner or any
other person, if, by reason of any provision of any present or future law
or regulation of the United States, Luxembourg or any other jurisdiction,
or of any other governmental authority or regulatory authority or stock
exchange, or by reason of any provision, present or future, of the Articles
of Association of the Company or the provisions of or governing any
Deposited Property, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or its agents or the
Company or its agents shall be prevented or forbidden from or subjected to
any civil or criminal penalty or restraint on account of, or delayed in,
doing
or performing any act or thing which by the terms of the Deposit Agreement
it is provided shall be done or performed; nor shall the Depositary or its
agents or the Company or its agents incur any liability to any Holder,
Beneficial Owner or other person by reason of any non-performance or delay,
caused as aforesaid, in performance of any act or thing which by the terms
of the Deposit Agreement it is provided shall or may be done or performed,
or by reason of any exercise of, or failure to exercise, any discretion
provided for in the Deposit Agreement or in the Articles of Association of
the Company or the provisions of or governing any Deposited Property.
Where, by the terms of a distribution pursuant to Sections 4.2, 4.3 or 4.4
of the Deposit Agreement, or an offering or distribution pursuant to
Sections 4.5, 4.10 or 5.7 of the Deposit Agreement or any provision of the
Company's Articles of Association or for any other reason, such
distribution or offering may not be made available to Holders, or some of
them 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 such rights, if applicable, to lapse.
None of the Company or its agents assumes any obligation or shall be
subject to any liability under the Deposit Agreement or the Receipts to
Holders, Beneficial Owners or other persons, except that each of the
Company and its agents agrees to perform its obligations specifically set
forth in the Deposit Agreement without negligence or bad faith and using
its reasonable judgment, without any liability on the part of the Company
or the Depositary to any Holder or Beneficial Owner. None of the Depositary
or its agents assumes any obligation or shall be subject to any liability
under the Deposit Agreement or the Receipts to Holders, Beneficial Owners
or other persons (including, without limitation, liability with respect to
the validity or worth of the Deposited Property), except that each of the
Depositary and its agents agrees to
perform its obligations specifically set forth in the Deposit Agreement
without negligence or bad faith. Subject to Article (25), the Depositary
undertakes (i) not to issue any Receipt other than to evidence American
Depositary Shares representing Deposited Property then on deposit with the
Custodian and (ii) not to lend Deposited Property held by it as Depositary.
Without limitation of the foregoing, neither the Depositary, nor any
of its controlling persons or agents, nor the Company nor any of its agents
shall be (a) under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Property or in
respect of the Receipts, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense
(including fees and disbursements of counsel) and liability 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), or (b) 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 in good faith to be competent to give
such advice or information. The Depositary shall not incur any liability
for any failure to determine that any distribution or action may be lawful
or reasonably practicable, for the content of any information submitted to
it by the Company for distribution to the Holders or for any inaccuracy of
any translation thereof, for any investment risk associated with acquiring
an interest in the Deposited Property, for the validity or worth of the
Deposited Property or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Property, for the credit-worthiness
of any third party, for allowing any rights to lapse upon the terms of the
Deposit Agreement or for the failure or timeliness of any notice from the
Company. The Depositary, its controlling persons, its agents, any Custodian
and the Company, its controlling persons and its
agents may rely and shall be protected in acting upon any written notice,
request or other document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
The Depositary and its agents shall not be responsible for any failure
to carry out any instructions to vote any of the Deposited Property, or for
the manner in which any vote is cast or the effect of any vote, provided
that any such action or omission is in good faith and in accordance with
the terms of the Deposit Agreement. No disclaimer of liability under the
Securities Act is intended by any provision of the Deposit Agreement.
(21) Resignation And Removal of Depositary; Substitution of Custodian. 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 earlier of the 60th day after such delivery or 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 earlier of the 60th day after delivery thereof to the Depositary
and 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 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.
(22) Amendment of Deposit Agreement and Receipts. The form of the Receipts and
any provisions of the Deposit Agreement may at any time and from time to
time be amended by written agreement between the Company and the Depositary
in any respect which they may deem necessary or desirable without the
consent of the Holders or Beneficial Owners. Any amendment which shall
impose or increase any fees or charges (other than the charges of the
Depositary for deposits, the execution and delivery of Receipts, custody,
transfer and registration fees, fees in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
such other expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not,
however, become effective as to outstanding Receipts until the expiration
of 30 days after notice of such amendment shall have been given to the
Holders of outstanding Receipts. The parties hereto agree that any
amendments which (i) are reasonably necessary (as agreed by the company and
the Depositary) in order for (a) the American Depositary Shares to be
registered on Form F-6 under the Securities Act or (b) the American
Depositary Shares 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 materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner 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 to surrender
such Receipt and receive therefor the Deposited Property represented
thereby, except in order to comply with mandatory provisions of applicable
law. Notwithstanding the foregoing, if any governmental body should adopt
new laws, rules or regulations which would require amendment of the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary
may amend the Deposit Agreement and the Receipt 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 is given to Holders or within any other period of time as
required for compliance.
(23) Termination of Deposit Agreement. The Depositary shall, at any time at the
written direction of the Company, terminate the Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for
such termination. If 60 days shall have expired after (i) the Depositary
shall have delivered to the Company a written notice of its election to
resign, or (ii) the Company shall have delivered to the Depositary a
written notice of the removal of the Depositary, and in either case a
successor depositary shall not have been appointed and accepted its
appointment as provided in Article (21) hereof and Section 5.4 of the
Deposit Agreement, the Depositary may terminate the Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed for such termination.
On and after the date of termination, the Holder will, upon surrender of
such Receipt at the Principal Office of the Depositary, upon the payment of
the charges of the Depositary for the surrender of Receipts referred to in
Article (2) hereof and Section 2.5 of the Deposit Agreement and subject to
the conditions and restrictions therein set forth, and upon payment of any
applicable taxes or governmental charges, be entitled to delivery, to him
or upon his order, of the amount of Deposited Property represented by such
Receipt. If any Receipts shall remain outstanding after the date of
termination of the Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of Receipts, and the Depositary
shall suspend the distribution of dividends to the Holders thereof, and
shall not give any further notices or perform any further acts under the
Deposit Agreement except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Property, shall
sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Property, subject to the conditions and restrictions set
forth in Section 2.5 of the Deposit Agreement, together with any dividends
or other distributions received with respect
thereto and the net proceeds of the sale of any rights or other property,
in exchange for Receipts surrendered to the Depositary (after deducting, or
charging, as the case may be, in each case the charges of the Depositary
for the surrender of a Receipt, any expenses for the account of the Holder
in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time
after the expiration of six months from the date of termination, the
Depositary may sell the Deposited Property then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with
any other cash then held by it hereunder, in an unsegregated escrow
account, without liability for interest, for the pro rata benefit of the
Holders of receipts whose Receipts have not theretofore been surrendered.
After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement with respect to the Receipts and
the Shares, Deposited Property and American Depositary Shares, except to
account for such net proceeds and other cash (after deducting, or charging,
as the case may be, in each case the charges of the Depositary for the
surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from
all obligations under the Deposit Agreement, except for its obligations to
the Depositary under Articles (10) and (19) hereof, and Sections 5.8 and
5.9 of the Deposit Agreement.
(24) Compliance With U.S. Securities Laws. Notwithstanding anything 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 Property in a
manner which would violate the United States securities laws, including,
but not limited to,
Instruction I.A.(l) of the General Instructions to Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933,
as amended.
(25) Certain Rights of the Depositary; Limitations. Subject to the further terms
and provisions of this Article (25), the Depositary and its agents, on
their own behalf, may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Depositary may issue
Receipts against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in
respect of the Shares. Such evidence of rights shall consist of written
blanket or specific guarantees of ownership of Shares furnished on behalf
of the holder thereof. In its capacity as Depositary, the Depositary shall
not lend Shares or Receipts; provided, however, that the Depositary may (i)
issue Receipts prior to the receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement and (ii) deliver Shares prior to the receipt and
cancellation of Receipts pursuant to Section 2.5 of the Deposit Agreement,
including Receipts which were issued under (i) above but for which Shares
may not have been received (each such transaction a "Pre-Release
Transaction"). The Depositary may receive Receipts in lieu of Shares under
(i) above and receive Shares in lieu of Receipts under (ii) above. Each
such Pre-Release Transaction will be (a) accompanied by or subject to a
written agreement whereby the applicant to whom Receipts or Shares are to
be delivered (the "Applicant") (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or
Receipts that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) agrees to indicate the Depositary as owner of such Shares
or Receipts in its records and to hold such Shares or Receipts in trust for
the Depositary until such Shares or Receipts are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to
the Depositary or the Custodian, as applicable, such
Shares or Receipts and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States government securities or such other
collateral as the Depositary deems appropriate, (c) terminable by the
Depositary on not more than five (5) business days notice and (d) subject
to such further indemnities and credit regulations as the Depositary deems
appropriate. The Depositary will normally limit the number of Receipts and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the Receipts outstanding (without giving effect to
Receipts outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time
to time as it deems appropriate. The Depositary may also set limits with
respect to the number of Receipts and Shares involved in Pre-Release
Transactions with any one person on a case by case basis as it deems
appropriate. Collateral provided pursuant to (b) above, but not the
earnings thereon, shall be held for the benefit of the Holders and
Beneficial Owners.
The Depositary may retain for its own account any compensation
received by it in conjunction with the foregoing.
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto _________________ whose taxpayer identification number is and
whose address including postal zip code is ______________, the within Receipt
and all rights thereunder, hereby irrevocably constituting and appointing
______________ attorney-in-fact to transfer said Receipt on the books of the
Depositary with full power of substitution in the premises.
Dated: ______________ Name:
By:_______________
Title:____________
SIGNATURE GUARANTEED
______________
NOTICE: The signature to any endorsement hereon must correspond with the
name as written upon the face of this Receipt in every particular, without
alteration or enlargement or any change whatever.
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Holders, the Beneficial Owners and the persons depositing Shares
or surrendering American Depositary Shares for cancellation agree to pay the
following fees of the Depositary for the services performed under the Deposit
Agreement; provided, however, that no fees shall be payable upon distribution of
cash dividends so long as the charging of such fee is prohibited by the
exchange, if any, upon which the American Depositary Shares are listed:
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Service Rate By Whom Paid
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(1) Issuance of ADSs upon deposit Up to $5.00 per 100 ADSs (or Person for whom deposits are made
of Shares (excluding fraction thereof) issued. or party receiving ADSs.
issuances as a result of
distributions described in
paragraph (5) below).
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(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs or
making Property, property and fraction thereof) surrendered. withdrawal.
cash against surrender of ADSs.
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(3) Distribution of cash Up to $2.00 per 100 ADSs (or Person to whom distribution is made.
dividends. fraction thereof) issued, unless
prohibited by the exchange upon
which the ADSs are listed.
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(4) Distribution of cash proceeds Up to $2.00 per 100 ADSs (or Person to whom distribution is made.
(i.e., upon sale of rights fraction thereof) held.
and other entitlements)
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(5) Distribution of ADSs Up to $5.00 per 100 ADSs (or Person to whom distribution is made.
(excluding issuances fraction thereof) issued, unless
described in paragraph (1) prohibited by the exchange upon
above) including pursuant to which the ADSs are listed.
(i) stock dividends or
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other free stock distributions,
or (ii) exercise of rights.
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(6) Transfer of ADRs. $1.50 per Certificate presented. Person presenting certificate for
transfer.
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II. Charges
Holders, Beneficial Owners, persons depositing Shares for deposit and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Property shall be responsible for the following charges, unless
otherwise agreed between the Company and the Depositary from time to time:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Property on the share
register and applicable to transfers of Shares or other Deposited
Property to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense
of the person depositing Shares or Holders and Beneficial Owners of
ADSs;
(iv) such reasonable and customary expenses and charges incurred by the
Depositary in the conversion of foreign currency pursuant to Section
4.7 of the Deposit Agreement;
(v) such fees and reasonable expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and other
regulatory requirements applicable to Shares, Deposited Property, ADSs
and ADRs; and
(vi) the fees and reasonable expenses incurred by the Depositary in
connection with the delivery of Deposited Property.
