Exhibit (a)
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TELECOM ITALIA S.p.A.
AND
JPMORGAN CHASE BANK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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Deposit Agreement
Dated as of July 17, 2003
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TABLE OF CONTENTS
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Page
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PARTIES....................................................................... 1
RECITALS...................................................................... 1
Section 1. Certain Definitions
(a) ADR Register........................................... 1
(b) ADRs; Direct Registration ADRs............ ............ 1
(c) ADS.................................................... 1
(d) Custodian.............................................. 1
(e) Deliver, execute, issue et al.......................... 1
(f) Delivery Order......................................... 1
(g) Deposited Securities................................... 1
(h) Direct Registration System............................. 2
(i) Holder................................................. 2
(j) Securities Act of 1933................................. 2
(k) Securities Exchange Act of 1934........................ 2
(l) Shares................................................. 2
(m) Transfer Office........................................ 2
(n) Withdrawal Order....................................... 2
Section 2. ADRs.......................................................... 2
Section 3. Deposit of Shares............................................. 3
Section 4. Issue of ADRs................................................. 3
Section 5. Distributions on Deposited Securities......................... 4
Section 6. Withdrawal of Deposited Securities............................ 4
Section 7. Substitution of ADRs.......................................... 4
Section 8. Cancellation and Destruction of ADRs.......................... 4
Section 9. The Custodian................................................. 4
Section 10. Co-Registrars and Co-Transfer Agents.......................... 5
Section 11. Lists of Holders. ............................................ 5
Section 12. Depositary's Agents........................................... 5
Section 13. Successor Depositary.......................................... 5
Section 14. Reports....................................................... 5
Section 15. Additional Shares............................................. 6
Section 16. Indemnification............................................... 6
Section 17. Notices....................................................... 7
Section 18. Miscellaneous................................................. 7
TESTIMONIUM................................................................... 8
SIGNATURES.................................................................... 8
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Page
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EXHIBIT A
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FORM OF FACE OF ADR......................................................... A-1
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Introductory Paragraph................................................. A-1
(1) Issuance of ADRs............................................ A-2
(2) Withdrawal of Deposited Securities.......................... A-2
(3) Transfers of ADRs........................................... A-3
(4) Certain Limitations......................................... A-3
(5) Taxes....................................................... A-4
(6) Disclosure of Interests..................................... A-5
(7) Charges of Depositary....................................... A-5
(8) Available Information....................................... A-6
(9) Execution................................................... A-6
Signature of Depositary............................................... A-6
Address of Depositary's Office ....................................... A-6
FORM OF REVERSE OF ADR...................................................... A-7
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(10) Distributions on Deposited Securities....................... A-7
(11) Record Dates................................................ A-8
(12) Voting of Deposited Securities.............................. A-8
(13) Changes Affecting Deposited Securities...................... A-9
(14) Exoneration................................................ A-10
(15) Resignation and Removal of Depositary; the Custodian....... A-10
(16) Amendment.................................................. A-11
(17) Termination................................................ A-11
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DEPOSIT AGREEMENT dated as of July 17, 2003 (the "Deposit Agreement")
among TELECOM ITALIA S.p.A. (renamed from "Olivetti S.p.A." upon completion of
the merger of Telecom Italia S.p.A. into Olivetti S.p.A.) and its successors
(the "Company"), JPMORGAN CHASE BANK, as depositary hereunder (the
"Depositary"), and all holders from time to time of American Depositary Receipts
issued hereunder ("ADRs") evidencing American Depositary Shares ("ADSs")
representing deposited Shares (defined below). The parties hereto agree as
follows:
1. Certain Definitions.
(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
(b) "ADRs" mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct
Registration ADRs. ADRs in physical certificated form, and the terms and
conditions governing the Direct Registration ADRs (as hereinafter defined),
shall be substantially in the form of Exhibit A annexed hereto (the "form of
ADR"). The term "Direct Registration ADR" means an ADR, the ownership of which
is recorded on the Direct Registration System. References to "ADRs" shall
include certificated ADRs and Direct Registration ADRs, unless the context
otherwise requires. The form of ADR is hereby incorporated herein and made a
part hereof; the provisions of the form of ADR shall be binding upon the parties
hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced
by an ADR represents the right to receive ten Shares and a pro rata share in any
other Deposited Securities.
(d) "Custodian" means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
(e) The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to (i) Shares refers, where the
context requires, to an entry or entries or an electronic transfer or transfers
in an account or accounts maintained by institutions authorized under applicable
law to effect transfers of securities (which may include Monte Titoli S.p.A.,
the Italian centralized security depository) and not to the physical transfer of
certificates representing the Shares and (ii) Direct Registration ADRs, shall
refer to an entry or entries or an electronic transfer or transfers in the
Direct Registration System.
(f) "Delivery Order" is defined in Section 3.
(g) "Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(h) "Direct Registration System" means the system for the
uncertificated registration of ownership of securities established by The
Depository Trust Company ("DTC") and utilized by the Depositary pursuant to
which the Depositary may record the ownership of ADRs without the issuance of a
certificate, which ownership shall be evidenced by periodic statements issued by
the Depositary to the Holders entitled thereto. For purposes hereof, the Direct
Registration System shall include access to the Profile Modification System
maintained by DTC which provides for automated transfer of ownership between DTC
and the Depositary.
(i) "Holder" means the person or persons in whose name an ADR is
registered on the ADR Register.
(j) "Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
(k) "Securities Exchange Act of 1934" means the United States
Securities Exchange Act of 1934, as from time to time amended.
(l) "Shares" mean the ordinary shares in registered form, par value 'E'
0.55 each, of the Company heretofore validly issued and outstanding and fully
paid, nonassessable and as of the time of deposit 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 or interim certificates representing such Shares and shall
include the rights to receive Shares specified in paragraph (1) of the form of
ADR.
(m) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(n) "Withdrawal Order" is defined in Section 6.
2. ADRs. (a) ADRs in certificated form shall be engraved, printed or
otherwise reproduced at the discretion of the Depositary in accordance with its
customary practices in its American depositary receipt business, or at the
request of the Company typewritten and photocopied on plain or safety paper, and
shall be substantially in the form set forth in the form of ADR, with such
changes as may be required by the Depositary or the Company to comply with their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations or restrictions to which any particular ADRs are
subject. ADRs may be issued in denominations of any number of ADSs. ADRs in
certificated form shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized officer of the Depositary. ADRs in certificated
form bearing the facsimile signature of anyone who was at the time of execution
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of such ADRs.
(b) Direct Registration ADRs. Notwithstanding anything in this Deposit
Agreement or in the form of ADR to the contrary, ADSs shall be evidenced by
Direct Registration ADRs, unless
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certificated ADRs are specifically requested by the Holder.
(c) Holders shall be bound by the terms and conditions of this Deposit
Agreement and of the form of ADR, regardless of whether their ADRs are Direct
Registration ADRs or certificated ADRs.
3. Deposit of Shares. In connection with the deposit of Shares
hereunder, the Depositary or the Custodian may require the following in form
satisfactory to it: (a) a written order directing the Depositary to issue or
execute and deliver, as the case may be, to, or upon the written order of, the
person or persons designated in such order a Direct Registration ADR or
certificated ADR(s) evidencing the number of ADSs representing such deposited
Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer in respect of such deposited Shares; and (c) instruments
assigning to the Custodian or its nominee any distribution on or in respect of
such deposited Shares until the Shares are registered in the name required by
the Depositary or indemnity therefor. As soon as practicable after the Custodian
receives Deposited Securities pursuant to any such deposit or pursuant to
paragraph (10) or (13) of the form of ADR, the Custodian shall present such
Deposited Securities for registration of transfer into the name of the Custodian
or its nominee, to the extent such registration is practicable, at the cost and
expense of the person making such deposit (or for whose benefit such deposit is
made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities shall be held by the Custodian for the account and to the
order of the Depositary at such place or places and in such manner as the
Depositary shall determine. The Depositary agrees to instruct the Custodian to
place all Shares accepted for deposit under this Deposit Agreement into a
segregated account separate from any Shares of the Company that may be held by
such Custodian under any other depositary receipt facility relating to the
Shares. Deposited Securities may be delivered by the Custodian to any person
only under the circumstances expressly contemplated in this Deposit Agreement.
To the extent that the provisions of or governing the Shares make delivery of
certificates therefor impracticable, Shares may be deposited hereunder by such
delivery thereof as the Depositary or the Custodian may reasonably accept,
including, without limitation, by causing them to be credited to an account
maintained by the Custodian for such purpose with the Company or an accredited
intermediary, such as a bank, acting as a registrar for the Shares, together
with delivery of the documents, payments and Delivery Order referred to herein
to the Custodian or the Depositary. Neither the Depositary nor the Custodian
shall lend Deposited Securities.
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall
notify the Depositary of such deposit and of the information contained in any
related Delivery Order by letter, first class airmail postage prepaid, or, at
the request, risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. After receiving such notice from the Custodian (or
such other evidence as the Company may accept), the Depositary, subject to this
Deposit Agreement, shall properly issue or execute and deliver, as the case may
be, at the Transfer Office, to or upon the order of any person named in such
notice, an ADR or ADRs registered as requested and evidencing the aggregate ADSs
to which such person is entitled.
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5. Distributions on Deposited Securities. To the extent that the
Depositary determines in its discretion that any distribution pursuant to
paragraph (10) of the form of ADR is not practicable with respect to any Holder,
the Depositary, after consultation with the Company, may make such distribution
as it so deems practicable, including the distribution of foreign currency,
securities or property (or appropriate documents evidencing the right to receive
foreign currency, securities or property) or the retention thereof as Deposited
Securities with respect to such Holder's ADRs (without liability for interest
thereon or the investment thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender
of an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the Depositary may require proper endorsement in blank of
such ADR (or duly executed instruments of transfer thereof in blank) and the
Holder's written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered to, or upon the written order of, any person designated in such order
(a "Withdrawal Order"). Directions from the Depositary to the Custodian to
deliver Deposited Securities shall be given by letter, first class airmail
postage prepaid, or, at the request, risk and expense of the Holder, by cable,
telex or facsimile transmission. Delivery of Deposited Securities may be made by
the delivery of certificates (which, if required by law shall be properly
endorsed or accompanied by properly executed instruments of transfer or, if such
certificates may be registered, registered in the name of such Holder or as
ordered by such Holder in any Withdrawal Order) or by such other means as the
Depositary may deem practicable, including, without limitation, by transfer of
record ownership thereof to an account designated in the Withdrawal Order
maintained either by the Company or an accredited intermediary, such as a bank,
acting as a registrar for the Deposited Securities.
7. Substitution of ADRs. The Depositary shall issue or execute and
deliver a new Direct Registration ADR (or a certificated ADR if specifically
requested by the Holder in writing) in exchange and substitution for any
mutilated certificated ADR upon cancellation thereof or in lieu of and in
substitution for such destroyed, lost or stolen certificated ADR, unless the
Depositary has notice that such ADR has been acquired by a bona fide purchaser,
upon the Holder thereof filing with the Depositary a request for such execution
and delivery and a sufficient indemnity bond and satisfying any other reasonable
requirements imposed by the Depositary.
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the
Depositary shall be cancelled by the Depositary. The Depositary is authorized to
destroy ADRs in certificated form so cancelled in accordance with its customary
practices.
9. The Custodian. Any Custodian in acting hereunder shall be subject to
the directions of the Depositary and shall be responsible solely to it. The
Depositary may from time to time, and after consultation with the Company if
practicable, appoint one or more agents to act for it as Custodian hereunder.
Each Custodian so appointed (other than JPMorgan Chase Bank) shall give written
notice to the Company and the Depositary accepting such appointment and agreeing
to be bound by the applicable terms hereof. Any Custodian may resign from its
duties hereunder by at least 30 days written notice to the Depositary. The
Depositary, after consultation with the Company if practicable, may discharge
any Custodian at any time upon notice to the Custodian
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being discharged. Any Custodian ceasing to act hereunder as Custodian shall
deliver, upon the instruction of the Depositary, all Deposited Securities held
by it to a Custodian continuing to act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may appoint
and remove (i) co-registrars to register ADRs and transfers, combinations and
split-ups of ADRs and to countersign ADRs in accordance with the terms of any
such appointment and (ii) co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices in
addition to the Transfer Office on behalf of the Depositary. Each co-registrar
or co-transfer agent (other than JPMorgan Chase Bank) shall give notice in
writing to the Company and the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
11. Lists of Holders. The Company shall have the right to inspect
transfer records of the Depositary and its agents and the ADR Register, take
copies thereof and require the Depositary and its agents to supply copies of
such portions of such records as the Company may request. The Depositary or its
agent shall furnish to the Company promptly upon the written request of the
Company, a list of the names, addresses and holdings of ADSs by all Holders as
of a date within seven days of the Depositary's receipt of such request.
12. Depositary's Agents. The Depositary may perform its obligations
under this Deposit Agreement through any agent appointed by it, provided that
the Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed.
13. Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice of its election so to do delivered to the
Company, such resignation not to be effective until the earlier of (i) 90 days
from the date of such notice of resignation and (ii) the date on which the
Company shall have appointed a successor depositary. The Depositary may at any
time be removed by the Company by written notice of such removal.
Notwithstanding anything to the contrary contained herein, in case at any time
the Depositary acting hereunder shall resign or be removed, it shall continue to
act as Depositary for the purpose of terminating this Deposit Agreement pursuant
to paragraph (17) of the form of ADR. Any bank or trust company into or with
which the Depositary may be merged or consolidated, or to which the Depositary
shall transfer substantially all its American depositary receipt business, shall
be the successor of the Depositary without the execution or filing of any
document or any further act.
14. Reports. On or before the first date on which the Company makes any
communication generally available to holders of Deposited Securities or any
securities regulatory authority or stock exchange, by publication or otherwise,
the Company shall transmit to the Depositary a copy thereof in English or with
an English translation or summary. The Company has delivered to the Depositary
and the Custodian a copy of all provisions of or governing the Shares (other
than copies of Italian law) and any other Deposited Securities issued by the
Company or any affiliate of the Company and, promptly upon any change thereto,
the Company shall deliver to the Depositary and the Custodian a copy (in English
or with an English translation) of such provisions (other than copies of Italian
law) as so changed. The Depositary
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and its agents may rely upon the Company's delivery thereof for all purposes of
this Deposit Agreement.
15. Additional Shares. Neither the Company nor any company controlling,
controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933 and the rules and
regulations promulgated thereunder. The Depositary will use reasonable efforts
to comply with written instructions of the Company not to accept for deposit
hereunder any Shares identified in such instructions at such times and under
such circumstances as may reasonably be specified in such instructions in order
to facilitate the Company's compliance with securities laws in the United
States.
16. Indemnification. Subject to the fourth paragraph of this Section
16, the Company shall indemnify, defend and save harmless each of the Depositary
and its agents against any loss, liability or expense (including reasonable fees
and expenses of counsel) which may arise out of acts performed or omitted, in
accordance with the provisions of this Deposit Agreement and of the ADRs, as the
same may be amended, modified or supplemented from time to time in accordance
herewith, (i) by either the Depositary or its agents or their respective
directors, employees, agents and affiliates, except for any loss, liability or
expense directly arising out of the negligence or bad faith of such person, or
(ii) by the Company or any of its directors, employees, agents or affiliates.
The indemnities set forth in the preceding paragraph shall apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the Depositary or its agents (other than the Company), as
applicable, furnished in writing by the Depositary and not changed or altered by
the Company expressly for use in any of the foregoing documents or (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
Subject to the next succeeding paragraph, each of the Depositary and
its agents acting hereunder shall indemnify, defend and save harmless the
Company against any loss, liability or expense (including reasonable fees and
expenses of counsel) incurred by the Company in respect of this Deposit
Agreement to the extent such loss, liability or expense is due to its negligence
or bad faith.
Notwithstanding any provision of this Deposit Agreement or the form of
ADR to the contrary, neither the Company nor the Depositary, nor any of their
agents, shall be liable to the other, and no indemnification may be sought
hereunder (including for third party claims), for any indirect, special,
punitive or consequential damages (collectively "Special Damages") except (i) to
the extent such Special Damages arise from the fraud, gross negligence or
willful misconduct of the party from whom indemnification is sought, or (ii) to
the extent Special Damages arise
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from or out of a claim brought by a third party (including, without limitation,
Holders) against the Depositary or its agents, except to the extent such Special
Damages arise out of the fraud, gross negligence or willful misconduct of the
party seeking indemnification hereunder.
With respect to any indemnifiable event hereunder, no person seeking
indemnification may settle any such claims in a manner which would require any
payment on the part of the indemnifying party without the prior consent of the
indemnifying party such consent not to be unreasonably withheld or delayed.
The obligations set forth in this Section 16 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
17. Notices. Notice to any Holder shall be deemed given when first
mailed, first class postage prepaid, to the address of such Holder on the ADR
Register or received by such Holder. Notice to the Depositary or the Company
shall be deemed given when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, (with all facsimile
transmissions to be confirmed by letter) or at such other address or facsimile
transmission number as either may specify to the other by written notice:
(a) JPMorgan Xxxxx Xxxx
0 Xxxxx Xxxxxxxxx Xxxxx (00xx Xxxxx)
New York, New York 10081
Attention: ADR Administration
Fax: (000) 000-0000
(b) Telecom Italia S.p.A.
xxx Xxxxxxx 0
00000 Xxxxxx
Xxxxx
Attention: Xx. Xxxxx Xxxxx
Fax: + 00 00 0000000
The Depositary or the Company may act upon any cable, telex or
facsimile transmission received by it from the other or from any Holder,
notwithstanding that such cable, telex or facsimile transmission shall not
subsequently be confirmed as aforesaid.
18. Miscellaneous. This Deposit Agreement is for the exclusive benefit
of the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and owners of ADRs from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable in
any respect, the remaining provisions shall in no way be affected thereby. This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one instrument.
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IN WITNESS WHEREOF, OLIVETTI S.p.A. and JPMORGAN CHASE BANK
have duly executed this Deposit Agreement as of the day and year first above set
forth and all holders of ADRs shall become parties hereto upon acceptance by
them of ADRs issued in accordance with the terms hereof.
OLIVETTI S.p.A.
By:
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Name:
Title:
JPMORGAN CHASE BANK
By:
----------------------------
Name:
Title: Vice President
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
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[FORM OF FACE OF ADR]
------ No. of ADSs:
Number
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Each ADS represents
Ten Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
TELECOM ITALIA S.p.A.
(Incorporated under the
laws of the Republic of Italy)
JPMORGAN CHASE BANK, a New York corporation, as depositary
hereunder (the "Depositary"), hereby certifies that _____________ is the
registered owner (a "Holder") of _____ American Depositary Shares ("ADSs"),
each (subject to paragraph (13)) representing ten ordinary shares (including
the rights to receive Shares described in paragraph (1), "Shares" and, together
with any other securities, cash or property from time to time held by the
Depositary in respect or in lieu of deposited Shares, the "Deposited
Securities"), of Telecom Italia S.p.A., a corporation organized under the laws
of the Republic of Italy (the "Company"), deposited under the Deposit Agreement
dated as of July 17, 2003 (as amended from time to time, the "Deposit
Agreement") among the Company, the Depositary and all Holders from time to time
of American Depositary Receipts issued thereunder ("ADRs"), each of whom by
accepting an ADR becomes a party thereto. The Deposit Agreement and this ADR
(which includes the provisions set forth on the reverse hereof) shall be
governed by and construed in accordance with the laws of the State of New York.
A-1
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the
Deposit Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the Custodian;
(b) rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not more
than 20% of all ADSs (excluding those evidenced by Pre-released ADRs); provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary may retain for
its own account any earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. At the request, risk and expense of the person depositing
Shares, the Depositary may accept deposits for forwarding to the Custodian and
may deliver ADRs at a place other than its office. Shares or evidence of rights
to receive Shares may be deposited through (x) electronic transfer of such
Shares to the account maintained by the Custodian for such purpose at Monte
Titoli S.p.A., (y) evidence satisfactory to the Custodian of irrevocable
instructions to cause such Shares to be transferred to such account or (z)
delivery of the certificates representing such Shares. If use of the Monte
Titoli book-entry system in connection with the Shares is discontinued at any
time for any reason, the Company shall make other book-entry arrangements (if
any) that it determines, after consultation with the Depositary, are reasonable.
Every person depositing Shares under the Deposit Agreement represents and
warrants that such Shares are validly issued and outstanding, fully paid,
nonassessable and free of pre-emptive rights, that the person making such
deposit is duly authorized so to do and that such Shares (A) are not "restricted
securities" as such term is defined in Rule 144 under the Securities Act of 1933
unless at the time of deposit they may be freely transferred in accordance with
Rule 144(k) and may otherwise be offered and sold freely in the United States or
(B) have been registered under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary will not knowingly accept for deposit under the Deposit Agreement any
Shares required to be registered under the Securities Act of 1933 and not so
registered; the Depositary may refuse to accept for such deposit any Shares
identified by the Company in order to facilitate the Company's compliance with
such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and
(5), upon surrender of (i) a certificated ADR in form satisfactory to the
Depositary at the Transfer Office or (ii) proper instructions and documentation
in the case of a Direct Registration ADR, the Holder hereof is entitled to
delivery at the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR. At the request, risk and expense
of the Holder hereof, the Depositary may deliver such Deposited Securities at
such other place as may have been requested by the Holder. Notwithstanding any
other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth
A-2
in General Instruction I.A.(1) of Form F-6 (as such instructions may be amended
from time to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, and,
in the case of Direct Registration ADRs, shall include the Direct Registration
System, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Deposit Agreement and (b)
facilities for the delivery and receipt of ADRs. The term ADR Register includes
the Direct Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of negotiable instruments under the laws of the State of New
York; provided that the Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this ADR is registered on the ADR Register as
the absolute owner hereof for all purposes. Subject to paragraphs (4) and (5),
this ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by duly authorized attorney upon
surrender of this ADR at the Transfer Office properly endorsed (in the case of
ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer and duly stamped as may be required by applicable law;
provided that the Depositary may close the ADR Register at any time or from time
to time when deemed expedient by it or requested by the Company. At the request
of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct Registration ADR, or vice versa, execute and
deliver a certificated ADR or a Direct Registration ADR, as the case may be, for
any authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration
of transfer, split-up or combination of any ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of paragraph
(2), the withdrawal of any Deposited Securities, and from time to time in the
case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The
Depositary shall
A-3
provide to the Company, promptly upon its written request, copies of any such
proofs of citizenship or residence or other information referred to in (b) above
so requested. The issuance of ADRs, the acceptance of deposits of Shares, the
registration, registration of transfer, split-up or combination of ADRs or,
subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may be suspended, generally or in particular instances, when the ADR
Register or any register for Deposited Securities is closed or when any such
action is deemed necessary or advisable by the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable
by or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company or its agents will remit to the appropriate
governmental authority or agency all amounts (if any) required to be withheld
and owing to such authority or agency by the Company or its agents; and the
Depositary and the Custodian will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Depositary or the Custodian. The Depositary
shall forward to the Company or its agent such information from its records as
the Company may request to enable the Company or its agent to file necessary
reports with governmental authorities or agencies. If the Depositary determines
that any distribution in property other than cash (including Shares or rights)
on Deposited Securities is subject to any tax that the Depositary or the
Custodian is obligated to withhold, the Depositary may dispose of all or a
portion of such property in such amounts and in such manner as the Depositary
deems necessary and practicable to pay such taxes, by public or private sale,
and the Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the Holders
entitled thereto.
The Depositary and the Company agree to use reasonable efforts to make
and maintain arrangements (in addition to or in substitution of the arrangements
described in this paragraph) to enable persons that are considered United States
residents for purposes of applicable law to receive any rebates, tax credits or
other benefits (pursuant to treaty or otherwise) relating to distributions on
the ADSs to which such persons are entitled. Notwithstanding the above, the
Company may, by written notice to the Depositary, modify or withdraw the
procedures described in this paragraph (including by ceasing to pay to the
Depositary any amounts in respect of refunds of Italian withholding taxes), to
the extent the Company determines that its participation in the refund process
is no longer lawful or practical. The Depositary agrees to establish
A-4
procedures to enable Holders to take advantage of any such tax rebates or tax
credits (pursuant to treaty or otherwise) relating to distributions on the ADSs
to which such Holders are entitled. The Depositary agrees to provide at least
annually a written notice to the Holders of the necessary actions to be
undertaken by such Holders. In connection with the foregoing, the Depositary
agrees to provide the Company, for their review and comment, with a copy of the
proposed notice to Holders at least 3 Italian business days in advance of the
publication of such notice in order to allow the Company to provide the
Depositary with any comments they might have with respect to such notice. To the
extent that the Depositary does not receive any written comments within such
period, the Company shall be deemed to have had no comments with respect to said
notice to Holders.
Notwithstanding any other terms of the Deposit Agreement or the ADR,
absent the gross negligence or bad faith of, respectively, the Depositary and
the Company, the Depositary and the Company assume no obligation, and shall not
be subject to any liability, for the failure of any Holder or beneficial owner,
or its agent or agents, to receive any tax benefit under applicable law or tax
treaties. Neither the Depositary nor the Company shall be liable for any acts or
omissions of any other party in connection with any attempts to obtain any such
benefit, and Holders and beneficial owners hereby agree that each of them shall
be conclusively bound by any deadline established by the Company and the
Depositary in connection therewith.
(6) Disclosure of Interests. To the extent that the provisions of or
governing any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary in the Depositary's compliance with any Company
instructions in respect thereof, and the Depositary will use reasonable efforts
to comply with such Company instructions.
(7) Charges of Depositary. The Depositary may charge each person to
whom ADSs are issued against deposits of Shares, including deposits in respect
of Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph (10)), and each person surrendering ADSs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
delivered or surrendered. The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions prior to such deposit to pay such charge. In
addition, the Depositary may charge Holders, a fee for the distribution of
securities pursuant to paragraph (10) hereof, such fee being in an amount equal
to the fee for the execution and delivery of ADSs referred to above which would
have been charged as a result of the deposit of such securities (for purposes of
this paragraph (7) treating all such securities as if they were Shares) but
which securities or the net cash proceeds from the sale thereof are instead
distributed by the Depositary to Holders entitled thereto. The Company will pay
all other charges and expenses of the Depositary and any agent of the Depositary
(except the Custodian) pursuant to agreements from time to time between the
Company and the Depositary, except (i) stock transfer or other taxes and other
governmental charges (which are payable by Holders or persons depositing
Shares), (ii) cable, telex and facsimile transmission and delivery charges
incurred at the request of persons depositing, or Holders delivering Shares,
ADRs or Deposited Securities (which are payable by such persons or Holders),
(iii) transfer or registration
A-5
fees for the registration of transfer of Deposited Securities on any applicable
register in connection with the deposit or withdrawal of Deposited Securities
(which are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date of
the Deposit Agreement), (iv) expenses of the Depositary in connection with the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency)and (v) such fees and expenses as are incurred by the
Depositary (including without limitation expenses incurred on behalf of Holders
in connection with compliance with foreign exchange control regulations or any
law or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation. These charges may be changed
in the manner indicated in paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will distribute copies of
such communications (or English translations or summaries thereof) to Holders
when furnished by the Company. The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and accordingly files
certain reports with the United States Securities and Exchange Commission (the
"Commission"). Such reports and other information may be inspected and copied at
public reference facilities maintained by the Commission located at the date
hereof at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. Such
reports are also available on XXXXX which can be found at xxxx://xxx.xxx.xxx.
(9) Execution. This ADR shall not be valid for any purpose unless
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By ................................
Authorized Officer
The Depositary's office is located at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
A-6
[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4)
and (5), to the extent practicable, the Depositary will distribute to each
Holder entitled thereto on the record date set by the Depositary therefor at
such Holder's address shown on the ADR Register, in proportion to the number of
Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of
any other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged, if possible, or other practicable basis, subject to
(i) appropriate adjustments for taxes withheld, (ii) such distribution being
impermissible or impracticable with respect to certain Holders, and (iii)
deduction of the Depositary's expenses in (1) converting any foreign currency to
U.S. dollars by sale or in such other manner as the Depositary may determine to
the extent that it determines that such conversion may be made on a reasonable
basis, (2) transferring foreign currency or U.S. dollars to the United States by
such means as the Depositary may determine to the extent that it determines that
such transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) Shares. (i) Additional ADRs evidencing whole ADSs representing any
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) Rights. (i) Warrants or other instruments in the discretion of
the Depositary, after consultation with the Company to the extent practicable,
representing rights to acquire additional ADRs in respect of any rights to
subscribe for additional Shares or rights of any nature available to the
Depositary as a result of a distribution on Deposited Securities ("Rights"), to
the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute the
same (the Company has no obligation to so furnish such evidence), or (ii) to the
extent the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights as in the case of Cash, or (iii) to the extent the Company
does not so furnish such evidence and such sales cannot practicably be
accomplished by reason of the nontransferability of the Rights, limited markets
therefor, their short duration or otherwise, nothing (and any Rights may lapse).
(d) Other Distributions. (i) Securities or property available to the Depositary
resulting from any distribution on Deposited Securities other than Cash, Share
Distributions and Rights ("Other Distributions"), by any means that the
Depositary may deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents (any fractional cents being withheld without
liability for interest and added to future Cash distributions).
A-7
(11) Record Dates. The Depositary shall, to the extent necessary, after
consultation with the Company if practicable, fix a record date (which shall be
as near as practicable to any corresponding record date set by the Company) for
the determination of the Holders who shall be entitled to receive any
distribution on or in respect of Deposited Securities, to give instructions for
the exercise of any voting rights, to receive any notice or to act in respect of
other matters and only such Holders at the close of business on such record date
shall be so entitled.
(12) Voting of Deposited Securities. (a) Upon receipt of notice of any
meeting or solicitation of consents or proxies of holders of Shares the
Depositary will, unless otherwise instructed by the Company, promptly
thereafter, distribute to all Holders a notice containing (i) the information
(or a summary thereof) included in any such notice received by the Depositary,
including the agenda for the meeting, (ii) a statement that the Holders as of
the close of business on a specified record date will be entitled, subject to
applicable provisions of Italian law and of the Company's Certificate of
Incorporation and By-laws (any such provisions, if material, will be summarized
in such notice), to instruct the Depositary as to the exercise of voting rights,
if any (subject to compliance by such Holder with the requirements described
below) pertaining to the number of Shares represented by their respective ADSs,
(iii) if applicable, a statement as to the manner in which such Holders may
request a certificate for such meeting attesting that beneficial ownership of
the related Shares is in the name of the Holders and therefore enabling them to
exercise voting rights with respect to the Shares represented by their ADSs
without the use of Voting Proxy Cards as defined hereinafter (the "Certificate")
(iv) if applicable, a proxy card (the "Voting Proxy Card") pursuant to which
such Holder may appoint the Depositary (with power of substitution) as his or
her proxy to vote at such meeting in accordance with the directions set out in
such Voting Proxy Card as hereinafter described, and (v) such other information,
including any such modification to the foregoing procedures as agreed between
the Depositary and the Company.
(b) The Voting Proxy Card will, among other things, require the Holder
to set forth its name and the number of such Holder's ADSs, authorize the
Depositary (or the broker, custodian or other nominee holding such Holders'
ADRs) to prohibit any transfers of Shares evidenced by such ADRs for a period of
time (i) as set forth by applicable provisions (if any) of Italian laws and
regulations and/or applicable provisions (if any) of the Company's Certificate
of Incorporation and By-laws and in any case (ii) beginning from the issuance of
the Certificate for such meeting and ending at the end of the day on the date
upon which such meeting is held with a quorum (the "Blocked Period") and
authorize the Depositary to request the Custodian to cause the name and address
of such Holder to be registered in the Share register of the Company during such
Blocked Period and to issue or cause to be issued a Certificate for such meeting
during such Blocked Period in respect of the number of Shares represented by
such Holder's ADSs. If practicable, the Depositary shall provide the Company
with written notice of the number of Shares and the number of Holders (including
the name of the Holder, if practicable) for which the Depositary has been
appointed as a proxy.
(c) Upon receipt by the Depositary of a properly completed Voting Proxy
Card, on or before the date set by the Depositary for such purpose, the
Depositary will attempt, insofar as practicable and permitted under any
applicable provisions of Italian law and the Company's Certificate of
Incorporation and By-laws, to vote or cause to be voted the Shares underlying
such
A-8
ADRs in accordance with any nondiscretionary instructions set forth in such
Voting Proxy Card. The Depositary will not vote or attempt to exercise the right
to vote that attaches to Shares underlying such ADRs other than in accordance
with such instructions.
(d) A Holder desiring to exercise voting rights with respect to the
Shares represented by its ADSs without the use of Voting Proxy Cards may do so
by (A) depositing its ADRs in a blocked account with the Depositary until the
completion of such meeting and (B) instructing the Depositary to (x) furnish the
Custodian with the name and address of such Holder, the number of ADSs
represented by ADRs held by such Holder and any other information required in
accordance with Italian law or the Company's Certificate of Incorporation and
By-laws, (y) notify the Custodian of such deposit, and (z) instruct the
Custodian to issue a Certificate for such meeting, and to give notice to the
Company of such Holder's intention to vote the Shares underlying its ADRs. By
giving the instructions set forth under point (B) above, Holders will be deemed
to have authorized the Custodian to prohibit any transfers of the related Shares
for the Blocked Period. Each Holder understands and agrees that a precondition
for the issue of the Certificate for a specific meeting by the Custodian may be
that beneficial ownership of the related Shares has been in the name of the
Holder for a specific number of days prior to the date of the meeting according
to applicable provisions (if any) of Italian laws and regulations and/or
applicable provisions (if any) of the Company's Certificate of Incorporation and
By-laws.
(e) Under Italian law, shareholders at shareholders' meetings may
modify the resolutions presented for their approval by the Board of Directors.
In such case Holders who have given prior instructions to vote on such
resolutions, and whose instructions do not provide for the case of amendments or
additions to such resolutions, will be deemed to have elected to have abstained
from voting on any such revised resolution.
(f) When the Company makes its annual accounts available at its offices
in connection with a general meeting of shareholders at which a vote will be
taken on such accounts, the Company will deliver to the Depositary [and the
Custodian] copies of such accounts. Until such meeting, the Depositary will make
available copies of such accounts for inspection at the Transfer Office, the
office of the Custodian in Milan, Italy and any other designated transfer
offices.
(g) The Depositary and the Company agree to use reasonable efforts to
make and maintain arrangements (in addition to or in substitution of the
arrangements described in this paragraph) to enable Holders to vote the Shares
underlying their ADRs.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4)
and (5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange) or
cash, securities or property on the record date set by the Depositary therefor
to reflect any change in par value, split-up, consolidation, cancellation or
other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization, reorganization, merger, consolidation,
A-9
liquidation, receivership, bankruptcy or sale of all or substantially all the
assets of the Company, and to the extent the Depositary does not so amend this
ADR or make a distribution to Holders to reflect any of the foregoing, or the
net proceeds thereof, whatever cash, securities or property results from any of
the foregoing shall constitute Deposited Securities and each ADS evidenced by
this ADR shall automatically represent its pro rata interest in the Deposited
Securities as then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if any present or future law, regulation,
the provisions of or governing any Deposited Securities, act of God, war or
other circumstance beyond its control shall prevent, delay or subject to any
civil or criminal penalty any act which the Deposit Agreement or this ADR
provides shall be done or performed by it, or (ii) by reason of any exercise or
failure to exercise any discretion given it in the Deposit Agreement or this
ADR; (b) assume no liability except to perform its obligations to the extent
they are specifically set forth in this ADR and the Deposit Agreement without
gross negligence or bad faith; (c) in the case of the Depositary and its agents,
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR; (d) in the
case of the Company and its agents hereunder be under no obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this ADR, which in its opinion may involve it in expense
or liability, unless indemnity satisfactory to it against all expense (including
fees and disbursements of counsel) and liability be furnished as often as may be
required; or (e) not be liable for any action or inaction by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, or any other person believed by it in
good faith to be competent to give such advice or information. The Depositary,
its agents and the Company may rely and shall be protected in acting upon any
written notice, request, direction or other document believed by them in good
faith to be genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities (provided
that such act or omission to act is in good faith), for the manner in which any
such vote is cast or for the effect of any such vote. The Depositary and its
agents may own and deal in any class of securities of the Company and its
affiliates and in ADRs. Neither the Company, the Depositary nor any of their
respective agents shall be liable to Holders or beneficial owners of interests
in ADSs for any indirect, special, punitive or consequential damages. No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The
Depositary may resign as Depositary by written notice of its election to do so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary. A resignation by the
Depositary shall not be effective until the earlier of (i) 90 days from the date
of such notice of resignation and (ii) the date on which the Company shall have
appointed a successor depositary. The Depositary, upon consultation with the
Company, if practicable, may appoint substitute or additional Custodians and the
term "Custodian" refers to each Custodian or all Custodians as the context
requires.
A-10
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs
and the Deposit Agreement may be amended by the Company and the Depositary,
provided that any amendment that imposes or increases any fees or charges (other
than stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit Agreement and the ADRs as amended thereby. In no
event shall any amendment impair the right of the Holder of any ADR to surrender
such ADR and receive the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17) Termination. Upon any resignation of the Depositary which does not
become effective during the time period described in paragraph (15) above or on
any removal of the Depositary pursuant to the Deposit Agreement, the Depositary
may, and shall at the written direction of the Company, terminate the Deposit
Agreement and this ADR by mailing notice of such termination to the Holders at
least 30 days prior to the date fixed in such notice for such termination. After
the date so fixed for termination, the Depositary and its agents will perform no
further acts under the Deposit Agreement and this ADR, except to receive and
hold (or sell) distributions on Deposited Securities and deliver Deposited
Securities being withdrawn. As soon as practicable after the expiration of six
months from the date so fixed for termination, the Depositary shall sell the
Deposited Securities and shall thereafter (as long as it may lawfully do so)
hold in a segregated account the net proceeds of such sales, together with any
other cash then held by it under the Deposit Agreement, without liability for
interest, in trust for the pro rata benefit of the Holders of ADRs not
theretofore surrendered. After making such sale, the Depositary shall be
discharged from all obligations in respect of the Deposit Agreement and this
ADR, except to account for such net proceeds and other cash. After the date so
fixed for termination, the Company shall be discharged from all obligations
under the Deposit Agreement except for its obligations to the Depositary and its
agents.
A-11
