XTL BIOPHARMACEUTICALS LTD. AND THE BANK OF NEW YORK
AND
THE
BANK
OF NEW YORK
As
Depositary
AND
OWNERS
AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Dated
as
of _________________, 2005
DEPOSIT
AGREEMENT dated as of _______________, 2005, among XTL BIOPHARMACEUTICALS
LTD.,
incorporated under the laws of Israel (herein called the Issuer), THE BANK
OF
NEW YORK, a New York banking corporation (herein called the Depositary),
and all
Owners and holders from time to time of American Depositary Receipts issued
hereunder.
W
I T N E
S S E T H :
WHEREAS,
the Issuer desires to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of Shares (as hereinafter defined) of the Issuer
from
time to time with the Depositary or with the Custodian (as hereinafter defined)
as agent of the Depositary for the purposes set forth in this Deposit Agreement,
for the creation of American Depositary Shares representing the Shares so
deposited and for the execution and delivery of American Depositary Receipts
evidencing the American Depositary Shares; and
WHEREAS,
the American Depositary Receipts are to be substantially in the form of Exhibit
A annexed hereto, with appropriate insertions, modifications and omissions,
as
hereinafter provided in this Deposit Agreement;
NOW,
THEREFORE, in consideration of the premises, it is agreed by and between
the
parties hereto as follows:
ARTICLE
1.
DEFINITIONS
DEFINITIONS
The
following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit
Agreement:
SECTION
1.1 American
Depositary Shares.
The
term
"American Depositary Shares" shall mean the securities representing the
interests in the Deposited Securities and evidenced by the Receipts issued
hereunder. Each American Depositary Share shall represent the number of Shares
specified in Exhibit A annexed hereto, until there shall occur a distribution
upon Deposited Securities covered by Section 4.3 or a change in Deposited
Securities covered by Section 4.8 with respect to which additional Receipts
are
not executed and delivered, and thereafter American Depositary Shares shall
evidence the amount of Shares or Deposited Securities specified in such
Sections.
SECTION
1.2 Commission.
The
term
"Commission" shall mean the Securities and Exchange Commission of the United
States or any successor governmental agency in the United States.
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SECTION
1.3 Custodian.
The
term
"Custodian" shall mean the Tel Aviv office of Bank Hapoalim B.M. and the
London
office of The Bank of New York, each as agent of the Depositary for the purposes
of this Deposit Agreement, and any other firm or corporation which may hereafter
be appointed by the Depositary pursuant to the terms of Section 5.5, as
substitute or additional custodian or custodians hereunder, as the context
shall
require and shall also mean all of them collectively.
SECTION
1.4 Deposit
Agreement.
The
term
"Deposit Agreement" shall mean this Deposit Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION
1.5 deposit,
deliver, execute, issue, register, surrender, transfer, withdraw or
cancel.
The
terms
"deposit", "deliver", "execute", "issue", "register", "surrender", "transfer",
"withdraw" or "cancel", when used with respect to Shares, shall refer, 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 Israeli
law to effect transfers of securities and not to the physical transfer of
certificates representing the Shares.
SECTION
1.6 Depositary;
Corporate Trust Office.
The
term
"Depositary" shall mean The Bank of New York, a New York banking corporation,
and any successor as depositary hereunder. The term "Corporate Trust Office",
when used with respect to the Depositary, shall mean the office of the
Depositary which at the date of this Agreement is 000 Xxxxxxx Xxxxxx, Xxx
Xxxx,
Xxx Xxxx 00000.
SECTION
1.7 Deposited
Securities.
The
term
"Deposited Securities" as of any time shall mean Shares at such time deposited
or deemed to be deposited under this Deposit Agreement and any and all other
securities, property and cash received by the Depositary or the Custodian
in
respect thereof and at such time held hereunder, subject as to cash to the
provisions of Section 4.5.
SECTION
1.8 Dollars.
The
term
"Dollars" shall mean United States dollars.
SECTION
1.9 Foreign
Registrar.
The
term
"Foreign Registrar" shall mean the entity that presently carries out the
duties
of registrar for the Shares or any successor as registrar for the Shares
and any
other appointed agent of the Issuer for the transfer and registration of
Shares.
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SECTION
1.10 Issuer.
The
term
"Issuer" shall mean XTL Biopharmaceuticals Ltd., incorporated under the laws
of
Israel, and its successors.
SECTION
1.11 Owner.
The
term
"Owner" shall mean the person in whose name a Receipt is registered on the
books
of the Depositary maintained for such purpose.
SECTION
1.12 Receipts.
The
term
"Receipts" shall mean the American Depositary Receipts issued hereunder
evidencing American Depositary Shares.
SECTION
1.13 Registrar.
The
term
"Registrar" shall mean any bank or trust company having an office in the
Borough
of Manhattan, The City of New York, which shall be appointed to register
Receipts and transfers of Receipts as herein provided.
SECTION
1.14 Restricted
Securities.
The
term
“Restricted Securities” shall mean Shares, or American Depositary Shares
representing Shares, that are acquired directly or indirectly from the Issuer
or
its affiliates (as defined in Rule 144 under the Securities Act of 1933)
in a
transaction or chain of transactions not involving any public offering, or
which
are subject to resale limitations under Regulation D under that Act or both,
or
which are held by an officer, director (or persons performing similar functions)
or other affiliate of the Issuer, or which would require registration under
the
Securities Act in connection with the offer and sale thereof in the United
States, or which are subject to other restrictions on sale or deposit under
the
laws of the United States or Israel, or under a shareholder agreement or
the
Articles of Association of the Issuer.
SECTION
1.15 Securities
Act of 1933.
The
term
"Securities Act of 1933" shall mean the United States Securities Act of 1933,
as
from time to time amended.
SECTION
1.16 Shares.
The
term
"Shares" shall mean ordinary shares in registered form of the Issuer, heretofore
validly issued and outstanding and fully paid, nonassessable and free of
any
pre-emptive rights of the holders of outstanding Shares or hereafter validly
issued and outstanding and fully paid, nonassessable and free of any pre-emptive
rights of the holders of outstanding Shares or interim certificates representing
such Shares.
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ARTICLE
2.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION
2.1 Form
and
Transferability of Receipts.
Definitive
Receipts shall be substantially in the form set forth in Exhibit A annexed
to
this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. No Receipt shall be entitled to any benefits
under this Deposit Agreement or be valid or obligatory for any purpose, unless
such Receipt shall have been executed by the Depositary by the manual signature
of a duly authorized signatory of the Depositary; provided,
however,
that
such signature may be a facsimile if a Registrar for the Receipts shall have
been appointed and such Receipts are countersigned by the manual signature
of a
duly authorized officer of the Registrar. The Depositary shall maintain books
on
which each Receipt so executed and delivered as hereinafter provided and
the
transfer of each such Receipt shall be registered. Receipts bearing the manual
or facsimile signature of a duly authorized signatory of the Depositary who
was
at any time a proper signatory of the Depositary shall bind the Depositary,
notwithstanding that such signatory has ceased to hold such office prior
to the
execution and delivery of such Receipts by the Registrar or did not hold
such
office on the date of issuance of such Receipts.
The
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or modifications not inconsistent with the provisions
of
this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulations thereunder or with the rules
and
regulations of any securities exchange upon which American Depositary Shares
may
be listed or to conform with any usage with respect thereto, or to indicate
any
special limitations or restrictions to which any particular Receipts are
subject
by reason of the date of issuance of the underlying Deposited Securities
or
otherwise.
Title
to
a Receipt (and to the American Depositary Shares evidenced thereby), when
properly endorsed or accompanied by proper instruments of transfer, shall
be
transferable by delivery with the same effect as in the case of a negotiable
instrument under the laws of New York;
provided,
however,
that
the Depositary, notwithstanding any notice to the contrary, may treat the
Owner
thereof as the absolute owner thereof for the purpose of determining the
person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes, and neither
the Depositary nor the Issuer shall have any obligation or be subject to
any
liability under this Deposit Agreement to any holder of a Receipt unless
such
holder is the Owner thereof.
SECTION
2.2 Deposit
of Shares.
Subject
to the terms and conditions of this Deposit Agreement, Shares or evidence
of
rights to receive Shares may be deposited by delivery thereof to any Custodian
hereunder, accompanied by any appropriate instrument or instruments of transfer,
or endorsement, in form satisfactory to the Custodian, together with all
such
certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to execute
and
deliver to, or upon the written order of, the person or persons stated in
such
order, a Receipt or Receipts for the number of American Depositary Shares
representing such deposit.
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No
Share
shall be accepted for deposit unless accompanied by evidence satisfactory
to the
Depositary that any necessary approval has been granted by any governmental
body
in Israel which is then performing the function of the regulation of currency
exchange. If required by the Depositary, Shares presented for deposit at
any
time, whether or not the transfer books of the Issuer or the Foreign Registrar,
if applicable, are closed, shall also be accompanied by an agreement or
assignment, or other instrument satisfactory to the Depositary, which will
provide for the prompt transfer to the Custodian of any dividend, or right
to
subscribe for additional Shares or to receive other property which any person
in
whose name the Shares are or have been recorded may thereafter receive upon
or
in respect of such deposited Shares, or in lieu thereof, such agreement of
indemnity or other agreement as shall be satisfactory to the
Depositary.
At
the
request and risk and expense of any person proposing to deposit Shares, and
for
the account of such person, the Depositary may receive certificates for Shares
to be deposited, together with the other instruments herein specified, for
the
purpose of forwarding such Share certificates to the Custodian for deposit
hereunder.
Upon
each
delivery to a Custodian of a certificate or certificates for Shares to be
deposited hereunder, together with the other documents specified above, such
Custodian shall, as soon as transfer and recordation can be accomplished,
present such certificate or certificates to the Issuer or the Foreign Registrar,
if applicable, for transfer and recordation of the Shares being deposited
in the
name of the Depositary or its nominee or such Custodian or its
nominee.
Deposited
Securities shall be held by the Depositary or by a Custodian for the account
and
to the order of the Depositary or at such other place or places as the
Depositary shall determine.
SECTION
2.3 Execution
and Delivery of Receipts.
Upon
receipt by any Custodian of any deposit pursuant to Section 2.2 hereunder
(and
in addition, if the transfer books of the Issuer or the Foreign Registrar,
if
applicable, are open, the Depositary may in its sole discretion require a
proper
acknowledgment or other evidence from the Issuer that any Deposited Securities
have been recorded upon the books of the Issuer or the Foreign Registrar,
if
applicable, in the name of the Depositary or its nominee or such Custodian
or
its nominee), together with the other documents required as specified above,
such Custodian shall notify the Depositary of such deposit and the person
or
persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares
to
be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex
or
facsimile transmission. Upon receiving such notice from such Custodian, or
upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person
or
persons, but only upon payment to the Depositary of the fees and expenses
of the
Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.9, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities.
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SECTION
2.4 Transfer
of Receipts; Combination and Split-up of Receipts.
The
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
register transfers of Receipts on its transfer books from time to time, upon
any
surrender of a Receipt, by the Owner in person or by a duly authorized attorney,
properly endorsed or accompanied by proper instruments of transfer, and duly
stamped as may be required by the laws of the State of New York and of the
United States of America. Thereupon the Depositary shall execute a new Receipt
or Receipts and deliver the same to or upon the order of the person entitled
thereto.
The
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
upon surrender of a Receipt or Receipts for the purpose of effecting a split-up
or combination of such Receipt or Receipts, execute and deliver a new Receipt
or
Receipts for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
The
Depositary may appoint one or more co-transfer agents for the purpose of
effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. In carrying out its functions,
a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Owners or persons entitled to Receipts
and will be entitled to protection and indemnity to the same extent as the
Depositary.
SECTION
2.5 Surrender
of Receipts and Withdrawal of Shares.
Upon
surrender at the Corporate Trust Office of the Depositary of a Receipt for
the
purpose of withdrawal of the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, and upon payment of the fee
of the
Depositary for the surrender of Receipts as provided in Section 5.9 and payment
of all taxes and governmental charges payable in connection with such surrender
and withdrawal of the Deposited Securities, and subject to the terms and
conditions of this Deposit Agreement, the Owner of such Receipt shall be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities at the time represented by the American Depositary Shares evidenced
by such Receipt. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates in the name of such Owner or as ordered
by him
or certificates properly endorsed or accompanied by proper instruments of
transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of such
Receipts to such Owner or as ordered by him. Such delivery shall be made,
as
hereinafter provided, without unreasonable delay.
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A
Receipt
surrendered for such purposes may be required by the Depositary to be properly
endorsed in blank or accompanied by proper instruments of transfer in blank,
and
if the Depositary so requires, the Owner thereof shall execute and deliver
to
the Depositary a written order directing the Depositary to cause the Deposited
Securities being withdrawn to be delivered to or upon the written order of
a
person or persons designated in such order. Thereupon the Depositary shall
direct the Custodian to deliver at the office of such Custodian, subject
to
Sections 2.6, 3.1 and 3.2 and to the other terms and conditions of this Deposit
Agreement, to or upon the written order of the person or persons designated
in
the order delivered to the Depositary as above provided, the amount of Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, except that the Depositary may make delivery to such person or persons
at the Corporate Trust Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, or of any proceeds
of sale
of any dividends, distributions or rights, which may at the time be held
by the
Depositary.
At
the
request, risk and expense of any Owner so surrendering a Receipt, and for
the
account of such Owner, the Depositary shall direct the Custodian to forward
any
cash or other property (other than rights) comprising, and forward a certificate
or certificates, if applicable, and other proper documents of title for,
the
Deposited Securities represented by the American Depositary Shares evidenced
by
such Receipt to the Depositary for delivery at the Corporate Trust Office
of the
Depositary. Such direction shall be given by letter or, at the request, risk
and
expense of such Owner, by cable, telex or facsimile transmission.
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SECTION
2.6
|
Limitations
on Execution and Delivery, Transfer and Surrender of Receipts.
|
As
a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary, Custodian or Registrar may require payment from
the
depositor of Shares or the presenter of the Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer
or
registration fee with respect thereto (including any such tax or charge and
fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and
may
also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.6.
The
delivery of Receipts against deposit of Shares generally or against deposit
of
particular Shares may be suspended, or the transfer of Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts generally may be suspended, during any period when the transfer
books
of the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Issuer at any time or from time to time
because of any requirement of law or of any government or governmental body
or
commission, or under any provision of this Deposit Agreement, or for any
other
reason, subject to the provisions of the following sentence. Notwithstanding
anything to the contrary in this Deposit Agreement, the surrender of outstanding
Receipts and withdrawal of Deposited Securities may not be suspended subject
only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Issuer or the deposit of Shares in connection with voting
at a
shareholders' meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign
laws or
governmental regulations relating to the Receipts or to the withdrawal of
the
Deposited Securities. Without limitation of the foregoing, the Depositary
shall
not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares.
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SECTION
2.7 Lost
Receipts, etc.
In
case
any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary
shall
execute and deliver a new Receipt of like tenor in exchange and substitution
for
such mutilated Receipt upon cancellation thereof, or in lieu of and in
substitution for such destroyed, lost or stolen Receipt. Before the Depositary
shall execute and deliver a new Receipt in substitution for a destroyed,
lost or
stolen Receipt, the Owner thereof shall have (a) filed with the Depositary
(i) a
request for such execution and delivery before the Depositary has notice
that
the Receipt has been acquired by a bona fide purchaser and (ii) a sufficient
indemnity bond and (b) satisfied any other reasonable requirements imposed
by
the Depositary.
SECTION
2.8 Cancellation
and Destruction of Surrendered Receipts.
All
Receipts surrendered to the Depositary shall be cancelled by the Depositary.
The
Depositary is authorized to destroy Receipts so cancelled.
SECTION
2.9 Pre-Release
of Receipts.
Notwithstanding
Section 2.3 hereof, the Depositary may execute and deliver Receipts prior
to the
receipt of Shares pursuant to Section 2.2 (a "Pre-Release"). The Depositary
may,
pursuant to Section 2.5, deliver Shares upon the receipt and cancellation
of
Receipts which have been Pre-Released, whether or not such cancellation is
prior
to the termination of such Pre-Release or the Depositary knows that such
Receipt
has been Pre-Released. The Depositary may receive Receipts in lieu of Shares
in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompa-xxxx by a written representation from the person to whom Receipts
or
Shares are to be delivered, that such person, or its customer, owns the Shares
or Receipts to be remitted, as the case may be, (b) at all times fully
collateralized with cash or such other collateral as the Depositary deems
appro-priate, (c) terminable by the Depositary on not more than five (5)
business days notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Release
will not normally exceed thirty percent (30%) of the Shares deposited hereunder;
provided,
however,
that
the Depositary reserves the right to change or disregard such limit from
time to
time as it deems appropriate.
The
Depositary may retain for its own account any compensation received by it
in
connection with the foregoing.
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ARTICLE
3.
CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF RECEIPTS
CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF RECEIPTS
SECTION
3.1 Filing
Proofs, Certificates and Other Information.
Any
person presenting Shares for deposit or any Owner or holder of a Receipt
may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Issuer or the
Foreign Registrar, if applicable, to execute such certificates and to make
such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or distribution of rights
or
of the proceeds thereof or the delivery of any Deposited Securities until
such
proof or other information is filed or such certificates are executed or
such
representations and warranties made.
SECTION
3.2 Liability
of Owner for Taxes.
If
any
tax or other governmental charge shall become payable by the Custodian or
the
Depositary with respect to any Receipt or any Deposited Securities represented
by any Receipt, such tax or other governmental charge shall be payable by
the
Owner of such Receipt to the Depositary. The Depositary may refuse to effect
any
transfer of such Receipt or any withdrawal of Deposited Securities represented
by American Depositary Shares evidenced by such Receipt until such payment
is
made, and may withhold any dividends or other distributions, or may sell
for the
account of the Owner thereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt,
and may
apply such dividends or other distributions or the proceeds of any such sale
in
payment of such tax or other governmental charge and the Owner of such Receipt
shall remain liable for any deficiency.
SECTION
3.3 Warranties
on Deposit of Shares.
Every
person depositing Shares under this Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor, if
applicable, are validly issued, fully paid, nonassessable and free of any
preemptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall
also be
deemed to represent that the deposit of such Shares and the sale of Receipts
evidencing American Depositary Shares representing such Shares by that person
are not restricted under the Securities Act of 1933. Such representations
and
warranties shall survive the deposit of Shares and issuance of
Receipts.
ARTICLE
4.
THE DEPOSITED SECURITIES
THE DEPOSITED SECURITIES
SECTION
4.1 Cash
Distributions.
Whenever
the Depositary shall receive any cash dividend or other cash distribution
on any
Deposited Securities, the Depositary shall, subject to the provisions of
Section
4.5, convert such dividend or distribution into Dollars and shall distribute
the
amount thus received (net of the fees and expenses of the Depositary as provided
in Section 5.9) to the Owners entitled thereto, in proportion to the
number
of American Depositary Shares representing such Deposited Securities held
by
them respectively; provided,
however,
that in
the event that the Issuer or the Depositary shall be required to withhold
and
does withhold from such cash dividend or such other cash distribution an
amount
on account of taxes, the amount distributed to the Owner of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Owner a fraction
of
one cent. Any such fractional amounts shall be rounded to the nearest whole
cent
and so distributed to Owners entitled thereto. The Issuer or its agent will
remit to the appropriate governmental agency in Israel all amounts withheld
and
owing to such agency. The Depositary will forward to the Issuer or its agent
such information from its records as the Issuer may reasonably request to
enable
the Issuer or its agent to file necessary reports with governmental agencies,
and the Depositary or the Issuer or its agent may file any such reports
necessary to obtain benefits under the applicable tax treaties for the Owners
of
Receipts.
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SECTION
4.2 Distributions
Other Than Cash, Shares or Rights.
Subject
to the provisions of Sections 4.11 and 5.9, whenever the Depositary
shall
receive any distribution other than a distribution described in
Section 4.1, 4.3 or 4.4, the Depositary shall cause the securities
or
property received by it to be distributed to the Owners entitled thereto,
after
deduction or upon payment of any fees and expenses of the Depositary or any
taxes or other governmental charges, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided,
however,
that if
in the opinion of the Depositary such distribution cannot be made
proportionately among the Owners entitled thereto, or if for any other reason
(including, but not limited to, any requirement that the Issuer or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be registered under the Securities Act of 1933
in
order to be distributed to Owners or holders) the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as
it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities
or
property thus received, or any part thereof, and the net proceeds of any
such
sale (net of the fees and expenses of the Depositary as provided in
Section 5.9) shall be distributed by the Depositary to the Owners
entitled
thereto, all in the manner and subject to the conditions described in Section
4.1.
SECTION
4.3 Distributions
in Shares.
If
any
distribution upon any Deposited Securities consists of a dividend in, or
free
distribution of, Shares, the Depositary may distribute to the Owners of
outstanding Receipts entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend
or
free distribution, subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of
the fees
and expenses of the Depositary as provided in Section 5.9. The Depositary
may
withhold any such distribution of Receipts if it has not received satisfactory
assurances from the Issuer that such distribution does not require registration
under the Securities Act of 1933 or is exempt from registration under the
provisions of such Act. In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary shall sell the amount
of
Shares represented by the aggregate of such fractions and distribute the
net
proceeds, all in the manner and subject to the conditions described in Section
4.1. If additional Receipts are not so distributed, each American Depositary
Share shall thenceforth also represent the additional Shares distributed
upon
the Deposited Securities represented thereby.
SECTION
4.4 Rights.
In
the
event that the Issuer shall offer or cause to be offered to the holders of
any
Deposited Securities any rights to subscribe for additional Shares or any
rights
of any other nature, the Depositary shall have discretion as to the procedure
to
be followed in making such rights available to any Owners or in disposing
of
such rights on behalf of any Owners and making the net proceeds available
to
such Owners or, if by the terms of such rights offering or for any other
reason,
the Depositary may not either make such rights available to any Owners or
dispose of such rights and make the net proceeds available to such Owners,
then
the Depositary shall allow the rights to lapse. If at the time of the offering
of any rights the Depositary determines in its discretion that it is lawful
and
feasible to make such rights available to all or certain Owners but not to
other
Owners, the Depositary may distribute to any Owner to whom it determines
the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Owner, warrants or other instruments therefor
in
such form as it deems appropriate.
In
circumstances in which rights would otherwise not be distributed, if an Owner
of
Receipts requests the distribution of warrants or other instruments in order
to
exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will make such rights available to such Owner upon
written notice from the Issuer to the Depositary that (a) the Issuer has
elected
in its sole discretion to permit such rights to be exercised and (b) such
Owner
has executed such documents as the Issuer has determined in its sole discretion
are reasonably required under applicable law.
If
the
Depositary has distributed warrants or other instruments for rights to all
or
certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise
such
rights, upon payment by such Owner to the Depositary for the account of such
Owner of an amount equal to the purchase price of the Shares to be received
upon
the exercise of the rights, and upon payment of the fees and expenses of
the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the
rights
and purchase the Shares, and the Issuer shall cause the Shares so purchased
to
be delivered to the Depositary on behalf of such Owner. As agent for such
Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant
to
Section 2.2 of this Deposit Agreement, and shall, pursuant to
Section 2.3 of this Deposit Agreement, execute and deliver Receipts
to such
Owner. In the case of a distribution pursuant to the second paragraph of
this
section, such Receipts shall be legended in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
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If
the
Depositary determines in its discretion that it is not lawful and feasible
to
make such rights available to all or certain Owners, it may sell the rights,
warrants or other instruments in proportion to the number of American Depositary
Shares held by the Owners to whom it has determined it may not lawfully or
feasibly make such rights available, and allocate the net proceeds of such
sales
(net of the fees and expenses of the Depositary as provided in Section 5.9
and
all taxes and governmental charges payable in connection with such rights
and
subject to the terms and conditions of this Deposit Agreement) for the account
of such Owners otherwise entitled to such rights, warrants or other instruments,
upon an averaged or other practical basis without regard to any distinctions
among such Owners because of exchange restrictions or the date of delivery
of
any Receipt or otherwise.
The
Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration
under
the Securities Act of 1933 with respect to a distribution to all Owners or
are
registered under the provisions of such Act; provided,
that
nothing in this Deposit Agreement shall create any obligation on the part
of the
Issuer to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under the Securities Act of 1933, the Depositary shall not effect
such distribution unless it has received an opinion from recognized counsel
in
the United States for the Issuer upon which the Depositary may rely that
such
distribution to such Owner is exempt from such registration.
The
Depositary shall not be responsible for any failure to determine that it
may be
lawful or feasible to make such rights available to Owners in general or
any
Owner in particular.
SECTION
4.5 Conversion
of Foreign Currency.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof
the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred
to the
United States, the Depositary shall con-vert or cause to be converted, by
sale
or in any other manner that it may determine, such foreign currency into
Dollars, and such Dollars shall be distributed to the Owners entitled thereto
or, if the Depositary shall have distri-buted any warrants or other instruments
which entitle the holders thereof to such Dollars, then to the holders of
such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restric-tions,
the date of delivery of any Receipt or otherwise and shall be net of any
expenses of conversion into Dollars incurred by the Depositary as provided
in
Section 5.9.
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If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary shall file such application
for
approval or license, if any, as it may deem desirable.
If
at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary or the Custodian is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval
or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable,
or
if any such approval or license is not obtained within a reasonable period
as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for
the
respective accounts of, the Owners entitled to receive the same.
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some of the Owners entitled thereto, the Depositary may in
its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance
of the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of,
the
Owners entitled thereto.
SECTION
4.6 Fixing
of
Record Date.
Whenever
any cash dividend or other cash distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be issued
with respect to the Deposited Securities, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in
the
number of Shares that are represented by each American Depositary Share,
or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Owners who
shall
be (i) entitled to receive such dividend, distribution or rights or
the net
proceeds of the sale thereof, (ii) entitled to give instructions for
the
exercise of voting rights at any such meeting or (iii) responsible for any
fee
assessed by the Depositary pursuant to this Deposit Agreement, or (b) on
or
after which each American Depositary Share will represent the changed number
of
Shares. Subject to the provisions of Sections 4.1 through 4.5 and
to the
other terms and condi-tions of this Deposit Agreement, the Owners on such
record
date shall be entitled, as the case may be, to receive the amount distributable
by the Depositary with respect to such dividend or other distribution or
such
rights or the net proceeds of sale thereof in proportion to the number of
American Depositary Shares held by them respectively and to give voting
instructions and to act in respect of any other such matter.
SECTION
4.7 Voting
of
Deposited Securities.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Issuer, the Depositary shall,
as soon
as practicable there-after, mail to the Owners a notice, the form of which
notice shall be in the sole discretion of the Depositary, which shall contain
(a) such information as is contained in such notice of meeting received
by
the Depositary from the Issuer, (b) a statement that the Owners as
of the
close of business on a specified record date will be entitled, subject to
any
applicable provision of the laws of Israel and of the Articles of Association
of
the Issuer, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given.
Upon the
written request of an Owner on such record date, received on or before the
date
established by the Depositary for such purpose, the Depositary shall endeavor,
in so far as prac-ticable, to vote or cause to be voted the amount of Shares
or
other Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in
such
request. The Depositary shall not vote or attempt to exercise the right to
vote
that attaches to the Shares or other Deposited Securities, other than in
accordance with such instructions.
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There
can
be no assurance that Owners generally or any Owner in particular will receive
the notice described in the preceding paragraph sufficiently prior to the
instruction date to ensure that the Depositary will vote the Shares or Deposited
Securities in accordance with the provisions set forth in the preceding
paragraph.
SECTION
4.8 Changes
Affecting Deposited Securities.
Upon
any
change in nominal value, change in par value, split-up, consolidation or
any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Issuer
or to which it is a party, or upon the redemption or cancellation by the
Issuer
of the Deposited Securities, any securities, cash or property which shall
be
received by the Depositary or a Custodian in exchange for, in conversion
of, in
lieu of or in respect of Deposited Securities, shall be treated as new Deposited
Securities under this Deposit Agreement, and American Depositary Shares shall
thenceforth represent, in addition to the existing Deposited Securities,
the
right to receive the new Deposited Securities so received, unless additional
Receipts are delivered pursuant to the following sentence. In any such case
the
Depositary may execute and deliver additional Receipts as in the case of
a
dividend in Shares, or call for the surrender of outstanding Receipts to
be
exchanged for new Receipts specifically describing such new Deposited
Securities.
SECTION
4.9 Reports.
The
Depositary shall make available for inspection by Owners at its Corporate
Trust
Office any reports and communications, including any proxy soliciting material,
received from the Issuer which are both (a) received by the Depositary
as
the holder of the Deposited Securities and (b) made generally available
to
the holders of such Deposited Securities by the Issuer. The Depositary shall
also, upon written request, send to the Owners copies of such reports when
furnished by the Issuer pursuant to Sec-tion 5.6. Any such reports
and
communications, including any such proxy soliciting material, furnished to
the
Depositary by the Issuer shall be furnished in English, to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
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SECTION
4.10 Lists
of
Owners.
Promptly
upon request by the Issuer, the Depositary shall, at the expense of the Issuer,
furnish to it a list, as of a recent date, of the names, addresses and holdings
of American Depositary Shares by all persons in whose names Receipts are
registered on the books of the Depositary.
SECTION
4.11 Withholding.
In
the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax
or
other governmental charge which the Depositary is obligated to withhold,
the
Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts
and
in such manner as the Depositary deems necessary and practicable to pay such
taxes or charges and the Depositary shall distribute the net proceeds of
any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by
them
respectively.
ARTICLE
5.
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION
5.1 Maintenance
of Office and Transfer Books by the Depositary.
Until
termination of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of
this
Deposit Agreement.
The
Depositary shall keep books, at its Corporate Trust Office, for the
registra-tion of Receipts and transfers of Receipts which at all reasonable
times shall be open for inspection by the Owners, provided that such inspection
shall not be for the purpose of communicating with Owners in the interest
of a
business or object other than the business of the Issuer or a matter related
to
this Deposit Agreement or the Receipts.
The
Depositary may close the transfer books, at any time or from time to time,
when
deemed expedient by it in connection with the performance of its duties
hereunder.
If
any
Receipts or the American Depositary Shares evidenced thereby are listed on
one
or more stock exchanges in the United States, the Depositary shall act as
Registrar or appoint a Registrar or one or more co-registrars for registry
of
such Receipts in accordance with any require-ments of such exchange or
exchanges.
SECTION
5.2 Prevention
or Delay in Performance by the Depositary or the Issuer.
Neither
the Depositary nor the Issuer nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or holder of
any
Receipt, (i) if by reason of any provision of any present or future law or
regulation of the United States or any other country, or of any governmental
or
regulatory author-ity or stock exchange, or by reason of any provision, present
or future, of the Articles of Association of the Issuer, or by reason of
any
provision of any securities issued or distributed by the Issuer, or any offering
or distribution thereof, or by reason of any act of God or war or terrorism
or
other circumstances beyond its control, the Depositary or the Issuer shall
be
prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the
terms
of this Deposit Agreement or Deposited Securities it is provided shall be
done
or performed, (ii) by reason of any non-performance or delay, caused as
aforesaid, in the performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, (iii)
by
reason of any exercise of, or failure to exercise, any discretion provided
for
in this Deposit Agreement, (iv) for the inability of any Owner or holder
to
benefit from any distribution, offering, right or other benefit which is
made
available to holders of Deposited Securities but is not, under the terms
of this
Deposit Agreement, made available to Owners or holders, or (v) for any special,
consequential or punitive damages for any breach of the terms of this Deposit
Agreement. Where, by the terms of a distribution pursuant to Section 4.1,
4.2, or 4.3 of the Deposit Agreement, or an offering or distribution pursuant
to
Section 4.4 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Owners, and the Depositary
may not dispose of such distribution or offering on behalf of such Owners
and
make the net proceeds available to such Owners, then the Depositary shall
not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse.
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SECTION
5.3 Obligations
of the Depositary, the Custodian and the Issuer.
The
Issuer assumes no obligation nor shall it be subject to any liability under
this
Deposit Agreement to Owners or holders, except that it agrees to perform
its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
The
Depositary assumes no obligation nor shall it be subject to any liability
under
this Deposit Agreement to any Owner or holder (including, without limitation,
liability with respect to the validity or worth of the Deposited Securities),
except that it agrees to perform its obligations specifically set forth in
this
Deposit Agreement without negligence or bad faith.
Neither
the Depositary nor the Issuer shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts on behalf of any Owner
or
holder or any person.
Neither
the Depositary nor the Issuer shall be liable for any action or nonaction
by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Owner or any other person believed
by it in good faith to be competent to give such advice or
information.
The
Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connec-tion with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the removal
or
resignation of the Depositary, provided that in connection with the issue
out of
which such potential liability arises the Depositary performed its obligations
without negligence or bad faith while it acted as Depositary.
The
Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in
which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of this Deposit Agreement.
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SECTION
5.4 Resignation
and Removal of the Depositary.
The
Depositary may at any time resign as Depositary hereunder by written notice
of
its election so to do delivered to the Issuer, such resignation to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The
Depositary may at any time be removed by the Issuer by 120 days prior written
notice of such removal, to become effective upon the later of (i) the
120th
day
after delivery of the notice to the Depositary and (ii) the appointment of
a
successor depositary and its acceptance of such appointment as hereinafter
provided.
In
case
at any time the Depositary acting here-under shall resign or be removed,
the
Issuer shall use its best efforts to appoint a successor depositary, which
shall
be a bank or trust company having an office in the Borough of Manhattan,
The
City of New York. Every successor depositary shall execute and deliver to
its
predecessor and to the Issuer an instrument in writing accepting its appointment
hereunder, and thereupon such successor depositary, without any further act
or
deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor; but such predecessor, nevertheless, upon
payment
of all sums due it and on the written request of the Issuer shall execute
and
deliver an instrument transferring to such successor all rights and powers
of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Deposited Securities to such successor, and shall
deliver to such successor a list of the Owners of all outstanding Receipts.
Any
such successor depositary shall promptly mail notice of its appointment to
the
Owners.
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing
of any
document or any further act.
SECTION
5.5 The
Custodians.
The
Custodian shall be subject at all times and in all respects to the directions
of
the Depositary and shall be responsible solely to it. Any Custodian may resign
and be discharged from its duties hereunder by notice of such resignation
delivered to the Depositary at least 30 days prior to the date on
which
such resignation is to become effective. If upon such resignation there shall
be
no Custodian acting hereunder, the Depositary shall, promptly after receiving
such notice, appoint a substitute custodian or custodians, each of which
shall
thereafter be a Custodian hereunder. The Depositary in its discretion may
appoint a substitute or additional custodian or custodians, each of which
shall
thereafter be one of the Custodians hereunder. Upon demand of the Depositary
any
Custodian shall deliver such of the Deposited Securities held by it as are
requested of it to any other Custodian or such substitute or additional
custodian or custodians. Each such substitute or additional custodian shall
deliver to the Depositary, forthwith upon its appointment, an acceptance
of such
appointment satis-factory in form and substance to the Depositary.
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Upon
the
appointment of any successor depositary hereunder, each Custodian then acting
hereunder shall forthwith become, without any further act or writing, the
agent
hereunder of such successor depositary and the appointment of such successor
depositary shall in no way impair the authority of each Custodian hereunder;
but
the successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete
power
and authority as agent hereunder of such successor depositary.
SECTION
5.6 Notices
and Reports.
On
or
before the first date on which the Issuer gives notice, by publication or
otherwise, of any meeting of holders of Shares or other Deposited Securities,
or
of any adjourned meeting of such holders, or of the taking of any action
in
respect of any cash or other distributions or the offering of any rights,
the
Issuer agrees to transmit to the Depositary and the Custodian a copy of the
notice thereof in the form given or to be given to holders of Shares or other
Deposited Securities.
The
Issuer will arrange for the translation into English, if not already in English,
to the extent required pursuant to any regulations of the Commission, and
the
prompt transmittal by the Issuer to the Depositary and the Custodian of such
notices and any other reports and communi-cations which are made generally
available by the Issuer to holders of its Shares. If requested in writing
by the
Issuer, the Depositary will arrange for the mailing, at the Issuer's expense,
of
copies of such notices, reports and communications to all Owners. The Issuer
will timely provide the Depositary with the quantity of such notices, reports,
and communications, as requested by the Depositary from time to time, in
order
for the Depositary to effect such mailings.
SECTION
5.7 Distribution
of Additional Shares, Rights, etc.
The
Issuer agrees that in the event of any issuance or distribution of
(1) additional Shares, (2) rights to subscribe for Shares,
(3) securities convertible into Shares, or (4) rights to subscribe
for
such securities (each a "Distribution"), the Issuer will promptly furnish
to the
Depositary a written opinion from U.S. counsel for the Issuer, which counsel
shall be reasonably satisfactory to the Depositary, stating whether or not
the
Distribution requires a registration statement under the Securities Act of
1933
to be in effect prior to making such Distribution available to Owners entitled
thereto. If in the opinion of such counsel a registration statement is required,
such counsel shall furnish to the Depositary a written opinion as to whether
or
not there is a registration statement in effect which will cover such
Distribution.
The
Issuer agrees with the Depositary that neither the Issuer nor any company
controlled by, control-ling or under common control with the Issuer will
at any
time deposit any Shares, either originally issued or pre-viously issued and
reacquired by the Issuer or any such affiliate, unless a Registration Statement
is in effect as to such Shares under the Securities Act of 1933 or if the
Issuer
furnishes to the Depositary a written opinion from U.S. counsel for the Issuer,
which counsel shall be reasonably satisfactory to the Depositary, to the
effect
that the Shares to be deposited are permissible deposits under General
Instructions to Form F-6.
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For
purposes of this Section 5.7, Xxxxxx & Bird LLP shall be deemed counsel
reasonably satisfactory to the Depositary.
SECTION
5.8 Indemnification.
The
Issuer agrees to indemnify the Depositary, its directors, employees, agents
and
affiliates and any Custodian against, and hold each of them harmless from,
any
liability or expense (including, but not limited to any fees and expenses
incurred in seeking, enforcing or collecting such indemnity and the fees
and
expenses of counsel) which may arise out of any registration with the Commission
of Receipts, American Depositary Shares or Deposited Securities or the offer
or
sale thereof in the United States or out of acts performed or omitted, pursuant
to the provisions of or in connection with this Deposit Agreement and of
the
Receipts, as the same may be amended, modified or supplemented from time
to
time, (i) by either the Depositary or a Custodian or their respective
directors, employees, agents and affiliates, except for any liability or
expense
arising out of the negligence or bad faith of either of them, or (ii) by
the Issuer or any of its directors, employees, agents and
affiliates.
The
Depositary agrees to indemnify the Issuer, its directors, employees, agents
and
affiliates and hold them harmless from any liability or expense which may
arise
out of acts performed or omitted by the Depositary or its Custodian or their
respective directors, employees, agents and affiliates due to their negligence
or bad faith.
SECTION
5.9 Charges
of Depositary.
The
Issuer agrees to pay the fees, reasonable expenses and out-of-pocket charges
of
the Depositary and those of any Registrar only in accordance with agreements
in
writing entered into between the Depositary and the Issuer from time to time.
The Depositary shall present its statement for such charges and expenses
to the
Issuer at least once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or
stock
split declared by the Issuer or an exchange of stock regarding the Receipts
or
Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), or by Owners, as applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time
to time
be in effect for the registration of transfers of Shares generally on the
Share
register of the Issuer or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian
or
its nominee on the making of deposits or withdrawals hereunder, (3) such
cable, telex and facsimile transmission expenses as are expressly provided
in
this Deposit Agree-ment, (4) such expenses as are incurred by the
Depositary in the conversion of foreign currency pursuant to Section 4.5,
(5) a fee of $5.00 or less per 100 American Depositary Shares (or
portion
thereof) for the execution and delivery of Receipts pursuant to
Section 2.3, 4.3 or 4.4 and the surrender of Receipts pursuant to
Section 2.5 or 6.2, (6) a fee of $.02 or less per American Depositary
Share
(or portion thereof) for any cash distribution made pursuant to the Deposit
Agreement, including, but not limited to Sections 4.1 through 4.4 hereof,
(7) a fee for the distribution of securities pursuant to Section 4.2,
such fee being in an amount equal to the fee for the execution and delivery
of
American Depositary Shares referred to above which would have been charged
as a
result of the deposit of such securities (for purposes of this clause 7
treating all such securities as if they were Shares) but which securities
are
instead distributed by the Depositary to Owners, (8) a fee of $.02 or less
per
American Depositary Share (or portion thereof) for depositary services, which
will accrue on the last day of each calendar year and which will be payable
as
provided in clause (9) below; provided, however, that no fee will be assessed
under this clause (8) to the extent a fee of $.02 was charged pursuant to
clause
(6) above during that calendar year, and (9) any other charge payable by
the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares
or
other Deposited Securities (which charge shall be assessed against Owners
as of
the date or dates set by the Depositary in accordance with Section 4.6 and
shall
be payable at the sole discretion of the Depositary by billing such Owners
for
such charge or by deducting such charge from one or more cash dividends or
other
cash distributions).
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18
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The
Depositary, subject to Section 2.9 hereof, may own and deal in any
class of
securities of the Issuer and its affiliates and in Receipts.
SECTION
5.10 Retention
of Depositary Documents.
The
Depositary is authorized to destroy those documents, records, bills and other
data compiled during the term of this Deposit Agreement at the times permitted
by the laws or regulations governing the Depositary unless the Issuer requests
that such papers be retained for a longer period or turned over to the Issuer
or
to a successor depositary.
SECTION
5.11 Exclusivity.
The
Issuer agrees not to appoint any other depositary for issuance of American
Depositary Receipts so long as The Bank of New York is acting as Depositary
hereunder.
SECTION
5.12 List
of
Restricted Securities Owners.
From
time
to time, the Issuer shall provide to the Depositary a list setting forth,
to the
actual knowledge of the Issuer, those persons or entities who beneficially
own
Restricted Securities and the Issuer shall update that list on a regular
basis.
The Issuer agrees to advise in writing each of the persons or entities so
listed
that such Restricted Securities are ineligible for deposit hereunder. The
Depositary may rely on such a list or update but shall not be liable for
any
action or omission made in reliance thereon.
ARTICLE
6.
AMENDMENT AND TERMINATION
AMENDMENT AND TERMINATION
SECTION
6.1 Amendment.
The
form
of the Receipts and any provisions of this Deposit Agreement may at any time
and
from time to time be amended by agreement between the Issuer and the Depositary
without the consent of Owners or holders of Receipts in any respect which
they
may deem necessary or desirable. Any amendment which shall impose or increase
any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery
costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
Receipts until the expiration of thirty days after notice of such amendment
shall have been given to the Owners of outstanding Receipts. Every Owner,
at the
time any amendment so becomes effective, shall be deemed, by continuing to
hold
such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Owner of any Receipt to surrender such Receipt and receive therefor
the Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
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19
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SECTION
6.2 Termination.
The
Depositary shall, at any time at the direction of the Issuer, terminate this
Deposit Agreement by mailing notice of such termination to the Owners of
all
Receipts then outstanding at least 60 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate this Deposit
Agreement by mailing notice of such termination to the Issuer and the Owners
of
all Receipts then outstanding at least 30 days prior to the date of termination,
if at any time 30 days shall have expired after the Depositary shall have
delivered to the Issuer a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.4. On and after the date of termination,
the Owner
of a Receipt will, upon (a) surrender of such Receipt at the Corporate
Trust Office of the Depositary, (b) payment of the fee of the Depositary
for the surrender of Receipts referred to in Section 2.5, and
(c) payment of any appli-cable taxes or governmental charges, be entitled
to delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt.
If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not
give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights
or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of four
months
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of
any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners
of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and
other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges) and except for its obligations
to the
Issuer under Section 5.8 hereof. Upon the termination of this Deposit Agreement,
the Issuer shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary under Sections 5.8 and
5.9
hereof.
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20
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ARTICLE
7.
MISCELLANEOUS
MISCELLANEOUS
SECTION
7.1 Counterparts.
This
Deposit Agreement may be executed in any number of counterparts, each of
which
shall be deemed an original and all of such counterparts shall constitute
one
and the same instrument. Copies of this Deposit Agreement shall be filed
with
the Depositary and the Custodians and shall be open to inspection by any
Owner
or holder of a Receipt during business hours.
SECTION
7.2 No
Third
Party Beneficiaries.
This
Deposit Agreement is for the exclusive benefit of the parties hereto and
shall
not be deemed to give any legal or equitable right, remedy or claim whatsoever
to any other person.
SECTION
7.3 Severability.
In
case
any one or more of the provisions contained in this Deposit Agreement or
in the
Receipts should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.4 Owners
and Holders as Parties; Binding Effect.
The
Owners and holders of Receipts from time to time shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of the Receipts by acceptance thereof.
SECTION
7.5 Notices.
Any
and
all notices to be given to the Issuer shall be deemed to have been duly given
if
personally delivered or sent by mail or cable, telex or facsimile transmission
confirmed by letter, addressed to XTL Biopharmaceuticals Ltd., Building 3,
Kiryat Xxxxxxx Xxxxxxx Xxxx, Xxxxxxx 00000, Xxxxxx, or any other place to
which
the Issuer may have transferred its principal office.
Any
and
all notices to be given to the Depositary shall be deemed to have been duly
given if in English and personally delivered or sent by mail or cable, telex
or
facsimile transmission confirmed by letter, addressed to The Bank of
New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: American Depositary Receipt Adminis-tration, or any other place
to
which the Depositary may have transferred its Corporate Trust
Office.
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21
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Any
and
all notices to be given to any Owner shall be deemed to have been duly given
if
personally delivered or sent by mail or cable, telex or facsimile transmission
confirmed by letter, addressed to such Owner at the address of such Owner
as it
appears on the transfer books for Receipts of the Depositary, or, if such
Owner
shall have filed with the Depositary a written request that notices intended
for
such Owner be mailed to some other address, at the address designated in
such
request.
Delivery
of a notice sent by mail or cable, telex or facsimile transmission shall
be
deemed to be effected at the time when a duly addressed letter containing
the
same (or a confirmation thereof in the case of a cable, telex or facsimile
transmission) is deposited, postage prepaid, in a post-office letter box.
The
Depositary or the Issuer may, however, act upon any cable, telex or facsimile
transmission received by it, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION
7.6 Submission
to Jurisdiction; Appointment of Agent for Service of Process.
The
Issuer hereby (i) irrevocably designates and appoints Corporation
Service
Company, 1133 Avenue of the Americas, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000,
in
the State of New York, as the Issuer's authorized agent upon which process
may
be served in any suit or proceeding arising out of or relating to the Shares
or
Deposited Securities, the American Depositary Shares, the Receipts or this
Agreement, (ii) consents and submits to the jurisdiction of any state or
federal
court in the State of New York in which any such suit or proceeding may be
instituted, and (iii) agrees that service of process upon said authorized
agent
shall be deemed in every respect effective service of process upon the Issuer
in
any such suit or proceeding. The Issuer agrees to deliver, upon the execution
and delivery of this Deposit Agreement, a written acceptance by such agent
of
its appointment as such agent. The Issuer further agrees to take any and
all
action, including the filing of any and all such documents and instruments,
as
may be necessary to continue such designation and appointment in full force
and
effect for so long as any American Depositary Shares or Receipts remain
outstanding or this Agreement remains in force. In the event the Issuer fails
to
continue such designation and appointment in full force and effect, the Issuer
hereby waives personal service of process upon it and consents that any such
service of process may be made by certified or registered mail, return receipt
requested, directed to the Issuer at its address last specified for notices
hereunder, and service so made shall be deemed completed five (5) days after
the
same shall have been so mailed.
SECTION
7.7 Compliance
with U.S. Securities Laws.
Notwithstanding
anything in this Deposit Agreement to the contrary, the Issuer and the
Depositary each agrees that it will not exercise any rights it has under
this
Deposit Agreement to permit the withdrawal or delivery of Deposited Securities
in a manner which would violate the U.S. securities laws, including, but
not
limited to, Section I.A.(1) of the General Instructions to the Form F-6
registration statement, as amended from time to time, under the Securities
Act.
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22
-
SECTION
7.8 Waiver
of
Immunities.
To
the
extent that the Issuer or any of its properties, assets or revenues may have
or
may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any respect thereof,
from
setoff or counterclaim, from the jurisdiction of any court, from service
of
process, from attachment upon or prior to judgment, from attachment in aid
of
execution or judgment, or from execution of judgment, or other legal process
or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be commenced, with
respect to its obligations, liabilities or any other matter under or arising
out
of or in connection with the Shares or Deposited Securities, the American
Depositary Shares, the Receipts or this Agreement, the Issuer, to the fullest
extent permitted by law, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity and consents to such relief
and
enforcement.
SECTION
7.9 Governing
Law.
This
Deposit Agreement and the Receipts shall be interpreted and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by the
laws
of the State of New York.
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23
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IN
WITNESS WHEREOF, XTL BIOPHARMACEUTICALS LTD. and THE BANK OF NEW YORK
have
duly executed this Deposit Agreement as of the day and year first set forth
above and all Owners shall become parties hereto upon acceptance by them
of
Receipts issued in accordance with the terms hereof.
By:______________________
Name:
Title:
THE
BANK
OF NEW YORK,
as
Depositary
By:______________________
Name:
Title:
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24
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EXHIBIT
A
AMERICAN
DEPOSITARY SHARES
(Each
American Depositary
Share
represents ten deposited Shares)
THE
BANK
OF NEW YORK
AMERICAN
DEPOSITARY RECEIPT
FOR
ORDINARY SHARES, PAR VALUE NIS 0.02 EACH,
OF
(INCORPORATED
UNDER THE LAWS OF ISRAEL)
The
Bank
of New York, as depositary (hereinafter called the "Depositary"), hereby
certifies that___________ ____________________________________________, or
registered assigns IS THE OWNER OF _____________________________
AMERICAN
DEPOSITARY SHARES
representing
deposited ordinary shares, par value NIS 0.02 each (herein called "Shares")
of
XTL Biopharmaceuticals Ltd., incorporated under the laws of Israel (herein
called the "Company"). At the date hereof, each American Depositary Share
represents ten Shares deposited or subject to deposit under the Deposit
Agreement (as such term is hereinafter defined) at the Tel Aviv office of
Bank
Hapoalim B.M. and the London office of The Bank of New York (herein collectively
called the "Custodian"). The Depositary's Corporate Trust Office is located
at a
different address than its principal executive office. Its Corporate Trust
Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal
executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X.
00000.
THE
DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000
XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1.
THE
DEPOSIT AGREEMENT.
This
American Depositary Receipt is one of an issue (herein called "Receipts"),
all
issued and to be issued upon the terms and conditions set forth in the deposit
agreement, dated as of ______________, 2005, as it may be amended from time
to
time (herein called the "Deposit Agreement"), by and among the Company, the
Depositary, and all Owners and holders from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a party
thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights of Owners and holders of the Receipts and the rights
and
duties of the Depositary in respect of the Shares deposited thereunder and
any
and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property,
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Depositary's Corporate Trust Office in New York
City and at the office of the Custodian.
The
statements made on the face and reverse of this Receipt are summaries of
certain
provisions of the Deposit Agreement and are qualified by and subject to the
detailed provisions of the Deposit Agreement, to which reference is hereby
made.
Capitalized terms defined in the Deposit Agreement and not defined herein
shall
have the meanings set forth in the Deposit Agreement.
2.
SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon
surrender at the Corporate Trust Office of the Depositary of this Receipt,
and
upon payment of the fee of the Depositary provided in this Receipt, and subject
to the terms and conditions of the Deposit Agreement, the Owner hereof is
entitled to delivery, to him or upon his order, of the Deposited Securities
at
the time represented by the American Depositary Shares for which this Receipt
is
issued. Delivery of such Deposited Securities may be made by the delivery
of (a)
certificates in the name of the Owner hereof or as ordered by him or
certificates properly endorsed or accompanied by proper instruments of transfer
and (b) any other securities, property and cash to which such Owner is then
entitled in respect of this Receipt. Such delivery will be made at the option
of
the Owner hereof, either at the office of the Custodian or at the Corporate
Trust Office of the Depositary, provided that the forwarding of certificates
for
Shares or other Deposited Securities for such delivery at the Corporate Trust
Office of the Depositary shall be at the risk and expense of the Owner
hereof.
3.
TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The
transfer of this Receipt is registrable on the books of the Depositary at
its
Corporate Trust Office by the Owner hereof in person or by a duly authorized
attorney, upon surrender of this Receipt properly endorsed for transfer or
accompanied by proper instruments of transfer and funds sufficient to pay
any
applicable transfer taxes and the expenses of the Depositary and upon compliance
with such regulations, if any, as the Depositary may establish for such purpose.
This Receipt may be split into other such Receipts, or may be combined with
other such Receipts into one Receipt, evidencing the same aggregate number
of
American Depositary Shares as the Receipt or Receipts surrendered. As a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination, or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, the Custodian, or Registrar may require
payment from the depositor of the Shares or the presentor of the Receipt
of a
sum sufficient to reimburse it for any tax or other governmental charge and
any
stock transfer or registration fee with respect thereto (including any such
tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as provided in this Receipt, may require the
production of proof satisfactory to it as to the identity and genuineness
of any
signature and may also require compliance with any regulations the Depositary
may establish consistent with the provisions of the Deposit Agreement or
this
Receipt, including, without limitation, this Article 3.
The
delivery of Receipts against deposit of Shares generally or against deposit
of
particular Shares may be suspended, or the transfer of Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts generally may be suspended, during any period when the transfer
books
of the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body
or
commission, or under any provision of the Deposit Agreement or this Receipt,
or
for any other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in the Deposit Agreement or this
Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused
by
closing the transfer books of the Depositary or the Company or the deposit
of
Shares in connection with voting at a shareholders' meeting, or the payment
of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating
to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered
under
the provisions of the Securities Act of 1933, unless a registration statement
is
in effect as to such Shares.
4.
LIABILITY OF OWNER FOR TAXES.
If
any
tax or other governmental charge shall become payable with respect to any
Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary.
The
Depositary may refuse to effect any transfer of this Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced
by
such Receipt until such payment is made, and may withhold any dividends or
other
distributions, or may sell for the account of the Owner hereof any part or
all
of the Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge and the Owner hereof shall remain liable for any deficiency.
5.
WARRANTIES ON DEPOSIT OF SHARES.
Every
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor, if
applicable, are validly issued, fully paid, non-assessable, and free of any
preemptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall
also be
deemed to represent that the deposit of such Shares and the sale of Receipts
evidencing American Depositary Shares representing such Shares by that person
are not restricted under the Securities Act of 1933. Such representations
and
warranties shall survive the deposit of Shares and issuance of
Receipts.
6.
FILING
PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any
person presenting Shares for deposit or any Owner or holder of a Receipt
may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make
such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or distribution of rights
or
of the proceeds thereof or the delivery of any Deposited Securities until
such
proof or other information is filed or such certificates are executed or
such
representations and warranties made. No Share shall be accepted for deposit
unless accompanied by evidence satisfactory to the Depositary that any necessary
approval has been granted by any governmental body in Israel which is then
performing the function of the regulation of currency exchange.
7.
CHARGES OF DEPOSITARY.
The
Company has agreed to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company
from
time to time. The Depositary shall present its state-ment for such charges
and
expenses to the Company at least once every three months. The charges and
expenses of the Custodian are for the sole account of the
Depositary.
The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or
stock
split declared by the Company or an exchange of stock regarding the Receipts
or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3
of the Deposit Agreement), or by Owners, as applicable: (1) taxes
and other
governmental charges, (2) such registration fees as may from time
to time
be in effect for the registration of transfers of Shares generally on the
Share
register of the Company or Foreign Registrar and applicable to transfers
of
Shares to or from the name of the Depositary or its nominee or the Custodian
or
its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission
expenses as are expressly provided in the Deposit Agreement, (4) such
expenses as are incurred by the Depositary in the conversion of foreign currency
pursuant to Section 4.5 of the Deposit Agreement, (5) a fee
of $5.00
or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.3, 4.3 or
4.4 of
the Deposit Agreement and the surrender of Receipts pursuant to Section 2.5
or 6.2 of the Deposit Agreement, (6) a
fee of
$.02 or less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to Sections 4.1 through 4.4 of the Deposit Agreement,
(7) a fee for the distribution of securities pursuant to Section 4.2
of the
Deposit Agreement, such fee being in an amount equal to the fee for the
execution and delivery of American Depositary Shares referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this clause 7 treating all such securities as if they
were
Shares), but which securities are instead distributed by the Depositary to
Owners, (8)
a fee
of $.02 or less per American Depositary Share (or portion thereof) for
depositary services, which will accrue on the last day of each calendar year
and
which will be payable as provided in clause (9) below; provided, however,
that
no fee will be assessed under this clause (8) to the extent a fee of $.02
was
charged pursuant to clause (6) above during that calendar year, and (9) any
other charge payable by the Depositary, any of the Depositary's agents,
including the Custodian, or the agents of the Depositary's agents in connection
with the servicing of Shares or other Deposited Securities (which charge
shall
be assessed against Owners as of the date or dates set by the Depositary
in
accordance with Section 4.6 of the Deposit Agreement and shall be payable
at the
sole discretion of the Depositary by billing such Owners for such charge
or by
deducting such charge from one or more cash dividends or other cash
distributions).
The
Depositary, subject to Article 8 hereof, may own and deal in any class
of
securities of the Company and its affiliates and in Receipts.
8.
PRE-RELEASE OF RECEIPTS.
Notwithstanding
Section 2.3 of the Deposit Agreement, the Depositary may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.2 of the Deposit
Agreement (a "Pre-Release"). The Depositary may, pursuant to Section 2.5
of the
Deposit Agreement, deliver Shares upon the receipt and cancellation of Receipts
which have been Pre-Released, whether or not such cancellation is prior to
the
termination of such Pre-Release or the Depositary knows that such Receipt
has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares
in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts
or
Shares are to be delivered that such person, or its customer, owns the Shares
or
Receipts to be remitted, as the case may be, (b) at all times fully
collateralized with cash or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-Releases will not normally
exceed thirty percent (30%) of the Shares deposited under the Deposit Agreement;
provided,
however,
that
the Depositary reserves the right to change or disregard such limit from
time to
time as it deems appropriate.
The
Depositary may retain for its own account any compensation received by it
in
connection with the foregoing.
9.
TITLE
TO RECEIPTS.
It
is a
condition of this Receipt and every successive Owner and holder of this Receipt
by accepting or holding the same consents and agrees, that title to this
Receipt
when properly endorsed or accompanied by proper instruments of transfer,
is
transferable by delivery with the same effect as in the case of a negotiable
instrument under the laws of New York;
provided,
however,
that
the Depositary, notwithstanding any notice to the contrary, may treat the
person
in whose name this Receipt is registered on the books of the Depositary as
the
absolute Owner hereof for the purpose of determining the person entitled
to
distribution of dividends or other distributions or to any notice provided
for
in the Deposit Agreement or for all other purposes, and neither the Depositary
nor the Company shall have any obligation or be subject to any liability
under
the Deposit Agreement to any holder of a Receipt unless such holder is the
Owner
thereof.
10.
VALIDITY OF RECEIPT.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement
or be
valid or obligatory for any purpose, unless this Receipt shall have been
executed by the Depositary by the manual signature of a duly authorized
signatory of the Depositary; provided,
however
that
such signature may be a facsimile if a Registrar for the Receipts shall have
been appointed and such Receipts are countersigned by the manual signature
of a
duly authorized officer of the Registrar.
11.
REPORTS; INSPECTION OF TRANSFER BOOKS.
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and, accordingly, files certain reports with the Securities
and Exchange Commission (the “Commission”). Such reports will be available for
inspection and copying at the public reference facilities maintained by the
Commission located at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
The
Depositary will make available for inspection by Owners of Receipts at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary will also, upon written request, send to Owners of Receipts
copies of such reports when furnished by the Company pursuant to the Deposit
Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English to the extent such materials are required to be translated
into English pursuant to any regulations of the Commission.
The
Depositary will keep books, at its Corporate Trust Office, for the registration
of Receipts and transfers of Receipts which at all reasonable times shall
be
open for inspection by the Owners of Receipts provided that such inspection
shall not be for the purpose of communicating with Owners of Receipts in
the
interest of a business or object other than the business of the Company or
a
matter related to the Deposit Agreement or the Receipts.
12.
DIVIDENDS AND DISTRIBUTIONS.
Whenever
the Depositary receives any cash dividend or other cash distribution on any
Deposited Securities, the Depositary will, if at the time of receipt thereof
any
amounts received in a foreign currency can in the judgment of the Depositary
be
converted on a reasonable basis into United States dollars transferable to
the
United States, and subject to the Deposit Agreement, convert such dividend
or
distribution into dollars and will distribute the amount thus received (net
of
the fees and expenses of the Depositary as provided in Article 7 hereof
and
Section 5.9 of the Deposit Agreement) to the Owners of Receipts entitled
thereto; provided,
however,
that in
the event that the Company or the Depositary is required to withhold and
does
withhold from any cash dividend or other cash distribution in respect of
any
Deposited Securities an amount on account of taxes, the amount distributed
to
the Owners of the Receipts evidencing American Depositary Shares representing
such Deposited Securities shall be reduced accordingly.
Subject
to the provisions of Section 4.11 and 5.9 of the Deposit Agreement,
whenever the Depositary receives any distribution other than a distribution
described in Section 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary will cause the securities or property received by it to be
distributed to the Owners entitled thereto, in any manner that the Depositary
may deem equitable and practicable for accomplishing such distri-bution;
provided,
however,
that if
in the opinion of the Depositary such distribution cannot be made
proportionately among the Owners of Receipts 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 and practicable
for
the purpose of effecting such distribution, including, but not limited to,
the
public or private sale of the securities or property thus received, or any
part
thereof, and the net proceeds of any such sale (net of the fees and expenses
of
the Depositary as provided in Article 7 hereof and Section 5.9
of the
Deposit Agreement) will be distributed by the Depositary to the Owners of
Receipts entitled thereto all in the manner and subject to the conditions
described in Section 4.1 of the Deposit Agreement.
If
any
distribution consists of a dividend in, or free distribution of, Shares,
the
Depositary may distribute to the Owners of outstanding Receipts entitled
thereto, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend
or
free distribution subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement
and the
payment of the fees and expenses of the Depositary as provided in Article 7
hereof and Section 5.9 of the Deposit Agreement. In lieu of delivering
Receipts for fractional American Depositary Shares in any such case, the
Depositary will sell the amount of Shares represented by the aggregate of
such
fractions and distribute the net proceeds, all in the manner and subject
to the
conditions described in Section 4.1 of the Deposit Agreement. If additional
Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby.
In
the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax
or
other govern-mental charge which the Depositary is obligated to withhold,
the
Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts
and
in such manner as the Depositary deems necessary and practicable to pay any
such
taxes or charges, and the Depositary shall distribute the net proceeds of
any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
13.
CONVERSION OF FOREIGN CURRENCY.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof
the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred
to the
United States, the Depositary shall convert or cause to be converted, by
sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or,
if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions,
the
date of delivery of any Receipt or otherwise and shall be net of any expenses
of
conversion into Dollars incurred by the Depositary as provided in
Section 5.9 of the Deposit Agreement.
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary shall file such application
for
approval or license, if any, as it may deem desirable.
If
at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary or the Custodian is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval
or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable,
or
if any such approval or license is not obtained within a reasonable period
as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for
the
respective accounts of, the Owners entitled to receive the same.
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some of the Owners entitled thereto, the Depositary may in
its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance
of the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of,
the
Owners entitled thereto.
14.
RIGHTS.
In
the
event that the Company shall offer or cause to be offered to the holders
of any
Deposited Securities any rights to subscribe for additional Shares or any
rights
of any other nature, the Depositary shall have discretion as to the procedure
to
be followed in making such rights available to any Owners or in disposing
of
such rights on behalf of any Owners and making the net proceeds available
to
such Owners or, if by the terms of such rights offering or for any other
reason,
the Depositary may not either make such rights available to any Owners or
dispose of such rights and make the net proceeds available to such Owners,
then
the Depositary shall allow the rights to lapse. If at the time of the offering
of any rights the Depositary determines in its discretion that it is lawful
and
feasible to make such rights available to all or certain Owners but not to
other
Owners, the Depositary may distribute to any Owner to whom it determines
the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Owner, warrants or other instruments therefor
in
such form as it deems appropriate.
In
circumstances in which rights would otherwise not be distributed, if an Owner
of
Receipts requests the distribution of warrants or other instruments in order
to
exercise the rights allocable to the American Depositary Shares of such Owner
under the Deposit Agreement, the Depositary will make such rights available
to
such Owner upon written notice from the Company to the Depositary that
(a) the Company has elected in its sole discretion to permit such
rights to
be exercised and (b) such Owner has executed such documents as the
Company
has determined in its sole discretion are reasonably required under applicable
law.
If
the
Depositary has distributed warrants or other instruments for rights to all
or
certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise
such
rights, upon payment by such Owner to the Depositary for the account of such
Owner of an amount equal to the purchase price of the Shares to be received
upon
the exercise of the rights, and upon payment of the fees and expenses of
the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the
rights
and purchase the Shares, and the Company shall cause the Shares so purchased
to
be delivered to the Depositary on behalf of such Owner. As agent for such
Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant
to
Section 2.2 of the Deposit Agreement, and shall, pursuant to
Section 2.3 of the Deposit Agreement, execute and deliver Receipts
to such
Owner. In the case of a distribution pursuant to the second paragraph of
this
Article 13, such Receipts shall be legended in accordance with applicable
U.S. laws, and shall be subject to the appropriate restrictions on sale,
deposit, cancellation, and transfer under such laws.
If
the
Depositary determines in its discretion that it is not lawful and feasible
to
make such rights available to all or certain Owners, it may sell the rights,
warrants or other instruments in proportion to the number of American Depositary
Shares held by the Owners to whom it has determined it may not lawfully or
feasibly make such rights available, and allocate the net proceeds of such
sales
(net of the fees and expenses of the Depositary as provided in Section 5.9
of the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical
basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The
Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration
under
the Securities Act of 1933 with respect to a distribution to all Owners or
are
registered under the provisions of such Act; provided,
that
nothing in the Deposit Agreement shall create, any obligation on the part
of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under the Securities Act of 1933, the Depositary shall not effect
such distribution unless it has received an opinion from recognized counsel
in
the United States for the Company upon which the Depositary may rely that
such
distri-bution to such Owner is exempt from such registration.
The
Depositary shall not be responsible for any failure to determine that it
may be
lawful or feasible to make such rights available to Owners in general or
any
Owner in particular.
15.
RECORD DATES.
Whenever
any cash dividend or other cash distrib-ution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be issued
with respect to the Deposited Securities, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in
the
number of Shares that are represented by each American Depositary Share,
or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Owners of
Receipts
who shall be (i) entitled to receive such dividend, distribution or
rights
or the net proceeds of the sale thereof, (ii) entitled to give instructions
for the exercise of voting rights at any such meeting, or (iii) responsible
for
any fee assessed by the Depositary pursuant to the Deposit Agreement, or
(b) on or after which each American Depositary Share will represent
the
changed number of Shares, subject to the provisions of the Deposit
Agreement.
16.
VOTING OF DEPOSITED SECURITIES.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall,
as
soon as practicable thereafter, mail to the Owners of Receipts a notice,
the
form of which notice shall be in the sole discretion of the Depositary, which
shall contain (a) such information as is contained in such notice
of
meeting received by the Depositary from the Company, (b) a statement
that
the Owners of Receipts as of the close of business on a specified record
date
will be entitled, subject to any applicable provision of law and of the Articles
of Association of the Company, to instruct the Depositary as to the exercise
of
the voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares and
(c) a
statement as to the manner in which such instructions may be given. Upon
the
written request of an Owner of a Receipt on such record date, received on
or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted the amount
of
Shares or other Deposited Securities represented by such American Depositary
Shares evidenced by such Receipt in accordance with the instructions set
forth
in such request. The Depositary shall not vote or attempt to exercise the
right
to vote that attaches to the Shares or other Deposited Securities, other
than in
accordance with such instructions.
There
can
be no assurance that Owners generally or any Owner in particular will receive
the notice described in the preceding paragraph sufficiently prior to the
instruction date to ensure that the Depositary will vote the Shares or Deposited
Securities in accordance with the provisions set forth in the preceding
paragraph.
17.
CHANGES AFFECTING DEPOSITED SECURITIES.
Upon
any
change in nominal value, change in par value, split-up, consolidation, or
any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation, or sale of assets affecting the
Company
or to which it is a party, or upon the redemption or cancellation by the
Company
of the Deposited Securities, any securities, cash or property which shall
be
received by the Depositary or a Custodian in exchange for, in conversion
of, in
lieu of or in respect of Deposited Securities shall be treated as new Deposited
Securities under the Deposit Agreement, and American Depositary Shares shall
thenceforth represent, in addition to the existing Deposited Securities,
the
right to receive the new Deposited Securities so received, unless additional
Receipts are delivered pursuant to the following sentence. In any such case
the
Depositary may execute and deliver additional Receipts as in the case of
a
dividend in Shares, or call for the surrender of outstanding Receipts to
be
exchanged for new Receipts specifically describing such new Deposited
Securities.
18. LIABILITY
OF THE COMPANY AND DEPOSITARY.
Neither
the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or holder of
any
Receipt, (i) if by reason of any provision of any present or future law or
regulation of the United States or any other country, or of any governmental
or
regulatory authority, or by reason of any provision, present or future, of
the
Articles of Association of the Company, or by reason of any provision of
any
securities issued or distributed by the Company, or any offering or distribution
thereof, or by reason of any act of God or war or terrorism or other
circumstances beyond its control, the Depositary or the Company shall be
prevented, delayed or forbidden from or be subject to any civil or criminal
penalty on account of doing or performing any act or thing which by the terms
of
the Deposit Agreement or Deposited Securities it is provided shall be done
or
performed, (ii) by reason of any non-performance or delay, caused as aforesaid,
in the performance of any act or thing which by the terms of the Deposit
Agreement it is provided shall or may be done or performed, (iii) by reason
of
any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement, (iv) for the inability of any Owner or holder to benefit
from
any distribution, offering, right or other benefit which is made available
to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Owners or holders, or (v) for any special,
consequential or punitive damages for any breach of the terms of the Deposit
Agreement. Where, by the terms of a distribution pursuant to Section 4.1,
4.2 or 4.3 of the Deposit Agreement, or an offering or distribution pursuant
to
Section 4.4 of the Deposit Agreement, such distribution or offering
may not
be made available to Owners of Receipts, and the Depositary may not dispose
of
such distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse. Neither
the
Company nor the Depositary assumes any obligation or shall be subject to
any
liability under the Deposit Agreement to Owners or holders of Receipts, except
that they agree to perform their obligations specifically set forth in the
Deposit Agreement without negligence or bad faith. The Depositary shall not
be
subject to any liability with respect to the validity or worth of the Deposited
Securities. Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit, or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, on behalf
of
any Owner or holder or other person. Neither the Depositary nor the Company
shall be liable for any action or nonaction by it in reliance upon the advice
of
or information from legal counsel, accountants, any person presenting Shares
for
deposit, any Owner or holder of a Receipt, or any other person believed by
it in
good faith to be competent to give such advice or information. The Depositary
shall not be responsible for any failure to carry out any instructions to
vote
any of the Deposited Securities, or for the manner in which any such vote
is
cast or the effect of any such vote, provided that any such action or nonaction
is in good faith. The Depositary shall not be liable for any acts or omissions
made by a successor depositary whether in connection with a previous act
or
omission of the Depositary or in connection with a matter arising wholly
after
the removal or resignation of the Depositary, provided that in connection
with
the issue out of which such potential liability arises, the Depositary performed
its obligations without negligence or bad faith while it acted as Depositary..
No disclaimer of liability under the Securities Act of 1933 is intended by
any
provision of the Deposit Agreement.
|
19.
|
RESIGNATION
AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
|
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary
and
its acceptance of such appointment as provided in the Deposit Agreement.
The
Depositary may at any time be removed by the Company by 120 days prior written
notice of such removal, to become effective upon the later of (i) the
120th
day
after delivery of the notice to the Depositary and (ii) the appointment of
a
successor depositary and its acceptance of such appointment as provided in
the
Deposit Agreement. The Depositary in its discretion may appoint a substitute
or
additional custodian or custodians.
20.
AMENDMENT.
The
form
of the Receipts and any provisions of the Deposit Agreement may at any time
and
from time to time be amended by agreement between the Company and the Depositary
without the consent of Owners or holders of Receipts in any respect which
they
may deem necessary or desirable. Any amendment which shall impose or increase
any fees or charges (other than taxes and other governmental charges,
registration fees and cable, telex or facsimile transmission costs, delivery
costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty days
after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner of a Receipt at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent
and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Owner of
any
Receipt to surrender such Receipt and receive therefor the Deposited Securities
represented thereby except in order to comply with mandatory provisions of
applicable law.
21. TERMINATION
OF DEPOSIT AGREEMENT.
The
Depositary at any time at the direction of the Company, shall terminate the
Deposit Agreement by mailing notice of such termination to the Owners of
all
Receipts then outstanding at least 60 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Owners
of
all Receipts then outstanding at least 30 days prior to the date of termination,
if at any time 30 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in the Deposit Agreement. On and after the date of termination,
the
Owner of a Receipt will, upon (a) surrender of such Receipt at the Corporate
Trust Office of the Depositary, (b) payment of the fee of the Depositary
for the
surrender of Receipts referred to in Section 2.5 of the Deposit Agreement,
and
(c) payment of any applicable taxes or governmental charges, be entitled
to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt.
If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not
give
any further notices or perform any further acts under the Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in the Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights
or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable
taxes
or governmental charges). At any time after the expiration of four months
from
the date of termination, the Depositary may sell the Deposited Securities
then
held under the Deposit Agreement and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
thereunder, unsegregated and without liability for interest, for the pro
rata
benefit of the Owners of Receipts which have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement, except to account for such
net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of
the
Owner of such Receipt in accordance with the terms and conditions of the
Deposit
Agreement, and any applicable taxes or governmental charges). Upon the
termination of the Deposit Agreement, the Company shall be discharged from
all
obligations under the Deposit Agreement except for its obligations to the
Depositary with respect to indemnification, charges, and expenses.
22. COMPLIANCE
WITH U.S. SECURITIES LAWS.
Notwithstanding
anything in the Deposit Agreement or this Receipt to the contrary, the Company
and the Depositary each agrees that it will not exercise any rights it has
under
the Deposit Agreement to permit the withdrawal or delivery of Deposited
Securities in a manner which would violate the U.S. securities laws, including,
but not limited to, Section I.A.(1) of the General Instructions to the Form
F-6
Registration Statement, as amended from time to time, under the Securities
Act.
23.
SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
In
the
Deposit Agreement, the Company has (i) appointed Corporation Service
Company,
1133
Avenue of the Americas, Xxxxx 0000,
Xxx
Xxxx, Xxx Xxxx 00000, in the State of New York, as the Company's authorized
agent upon which process may be served in any suit or proceeding arising
out of
or relating to the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or this Agreement, (ii) consented and submitted to the
jurisdiction of any state or federal court in the State of New York in which
any
such suit or proceeding may be instituted, and (iii) agreed that service
of
process upon said authorized agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding.
To
the
extent that the Company or any of its properties, assets or revenues may
have or
hereafter become entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff
or
counterclaim, from the jurisdiction of any court, from service of process,
from
attachment upon or prior to judgment, from attachment in aid of execution
or
judgment, or other legal process or proceeding for the giving of any relief
or
for the enforcement of any judgment, in any jurisdiction in which proceedings
may at any time be commenced, with respect to its obligations, liabilities
or
any other matter under or arising out of or in connection with the Shares
or
Deposited Securities, the American Depositary Shares, the Receipts or the
Deposit Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim,
any
such immunity and consents to such relief and
enforcement.
