AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 2, dated
as
of June __, 2008 (the "Amendment"), to the Deposit Agreement dated as of June
1,
1987, as amended as of July 11, 2000 (as further amended hereby, the "Deposit
Agreement"), among Banco Santander, S.A. (the "Bank"), JPMorgan Chase Bank,
N.A.
(fka Xxxxxx Guaranty Trust Company of New York), as depositary (the
"Depositary"), and all holders from time to time of American depositary receipts
("ADRs") issued thereunder.
W
I T
N E S S E T H:
WHEREAS,
the Bank and the Depositary executed the Deposit Agreement for the purposes
set
forth therein; and
WHEREAS,
pursuant to Section 6.01 of the Deposit Agreement, the Bank and the Depositary
desire to amend the terms of the Deposit Agreement and ADRs in accordance
herewith.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Bank and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
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ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT
SECTION
2.01. All
references in the Deposit Agreement to the term “Deposit Agreement” shall, as of
the Effective Date (as herein defined), refer to the Deposit Agreement as
further amended by this Amendment.
SECTION
2.02. All
references in the Deposit Agreement to the Depositary shall be references to
JPMorgan Chase Bank, N.A.
SECTION
2.03. All
references in the Deposit Agreement to the Bank shall be references to Banco
Santander, S.A.
SECTION
2.04. The
address of the Depositary set forth in Section 7.05(b) of the Deposit Agreement
is amended to read as follows:
JPMorgan
Chase Bank, N.A.
Four
Xxx
Xxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
ARTICLE
III
AMENDMENTS
TO THE FORM OF RECEIPT AND EXHIBIT B
SECTION
3.01. All
references in the Form of Receipt to the Depositary shall be references to
JPMorgan Chase Bank, N.A., a national banking association organized under the
laws of the United States.
SECTION
3.02. All
references in the Form of Receipt to the Bank shall be references to Banco
Santander, S.A.
SECTION
3.03. Paragraph
(7) of the Form of Receipt and Exhibit B to the Deposit Agreement are each
amended to include the following charges:
2
In
connection with any cash dividend or other cash distribution under the Deposit
Agreement, the Depositary may charge a fee of US$0.01 per American Depositary
Share (or portion thereof), such amount to be deducted from the net amount
distributed to Holders entitled thereto.
SECTION
3.04. The
Form
of ADR, reflecting the amendments set forth herein, is amended and restated
to
read as set forth as Exhibit A hereto.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations
and Warranties.
The
Bank represents and warrants to, and agrees with, the Depositary and the
Holders, that:
(a)
This
Amendment, when executed and delivered by the Bank, will be duly and validly
authorized, executed and delivered by the Bank, and it and the Deposit Agreement
as amended hereby constitute the legal, valid and binding obligations of the
Bank, enforceable against the Bank in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium and similar
laws of general applicability relating to or affecting creditors’ rights and to
general equity principles; and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, neither
of such agreements need to be filed or recorded with any court or other
authority in the Kingdom of Spain nor does any stamp or similar tax or
governmental charge need to be paid in the Kingdom of Spain on or in respect
of
such agreements.
ARTICLE
V
MISCELLANEOUS
SECTION
5.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
the
close of business New York time on the date three months after notice of such
change has been given to Holders (the "Effective Date").
SECTION
5.02. Outstanding
ADRs.
ADRs
issued prior or subsequent to the date hereof, which do not reflect the changes
to the form of ADR effected hereby, do not need to be called in for exchange
and
may remain outstanding until such time as the Holders thereof choose to
surrender them for any reason under the Deposit Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
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SECTION
5.03. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of the Deposit Agreement in connection with any and all liability
it
or they may incur as a result of the terms of this Amendment and the
transactions contemplated herein.
SECTION
5.04. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which taken together shall constitute one
instrument.
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IN
WITNESS WHEREOF,
the Bank
and the Depositary have caused this Amendment to be executed by representatives
thereunto duly authorized as of the date set forth above.
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By:_____________________
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Name:
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Title:
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JPMorgan
Chase Bank, N.A.
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By:_____________________
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Name:
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Title:
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5
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_____
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No.
of American Depositary Shares:
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Number
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Each
American Depositary Share represents one Share
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CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
SHARES
OF
CAPITAL STOCK OF
(Incorporated
under the laws of
the
Kingdom of Spain)
No.
__________________
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary (the "Depositary"), hereby certifies that
_________________ is the owner of _______ American Depositary Shares ("American
Depositary Shares"), representing deposited Shares of Capital Stock, or evidence
of rights to receive such Shares of Capital Stock ("Shares"), of Banco
Santander, S.A., a limited liability company organized under the laws of the
Kingdom of Spain (the "Bank"). At the date hereof, each American Depositary
Share represents one Share deposited under the Deposit Agreement (hereinafter
defined) at the Madrid office of Banco Santander, S.A., as Custodian (the
"Custodian").
(1)The
Deposit Agreement.
This
American Depositary Receipt is one of the receipts (the "Receipts") executed
and
delivered pursuant to the Deposit Agreement dated as of June 1, 1987 (as amended
from time to time, the "Deposit Agreement") by and among the Bank, the
Depositary and all registered holders ("Holders") from time to time of Receipts,
each of whom by accepting a Receipt becomes a party thereto, bound by all
applicable terms and provisions thereof and hereof. The Deposit Agreement sets
forth the rights of Holders 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, collectively, the
"Deposited Securities"). Copies of the Deposit Agreement and of the Bank's
provisions of or governing Deposited Securities are on file at the Depositary's
Office, the office of the Custodian and at any other designated transfer
offices. The statements made on the face and the reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified
by
and subject to the detailed provisions thereof. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities. Capitalized terms used herein that are not defined herein shall
have
the meanings assigned to them in the Deposit Agreement.
1
(2)Withdrawal
of Deposited Securities.
Upon
surrender of this Receipt and payment of the fee of the Depositary provided
for
in paragraph (7) of this Receipt at the Depositary's Office or at such other
offices as it may designate, subject to the Deposit Agreement and the provisions
of or governing the Deposited Securities, the Holder hereof is entitled to
the
delivery without unreasonable delay at the office of the Custodian to such
Holder or upon such Holder's order of the Deposited Securities at the time
represented by the American Depositary Shares evidenced by this Receipt. At
the
request, risk and expense of the Holder hereof, the Depositary may deliver
such
Deposited Securities at the Depositary's Office or at such other place as may
have been requested by the Holder. Delivery of Deposited Securities may be
made
by the delivery of certificates to the extent such Deposited Securities may
be
represented by certificates. Notwithstanding any provision of the Deposit
Agreement or this Receipt to the contrary, the Depositary may restrict
withdrawals of Deposited Securities only for the reasons set forth in General
Instruction I.A.(1) to Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
(3)Transfers,
Split-ups and Combinations.
This
Receipt is transferable on the register maintained by the Depositary by the
Holder hereof in person or by duly authorized attorney, upon surrender of this
Receipt at any designated transfer office properly endorsed or accompanied
by
proper instruments of transfer and duly stamped as may be required by applicable
law; provided
that the
Depositary may close the Receipt register at any time or from time to time
when
deemed expedient by it in connection with the performance of its duties under
the Deposit Agreement or at the request of the Bank. This Receipt may be split
into other Receipts or may be combined with other Receipts into one Receipt,
evidencing the same aggregate number of American Depositary Shares and the
same
rights to cash distributions as those evidenced by the Receipt or Receipts
surrendered.
(4)Certain
Limitations.
Prior
to the execution and delivery, registration, registration of transfer, split-up
or combination of any Receipt, the delivery of any distribution in respect
thereof, or the withdrawal of any Deposited Securities, the Depositary, the
Bank
or the Custodian may require: (a) payment of (i)
any
stock transfer or other tax or other governmental charge with respect thereto,
(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 Receipt; (b) the
production of proof satisfactory to it of the identity and genuineness of any
signature and of such other information (including without limitation
information as to citizenship, residence, exchange control approval, or legal
or
beneficial ownership of any securities) as it may deem necessary or proper
or as
the Bank may require; and (c) compliance with such regulations, if any, as
the
Depositary may establish consistent with the Deposit Agreement. The delivery
of
Receipts against deposits of Shares may be suspended, deposits of Shares may
be
refused, or the registration of transfer of Receipts, their split-up or
combination or the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the Receipt register or any register
for Shares or other Deposited Securities is closed or when any such action
is
deemed necessary or advisable by the Depositary or the Bank for any reason.
The
Depositary may issue Receipts against rights to receive Shares from the Bank,
or
any Custodian, or any registrar, transfer agent, clearing agency or other entity
recording Share ownership or transactions. The Depositary may issue Receipts
against other rights to receive Shares (a "pre-release") only if (x) such
Receipts are fully collateralized (marked to market daily) with cash or U.S.
government securities until such Shares are deposited, (y) the applicant for
such Receipts represents in writing that it owns such Shares, has assigned
all
beneficial right, title and interest in such Shares to the Depositary, holds
such Shares for the account of the Depositary, shall not dispose of such Shares
other than in satisfaction of the pre-release and will deliver such Shares
to
the Custodian within five business days of demand therefor (no evidence of
ownership is required or time of delivery specified) and (z) all such Receipts
represent not more than 30% of all American Depositary Shares (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. Such collateral, but not the earnings thereon,
shall be held for the benefit of the Holders. The Depositary may retain for
its
own account any compensation for the issuance of Receipts against such other
rights to receive Shares, including without limitation earnings on the
collateral securing such rights.
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(5)Liability
of Holder for 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 Receipt or any Deposited
Securities represented by the American Depositary Shares evidenced by this
Receipts, such tax or other governmental charge shall be payable by the Holder
hereof, who shall pay the amount thereof to the Depositary. The Depositary
may
refuse to effect any registration of transfer of this Receipt or any split-up
or
combination hereof or any withdrawal of such Deposited Securities until such
payment is made, and may withhold or deduct from any distributions on such
Deposited Securities, or may sell for the account of the Holder hereof any
part
or all or such Deposited Securities (after attempting by reasonable means to
notify the Holder hereof prior to such sale), and may apply such cash or the
proceeds of any such sale in payment of such tax or other governmental charge,
the Holder hereof remaining liable for any deficiency.
(6)Warranties
by Depositor.
Every
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor are validly
issued and outstanding, fully paid and nonassessable and free of pre-emptive
rights, and 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 Receipts
(7) Charges
of Depositary.
The
Depositary will charge each person to whom Receipts are delivered against
deposits of Shares, and each person surrendering Receipts for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 American Depositary Shares (or
portion thereof) evidenced by the Receipts delivered or surrendered. The Bank
will pay all other charges and expenses of the Depositary and those of the
Receipt registrar, co-transfer agent, co-registrar and any other agent of the
Depositary (except the Custodian), 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 Shares or Holders delivering Shares, Receipts or Deposited
Securities (which are payable by such persons or Holders), (iii)
transfer or registration fees for the registration of transfers of deposited
Shares and other Deposited Securities on any applicable register in the name
of
the Custodian or its nominee in connection with the deposit of Shares or in
the
name of such person as a Holder may direct in connection with any withdrawal
of
Deposited Securities (which are payable by persons depositing Shares or Holders
withdrawing Deposited Securities), and (iv)
charges
of the Depositary in connection with the conversion of foreign currency into
U.S. dollars (which are paid out of such foreign currency). In connection with
any cash dividend or other cash distribution under the Deposit Agreement, the
Depositary may charge a fee of US$0.01 per American Depositary Share (or portion
thereof), such amount to be deducted from the net amount distributed to Holders
entitled thereto.
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The
provisions in respect of these charges may be changed in the manner indicated
on
the reverse hereof.
(8)Title
to Receipts.
Title
to this Receipt (and to the Deposited Securities represented by the American
Depositary Shares evidenced hereby), when properly endorsed or accompanied
by
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of a negotiable instrument; provided
that the
Bank and the Depositary, notwithstanding any notice to the contrary, may treat
the person in whose name this Receipt is registered on the register maintained
by the Depositary as the absolute owner hereof for the purpose of determining
the person entitled to any distribution or notice and for all other
purposes.
(9)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 executed by the Depositary by the
manual signature of a duly authorized officer of the Depositary or, if a Receipt
registrar for the Receipts shall have been appointed, by the manual signature
of
a duly authorized officer of such registrar or any co-registrar.
(10)Available
Information.
The
Bank is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and accordingly files certain reports with the Securities
and Exchange Commission. Such reports and other information may be inspected
and
copied at the public reference facilities maintained by the Commission located
at the date of the Deposit Agreement at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
Dated:
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JPMORGAN
CHASE BANK, N.A., as Depositary
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By
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(Title)
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As
of the
date of the Deposit Agreement, the address of the Depositary's Office is 0
Xxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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[FORM
OF
REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE
DEPOSIT AGREEMENT
(11)Distributions
Upon Deposited Securities.
Whenever
the Depositary or the Custodian shall receive any cash dividend or other cash
distribution upon any Deposited Securities, the Depositary shall, subject to
the
Deposit Agreement, distribute the amount thus received, by checks drawn on
a
bank in The City of New York, to the Holders on the record date set by the
Depositary therefor of Receipts evidencing American Depositary Shares
representing such Deposited Securities, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by each of them
respectively; provided
that the
Depositary shall make appropriate adjustments in the amounts so distributed
in
respect of (a) any of the Deposited Securities being not entitled, by reason
of
its date of issuance or otherwise, to receive all or any portion of such
distribution or (b) any amounts (i)
required to be withheld by the Bank, the Custodian or the Depositary on account
of taxes or (ii)
charged
by the Depositary in connection with the conversion of foreign currency into
U.S. dollars. Cash distributions and cash proceeds from sales of non-cash
distributions in foreign currency will be converted by sale or such other manner
as the Depositary may determine into U.S. dollars (net of the Depositary's
charges and expenses in effecting such conversion) before distribution to
Holders. If in the judgment of the Depositary amounts received in foreign
currency may not be converted on a reasonable basis into U.S. dollars
transferable to the United States, or may not be so convertible for all of
the
Holders entitled thereto, the Depositary may in its discretion make such
conversion and distribution in U.S. dollars to the extent reasonable and
permissible to the Holders entitled thereto and may distribute the balance
in
foreign currency to the Holders entitled thereto or hold such balance or all
such foreign currency for the Holders entitled thereto. If any distribution
upon
any Deposited Securities consists of a dividend in, or free distribution of,
Shares, the Depositary may or shall if the Bank shall so request, subject to
the
Deposit Agreement, distribute to the Holders on a record date set by the
Depositary therefor of Receipts evidencing American Depositary Shares
representing such Deposited Securities, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by each of them
respectively, additional Receipts for an aggregate number of American Depositary
Shares representing the number of Shares received as such dividend or free
distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in the case of any such distribution, the Depositary shall sell the
number of Shares represented by the aggregate of such fractions and distribute
the net proceeds to the Holders entitled thereto as in the case of a
distribution received in cash. If additional Receipts are not so distributed,
each American Depositary Share shall thenceforth also represent its
proportionate interest in the additional Shares so distributed upon such
Deposited Securities. If the Bank 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 nature, the Depositary shall have discretion as
to
whether and how such rights are to be made available to the Holders;
provided
that the
Depositary will, if requested by the Bank, either (y) make such rights available
to Holders by means of warrants or otherwise, if lawful and feasible, or (z)
if
making such rights available is not lawful or not feasible, or if such rights
or
warrants are not exercised and appear to be about to lapse, sell such rights
or
warrants at public or private sale, at such place or places and upon such terms
as the Depositary may deem proper, and allocate the proceeds of such sales
for
the accounts of the Holders otherwise entitled thereto upon an averaged or
other
practicable basis without regard to any distinctions among such Holders because
of exchange restrictions, or the date of delivery of any Receipt or Receipts,
or
otherwise, and distribute the net proceeds so allocated to the Holders entitled
thereto as in the case of a distribution received in cash. The Depositary will
distribute to Holders on the record date set by it therefore any distribution
on
Deposited Securities other than cash. Shares or rights in any manner that the
Depositary deems equitable and practicable; provided
if in
the opinion of the Depositary any distribution other than cash, Shares or rights
upon any Deposited Securities cannot be made proportionately among the Holders
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it
may
deem equitable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus received,
or
any part thereof and the net proceeds of any such sale will be distributed
by
the Depositary to the Holders entitled thereto as in the case of a distribution
received in cash. The Holders shall be solely liable for payment of any taxes
due as a result of sales pursuant to the preceding clause (b). The Depositary
need not distribute securities, Receipts or rights unless the Bank furnishes
certain evidence or opinions in respect of United States securities laws (which
the Bank has no obligation to do).
5
(12)Record
Dates.
Whenever any distribution is being made upon any Deposited Securities or any
meeting of holders of Shares or other Deposited Securities is being held or
whenever the Depositary shall find it necessary or convenient in connection
with
the giving of any notice, the solicitation of any consent or any other matter,
the Depositary will fix a record date for the determination of the Holders
who
shall be entitled to receive such distribution or the net proceeds of the sale
thereof, to give instructions for the exercise of voting rights at any such
meeting, to receive such notice or solicitation or act in respect of such other
matter, subject to the provisions of the Deposit Agreement.
(13)Voting
of Deposited Securities.
As soon
as practicable after receipt of notice in English of any meeting or solicitation
of consents or proxies of holders of Shares or other Deposited Securities,
the
Depositary will mail to the Holders a notice containing (a) such information
as
is contained in such notice and (b) a statement that each Holder at the close
of
business on a specified record date will be entitled, subject to any applicable
provisions of law and the provisions of or governing the Deposited Securities,
to instruct the Depositary as to the exercise of voting rights, if any,
pertaining to the Deposited Securities represented by the American Depositary
Shares evidenced by such Holders' Receipts, including an express indication
that
instructions may be given to the Depositary to give a discretionary proxy to
a
person designated by the Bank and (c) a statement as to the manner in which
such
instructions may be given. Upon the written request of a Holder on such record
date, received on or before the date established by the Depositary for such
purpose, the Depositary will endeavor insofar as practicable and permitted
under
any applicable provisions of law and the provisions of or governing the
Deposited Securities to vote or cause to be voted the Deposited Securities
represented by the American Depositary Shares evidenced by such Holder's
Receipts in accordance with any nondiscretionary instructions set forth in
such
request. The Depositary will not vote any Deposited Securities represented
by
the American Depositary Shares evidenced by this Receipt except in accordance
with written instructions from such Holders.
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(14)Changes
Affecting Deposited Securities.
Upon
any change in par value, split-up, consolidation, cancellation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization merger or consolidation or sale of assets affecting the Bank
or
to which it is a party, any securities that shall be received by the Depositary
in exchange for, or in conversion, replacement or otherwise in respect of,
Deposited Securities shall be treated as Deposited Securities under the Deposit
Agreement; and, the Depositary may with the Bank's approval, and shall if the
Bank shall so request, execute and deliver additional Receipts in respect of
such securities as in the case of a dividend of Shares or call for the surrender
of outstanding Receipts to be exchanged for new Receipts, reflecting such
securities, and to the extent that such additional or new Receipts are not
delivered this Receipt shall thenceforth evidence American Depositary Shares
representing the right to receive the Deposited Securities including the
securities so received.
(15)Reports,
Inspection of Register.
The
Depositary will make available for inspection by Holders at the Depositary's
Office and at any other designated transfer offices any reports and
communications received from the Bank which are both (a) received by the
Depositary, the custodian or the nominee of either as the holder of the
Deposited Securities and (b) made generally available to the holders of
Deposited Securities by the Bank. The Depositary will also mail or make
available to Holders copies of such reports when furnished by the Bank as
provided in the Deposit Agreement. The Depositary will arrange for the prompt
transmittal of the English language version received by it or the Custodian
from
the Bank of any notice 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 by such Holders other than at a meeting. The Depositary will keep, at
its
transfer office in the Borough of Manhattan, The City of New York, a register
for the registration of Receipts and their transfer that at all reasonable
times
will be open for inspection by the Holders and the Bank; provided
that
such inspection shall not be for the purpose of communicating with Holders
in
the interest of a business or object other than the business of the Bank or
a
matter related to the Deposit Agreement or the Receipts.
(16)Withholding.
In
connection with any distribution to Holders, the Bank 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 Bank; and the Depositary
and the Custodian will remit to the appropriate governmental authority or agency
all amounts (if any) required to be withheld and owing to such authority or
agency by the Depositary or the Custodian. If the Depositary determines that
any
distribution in property other than cash (including Shares or rights) on
Deposited Securities is subject to any tax that the Depositary or the Custodian
is obligated to withhold, the Depositary may dispose of all or a portion of
such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled
thereto.
(17)Liability
of the Bank and the Depositary.
Neither
the Depositary, its agents nor the Bank shall incur any liability if, by reason
of any present or future law, the provisions of or governing any Deposited
Security, act of God, war or other circumstance beyond its control, the
Depositary, its agents or the Bank shall be prevented or forbidden from, or
subjected to any civil or criminal penalty on account of, or delayed in, doing
or performing any act or thing which by the terms of the Deposit Agreement
it is
provided shall be done or performed. Each of the Bank, the Depositary and its
agents assumes no obligation and shall be subject to no liability under the
Deposit Agreement or this Receipt to Holders or other persons, except to perform
such obligations as are specifically set forth and undertaken by it to perform
in the Deposit Agreement without gross negligence or bad faith. Neither the
Depositary, its agents nor the Bank will be (a) under any obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of
any
Deposited Securities or this Receipt that in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required, or (b) liable for any
action or inaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, or any other person believed by it to be competent to give such advice
or information. The Depositary, its agents and the Bank may rely and shall
be
protected in acting upon any written notice, request, direction or other
document believed by them to be genuine and to have been signed or presented
by
the proper party or parties. The Depositary and its agents will not be
responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, for the manner in which any such vote is cast or for
the
effect of any such vote. The Depositary and its agents may own and deal in
any
class of securities of the Bank and its affiliates and in Receipts; provided,
that
the Bank shall have no liability for any taxes incurred by the Depositary or
its
agents with respect to such ownership or dealing. The Bank has agreed to
indemnify the Depositary, the Custodian, any Receipt registrar, co-transfer
agent, co-registrar or other agent of the Depositary (the "indemnified persons")
against any loss, liability or expense (including reasonable fees and expenses
of counsel) that may arise (a) out of acts performed or omitted in connection
with the Deposit Agreement and the Receipts, (i)
by any
indemnified person, except to the extent that any such loss, liability or
expense is due to the gross negligence or bad faith of such indemnified person,
or (ii)
by the
Bank or any of its agents, or (b) out of or in connection with any offer or
sale
of Receipts, American Depositary Shares, Shares or any other Deposited
Securities or any registration statement under the Securities Act of 1933 in
respect thereof. The Depositary has agreed to indemnify the Bank for any loss,
liability or expense (including the fees and expenses of counsel) that may
arise
out of acts performed or omitted by the Depositary in connection with the
Deposit Agreement due to its negligence or bad faith.
7
(18)Resignation
and Removal of Depositary; the Custodian.
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of its election so to do delivered to the Bank or be removed
by
the Bank by written notice of such removal delivered to the Depositary, such
resignation or removal to take effect upon the appointment of and acceptance
by
a successor depositary as provided in the Deposit Agreement. The Depositary
may
at any time appoint substitute or additional Custodians and the term
"Custodian"
refers
to each Custodian or all Custodians as the context requires.
(19)Amendment
of Deposit Agreement and Receipts.
The
Receipts and the Deposit Agreement may be amended by agreement between the
Bank
and the Depositary. Any amendment that shall impose or increase 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, and expenses of the Depositary in connection with
conversion of foreign currency into U.S. dollars) or that shall otherwise
prejudice any substantial existing right of Holders, shall not, however, become
effective as to outstanding Receipts until the expiration of three months after
notice of such amendment shall have been given to the Holders. Every Holder
at
the expiration of such three months shall be deemed by holding such Receipt
to
consent and agree to such amendment and to be bound by the Deposit Agreement
or
the Receipt as amended thereby. In no event shall any amendment impair the
right
of the Holder hereof to surrender this Receipt and receive therefor the
Deposited Securities represented hereby, except in order to comply with
mandatory provisions of applicable law.
8
(20)Termination
of Deposit Agreement.
The
Depositary will at any time at the direction of the Bank terminate the Deposit
Agreement by mailing notice of such termination to the Holders at least 30
days
prior to the date fixed in such notice for such termination. The Depositary
may
terminate the Deposit Agreement, upon the notice set forth in the preceding
sentence, at any time after 90 days after the Depositary shall have resigned,
provided
that no
successor Depositary shall within such 90 days have been appointed and accepted
its appointment within such 90 days. After the date so fixed for termination,
the Depositary will perform no further acts under the Deposit Agreement, except
to advise Holders of such termination, receive and hold distributions on
Deposited Securities (or sell property or rights or convert Deposited Securities
into cash) 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 the net proceeds of any
such
sale, together with any other cash then held by it under the Deposit Agreement,
without liability for interest, for the pro
rata
benefit
of the Holders of Receipts not theretofore surrendered.
9
