[Execution Copy]
INFICON HOLDING AG
and
THE BANK OF NEW YORK
As Depositary
and
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of November 8, 2000
TABLE OF CONTENTS
-----------------
Page
PARTIES ......................................................................1
RECITALS ......................................................................1
ARTICLE 1
DEFINITIONS
SECTION 1.01. American Depositary Shares ............................1
SECTION 1.02. Beneficial Owner .......................................2
SECTION 1.03. Commission .............................................2
SECTION 1.04. Company ................................................2
SECTION 1.05. Custodian ..............................................2
SECTION 1.06. Deliver; Surrender .....................................2
SECTION 1.07. Deposit Agreement ......................................2
SECTION 1.08. Depositary; Corporate Trust Office......................3
SECTION 1.09. Deposited Securities ...................................3
SECTION 1.10. Dollars ................................................3
SECTION 1.11. Foreign Registrar ......................................3
SECTION 1.12. Owner ..................................................3
SECTION 1.13. Receipts ...............................................3
SECTION 1.14. Registrar ..............................................3
SECTION 1.15. Restricted Securities ..................................3
SECTION 1.16. Securities Act of 1933 .................................4
SECTION 1.17. SIS ....................................................4
SECTION 1.18. Shares .................................................4
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts....................4
SECTION 2.02. Deposit of Shares.......................................5
SECTION 2.03 Execution and Delivery of Receipts......................6
SECTION 2.04. Transfer of Receipts; Combination and
Split-up of Receipts....................................7
SECTION 2.05. Surrender of Receipts and Withdrawal
of Shares...............................................7
SECTION 2.06. Limitations on Execution and Delivery,
Transfer and Surrender of Receipts......................9
SECTION 2.07. Lost Receipts, etc ....................................10
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts...................................10
SECTION 2.09. Pre-Release of Receipts................................10
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ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL
OWNERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other
Information............................................11
SECTION 3.02. Liability of owner or Beneficial Owner
for Taxes..............................................11
SECTION 3.03. Warranties on Deposit of Shares........................11
ARTICLE 4
THE DEPOSITED SECURITIES
SECTION 4.01. Cash Distributions.....................................12
SECTION 4.02. Distributions Other Than Cash, Shares
or Rights..............................................12
SECTION 4.03. Distributions in Shares................................13
SECTION 4.04. Rights.................................................12
SECTION 4.05. Conversion of Foreign Currency ........................16
SECTION 4.06. Fixing of Record Date..................................17
SECTION 4.07. Voting of Deposited Securities.........................18
SECTION 4.08. Changes Affecting Deposited
Securities.............................................18
SECTION 4.09. Reports................................................19
SECTION 4.10. Lists of Owners........................................19
SECTION 4.11. Withholding............................................19
ARTICLE 5
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer
Books by the Depositary................................20
SECTION 5.02. Prevention or Delay in Performance by
the Depositary or the Company .........................20
SECTION 5.03. Obligations of the Depositary, the
Custodian and the Company..............................21
SECTION 5.04. Resignation and Removal of the
Depositary.............................................22
SECTION 5.05. The Custodians.........................................23
SECTION 5.06. Notices and Reports....................................23
SECTION 5.07. Distribution of Additional Shares,
Rights, etc............................................24
SECTION 5.08. Indemnification........................................25
SECTION 5.09. Charges of Depositary..................................25
SECTION 5.10. Retention of Depositary Documents......................26
SECTION 5.11. Exclusivity............................................26
SECTION 5.12. List of Restricted Securities
Owners.................................................26
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ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment..............................................27
SECTION 6.02. Termination............................................27
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Counterparts...........................................29
SECTION 7.02. No Third Party Beneficiaries...........................29
SECTION 7.03. Severability...........................................29
SECTION 7.04. Owners and Beneficial Owners as
Parties; Binding Effect................................29
SECTION 7.05. Notices................................................29
SECTION 7.06 Submission to Jurisdiction; Appointment
of Agent for Service of Process........................30
SECTION 7.07. Governing Law..........................................31
EXHIBIT A
Form of Receipt
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of November 8, 2000 among INFICON HOLDING AG,
incorporated under the laws of Switzerland (herein called the Company), THE BANK
OF NEW YORK, a New York banking corporation (herein called the Depositary), and
all Owners and Beneficial Owners from time to time of American Depositary
Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. American Depositary Shares. The term "American Depositary
Shares" shall mean the securities representing the interests in the Deposited
Securities and evidenced by the Receipts issued hereunder. Each American
Depositary Share shall represent one-tenth of one Share, until there shall occur
a distribution upon Deposited Securities covered by Section 4.03 or a change in
Deposited Securities covered by Section 4.08 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall represent the amount of Shares or Deposited Securities specified in
such Sections.
SECTION 1.02. Beneficial Owner. The term "Beneficial Owner" shall mean
each person owning from time to time any beneficial interest in the American
Depositary Shares evidenced by any Receipt.
SECTION 1.03. Commission. The term "Commission" shall mean the
Securities and Exchange Commission of the United States or any successor
governmental agency in the United States.
SECTION 1.04. Company. The term "Company" shall mean INFICON Holding AG,
incorporated under the laws of Switzerland, and its successors.
SECTION 1.05. Custodian. The term "Custodian" shall mean the principal
Zurich office of UBS AG, as agent of the Depositary for the purposes of this
Deposit Agreement, and any other firm or corporation which may hereafter be
appointed by the Depositary pursuant to the terms of Section 5.05, as substitute
or additional custodian or custodians hereunder, as the context shall require
and shall also mean all of them collectively.
SECTION 1.06. Deliver; Surrender. (a) The term "deliver", or its noun
form, when used with respect to Shares shall mean (i) one or more book-entry
transfers to an account or accounts maintained with a depository institution
authorized under applicable law to effect book-entry transfers of such
securities or (ii) the physical transfer of certificates representing Shares.
(b) The term "deliver", or its noun form, when used with respect to
Receipts, shall mean (i) one or more book-entry transfers of American Depositary
Shares to an account or accounts at The Depository Trust Company ("DTC")
designated by the person entitled to such delivery or (ii) if requested by the
person entitled to such delivery, to delivery at the Corporate Trust Office of
the Depositary of one or more Receipts.
(c) The term "surrender", when used with Receipts, shall mean (i) one or
more book-entry transfers of American Depositary Shares to the DTC account of
the Depositary or (ii) surrender to the Depositary at its Corporate Trust Office
of one or more Receipts.
SECTION 1.07. Degosit Agreement. The term "Deposit Agreement" shall mean
this Deposit Agreement, as the same may be amended from time to time in
accordance with the provisions hereof.
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SECTION 1.08. Depositary; Corporate Trust Office. The term "Depositary"
shall mean The Bank of New York, a New York banking corporation, and any
successor as depositary hereunder. The term "Corporate Trust Office", when used
with respect to the Depositary, shall mean the office of the Depositary which at
the date of this Agreement is 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.09. Deposited Securities. The term "Deposited Securities" as
of any time shall mean Shares at such time deposited or deemed to be deposited
under this Deposit Agreement and any and all other securities, property and cash
received by the Depositary or the Custodian in respect thereof and at such time
held hereunder, subject as to cash to the provisions of Section 4.05.
SECTION 1.10. Dollars. The term "Dollars" shall mean United States
dollars. The terms "Francs" and "CHF" shall mean Swiss francs.
SECTION 1.11. Foreign Registrar. The term "Foreign Registrar" shall mean
the entity that presently carries out the duties of registrar for the Shares or
any successor as registrar for the Shares and any other appointed agent of the
Company for the transfer and registration of Shares.
SECTION 1.12. Owner. The term "Owner" shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
SECTION 1.13. Receipts. The term "Receipts" shall mean the American
Depositary Receipts issued hereunder evidencing American Depositary Shares.
SECTION 1.14. Registrar. The term "Registrar" shall mean any bank or
trust company having an office in the Borough of Manhattan, The City of New
York, which shall be appointed to register Receipts and transfers of Receipts as
herein provided.
SECTION 1.15. Restricted Securities. The term "Restricted Securities"
shall mean Shares, or Receipts representing such Shares, which are acquired
directly or indirectly from the Company, or any affiliate (as defined in Rule
144 to the Securities Act of 1933) of the Company, in a transaction or chain of
transactions not involving any public offering, or which are held by an officer,
director (or persons performing similar functions) or other affiliate of the
Company, or which would require registration under the Securities Act of 1933 in
connection with the public
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offer and sale thereof in the United States, or which are subject to other
restrictions on sale or deposit under the laws of the United States or
Switzerland, or under a shareholder agreement or the articles of incorporation
of the Company.
SECTION 1.16. Securities Act of 1933. The term "Securities Act of 1933"
shall mean the United States Securities Act of 1933, as from time to time
amended.
SECTION 1.17. SIS. The term "SIS" shall mean SIS SegaInterSettle AG,
the Swiss central securities depository.
SECTION 1.18. Shares. The term "Shares" shall mean shares in registered
form of the Company, par value CHF 10 each, heretofore validly issued and
outstanding and fully paid, nonassessable and free of any pre-emptive rights of
the holders of outstanding Shares or hereafter validly issued and outstanding
and fully paid, nonassessable and free of any pre-emptive rights of the holders
of outstanding Shares; provided, however, that, if there shall occur any change
in nominal value, a split-up or consolidation or any other reclassification or,
upon the occurrence of an event described in Section 4.08, an exchange or
conversion in respect of the Shares of the Company, the term "Shares" shall
thereafter also mean the successor securities resulting from such change in
nominal value, split-up or consolidation or such other reclassification or such
exchange or conversion.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive Receipts
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. No Receipt shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt
shall have been executed by the Depositary by the manual or facsimile signature
of a duly authorized signatory of the Depositary and, if a Registrar for the
Receipts shall have been appointed, countersigned by the manual signature of a
duly authorized officer of the Registrar. The Depositary shall maintain books on
which each Receipt so executed and delivered as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts bearing the manual
or facsimile signature of a duly authorized signatory
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of the Depositary who was at any time a proper signatory of the Depositary shall
bind the Depositary, notwithstanding that such signatory has ceased to hold such
office prior to the execution and delivery of such Receipts by the Registrar or
did not hold such office on the date of issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of New York; provided, however, that
the Depositary, notwithstanding any notice to the contrary, may treat the Owner
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Shares. Subject to the terms and conditions of
this Deposit Agreement, Shares or evidence of rights to receive Shares may be
deposited by delivery thereof to any Custodian hereunder, accompanied by any
appropriate instrument or instruments of transfer, or endorsement, in form
satisfactory to the Custodian, together with all such certifications as may be
required by the Depositary or the Custodian in accordance with the provisions of
this Deposit Agreement, and, if the Depositary requires, together with a written
order directing the Depositary to execute and deliver to, or upon the written
order of, the person or persons stated in such order, a Receipt or Receipts for
the number of American Depositary Shares representing such deposit. No Share
shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary that any necessary approval has been granted by any governmental body
in Switzerland which is then performing the function of the regulation of
currency exchange. If required by the Depositary, Shares
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presented for deposit at any time, whether or not the transfer books of the
Company or the Foreign Registrar, if applicable, are closed, shall also be
accompanied by an agreement or assignment, or other instrument satisfactory to
the Depositary, which will provide for the prompt transfer to the Custodian of
any dividend, or right to subscribe for additional Shares or to receive other
property which any person in whose name the Shares are or have been recorded may
thereafter receive upon or in respect of such deposited Shares, or in lieu
thereof, such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary.
At the request and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive Shares to
be deposited, together with the other instruments herein specified, for the
purpose of forwarding such Shares to the Custodian for deposit hereunder.
Upon each delivery to a Custodian of Shares to be deposited hereunder,
together with the other documents above specified, such Custodian shall, as soon
as transfer and recordation can be accomplished, present such Shares to the
Company or the Foreign Registrar, if applicable, for transfer and recordation of
the Shares being deposited in the name of the Depositary or its nominee or such
Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary or at such other place or
places as the Depositary shall determine.
SECTION 2.03. Execution and Delivery of Receipts. Upon receipt by any
Custodian of any deposit pursuant to Section 2.02 hereunder (and in addition, if
the transfer books of the Company or the Foreign Registrar, if applicable, are
open, the Depositary may in its sole discretion require a proper acknowledgment
or other evidence from the Company that any Deposited Securities have been
recorded upon the books of the Company or the Foreign Registrar, if applicable,
in the name of the Depositary or its nominee or such Custodian or its nominee),
together with the other documents required as above specified, such Custodian
shall notify the Depositary of such deposit and the person or persons to whom or
upon whose written order a Receipt or Receipts are deliverable in respect
thereof and the number of American Depositary Shares to be evidenced thereby.
Such notification shall be made by letter or, at the request, risk and expense
of the person making the deposit, by cable, telex or facsimile transmission.
Upon
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receiving such notice from such Custodian, or upon the receipt of Shares by the
Depositary, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver at its Corporate Trust Office, to or upon
the order of the person or persons entitled thereto, a Receipt or Receipts,
registered in the name or names and evidencing any authorized number of American
Depositary Shares requested by such person or persons, but only upon payment to
the Depositary of the fees and expenses of the Depositary for the execution and
delivery of such Receipt or Receipts as provided in Section 5.09, and of all
taxes and governmental charges and fees payable in connection with such deposit
and the transfer of the Deposited Securities.
SECTION 2.04. Transfer of Receipts; Combination and Split-up of
Receipts. The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Owners or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary.
SECTION 2.05. Surrender of Receipts and Withdrawal of Shares. Upon
surrender at the Corporate Trust Office of the Depositary of a Receipt for the
purpose of withdrawal of the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, and
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upon payment of the fee of the Depositary for the surrender of Receipts as
provided in Section 5.09 and payment of all taxes and governmental charges
payable in connection with such surrender and withdrawal of the Deposited
Securities, and subject to the terms and conditions of this Deposit Agreement,
the Owner of such Receipt shall be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities at the time represented by the
American Depositary Shares evidenced by such Receipt. Delivery of such Deposited
Securities may be made by the delivery of (a) Shares in the name of such Owner
or as ordered by him or Shares properly endorsed or accompanied by proper
instruments of transfer to such Owner or as ordered by him and (b) any other
securities, property and cash to which such Owner is then entitled in respect of
such Receipts to such Owner or as ordered by him. Such delivery shall be made,
as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall, if feasible, direct the Custodian to deliver at the office of
such Custodian, subject to Sections 2.06, 3.01 and 3.02 and to the other terms
and conditions of this Deposit Agreement, to or upon the written order of the
person or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering a Receipt,
and for the account of such Owner, the Depositary shall, if feasible, direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates, if available, and other proper
documents of title for, the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt to the Depositary for delivery at
the Corporate Trust Office of the Depositary.
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Such direction shall be given by letter or, at the request, risk and expense of
such Owner, by cable, telex or facsimile transmission.
SECTION 2.06. Limitations on Execution and Delivery. Transfer and
Surrender of Receipts. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, Custodian or Registrar
may require payment from the depositor of Shares or the presenter of the Receipt
of a sum sufficient to reimburse it for any tax or other governmental charge and
any stock transfer or registration fee with respect thereto (including any such
tax or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, may require the production of
proof satisfactory to it as to the identity and genuineness of any signature and
may also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.06.
The delivery of Receipts against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in this Deposit Agreement, the
surrender of outstanding Receipts and withdrawal of Deposited Securities may not
be suspended subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders' meeting, or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance with any U.S.
or foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Shares which would be required to be registered under the provisions of the
Securities Act of 1933 for the public offer and sale thereof in the United
States unless a registration statement is in effect as to such Shares for such
offer and sale.
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SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary shall execute and deliver a
new Receipt of like tenor in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such
destroyed, lost or stolen Receipt. Before the Depositary shall execute and
deliver a new Receipt in substitution for a destroyed, lost or stolen Receipt,
the Owner thereof shall have (a) filed with the Depositary (i) a request for
such execution and delivery before the Depositary has notice that the Receipt
has been acquired by a bona fide purchaser and (ii) a sufficient indemnity bond
and (b) satisfied any other reasonable requirements imposed by the Depositary.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary shall be canceled by the Depositary. The
Depositary is authorized to destroy Receipts so canceled.
SECTION 2.09. Pre-Release of Receipts. Notwithstanding Section 2.03
hereof, the Depositary may execute and deliver Receipts prior to the receipt of
Shares pursuant to Section 2.02 (a "Pre-Release"). The Depositary may, pursuant
to Section 2.05, deliver Shares upon the receipt and cancellation of Receipts
which have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Released. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts or
Shares are to be delivered, that such person, or its customer, owns the Shares
or Receipts to be remitted, as the case may be, (b) at all times fully
collateralized with cash or such other collateral as the Depositary determines,
in good faith, will provide substantially similar liquidity and security, (c)
terminable by the Depositary on not more than five (5) business days notice, and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The number of Shares represented by American Depositary
Shares which are outstanding at any time as a result of Pre-Release will not
normally exceed thirty percent (30%) of the Shares deposited hereunder;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems reasonably appropriate.
The Depositary may retain for its own account any compensation received
by it in connection with the foregoing.
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ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL
OWNERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Shares for deposit or any Owner or Beneficial Owner of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or distribution of rights or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties made.
SECTION 3.02. Liability of Owner or Beneficial Owner for Taxes. If any
tax or other governmental charge shall become payable by the Custodian or the
Depositary with respect to any Receipt or any Deposited Securities represented
by any Receipt, such tax or other governmental charge shall be payable by the
Owner or Beneficial Owner of such Receipt to the Depositary. The Depositary may
refuse to effect any transfer of such Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other thereof
distributions, or may sell for the account of the Owner or Beneficial Owner any
part or all of the Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt, and may apply such dividends or other
distributions or the proceeds of any such sale in payment of such tax or other
governmental charge and the Owner or Beneficial Owner of such Receipt shall
remain liable for any deficiency.
SECTION 3.03. Warranties on Deposit of Shares. Every person depositing
Shares under this Deposit Agreement shall be deemed thereby to represent and
warrant that such Shares and each certificate therefor are validly issued, fully
paid, nonassessable and free of any preemptive rights of the holders of
outstanding Shares and that the person making such deposit is duly authorized so
to do. Every such person shall also be deemed to represent that such Shares
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are not, and American Depositary Shares representing such Shares would not be,
Restricted Securities. Such representations and warranties shall survive the
deposit of Shares and delivery of Receipts.
ARTICLE 4
THE DEPOSITED SECURITIES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on any Deposited Securities, the
Depositary shall, subject to the provisions of Section 4.05, convert such
dividend or distribution into Dollars and shall distribute the amount thus
received (net of the fees and expenses of the Depositary as provided in Section
5.09) to the Owners entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively; provided, however, that in the event that the Company or the
Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owner of the Receipts evidencing American Depositary
Shares representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Owner a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Owners
entitled thereto. The Company or its agent will remit to the appropriate
governmental agency in Switzerland all amounts withheld and owing to such
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 agencies, and the
Depositary or the Company or its agent may file any such reports necessary to
obtain benefits under the applicable tax treaties for the Owners of Receipts.
SECTION 4.02. Distributions Other Than Cash, Shares or Rights. Subject
to the provisions of Sections 4.11 and 5.09, whenever the Depositary shall
receive any distribution other than a distribution described in Section 4.01,
4.03 or 4.04, the Depositary shall cause the securities or property received by
it to be distributed to the Owners entitled thereto, after deduction or upon
payment of any fees and expenses of the Depositary or any taxes or other
governmental charges, in proportion to the number of American Depositary Shares
representing such
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Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Company or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act of 1933 in order to be distributed to Owners or Beneficial
Owners) the Depositary reasonably deems such distribution not to be feasible,
the Depositary may adopt such method as it may deem equitable and practicable
for the purpose of effecting such distribution, including, but not limited to,
the public or private sale of the securities or property thus received, or any
part thereof, and the net proceeds of any such sale (net of the fees and
expenses of the Depositary as provided in Section 5.09) shall be distributed by
the Depositary to the Owners entitled thereto, all in the manner and subject to
the conditions described in Section 4.01. The Depositary may withhold any such
distribution of securities if it has not received satisfactory assurances from
the Company's U.S. counsel that such distribution does not require registration
under the Securities Act of 1933.
SECTION 4.03. Distributions in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Depositary may distribute to the Owners of outstanding Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 and the payment of the fees and expenses of the Depositary as
provided in Section 5.09. The Depositary may withhold any such distribution of
Receipts if it has not received satisfactory assurances from the Company's U.S.
counsel that such distribution does not require registration under the
Securities Act of 1933 or is exempt from registration under the provisions of
such Act. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary shall sell the amount of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
all in the manner and subject to the conditions
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described in Section 4.01. If additional Receipts are not so distributed, each
American Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.04. Rights. In the event that the Company shall offer or cause
to be offered to the holders of any Deposited Securities any rights to subscribe
for additional Shares or any rights of any other nature, the Depositary shall
have discretion as to the procedure to be followed in making such rights
available to any Owners or in disposing of such rights on behalf of any Owners
and making the net proceeds available to such Owners or, if by the terms of such
rights offering or for any other reason, the Depositary may not either make such
rights available to any Owners or dispose of such rights and make the net
proceeds available to such Owners, then the Depositary shall allow the rights to
expire without compensation. If at the time of the offering of any rights the
Depositary determines in its reasonable discretion that it is lawful and
feasible to make such rights available to all or certain Owners but not to other
Owners, the Depositary may distribute to any Owner to whom it reasonably
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate; provided, however,
that the Depositary shall only resort to selective distribution to less than all
Owners if it has received assurances from the Company that such selective
distribution is lawful pursuant to Swiss corporate law.
In circumstances in which rights would otherwise not be distributed, if
an Owner of Receipts requests the distribution of warrants or other instruments
in order to exercise the rights allocable to the American Depositary Shares of
such Owner hereunder, the Depositary will make such rights available to such
Owner upon written notice from the Company to the Depositary that (a) the
Company has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Company has determined in
its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the
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fees and expenses of the Depositary and any other charges as set forth in such
warrants or other instruments, the Depositary shall, on behalf of such Owner,
exercise the rights and purchase the Shares, and the Company shall cause the
Shares so purchased to be delivered to the Depositary on behalf of such Owner.
As agent for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of this Deposit Agreement, and shall,
pursuant to Section 2.03 of this Deposit Agreement, execute and deliver Receipts
to such Owner; provided, however, that in the case of a distribution pursuant to
the second paragraph of this Section, such deposit shall be made, and depositary
shares shall be delivered, under depositary arrangements which provide for
issuance of depositary receipts subject to the appropriate restrictions on sale,
deposit, cancellation, and transfer under applicable United States laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasiblely make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary as provided in
Section 5.09 and all taxes and governmental charges payable in connection with
such rights and subject to the terms and conditions of this Deposit Agreement)
for the account of such Owners otherwise entitled to such rights, warrants or
other instruments, upon an averaged or other practical basis without regard to
any distinctions among such Owners because of exchange restrictions or the date
of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in this Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under such Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon
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which the Depositary may rely that such distribution to such Owner is exempt
from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
SECTION 4.05. Conversion of Foreign Currency. Whenever the Depositary or
the Custodian shall receive foreign currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, and if at the time of the receipt thereof the foreign currency so
received can in the judgment of the Depositary be converted on a reasonable
basis into Dollars and the resulting Dollars transferred to the United States,
the Depositary shall convert or cause to be converted, by sale or in any other
manner that it may determine, such foreign currency into Dollars, and such
Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.09.
Such distribution shall further be subject to the restrictions and limitations
set forth in Section 4.01.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as reasonably determined by the Depositary, the Depositary may
distribute the foreign currency (or an appropriate document evidencing the right
to receive such foreign currency) received by the Depositary to, or in its
discretion may hold such foreign currency
-16-
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot
be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto; provided, however, that the
Depositary shall only resort to selective distribution of currency to less than
all Owners if it has received assurance from the Company that such selective
distribution is lawful pursuant to Swiss corporate law.
SECTION 4.06. Fixing of Record Date. Whenever any cash dividend or other
cash distribution shall become payable or any distribution other than cash shall
be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of
holders of Shares or other Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall find it necessary or
convenient, the Depositary shall fix a record date (a) for the determination of
the Owners who shall be (i) entitled to receive such dividend, distribution or
rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting or (iii) who
shall be responsible for any fee or charges assessed by the Depositary pursuant
to this Deposit Agreement, or (b) on or after which each American Depositary
Share will represent the changed number of Shares. To the extent practicable,
the Depositary shall coordinate the timing of such record date with the Company.
Subject to the provisions of Sections 4.01 through 4.05 and to the other terms
and conditions of this Deposit Agreement, the Owners on such record date shall
be entitled, as the case may be, 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 and to give voting instructions and
to act in respect of any other such matter.
-17-
SECTION 4.07. Voting of Deposited Securities. Upon receipt from the
Company of notice of any meeting or solicitation of proxies or consents of
holders of Shares or other Deposited Securities, the Depositary shall, if
requested in writing by the Company, as soon as practicable thereafter, mail to
the Owners a notice, the form of which notice shall be in the sole discretion of
the Depositary, which shall contain (a) such information as is contained in such
notice of meeting received by the Depositary from the Company, (b) a statement
that the Owners as of the close of business on a specified record date will be
entitled, subject to any applicable provision of Swiss law and of the articles
of incorporation of the Company, to instruct the Depositary as to the exercise
of the voting rights, if any, pertaining to the amount of Shares or other
Deposited Securities represented by their respective American Depositary Shares
and (c) a statement as to the manner in which such instructions may be given.
Upon the written request of an Owner of a Receipt on such record date, received
on or before the date established by the Depositary for such purpose, the
Depositary shall endeavor, in so far as practicable, to vote or cause to be
voted the amount of Shares or other Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to such Shares or other Deposited
Securities other than in accordance with such instructions.
In order to give Owners a reasonable opportunity to instruct the
Depositary as to the exercise of voting rights relating to Deposited Securities,
the Company shall give the Depositary notice of any such meeting or solicitation
not less than 45 days prior to the meeting date or date for giving such proxies
or consents.
SECTION 4.08. Changes Affecting Deposited Securities. In circumstances
where the provisions of Section 4.03 do not apply, upon any change in nominal
value, change in par value, split-up, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent,
in addition to the existing Deposited Securities, the right to receive the new
Deposited Securities so received in
-18-
exchange or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may execute and deliver
additional Receipts as in the case of a dividend in Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities.
SECTION 4.09. Reports. The Depositary shall make available for
inspection by Owners at its Corporate Trust Office any reports and
communications, including any proxy soliciting material, received from the
Company which are both (a) received by the Depositary as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary shall also send to the
Owners copies of such reports when furnished by the Company pursuant to Section
5.06. Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Company shall be furnished in
English, to the extent such materials are required to be translated into English
pursuant to any regulations of the Commission.
SECTION 4.10. Lists of Owners. Promptly upon request by the Company, the
Depositary shall, at the expense of the Company, furnish to it a list, as of a
recent date, of the names, addresses and holdings of American Depositary Shares
by all persons in whose names Receipts are registered on the books of the
Depositary.
SECTION 4.11. Withholding. In the event that the Depositary determines
that any distribution in property (including Shares and rights to subscribe
therefor) is subject to any tax or other governmental charge which the
Depositary is obligated to withhold, the Depositary may by public or private
sale dispose of all or a portion of such property (including Shares and rights
to subscribe therefor) in such amounts and in such manner as the Depositary
deems necessary and practicable to pay such taxes or charges and the Depositary
shall distribute the net proceeds of any such sale after deduction of such taxes
or charges to the Owners entitled thereto in proportion to the number of
American Depositary Shares held by them respectively.
-19-
ARTICLE 5
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the
Depositary. Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners, provided that such inspection shall
not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Company or a matter related to
this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from time to
time, when deemed necessary or advisable by it in connection with the
performance of its duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
SECTION 5.02. Prevention or Delay in Performance by the Depositary or
the Company. Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner if, by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the articles of incorporation of the Company,
or by reason of any provision of any securities issued or distributed by the
Company, or any offering or distribution thereof, or by reason of any act of God
or war or other circumstances beyond its control, the Depositary or the Company
shall be prevented, delayed or forbidden from, or be subject to any civil or
criminal penalty on account of, doing or performing any act or thing which by
the terms of this Deposit Agreement or Deposited Securities it is provided shall
be done or performed; nor
-20-
shall the Depositary or the Company or any of their respective directors,
employees, agents or affiliates incur any liability to any Owner or Beneficial
Owner of any Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement. Where, by the terms of a distribution pursuant to Section
4.01, 4.02, or 4.03, or an offering or distribution pursuant to Section 4.04, or
for any other reason, such distribution or offering may not be made available to
Owners, and the Depositary may not dispose of such distribution or offering on
behalf of such Owners and make the net proceeds available to such Owners, then
the Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company. The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Owners or Beneficial Owners, except
that it agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company shall be under any obligation to
appear in or prosecute any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts on behalf of any Owner,
Beneficial Owner or other person, and the Custodian shall not be under any
obligation whatsoever with respect to such proceedings, the responsibility of
the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or any
other person believed by it in good faith to be competent to give such advice or
information.
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The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended
by any provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary. The Depositary
may at any time resign as Depositary by written notice of its election so to do
delivered to the Company, such resignation to take effect upon the appointment
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by 120 days'
prior written notice of such removal, to become effective upon the later of (i)
the 120th day after delivery of the notice to the Depositary or (ii) the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to
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such successor a list of the Owners of all outstanding Receipts. Any such
successor depositary shall promptly mail notice of its appointment to the
Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.05. The Custodians. Each Custodian shall be subject at all
times and in all respects to the directions of the Depositary and shall be
responsible solely to it. Any Custodian may resign and be discharged from its
duties hereunder by notice of such resignation delivered to the Depositary at
least 30 days prior to the date on which such resignation is to become
effective. If upon the effectiveness of such resignation there would be no
Custodian acting hereunder, the Depositary shall, as promptly as practicable
after receiving such notice, appoint a substitute custodian or custodians, each
of which shall thereafter be a Custodian hereunder. Whenever the Depositary in
its discretion determines that it is in the best interest of the Owners to do
so, it may appoint a substitute or additional custodian or custodians, each of
which shall thereafter be one of the Custodians hereunder. Upon demand of the
Depositary any Custodian shall deliver such of the Deposited Securities held by
it as are requested of it to any other Custodian or such substitute or
additional custodian or custodians. Each such substitute or additional custodian
shall deliver to the Depositary, forthwith upon its appointment, an acceptance
of such appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.06. Notices and Reports. On or before the first date on which
the Company gives notice, by publication or otherwise, of any meeting of holders
of Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action in
-23-
respect of any cash or other distributions or the offering of any rights, the
Company agrees to transmit to the Depositary and the Custodian a copy of the
notice thereof in English but otherwise in the form given or to be given to
holders of Shares or other Deposited Securities.
The Company will arrange for the translation into English, if not
already in English, to the extent required pursuant to any regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian of such notices and any other reports and communications which are
made generally available by the Company to holders of its Shares. If requested
in writing by the Company, the Depositary will arrange for the mailing, at the
Company's expense, of copies of such notices, reports and communications to all
Owners. The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time
to time, in order for the Depositary to effect such mailings.
The Company has delivered to the Depositary and the Custodian a copy (in
English or with an English translation) of all provisions of or governing the
Shares and any other Deposited Securities. Promptly upon any change in such
provisions, the Company shall deliver promptly to the Depositary and the
Custodian a copy (in English or with an English translation) of such provisions
as so changed. The Depositary and its agents may rely on the copy of such
provisions as so delivered for all purposes of this Deposit Agreement.
SECTION 5.07. Distribution of Additional Shares, Rights, etc. The
Company agrees that in the event of any issuance or distribution of (1)
additional Shares, (2) securities convertible into, or exchangeable for, Shares,
or (3) rights to subscribe for any such securities (each a "Distribution"), the
Company will take all action necessary to ensure that no violations by the
Company or the Depositary of the Securities Act of 1933 or other applicable
securities laws will result from such Distribution.
The Company agrees with the Depositary that neither the Company nor any
company controlled by, controlling or under common control with the Company will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Company or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act of 1933.
-24-
SECTION 5.08. Indemnification. The Company agrees to indemnify the
Depositary, its directors, employees, agents and affiliates and any Custodian
against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the fees and expenses of counsel) which may
arise out of (a) any registration with the Commission of American Depositary
Shares or Deposited Securities or the offer or sale thereof in the United States
or (b) acts performed or omitted, pursuant to the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either of
them, or (ii) by the Company or any of its directors, employees, agents and
affiliates.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
SECTION 5.09. Charges of Depositary. The Company agrees to pay the fees,
reasonable expenses and out-ofpocket charges of the Depositary and those of any
Registrar only in accordance with agreements in writing entered into between the
Depositary and the Company from time to time. The Depositary shall present its
statement for such charges and expenses to the Company once every three months.
The charges and expenses of the Custodian are for the sole account of the
Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03), whichever applicable: (1) taxes and other governmental charges,
(2) such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the Share register of the
Company or Foreign Registrar and applicable to transfers of Shares to the name
of the Depositary or its nominee or the Custodian or its nominee on the making
of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agree-
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ment, (4) such expenses as are incurred by the Depositary in the conversion of
foreign currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the execution and delivery
of Receipts pursuant to Section 2.03, 4.03 or 4.04 and the surrender of Receipts
pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to Sections 4.01 through 4.04
hereof, (7) a fee for the distribution of securities pursuant to Section 4.02,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Owners, (8) a fee not in excess of $1.50 per
certificate for a Receipt or Receipts for registrations of transfer made
pursuant to this Deposit Agreement and (9) any other charges payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares or
other Deposited Securities (which charge shall be assessed against Owners as of
the date or dates set by the Depositary in accordance with Section 4.06 and
shall be collected at the sole discretion of the Depositary by billing such
Owners for such charge or by deducing such charge from one or more cash
dividends or other cash distributions).
The Depositary, subject to Section 2.09 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10. Retention of Depositary Documents. The Depositary is
authorized to destroy those documents, records, bills and other data compiled
during the term of this Deposit Agreement at the times permitted by the laws or
regulations governing the Depositary unless the Company reasonably requests that
such papers be retained for a longer period.
SECTION 5.11. Exclusivity. The Company agrees not to appoint any other
depositary for issuance of American depositary receipts so long as The Bank of
New York is acting as Depositary hereunder.
SECTION 5.12. List of Restricted Securities Owners. The Company shall
provide to the Depositary a list setting forth, to the actual knowledge of the
Company, those persons or entities who beneficially own Restricted
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Securities as of the date hereof and the Company shall update that list on a
regular basis. The Company agrees to advise in writing each of the persons or
entities so listed that such Restricted Securities, so long as they remain such,
are ineligible for deposit hereunder. The Depositary may rely on such a list or
update but shall not be liable for any action or omission made in reliance
thereon.
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary without the consent of Owners
or Beneficial owners in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than
taxes and other governmental charges, registration fees, cable, telex or
facsimile transmission costs, delivery costs or other such expenses), or which
shall otherwise prejudice any substantial existing right of Owners, shall,
however, not become effective as to outstanding Receipts until the expiration of
30 days after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner and Beneficial Owner, at the time any
amendment so becomes effective, shall be deemed, by continuing to hold such
Receipt or any interest therein, 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 Owner of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law.
SECTION 6.02. Termination. The Depositary shall, at any time at the
direction of the Company, terminate this Deposit Agreement by mailing notice of
such termination to the Owners of all Receipts then outstanding at least 30 days
prior to the date fixed in such notice for such termination. The Depositary may
likewise terminate this Deposit Agreement by mailing notice of such termination
to the Company and the Owners of all Receipts then outstanding, if at any time
60 days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor depositary
shall not have been appointed and accepted its appointment as provided in
Section 5.04. On and after the date of termination, the Owner of a Receipt will,
upon (a) surrender of such Receipt at the Corporate Trust Office of the
Depositary, (b) payment
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of the fee of the Depositary for the surrender of Receipts referred to in
Section 2.05, and (c) payment of any applicable taxes or governmental charges,
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt. If any Receipts shall remain outstanding after the date of termination,
the Depositary thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends to the Owners thereof, and
shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
rights and other property as provided in this Deposit Agreement, and shall
continue to deliver Deposited Securities, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of this Deposit Agreement,
and any applicable taxes or governmental charges). At any time after the
expiration of one year from the date of termination, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts which have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges). Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.08 and 5.09.
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ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in
any number of counterparts, each of which shall be deemed an original and all of
such counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any Owner or Beneficial Owner during business
hours.
SECTION 7.02. No Third Party Beneficiaries. This Deposit Agreement is
for the exclusive benefit of the parties hereto and shall not be deemed to give
any legal or equitable right, remedy or claim whatsoever to any other person.
SECTION 7.03. Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners of Receipts from time to time shall be parties
to this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance thereof or any interest therein.
SECTION 7.05. Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail
or cable, telex or facsimile transmission confirmed by letter, addressed to
INFICON Inc., Xxx Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxx 00000, Attention:
Chief Financial Offider, Facsimile: (000) 000-0000, or any other place to which
the Company may have transferred its principal office with notice to the
Depositary.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
American Depositary Receipt Administration, Facsimile: (000) 000-0000, or any
other place to
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which the Depositary may have transferred its Corporate Trust Office with notice
to the Company.
Any and all notices to be given to any Owner shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for
Service of Process. The Company hereby (i) irrevocably designates and appoints
INFICON Inc., Xxx Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxx 00000, as the
Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, (ii) consents and
submits to the jurisdiction of any state or federal court in the State of New
York in which any such suit or proceeding may be instituted, and (iii) agrees
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. The Company agrees to deliver, upon the execution and delivery of
this Deposit Agreement, a written acceptance by such agent of its appointment as
such agent. The Company further agrees to take any and all action, including the
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment in full force and effect for so long
as any American Depositary Shares or Receipts remain outstanding or this
Agreement remains in force. In the event the Company fails to continue such
designation and appointment in full force and effect, the Company hereby waives
personal service of process upon it and consents that any such service of
process may be made by certified or registered mail, return receipt requested,
directed to the
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Company at its address last specified for notices hereunder, and service so made
shall be deemed completed five (5) days after the same shall have been so
mailed.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts
shall be interpreted and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by the laws of the State of New York,
except with respect to its authorization and execution by the Company, which
shall be governed by the laws of Switzerland.
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IN WITNESS WHEREOF, INFICON Holding AG and THE BANK OF NEW YORK have
duly executed this Deposit Agreement as of the day and year first set forth
above and all Owners and Beneficial Owners shall become parties hereto upon
acceptance by them of Receipts issued in accordance with the terms hereof or any
interest therein.
INFICON HOLDING AG
BY: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Director
THE BANK OF NEW YORK,
as Depositary
BY: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
-32-
EXHIBIT A
AMERICAN DEPOSITARY SHARES (Each American Depositary
Share represents one-tenth of one deposited Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR SHARES
PAR VALUE CHF 10 EACH OF
INFICON HOLDING AG
(INCORPORATED UNDER THE LAWS OF SWITZERLAND)
The Bank of New York, as depositary (herein called
the Depositary), hereby certifies that _________________________
_____________________________________________________________, or registered
assigns IS THE OWNER OF __________________________________________
AMERICAN DEPOSITARY SHARES
representing deposited shares, par value CHF 10 per share (herein called
Shares), of INFICON Holding AG, incorporated under the laws of Switzerland
(herein called the Company). At the date hereof, each American Depositary Share
represents one-tenth of one Share deposited or subject to deposit under the
Deposit Agreement (as such term is hereinafter defined) at the principal Zurich
office of UBS AG (herein called the Custodian). The Depositary's Corporate
Trust Office is located at a different address than its principal executive
office. Its Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
X.X. 00000, and its principal executive office is located at Xxx Xxxx Xxxxxx,
Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X.00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of November 8, 2000, as the same may be
amended from time to time in accordance with its terms (the "Deposit
Agreement"), by and among the Company, the Depositary, and all Owners and
Beneficial Owners from time to time of Receipts issued thereunder, each of whom
by
accepting a Receipt or any interest therein agrees to become a party thereto and
become bound by all the terms and conditions thereof. The Deposit Agreement sets
forth the rights of Owners and Beneficial Owners of the Receipts and the rights
and duties of the Depositary in respect of the Shares deposited thereunder and
any and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property,
and cash are herein called Deposited Securities). Copies of the Deposit
Agreement are on file at the Depositary's Corporate Trust Office in New York
City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified by
and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms defined in the Deposit Agreement and
not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities may be made by the
delivery of (a) Shares in the name of the Owner hereof or as ordered by him or
Shares properly endorsed or accompanied by proper instruments of transfer and
(b) any other securities, property and cash to which such Owner is then entitled
in respect of this Receipt. Such delivery will be made at the option of the
Owner hereof, either at the office of the Custodian or, if feasible, at the
Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the
Depositary at its Corporate Trust Office by the Owner hereof in person or by a
duly authorized attorney, upon surrender of this Receipt properly endorsed for
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transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of the Shares or the presentor
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 withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any regulations the Depositary may establish consistent with the provisions of
the Deposit Agreement or this Receipt, including, without limitation, this
Article 3.
The delivery of Receipts against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to the provisions of the following
sentence. Notwithstanding anything to the contrary in the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares which would be required to be
registered under the provisions of the
A-3
Securities Act of 1933 for the public offer and sale thereof in the United
States unless a registration statement is in effect as to such Shares for such
offer and sale.
4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented hereby, such tax
or other governmental charge shall be payable by the Owner or Beneficial Owner
hereof to the Depositary. The Depositary may refuse to effect any transfer of
this Receipt or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced by such Receipt until such payment is made, and may
withhold any dividends or other distributions, or may sell for the account of
the Owner or Beneficial Owner hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner or Beneficial
Owner hereof shall remain liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, non-assessable, and free of any
preemptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that such Shares are not, and American Depositary Shares
representing such Shares would not be, Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and delivery
of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial
Owner of a Receipt may be required from time to time to file with the Depositary
or the Custodian such proof of citizenship or residence, exchange control
approval, or such information relating to the registration on the books of the
Company or the Foreign Registrar, if applicable, to execute such certificates
and to make such representations and warranties, as the Depositary may deem
necessary or proper. The Depositary may withhold the
A-4
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made. No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that any necessary approval has been granted by
any governmental body in Switzerland which is then performing the function of
the regulation of currency exchange.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company once every three months. The charges
and expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 of the Deposit Agreement), or by Owners, whichever applicable: (1)
taxes and other governmental charges, (2) such registration fees as may from
time to time be in effect for the registration of transfers of Shares generally
on the Share register of the Company or Foreign Registrar and applicable to
transfers of Shares to the name of the Depositary or its nominee or the
Custodian or its nominee on the making of deposits or withdrawals under the
terms of the Deposit Agreement, (3) such cable, telex and facsimile transmission
expenses as are expressly provided in the Deposit Agreement, (4) such expenses
as are incurred by the Depositary in the conversion of foreign currency pursuant
to Section 4.05 of the Deposit Agreement, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the execution and delivery
of Receipts pursuant to Section 2.03, 4.03 or 4.04 of the Deposit Agreement and
the surrender of Receipts pursuant to Section 2.05 or 6.02 of the Deposit
Agreement, (6) a fee of $.02 or less per American Depositary Share (or portion
thereof) for any cash distribution made pursuant to Sections 4.01 through 4.04
of the Deposit Agreement and (7) a fee for
A-5
the distribution of securities pursuant to Section 4.02 of the Deposit
Agreement, such fee being in an amount equal to the fee for the execution and
delivery of American Depositary Shares referred to above which would have been
charged as a result of the deposit of such securities (for purposes of this
clause 7 treating all such securities as if they were Shares), but which
securities are instead distributed by the Depositary to Owners, (8) a fee not in
excess of $1.50 per certificate for a Receipt or Receipts for registrations of
transfer made pursuant to this Deposit Agreement and (9) any other charges
payable by the Depositary, any of the Depositary's agents, including the
Custodian, or the agents of the Depositary's agents in connection with the
servicing of Shares or other Deposited Securities (which charge shall be
assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.06 of the Deposit Agreement and shall be collected at
the sole discretion of the Depositary by billing such Owners for such charge or
by deducing such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary
may execute and deliver Receipts prior to the receipt of Shares pursuant to
Section 2.02 of the Deposit Agreement (a "Pre-Release"). The Depositary may,
pursuant to Section 2.05 of the Deposit Agreement, deliver Shares upon the
receipt and cancellation of Receipts which have been Pre-Released, whether or
not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such Receipt has been Pre-Released. The Depositary may
receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom Receipts or Shares are to be delivered that such person, or
its customer, owns the Shares or Receipts to be remitted, as the case may be,
(b) at all times fully collateralized with cash or such other collateral as the
Depositary determines, in good faith, will provide substantially similar
liquidity and security, (c) terminable by the Depositary on not more than five
(5) business days notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The number of Shares
represented by American Depositary Shares which are outstanding at any time
A-6
as a result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited under the Deposit Agreement; provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems reasonably appropriate.
The Depositary may retain for its own account any compensation received
by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and
Beneficial Owner of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt 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 New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the books of the
Depositary as the absolute owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement or for all other purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual signature of a duly
authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Commission. Such reports will be available for inspection and copying by Owners
and Beneficial Owners at the public reference facilities maintained by the
Commission located at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts
at its Corporate Trust Office any reports and communications, including any
proxy soliciting
A-7
material, received from the Company which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also send to Owners of Receipts copies of such reports when
furnished by the Company pursuant to the Deposit Agreement. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
The Depositary will keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into United States dollars
transferable to the United States, and subject to the Deposit Agreement, convert
such dividend or distribution into dollars and will distribute the amount thus
received (net of the fees and expenses of the Depositary as provided in Section
5.09 of the Deposit Agreement) to the Owners of Receipts entitled thereto;
provided, however, that in the event that the Company or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, the amount distributed to the Owners of the Receipts evidencing American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly.
Subject to the provisions of Sections 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will cause the securities or property received by it to be
distributed to the Owners entitled thereto, in any manner that the Depositary
may deem equitable and practicable for accomplishing such distribution;
provided, however, that if in the opinion of the
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Depositary such distribution cannot be made proportionately among the Owners of
Receipts entitled thereto, or if for any other reason the Depositary reasonably
deems such distribution not to be feasible, the Depositary may adopt such method
as it may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees and expenses of the Depositary as provided in
Section 5.09 of the Deposit Agreement) will be distributed by the Depositary to
the Owners of Receipts entitled thereto all in the manner and subject to the
conditions described in Section 4.01 of the Deposit Agreement. The Depositary
may withhold any such distribution of securities if it has not received
satisfactory assurances from the Company's U.S. counsel that such distribution
does not require registration under the Securities Act of 1933.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may distribute to the Owners of outstanding Receipts
entitled thereto, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees and expenses of the Depositary as provided in Section 5.09
of the Deposit Agreement. In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary will sell the amount of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.01 of the Deposit Agreement. If additional Receipts are not so distributed,
each American Depositary Share shall thenceforth also represent the additional
Shares distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges, and the Depositary shall distribute
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the net proceeds of any such sale after deduction of such taxes or charges to
the Owners of Receipts entitled thereto.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of any Owners and making the net
proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason, the Depositary may not either make such rights available
to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse. If at the time
of the offering of any rights the Depositary determines in its reasonable
discretion that it is lawful and feasible to make such rights available to all
or certain Owners but not to other Owners, the Depositary may distribute to any
Owner to whom it reasonably determines the distribution to be lawful and
feasible, in proportion to the number of American Depositary Shares held by such
Owner, warrants or other instruments therefor in such form as it deems
appropriate; provided, however, that the Depositary shall only resort to
selective distribution to less than all Owners if it has received assurances
from the Company that such selective distribution is lawful pursuant to Swiss
corporate law.
In circumstances in which rights would otherwise not be distributed, if
an Owner of Receipts requests the distribution of warrants or other instruments
in order to exercise the rights allocable to the American Depositary Shares of
such Owner hereunder, the Depositary will make such rights available to such
Owner upon written notice from the Company to the Depositary that (a) the
Company has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Company has determined in
its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as
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set forth in such warrants or other instruments, the Depositary shall, on behalf
of such Owner, exercise the rights and purchase the Shares, and the Company
shall cause the Shares so purchased to be delivered to the Depositary on behalf
of such Owner. As agent for such Owner, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and
shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver
Receipts to such Owner; provided, however, that in the case of a distribution
pursuant to the preceding paragraph, such deposit shall be made, and depositary
shares shall be delivered, under depositary arrangements which provide for
issuance of depositary receipts subject to the appropriate restrictions on sale,
deposit, cancellation, and transfer under applicable United States laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasiblely make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary as provided in
Section 5.09 of the Deposit Agreement and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of the Deposit Agreement) for the account of such Owners otherwise entitled to
such rights, warrants or other instruments, upon an averaged or other practical
basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in the Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under such Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon
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which the Depositary may rely that such distribution to such Owner is exempt
from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.09
of the Deposit Agreement. Such distribution shall further be subject to the
restrictions and limitations set forth in Section 4.01 of the Deposit Agreement.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as reasonably determined by the Depositary, the Depositary may
distribute the foreign currency (or an appropriate document evidencing the right
to
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receive such foreign currency) received by the Depositary to, or in its
discretion may hold such foreign currency uninvested and without liability for
interest thereon for the respective accounts of, the Owners entitled to receive
the same.
If any such conversion of foreign currency, in whole or in part, cannot
be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto; provided, however, that the
Depositary shall only resort to selective distribution of currency to less than
all Owners if it has received assurance from the Company that such selective
distribution is lawful pursuant to Swiss corporate law.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever for any reason the Depositary causes a change
in the number of Shares that are represented by each American Depositary Share,
or whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Owners of Receipts who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting or (iii) responsible for any fees
or charges assessed by the Depositary pursuant to the Deposit Agreement, or (b)
on or after which each American Depositary Share will represent the changed
number of Shares, subject to the provisions of the Deposit Agreement. To the
extent practicable, the Depositary shall coordinate the timing of such record
date with the Company.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt from the Company of notice of any meeting or solicitation
of proxies or consents of holders of Shares or other Deposited Securities, the
Depositary shall, if requested in writing by the Company, as soon as
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practicable thereafter, mail to the Owners of Receipts a notice, the form of
which notice shall be in the sole discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting received
by the Depositary from the Company, (b) a statement that the Owners of Receipts
as of the close of business on a specified record date will be entitled, subject
to any applicable provision of Swiss law and of the articles of incorporation of
the Company, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given. Upon the written
request of an Owner of 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 to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request. The Depositary shall not vote or attempt to exercise the right
to vote that attaches to such Shares or other Deposited Securities, other than
in accordance with such instructions.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent, in addition to the existing Deposited Securities,
the right to receive the new Deposited Securities so received in exchange or
conversion, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may execute and deliver additional
Receipts as in the case of a dividend in Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
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Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner if, by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
other governmental or regulatory authority or stock exchange, or by reason of
any provision, present or future, of the articles of incorporation of the
Company, or by reason of any provision of any securities issued or distributed
by the Company, or any offering or distribution thereof, or by reason of any act
of God or war or other circumstances beyond its control, the Depositary or the
Company shall be prevented, delayed or forbidden from or be subject to any civil
or criminal penalty on account of doing or performing any act or thing which by
the terms of the Deposit Agreement or Deposited Securities it is provided shall
be done or performed; nor shall the Depositary or the Company or any of their
respective directors, employees, agents or affiliates incur any liability to any
Owner or Beneficial Owner of a Receipt by reason of any non-performance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of the Deposit Agreement it is provided shall or may be done or performed,
or by reason of any exercise of, or failure to exercise, any discretion provided
for in the Deposit Agreement. Where, by the terms of a distribution pursuant to
Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of the Deposit Agreement, such
distribution or offering may not be made available to Owners of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or Beneficial Owners of Receipts, except that they agree to perform
their obligations specifically set forth in the Deposit Agreement without
negligence or bad faith. The Depositary shall not be subject to any liability
with respect to the validity or worth of the Deposited Securities. Neither the
Depositary nor the Company shall be under any obligation to appear in or
prosecute any action, suit, or other proceeding in respect of any Deposited
Securities or in respect of the Receipts on behalf of any Owner, Beneficial
Owner or other person, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. Neither the Depositary nor the Company shall be
liable for any action or nonaction by it in reliance upon
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the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Owner or Beneficial Owner of a Receipt, or
any other person believed by it in good faith to be competent to give such
advice or information. The Depositary shall not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any such vote is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith. The Depositary
shall not be liable for any acts or omissions made by a successor depositary
whether in connection with a previous act or omission of the Depositary or in
connection with a matter arising wholly after the removal or resignation of the
Depositary, provided that in connection with the issue out of which such
potential liability arises, the Depositary performed its obligations without
negligence or bad faith while it acted as Depositary. No disclaimer of liability
under the Securities Act of 1933 is intended by any provision of the Deposit
Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary by written notice of
its election so to do delivered to the Company, such resignation to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may at any time
be removed by the Company by 120 days' prior written notice of such removal, to
become effective upon the later of (i) the 120th day after delivery of the
notice to the Depositary or (ii) 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 Owners of Receipts to do so, it may appoint a substitute or
additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or Beneficial Owners in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees and cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of
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Owners of Receipts, shall, however, not become effective as to outstanding
Receipts until the expiration of thirty days after notice of such amendment
shall have been given to the Owners of outstanding Receipts. Every Owner and
Beneficial Owner of a Receipt at the time any amendment so becomes effective
shall be deemed, by continuing to hold such Receipt or any interest therein, 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 Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby except in order to comply with mandatory
provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary at any time at the direction of the Company, shall
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding if at any time 60 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in the Deposit Agreement. On
and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 2.05 of the Deposit Agreement, and (c) payment of any applicable
taxes or governmental charges, be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter shall
discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends to the Owners thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the
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surrender of a Receipt, any expenses for the account of the owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges). At any time after the
expiration of one year from the date of termination, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and may thereafter
hold uninvested the net proceeds of any such sale, together with any other cash
then held by it thereunder, unsegregated and without liability for interest, for
the pro rata benefit of the Owners of Receipts which have not theretofore been
surrendered, such Owners thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement, except to
account for such net proceeds and other cash (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of the Deposit Agreement, and any applicable taxes or governmental charges).
Upon the termination of the Deposit Agreement, the Company shall be discharged
from all obligations under the Deposit Agreement except for its obligations to
the Depositary with respect to indemnification, charges, and expenses.
22. SUBMISSION TO JURISDICTION.
In the Deposit Agreement, the Company has (i) appointed INFICON Inc.,
Xxx Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxx 00000 as the Company's authorized
agent upon which process may be served in any suit or proceeding arising out of
or relating to the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or this Agreement, (ii) consented and submitted to the
jurisdiction of any state or federal court in the State of New York in which any
such suit or proceeding may be instituted, and (iii) agreed that service of
process upon said authorized agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding.
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