AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of August , 2003 (the "Amendment"), to the
Deposit Agreement dated as of October 18, 1998 (as so amended hereby, the
"Deposit Agreement"), among Sanpaolo IMI S.p.A. (Formerly Istituto Bancario San
Paolo di Torino--Istituto Mobiliare Italiano S.p.A.), incorporated under the
laws of Italy (the "Company"), JPMorgan Chase Bank (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 Company and the Depositary executed the Deposit Agreement
for the purposes set forth therein; and WHEREAS, pursuant to paragraph (16) of
the form of ADR contained in the Deposit Agreement, the Company and the
Depositary desire to amend the terms of the Deposit Agreement and ADRs.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company 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.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. 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 dated as of October 18, 1998 as
further amended by this Amendment.
SECTION 2.02. Article 1 of the Deposit Agreement is amended as follows:
(a) Section 1(a) of the Deposit Agreement is amended to read as
follows:
"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.
(b) The following definition shall be inserted into Article I prior to
definition of the term "Delivery Order":
The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to (i) Direct
Registration ADRs, shall refer to an entry or entries or an
electronic transfer or transfers in the Direct Registration
System, when used with respect to (i) Direct Registration ADRs,
shall refer to an entry or entries or an electronic transfer or
transfers in the Direct Registration System, (ii) ADRs in physical
certificated form, shall refer to the physical delivery,
execution, issuance, registration, surrender, transfer or
cancellation of certificates representing the ADRs and (iii)
Shares, (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.
(c) The following definitions shall be inserted into Article I after
the definition of the term "Deposited Securities":
"Direct Registration System" means the system for the
uncertificated registration
2
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.
(d) Section 1(j) of the Deposit Agreement is amended by replacing "Lit.
6,000" with "'E'2.8".
SECTION 2.03. Section 2 of the Deposit Agreement is amended to read as
follows:
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 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.
SECTION 2.04. The address set forth in Section 17(a) of the Deposit
Agreement is amended to read as follows:
(a) JPMorgan Chase Bank
One Chase Manhattan Plaza (40th Floor)
New York, New York 10081
Attention: ADR Administration
Fax: (000) 000-0000
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. The form of ADR shall be in the form set forth as Exhibit
A hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company
represents and warrants to, and agrees with, the Depositary and the
Holders, that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been,
respectively, duly and validly authorized, executed and delivered by
the Company, and constitute the legal, valid and binding obligations of
the Company, enforceable against the Company 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, and any other document furnished hereunder or
thereunder in Italy, neither of such agreements need to be filed or
recorded with any court or other authority in Italy, nor does any stamp
or similar tax or governmental charge need to be paid in Italy on or in
respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date
set forth above and shall be effective as of August , 2003. (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.
SECTION 5.03. Indemnification. The parties hereto shall be entitled to
the benefits of the indemnification provisions of Section 16 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.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
Sanpaolo IMI S.p.A.
By:_____________________
Name:
Title:
JPMorgan Chase Bank
By:_____________________
Name:
Title:
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
AMENDMENT TO DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
No. of ADSs:
Number
Each ADS represents
Two Share
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
Sanpaolo IMI 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 two ordinary shares, nominal value 'E'2.8 each (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 Sanpaolo IMI S.p.A., a corporation organized under the laws of
the Republic of Italy (the "Company"), deposited under the Deposit Agreement
dated as of October 18, 1998 (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.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the
Deposit Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the Custodian;
(b) rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not more
than 30% of all ADSs (excluding those evidenced by Pre-released ADRs), provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time to the extent that it determines unusual market
conditions require the issue of pre-released ADRs in addition to 30% of all such
ADRs. The Depositary may retain for its own account any earnings on collateral
for Pre-released ADRs and its charges for issuance thereof. At the request, risk
and expense of the person depositing Shares, the Depositary may accept deposits
for forwarding to the Custodian and may deliver ADRs at a place other than its
office. Every person depositing Shares under the Deposit Agreement represents
and warrants that such Shares are validly issued and outstanding, fully paid,
nonassessable and free of pre-emptive rights, that the person making such
deposit is duly authorized so to do and that such Shares (A) are not "restricted
securities" as such term is defined in Rule 144 under the Securities Act of 1933
unless at the time of deposit they may be freely transferred in accordance with
Rule 144(k) and may otherwise be offered and sold freely in the United States or
(B) have been registered under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary will not knowingly accept for deposit under the Deposit Agreement any
Shares required to be registered under the Securities Act of 1933 and not so
registered; the Depositary may refuse to accept for such deposit any Shares
identified by the Company in order to facilitate the Company's compliance with
such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and
(5), upon surrender of (i) a certificated ADR in form satisfactory to the
Depositary at the Transfer Office or (ii) proper instructions and documentation
in the case of a Direct Registration ADR, the Holder hereof is entitled to
delivery at the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR. At the request, risk and expense
of the Holder hereof, the Depositary may deliver such Deposited Securities at
such other place as may have been requested by the Holder. Notwithstanding any
other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of
ADRs, and, in the case of Direct Registration ADRs, shall include the Direct
Registration System, which at all reasonable times will be open for inspection
by Holders and the Company for the purpose of communicating with Holders in the
interest of the business of the Company or a matter relating to the Deposit
Agreement and (b) facilities for the delivery and receipt of ADRs. The term ADR
Register includes the Direct Registration System. Title to this ADR (and to the
Deposited Securities represented by the ADSs evidenced hereby), when properly
endorsed (in the case of ADRs in certificated form) or upon delivery to the
Depositary of proper instruments of transfer, is transferable by delivery with
the same effect as in the case of negotiable instruments under the laws of the
State of New York; provided that the Depositary, notwithstanding any notice to
the contrary, may treat the person in whose name this ADR is registered on the
ADR Register as the absolute owner hereof for all purposes. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be
split into other ADRs or combined with other ADRs into one ADR, evidencing the
same number of ADSs evidenced by this ADR, by the Holder hereof or by duly
authorized attorney upon surrender of this ADR at the Transfer Office properly
endorsed (in the case of ADRs in certificated form) or upon delivery to the
Depositary of proper instruments of transfer and duly stamped as may be required
by applicable law; provided that the Depositary may close the ADR Register at
any time or from time to time when deemed expedient by it or requested by the
Company. At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated ADR with a Direct Registration ADR, or vice versa,
execute and deliver a certificated ADR or a Direct Registration ADR, as the case
may be, for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as those evidenced by the certificated ADR or Direct
Registration ADR, as the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration
of transfer, split-up or combination of any ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of paragraph
(2), the withdrawal of any Deposited Securities, and from time to time in the
case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed advisable by
the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable
by or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. If the Depositary determines that any distribution
in property other than cash (including Shares or rights) on Deposited Securities
is subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto. 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 section) to enable persons that are considered U. S. residents for purposes
of applicable law to receive any rebates, tax credits or other benefits,
including a reduced withholding tax rate at source, (pursuant to treaty or
otherwise) relating to distributions on the ADSs to which such persons are
entitled. The Depositary agrees to establish procedures to enable Holders to
take advantage of any such rebates, tax credits or other benefits and to provide
a copy of such procedures to the Company and, on an annual basis, to each Holder
of ADRs.
(6) Disclosure of Interests. To the extent that the provisions of or
governing any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary in the Depositary's compliance with any Company
instructions in respect thereof, and the Depositary will use reasonable efforts
to comply with such Company instructions.
(7) Charges of Depositary. The Depositary may charge each person to
whom ADSs are issued against deposits of Shares, including deposits in respect
of Share Distributions, Rights and
Other Distributions (as such terms are defined in paragraph (10)), and each
person surrendering ADSs for withdrawal of Deposited Securities, U.S. $5.00 for
each 100 ADSs (or portion thereof) delivered or surrendered. The Depositary may
sell (by public or private sale) sufficient securities and property received in
respect of Share Distributions, Rights and Other Distributions prior to such
deposit to pay such charge. The Company will pay all other charges and expenses
of the Depositary and any agent of the Depositary (except the Custodian)
pursuant to agreements from time to time between the Company and the Depositary,
except (i) stock transfer or other taxes and other governmental charges (which
are payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) transfer or registration fees for
the registration of transfer of Deposited Securities on any applicable register
in connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date of
the Deposit Agreement), and (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). 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 of
the Deposit Agreement at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000.
(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.
[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4)
and (5), to the extent practicable, the Depositary will distribute by mail to
each Holder entitled thereto on the record date set by the Depositary therefor
at such Holder's address shown on the ADR Register, in proportion to the number
of Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of
any other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible or
impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that
it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means
as the Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) Shares. (i) Additional ADRs evidencing whole ADSs representing any
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) Rights. (i) Warrants or other instruments in the discretion of
the Depositary representing rights to acquire additional ADRs in respect of any
rights to subscribe for additional Shares or rights of any nature available to
the Depositary as a result of a distribution on Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute the
same (the Company has no obligation to so furnish such evidence), or (ii) to the
extent the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights as in the case of Cash, or (iii) to the extent the Company
does not so furnish such evidence and such sales cannot practicably be
accomplished by reason of the nontransferability of the Rights, limited markets
therefor, their short duration or otherwise, nothing (and any Rights may lapse).
(d) Other Distributions. (i) Securities or property available to the Depositary
resulting from any distribution on Deposited Securities other than Cash, Share
Distributions and Rights ("Other Distributions"), by any means that the
Depositary may deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents (any fractional cents being withheld without
liability for interest and added to future Cash distributions).
(11) Record Dates. The Depositary may, after consultation with the
Company if practicable, fix a record date (which shall be as near as practicable
to any corresponding record date set by the Company) for the determination of
the Holders who shall be entitled to receive any distribution on or in respect
of Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after
receipt from the Company of notice of any meeting or solicitation of consents or
proxies of holders of Shares or other Deposited Securities, the Depositary shall
mail to Holders a notice stating (a) such information as is contained in such
notice and any solicitation materials, (b) that each Holder on the record date
set by the Depositary therefor will be entitled to instruct the Depositary as to
the exercise of the voting rights, subject to applicable provisions of Italian
law and to the Company's by-laws, pertaining to the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs and (c) the manner in
which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted (or to grant a
discretionary proxy to a person designated by the Company to vote) the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4)
and (5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange) or
cash, securities or property on the record date set by the Depositary therefor
to reflect any change in par value, split-up, consolidation, cancellation or
other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, regulation, the provisions of or
governing any Deposited Securities, act of God, war or other circumstance beyond
its control shall prevent, delay or subject to any civil or criminal penalty any
act which the Deposit Agreement or this ADR provides shall be done or performed
by it, or (ii) by reason of any exercise or failure to exercise any discretion
given it in the Deposit Agreement or this ADR; (b) assume no liability except to
perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to give
such advice or information. The Depositary, its agents and the Company may rely
and shall be protected in acting upon any written notice, request, direction or
other document believed by them to be genuine and to have been signed or
presented by the proper party or parties. The Depositary and its agents will not
be responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, for the manner in which any such vote is cast or for the
effect of any such vote. The Depositary and its agents may own and deal in any
class of securities of the Company and its affiliates and in ADRs. The Company
has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company against
losses incurred by the Company to the extent such losses are due to the
negligence or bad faith of the Depositary. 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; such resignation or removal
shall take effect upon the appointment of and acceptance by a successor
depositary. The Depositary may appoint substitute or additional Custodians and
the term "Custodian" refers to each Custodian or all Custodians as the context
requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs
and the Deposit Agreement may be amended by the Company and the Depositary,
provided that any amendment that imposes or increases any fees or charges (other
than stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding the foregoing, if
any governmental
body should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement or the form of ADR to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the ADR at any time in accordance with such changed rules. Such
amendment or supplement to the Deposit Agreement in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance.
(17) Termination. 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.
