DEPOSIT AGREEMENT
by and
among
GRIFOLS,
S.A.
AND
DEUTSCHE
BANK TRUST COMPANY AMERICAS
as
Depositary,
AND
THE
HOLDERS AND BENEFICIAL OWNERS
OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN
DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated as
of [date],
2009
DEPOSIT AGREEMENT, dated as
of ,
2009, by and among (i) Grifols, S.A., a company incorporated under the laws of
the Kingdom of Spain, and its successors (the "Company"), (ii) Deutsche Bank
Trust Company Americas, an indirect wholly owned subsidiary of Deutsche Bank
A.G., acting in its capacity as depositary, and any successor depositary
hereunder (the "Depositary"), and (iii) all Holders and Beneficial Owners of
American Depositary Shares evidenced by American Depositary Receipts issued
hereunder (all such capitalized terms as hereinafter defined).
W I T N E S S E T
H T H A T:
WHEREAS, the Company desires
to establish an ADR facility with the Depositary to provide for the deposit of
the Shares and the creation of American Depositary Shares representing the
Shares so deposited;
WHEREAS, the Depositary is
willing to act as the Depositary for such ADR facility upon the terms set forth
in this Deposit Agreement; and
WHEREAS, the American
Depositary Receipts evidencing the American Depositary Shares issued pursuant to
the terms of this Deposit Agreement 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; and
WHEREAS, the Board of
Directors of the Company (or an authorized committee thereof) has duly approved
the establishment of an ADR facility upon the terms set forth in this Deposit
Agreement, the execution and delivery of this Deposit Agreement on behalf of the
Company, and the actions of the Company and the transactions contemplated
herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
DEFINITIONS
All
capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth below, unless otherwise clearly indicated:
SECTION
1.2 "Agent" shall mean
such entity or entities as the Depositary may appoint under Section 7.10,
including the Custodian or any successor or addition thereto.
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SECTION
1.3 "American Depositary
Share(s)" and "ADS(s)" American Depositary Share(s) shall mean the
securities represented by the rights and interests in the Deposited Securities
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of this Deposit Agreement and evidenced by the American Depositary
Receipts issued hereunder. Each American Depositary Share shall
represent the right to receive one-half of one Share, until there shall occur a
distribution upon Deposited Securities referred to in Section 4.2 or a change in
Deposited Securities referred to in Section 4.9 with respect to which additional
American Depositary Receipts are not executed and delivered, and thereafter each
American Depositary Share shall represent the Shares or Deposited Securities
specified in such Sections.
SECTION
1.4 "ADS Record
Date" shall have the meaning given to such term in Section
4.7.
SECTION
1.5 "Beneficial Owner"
shall mean as to any ADS, any person or entity having a beneficial interest in
any ADSs. A Beneficial Owner need not be the Holder of the ADR
evidencing such ADSs. A Beneficial Owner may exercise any rights or
receive any benefits hereunder solely through the Holder of the ADR(s)
evidencing the ADSs in which such Beneficial Owner has an interest.
SECTION
1.6 "Business Day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not (a) a day
on which banking institutions in the Borough of Manhattan, The City of New York
are authorized or obligated by law or executive order to close and (b) a day on
which the market(s) in which Receipts are traded are closed.
SECTION
1.8 "Company" shall mean
Grifols, S.A., a company incorporated and existing under the laws of the Kingdom
of Spain, and its successors. References herein to the laws of Spain
shall include references to the laws, rules and regulations of Spain and any and
all communities, provinces and states thereof.
SECTION
1.9 "Custodian" shall
mean, as of the date hereof, Deutsche Bank Sociedad Anónima Española, having its
principal office at Xxxxx Xxxxxxx Xxxxx 00-00, 00000 Xxxxxxxxx, Xxxxx, as the
custodian for the purposes of this Deposit Agreement, and any other firm or
corporation which may hereinafter be appointed by the Depositary pursuant to the
terms of Section 5.5 as a successor or an additional custodian or custodians
hereunder, as the context shall require. The term "Custodian" shall
mean all custodians, collectively.
SECTION
1.10 "Deliver" and
"Delivery" shall mean, when used in respect of American Depositary
Shares, Receipts, Deposited Securities and Shares, the physical delivery of the
certificate representing such security, or the electronic delivery of such
security by means of book-entry transfer, as appropriate, including, without
limitation, through DRS/Profile. With respect to DRS/Profile ADRs,
the terms "execute", "issue", "register", "surrender", "transfer" or "cancel" refer to
applicable entries or movements to or within DRS/Profile.
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SECTION
1.11 "Deposit Agreement"
shall mean this Deposit Agreement and all exhibits hereto, as the same may from
time to time be amended and supplemented in accordance with the terms
hereof.
SECTION
1.15 "DRS/Profile" means
the system for the uncertificated registration of ownership of securities
pursuant to which ownership of ADSs is maintained on the books of the Depositary
without the issuance of a physical certificate and transfer instructions may be
given to allow for the automated transfer of ownership between the books of DTC
and the Depositary. Ownership of ADSs held in DRS/Profile are
evidenced by periodic statements issued by the Depositary to the Holders
entitled thereto.
SECTION
1.18 "Foreign Currency"
shall mean any currency other than Dollars.
SECTION
1.19 "Foreign Registrar"
shall mean the entity, if any, that carries out the duties of registrar for the
Shares or any successor as registrar for the Shares and any other appointed
agent of the Company for the transfer and registration of Shares.
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SECTION
1.25 "Registrar" shall mean
the Depositary or any bank or trust company having an office in the Borough of
Manhattan, The City of New York, which shall be appointed
by the
Depositary to register ownership of Receipts and transfer of Receipts as herein
provided, shall include any co-registrar appointed by the Depositary for such
purposes. Registrars (other than the Depositary) may be removed and substitutes
appointed by the Depositary.
SECTION
1.28 "Shares" shall mean
ordinary shares in registered form of the Company, heretofore validly
issued and outstanding and fully paid or hereafter validly issued and
outstanding and fully paid. References to Shares shall include
evidence of rights to receive Shares, whether or not stated in the particular
instance; provided, however, that in no
event shall Shares include evidence of rights to receive Shares with respect to
which the full purchase price has not been paid or Shares as to which
pre-emptive rights have theretofore not been validly waived or exercised; provided further, however, that, if
there shall occur any change in par value, split-up, consolidation,
reclassification, conversion or any other event described in Section 4.9, in
respect of the Shares of the Company, the term "Shares" shall thereafter, to the
extent permitted by law, represent the successor securities resulting from such
change in par value, split-up, consolidation, exchange, conversion,
reclassification or event. "Partial Dividend
Shares" means any and all Shares of the Company which may be issued by
the Company during any given year which Shares are not entitled, by reason of
the date of issuance or otherwise, to the full amount of the cash dividend paid
by the Company.
5
APPOINTMENT
OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT
OF SHARES; EXECUTION
AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION
2.2 Form and Transferability of
Receipts.
(a) 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. Receipts may be issued in
denominations of any number of American Depositary Shares. No
definitive Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose, unless such Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary. The Depositary shall
maintain books on which each Receipt so executed and delivered, in the case of
definitive Receipts, and each Receipt issued through the DRS/Profile, in either
case as hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts in certificated form 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.
6
In
addition to the foregoing, 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 reasonably
required by the Depositary in order 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. Partial Dividend ADRs shall bear a CUSIP number that is
different from the CUSIP number that is assigned to the ADRs and may
be endorsed with such legend as the Depositary and the Company may
agree. Partial Dividend ADRs shall be treated for all other purposes
as identical to ADRs and, on such date as the Partial Dividend ADRs shall become
entitled to the full amount of any cash dividend paid by the Company on Shares,
shall be converted automatically into ADRs.
Notwithstanding
anything in this Deposit Agreement or in the Receipt to
the
contrary, to the extent available by the Depositary, American Depositary Shares
shall be evidenced by Receipts issued through DRS/Profile unless
certificated Receipts are specifically requested by the
Holder. Holders and Beneficial Owners shall be bound by the terms and
conditions of this Deposit Agreement and of the form of Receipt, regardless of
whether their Receipts are certificated or issued through
DRS/Profile.
(b) Subject
to the limitations contained herein and in the form of Receipt, title to a
Receipt (and to the American Depositary Shares evidenced thereby), when properly
endorsed (in the case of certificated Receipts) or upon delivery to the
Depositary of 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
the State of New York; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the Holder 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 Company
will have any obligation or be subject to any liability under the Deposit
Agreement to any holder of a Receipt, unless such holder is the Holder
thereof.
7
SECTION
2.3 Deposits. (a)
Subject to the terms and conditions of this Deposit Agreement and applicable
law, Shares or evidence of rights to receive Shares (other than Restricted
Securities) may be deposited by any person (including the Depositary in its
individual capacity but subject, however, in the case of the Company or any
Affiliate of the Company, to Section 5.7 hereof) at any time, whether or not the
transfer books of the Company or the Foreign Registrar, if any, are closed, by
Delivery of the Shares to the Custodian. Every deposit of Shares
shall be accompanied by the following: (A)(i) in the case of Shares issued in
registered form, appropriate instruments of transfer or endorsement, in a form
satisfactory to the Custodian, (ii) in the case of Shares issued in bearer form,
such Shares or the certificates representing such Shares and (iii) in the case
of Shares delivered by book-entry transfer, confirmation of such book-entry
transfer to the Custodian or that irrevocable instructions have been given to
cause such Shares to be so transferred, (B) such certifications and payments
(including, without limitation, the Depositary's fees and related charges) and
evidence of such payments (including, without limitation, stamping or otherwise
marking such Shares by way of receipt) as may be required by the Depositary or
the Custodian in accordance with the provisions of this Deposit Agreement, (C)
if the Depositary so requires, 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 the Shares so deposited, (D) evidence satisfactory to the
Depositary (which may include an opinion of counsel reasonably satisfactory to
the Depositary provided at the cost of the person seeking to deposit Shares)
that all conditions to such deposit have been met and all necessary approvals
have been granted by, and there has been compliance with the rules and
regulations of, any applicable governmental agency in the Kingdom of Spain, and
(E) if the Depositary so requires, (i) an agreement, assignment or instrument
satisfactory to the Depositary or the Custodian which provides for the prompt
transfer by any person in whose name the Shares are or have been recorded to the
Custodian of any distribution, or right to subscribe for additional Shares or to
receive other property in respect of any such deposited Shares or, in lieu
thereof, such indemnity or other agreement as shall be satisfactory to the
Depositary or the Custodian and (ii) if the Shares are registered in the name of
the person on whose behalf they are presented for deposit, a proxy or proxies
entitling the Custodian to exercise voting rights in respect of the Shares for
any and all purposes until the Shares so deposited are registered in the name of
the Depositary, the Custodian or any nominee. No Share shall be
accepted for deposit unless accompanied by confirmation or such additional
evidence, if any is required by the Depositary, that is reasonably satisfactory
to the Depositary or the Custodian that all conditions to such deposit have been
satisfied by the person depositing such Shares under the laws and regulations of
the Kingdom of Spain and any necessary approval has been granted by any
governmental body in the Kingdom of Spain, if any, which is then performing the
function of the regulator of currency exchange. The Depositary may
issue Receipts against evidence of rights to receive Shares from the Company,
any agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. 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
, unless a registration statement is in effect as to such Shares. The
Depositary will use commercially reasonable efforts to comply with reasonable
written instructions of the Company that the Depositary shall not accept for
deposit hereunder any Shares specifically identified in such instructions at
such times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with the securities
laws in the United States.
8
(c) In
the event any Shares are deposited which entitle the holders thereof to receive
a per-share distribution or other entitlement in an amount different from the
Shares then on deposit, the Depositary is authorized to take any and all actions
as may be necessary (including, without limitation, making the necessary
notations on Receipts) to give effect to the issuance of such ADSs and to ensure
that such ADSs are not fungible with other ADSs issued hereunder until such time
as the entitlement of the Shares represented by such non-fungible ADSs equals
that of the Shares represented by ADSs prior to the original such deposit. The
Company agrees to give timely written notice to the Depositary if any Shares
issued or to be issued contain rights different from those of any other Shares
theretofore issued and shall assist the Depositary with the establishment of
procedures enabling the identification of such non-fungible Shares upon Delivery
to the Custodian.
(d) The
Depositary shall limit the number of Shares on deposit hereunder and represented
by ADSs issued under this Deposit Agreement to 10% of the Shares then
outstanding (or such higher percentage as the Company may hereinafter agree in
writing). As of the date of this Deposit Agreement, 213,064,899 Shares are
outstanding. The Company agrees to promptly inform the
Depositary in writing of any change in the total number of Shares outstanding so
as to enable the Depositary to determine on a daily basis the number of Shares
which equates to the applicable threshold
amount.
SECTION
2.4 Execution and Delivery of
Receipts. After the deposit of any Shares pursuant to
Section 2.3, the 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,
first class airmail postage prepaid, or, at the request, risk and expense of the
person making the deposit, by cable, telex, SWIFT, facsimile or electronic
transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement (including, without limitation,
the payment of the fees, expenses, taxes and other charges owing hereunder),
shall issue the ADSs representing the Shares so deposited to or upon the order
of the person or persons named in the notice delivered to the Depositary and
shall execute and deliver a Receipt registered in the name or names requested by
such person or persons evidencing in the aggregate the number of American
Depositary Shares to which such person or persons are
entitled. Nothing herein shall prohibit any Pre-Release Transaction
upon the terms set forth in this Deposit Agreement.
SECTION
2.5 Transfer of Receipts;
Combination and Split-up of Receipts.
(a) Transfer. The
Depositary, or, if a Registrar (other than the Depositary) for the Receipts
shall have been appointed, the Registrar, subject to the terms and conditions of
this Deposit Agreement, shall register transfers of Receipts on its books, upon
surrender at the Principal Office of the Depositary of a Receipt by the Holder
thereof in person or by duly authorized attorney, properly endorsed in the case
of a certificated Receipt or accompanied by, or in the case of DRS/Profile
Receipts receipt by the Depositary of, proper instruments of transfer (including
signature guarantees in accordance with standard industry practice) and duly
stamped as may be required by the laws of the State of New York and of the
United States and any other applicable law. Subject to the terms and
conditions of this Deposit Agreement, including payment of the applicable fees
and charges of the Depositary set forth in Section 5.9 hereof and Article (9) of
the Receipt, the Depositary shall execute a new Receipt or Receipts and deliver
the same to or upon the order of the person entitled thereto evidencing the same
aggregate number of American Depositary Shares as those evidenced by the
Receipts surrendered.
9
(b) Combination & Split
Up. 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 and
upon payment to the Depositary of the applicable fees and charges set forth in
Section 5.9 hereof and Article (9) of the Receipt, 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.
(c) Co-Transfer
Agents. 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 Holders or persons
entitled to such Receipts and will be entitled to protection and indemnity, in
each case to the same extent as the Depositary. Such co-transfer
agents may be removed and substitutes appointed by the
Depositary. Each co-transfer agent appointed under this Section 2.5
(other than the Depositary) shall give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
(d) At
the request of a Holder, the Depositary shall, for the purpose of substituting a
certificated Receipt with a Receipt issued through DRS/Profile, or vice versa,
execute and deliver a certificated Receipt or DRS/Profile statement, as the case
may be, for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the certificated Receipt or DRS/Profile statement, as the case may
be, substituted.
SECTION
2.6 Surrender of Receipts and
Withdrawal of Deposited Securities. Upon surrender, at the
Principal Office of the Depositary, of American Depositary Shares for the
purpose of withdrawal of the Deposited Securities represented thereby, and upon
payment of (i) the fees and charges of the Depositary for the making of
withdrawals of Deposited Securities and cancellation of Receipts (as set forth
in Section 5.9 hereof and Article (9) of the Receipt and (ii) all applicable
taxes and/or governmental charges payable in connection with such surrender and
withdrawal, and subject to the terms and conditions of this Deposit Agreement,
the Company’s Articles of Association, Section 7.8 hereof and any other
provisions of or governing the Deposited Securities and other applicable laws,
the Holder of such American Depositary Shares shall be entitled to Delivery, to
him or upon his order, of the Deposited Securities at the time represented by
the American Depositary Shares so surrendered. American Depositary
Shares may be surrendered for the purpose of withdrawing Deposited Securities by
delivery of a Receipt evidencing such American Depositary Shares (if held in
certificated form) or by book-entry delivery of such American Depositary Shares
to the Depositary.
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A Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer in
blank, and if the Depositary so requires, the Holder 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 (without unreasonable delay) at the
designated office of the Custodian or through a book entry delivery of the
Shares (in either case, subject to Sections 2.7, 3.1, 3.2, 5.9, and to the other
terms and conditions of this Deposit Agreement, to the Company’s Articles of
Association, to the provisions of or governing the Deposited Securities and to
applicable laws, now or hereafter in effect) to or upon the written order of the
person or persons designated in the order delivered to the Depositary as
provided above, the Deposited Securities represented by such American Depositary
Shares, together with any certificate or other proper documents of or relating
to title of the Deposited Securities as may be legally required, as the case may
be, to or for the account of such person.
The
Depositary may, in its discretion, refuse to accept for surrender a number of
American Depositary Shares representing a number other than a whole number of
Shares. In the case of surrender of a Receipt evidencing a number of
American Depositary Shares representing other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares to be
Delivered in accordance with the terms hereof, and shall, at the discretion of
the Depositary, either (i) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing American Depositary Shares representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the Receipt surrendered and remit the proceeds of such
sale (net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and governmental charges) to the person surrendering
the Receipt.
At the
request, risk and expense of any Holder so surrendering a Receipt, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held in respect of, and any certificate or certificates and other proper
documents of or relating to title to, the Deposited Securities represented by
such Receipt to the Depositary for delivery at the Principal Office of the
Depositary, and for further delivery to such Holder. Such direction
shall be given by letter or, at the request, risk and expense of such Holder, by
cable, telex or facsimile transmission. Upon receipt by the Depositary, the
Depositary may make delivery to such person or persons entitled thereto at the
Principal Office of the Depositary of any dividends or cash distributions with
respect to the Deposited Securities represented by such American Depositary
Shares, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
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SECTION
2.7 Limitations on Execution and
Delivery, Transfer, etc. of Receipts; Suspension of Delivery, Transfer,
etc.
(a) Additional
Requirements. As a condition precedent to the execution and
delivery, registration, registration of transfer, split-up, subdivision
combination or surrender of any Receipt, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or 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), any brokerage fees applied by Spanish stock exchanges
or the relevant member of such stock exchanges acting as a broker/dealer or any
other person authorized under Spanish law to act in a similar capacity and
payment of any applicable fees and charges of the Depositary as provided in
Section 5.9 hereof and Article (9) of the Receipt, (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature or any
other matter contemplated by Section 3.1 hereof and (iii) compliance with (A)
any laws or governmental regulations relating to the execution and delivery of
Receipts or American Depositary Shares or to the withdrawal or delivery of
Deposited Securities and (B) such reasonable regulations as the Depositary may
establish consistent with the provisions of this Deposit Agreement and
applicable law.
(b) Additional
Limitations. The issuance of ADSs against deposits of Shares
generally or against deposits of particular Shares may be suspended, or the
issuance of ADSs against the deposit of particular Shares may be withheld, or
the registration of transfer of Receipts in particular instances may be refused,
or the registration of transfers of 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, in
good faith, at any time or from time to time because of any requirement of law,
any government or governmental body or commission or any securities exchange on
which the Receipts or Shares are listed, or under any provision of this Deposit
Agreement or provisions of, or governing, the Deposited Securities, or any
meeting of shareholders of the Company or for any other reason, subject, in all
cases, to Section 7.8 hereof.
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SECTION
2.9 Cancellation and Destruction
of Surrendered Receipts; Maintenance of Records. All Receipts
surrendered to the Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy Receipts so cancelled in accordance with its
customary practices. Cancelled Receipts shall not be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any
purpose.
SECTION
2.10 Pre-Release. Subject
to the further terms and provisions of this Section 2.10, the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. In its
capacity as Depositary, the Depositary may (i) issue ADSs prior to the receipt
of Shares (each such transaction a "Pre-Release Transaction") as provided below
and (ii) deliver Shares upon the receipt and cancellation of ADSs that were
issued in a Pre-Release Transaction, but for which Shares may not yet have been
received. The Depositary may receive ADSs in lieu of Shares under (i) above and
receive shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Shares are to be delivered
(1) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (2) agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such Shares or ADSs are delivered to the
Depositary or the Custodian, (3) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs, and (4) agrees
to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, United States
government securities 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 Depositary will normally
limit the number of ADSs and Shares involved in such Pre-Release Transactions at
any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above), provided, however, that the
Depositary reserves the right to disregard such limit from time to time as it
deems appropriate. The Depositary may also set limits with respect to
the number of ADSs and Shares involved in Pre-Release Transactions with any one
person on a case by case basis as it deems appropriate.
The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not the earnings thereon, shall be held for the benefit of the Holders (other
than the Applicant).
13
CERTAIN
OBLIGATIONS OF HOLDERS
AND
BENEFICIAL OWNERS OF RECEIPTS
SECTION
3.2 Liability for Taxes and
Other Charges. If any present or future tax or other
governmental charge shall become payable by the Depositary or the Custodian with
respect to any Shares, Deposited Securities, Receipts or ADSs, such tax or other
governmental charge shall be payable by the Holders and Beneficial Owners to the
Depositary and such Holders and Beneficial Owners shall be deemed liable
therefor. The Company, the Custodian and/or the Depositary may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of a Holder and/or Beneficial Owner any
or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, with the Holder and the Beneficial Owner remaining fully liable for
any deficiency. In addition to any other remedies available to it,
the Depositary and the Custodian may refuse the deposit of Shares, and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer,
split-up or combination of ADRs and (subject to Section 7.8) the withdrawal of
Deposited Securities, until payment in full of such tax, charge, penalty or
interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian, and each of their
respective agents, officers, directors, employees and Affiliates for, and to
hold each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner. The obligations of Holders
and Beneficial Owners of Receipts under this Section 3.2 shall survive any
transfer of Receipts, any surrender of Receipts and withdrawal of Deposited
Securities, or the termination of this Deposit Agreement.
14
SECTION
3.3 Representations and
Warranties on Deposit of Shares; Ongoing
Covenant. Each person depositing Shares under the Deposit
Agreement shall be deemed thereby to represent and warrant that (i) such Shares
and the certificates therefor are duly authorized, validly issued, fully paid,
non-assessable and were legally obtained by such person, (ii) all preemptive
(and similar) rights, if any, with respect to such Shares have been validly
waived or exercised, (iii) the person making such deposit is duly authorized so
to do, (iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim, and are not,
and the American Depositary Shares issuable upon such deposit will not be,
Restricted Securities and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of American Depositary Shares in respect thereof and the transfer
of such American Depositary Shares. If any such representations or
warranties are false in any way, the Company and the Depositary shall be
authorized, at the cost and expense of the person depositing Shares, to take any
and all actions necessary to correct the consequences thereof.
By
holding Receipts, ADSs or interests therein, Holders (other than Cede & Co.
or any other nominee of DTC) and Beneficial Owners covenant and agree that they
shall not, at any time, own or control such number of ADSs that represents more
than three percent (3%) of the Shares. Such Holders and
Beneficial Owners covenant and agree to immediately comply with the provisions
of Section 3.4 of the Deposit Agreement should they breach such covenant and
agreement.
SECTION
3.4 Compliance with Information
Requests;
Notification and Remedies. Notwithstanding any other provision
of this Deposit Agreement, the Articles of Association of the Company
and applicable law, each Holder and Beneficial Owner agrees to (a) provide such
information as the Company or the Depositary may request pursuant
to law (including, without limitation, relevant Spanish law, any
applicable law of the United States, the Articles of Association of the Company,
any resolutions of the Company’s Board of Directors adopted pursuant to
such Articles of Association, the requirements of any markets or
exchanges upon which the Shares, ADSs or Receipts are listed or traded, or to
any requirements of any electronic book-entry system by which the ADSs or
Receipts may be transferred, and (b) be bound by and subject to applicable
provisions of the laws of the Kingdom of Spain, the Articles of Association of
the Company and the requirements of any markets or exchanges upon which the
ADSs, Receipts or Shares are listed or traded, or pursuant to any requirements
of any electronic book-entry system by which the ADSs, Receipts or Shares may be
transferred, to the same extent as if such Holder and Beneficial Owner held
Shares directly, in each case irrespective of whether or not they are Holders or
Beneficial Owners at the time such request is made. The Depositary agrees to use
its reasonable efforts to forward upon the request of the Company, and at the
Company's expense, any such request from the Company to the Holders and to
forward to the Company any such responses to such requests received by the
Depositary.
15
By
holding Receipts, ADSs or interests therein, Holders (other than Cede & Co.
or any other nominee of DTC) and Beneficial Owners agree to notify the Company
in writing at such time as they own or otherwise control such number of ADSs as
equals or exceeds three percent (3%) of the voting shares of the
Company. The Company reserves the right to instruct Holders and
Beneficial Owners who provide such notices to deliver ADSs in excess of such
limitation for cancellation and withdrawal of the Deposited Securities so as to
permit the Company to deal directly with them as holders of Shares
and Holders and Beneficial Owners agree to comply with such
instructions. At all times the Company agrees to post on its
website (xxx.xxxxxxx.xxx) the number of outstanding voting shares of the Company
so as to enable Holders and Beneficial Owners to determine if they have met or
exceeded the three percent threshold set forth above.
ARTICLE
IV
THE
DEPOSITED SECURITIES
16
SECTION
4.2 Distribution in
Shares. If any distribution upon any Deposited Securities
consists of a dividend in, or free distribution of, Shares, the Company shall
cause such Shares to be deposited with the Custodian and registered, as the case
may be, in the name of the Depositary, the Custodian or any of their
nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.7 and shall, subject to Section 5.9 hereof, either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and/or governmental charges), or (ii) if additional American Depositary
Shares are not so distributed, each American Depositary Share issued and
outstanding after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and governmental charges). In lieu of delivering fractional
American Depositary Shares, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds upon
the terms described in Section 4.1. The Depositary may withhold any such
distribution of Receipts if it has not received satisfactory assurances from the
Company (including an opinion of counsel to the Company furnished at the expense
of the Company) that such distribution does not require registration under the
Securities Act or is exempt from registration under the provisions of the
Securities Act. To the extent such
distribution may be withheld, the Depositary may dispose of all or a portion of
such distribution in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of applicable (a) taxes and/or governmental charges and (b) fees and charges of,
and expenses incurred by, the Depositary) to Holders entitled thereto upon the
terms described in Section 4.1.
SECTION
4.3 Elective Distributions in
Cash or Shares. Whenever the Company intends to distribute a
dividend payable at the election of the holders of Shares in cash or in
additional Shares, the Company shall give notice thereof to the Depositary at
least 30 days prior to the proposed distribution stating whether or not it
wishes such elective distribution to be made available to Holders of
ADSs. Upon receipt of notice indicating that the Company wishes such
elective distribution to be made available to Holders of ADSs, the Depositary
shall consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of
ADSs. The Depositary shall make such elective distribution available
to Holders only if (i) the Company shall have timely requested that the elective
distribution is available to Holders of ADRs, (ii) the Depositary shall have
determined that such distribution is reasonably practicable and (iii) the
Depositary shall have received satisfactory documentation within the terms of
Section 5.7 including, without limitation, any legal opinions of counsel in any
applicable jurisdiction that the Depositary in its reasonable discretion may
request, at the expense of the Company. If the above conditions are
not satisfied, the Depositary shall, to the extent permitted by law, distribute
to the Holders, on the basis of the same determination as is made in the local
market in respect of the Shares for which no election is made, either (x) cash
upon the terms described in Section 4.1 or (y) additional ADSs representing such
additional Shares upon the terms described in Section 4.2. If the
above conditions are satisfied, the Depositary shall establish an ADS Record
Date (on the terms described in Section 4.7) and establish procedures to enable
Holders to elect the receipt of the proposed dividend in cash or in additional
ADSs. The Company shall assist the Depositary in establishing such
procedures to the extent necessary. Subject to Section 5.9 hereof, if
a Holder elects to receive the proposed dividend (x) in cash, the dividend shall
be distributed upon the terms described in Section 4.1, or (y) in ADSs, the
dividend shall be distributed upon the terms described in Section
4.2. Nothing herein shall obligate the Depositary to make available
to Holders a method to receive the elective dividend in Shares (rather than
ADSs). There can be no assurance that Holders generally, or any
Holder in particular, will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of
Shares.
17
SECTION
4.4 Distribution of Rights to
Purchase Shares.
(a) Distribution to ADS
Holders. Whenever the Company intends to distribute to the
holders of the Deposited Securities rights to subscribe for additional Shares,
the Company shall give notice thereof to the Depositary at least 60 days prior
to the proposed distribution stating whether or not it wishes such rights to be
made available to Holders of ADSs. Upon receipt of a notice
indicating that the Company wishes such rights to be made available to Holders
of ADSs, the Depositary shall consult with the Company to determine, and the
Company shall determine, whether it is lawful and reasonably practicable to make
such rights available to the Holders. The Depositary shall make such
rights available to Holders only if (i) the Company shall have timely requested
that such rights be made available to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary shall have determined that such distribution of rights is lawful
and reasonably practicable. In the event any of the conditions set
forth above are not satisfied, the Depositary shall proceed with the sale of the
rights as contemplated in Section 4.4(b) below or, if timing or market
conditions may not permit, do nothing thereby allowing such rights to
lapse. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
Section 4.7) and establish procedures (x) to distribute such rights (by means of
warrants or otherwise) and (y) to enable the Holders to exercise the rights
(upon payment of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes and other governmental
charges). Nothing herein shall obligate the Depositary to make
available to the Holders a method to exercise such rights to subscribe for
Shares (rather than ADSs).
(b) Sale of
Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines it is
not lawful or reasonably practicable to make the rights available to Holders, or
(iii) any rights made available are not exercised and appear to be about to
lapse, the Depositary shall determine whether it is lawful and reasonably
practicable to sell such rights, in a riskless principal capacity or otherwise,
at such place and upon such terms (including public or private sale) as it may
deem proper. The Company shall assist the Depositary to the extent
necessary to determine such legality and practicability. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and governmental charges) upon the terms set forth in
Section 4.1.
18
(c) Lapse of
Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or practicable to make such rights available to Holders in general or
any Holders in particular, (ii) any foreign exchange exposure or loss incurred
in connection with such sale, or exercise, or (iii) the content of any materials
forwarded to the Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding
anything to the contrary in this Section 4.4, if registration (under the
Securities Act and/or any other applicable law) of the rights or the securities
to which any rights relate may be required in order for the Company to offer
such rights or such securities to Holders and to sell the securities represented
by such rights, the Depositary will not distribute such rights to the Holders
(i) unless and until a registration statement under the Securities Act (and/or
such other applicable law) covering such offering is in effect or (ii) unless
the Company furnishes to the Depositary at the Company’s own expense opinion(s)
of counsel to the Company in the United States and counsel to the Company in any
other applicable country in which rights would be distributed, in each case
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable
laws. In the event that the Company, the Depositary or the Custodian
shall be required to withhold and does withhold from any distribution of
property (including rights) an amount on account of taxes or other governmental
charges, the amount distributed to the Holders shall be reduced
accordingly. 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 charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes and charges.
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as the
holders of Shares or be able to exercise such rights. Nothing herein
shall obligate the Company to file any registration statement in respect of any
rights or Shares or other securities to be acquired upon the exercise of such
rights.
SECTION
4.5 Distributions Other Than
Cash, Shares or Rights to Purchase Shares.
19
(a) Whenever
the Company intends to distribute to the holders of Deposited Securities
property other than cash, Shares or rights to purchase additional Shares, the
Company shall give notice thereof to the Depositary at least 30 days prior to
the proposed distribution and shall indicate whether or not it wishes such
distribution to be made to Holders of ADSs. Upon receipt of a notice
indicating that the Company wishes such distribution be made to Holders of ADSs,
the Depositary shall determine whether such distribution to Holders is lawful
and practicable. The Depositary shall not make such distribution
unless (i) the Company shall have timely requested the Depositary to make such
distribution to Holders, (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7, and (iii) the Depositary shall
have determined that such distribution is reasonably practicable.
(b) Upon
receipt of satisfactory documentation and the request of the Company to
distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary may distribute the
property so received to the Holders of record as of the ADS Record Date, in
proportion to the number of ADSs held by such Holders respectively and in such
manner as the Depositary may deem practicable for accomplishing such
distribution (i) upon receipt of payment or net of the applicable fees and
charges of, and expenses incurred by, the Depositary, and (ii) net of any taxes
and other governmental charges withheld. The Depositary may dispose
of all or a portion of the property so distributed and deposited, in such
amounts and in such manner (including public or private sale) as the Depositary
may deem practicable or necessary to satisfy any taxes (including applicable
interest and penalties) or other governmental charges applicable to the
distribution.
(c) If
(i) the Company does not request the Depositary to make such distribution to
Holders or requests not to make such distribution to Holders, (ii) the
Depositary does not receive satisfactory documentation within the terms of
Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable or feasible, the Depositary shall
endeavor to sell or cause such property to be sold in a public or private sale,
at such place or places and upon such terms as it may deem proper and shall
distribute the net proceeds, if any, of such sale received by the Depositary
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and governmental charges) to the Holders as of the ADS
Record Date upon the terms of Section 4.1. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances for nominal or no
consideration and Holders and Beneficial Owners shall have no rights thereto or
arising therefrom.
20
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used by
the Depositary to report distribution rates (which in any case will not be less
than two decimal places). Any excess amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any other fees
and expenses payable or owing hereunder and shall not be subject to
escheatment.
If such
conversion or distribution can be effected only with the approval or license of
any government or agency thereof, the Depositary may file such application for
approval or license, if any, as it may deem necessary, practicable and at
nominal cost and expense. Nothing herein shall obligate the
Depositary to file or cause to be filed, or to seek effectiveness of any such
application or license.
If at any
time the Depositary shall determine that in its judgment the conversion of any
Foreign Currency and the transfer and distribution of proceeds of such
conversion received by the Depositary is not practical or lawful, or if any
approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied, or not
obtainable at a reasonable cost, within a reasonable period or otherwise sought,
the Depositary shall, in its sole discretion but subject to applicable laws and
regulations, either (i) distribute the Foreign Currency (or an appropriate
document evidencing the right to receive such Foreign Currency) received by the
Depositary to the Holders entitled to receive such Foreign Currency, or (ii)
hold such Foreign Currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the
same.
SECTION
4.7 Fixing of Record
Date. Whenever necessary in connection with any distribution
(whether in cash, Shares, rights, or other distribution), 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
receive notice of any meeting of or solicitation of holders of Shares or other
Deposited Securities, or whenever the Depositary shall find it necessary or
convenient, the Depositary shall fix a record date (the "ADS Record Date"), as
close as practicable to the record date fixed by the Company with respect to the
Shares (if applicable), for the determination of the Holders who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, or to give or withhold such consent, or to
receive such notice or solicitation or to otherwise take action, or to exercise
the rights of Holders with respect to such changed number of Shares represented
by each American Depositary Share, or for any other reason. Subject
to applicable law and the provisions of Section 4.1 through 4.6 and to the other
terms and conditions of this Deposit Agreement, only the Holders of record at
the close of business in New York on such ADS Record Date shall be entitled to
receive such distribution, to give such voting instructions, to receive such
notice or solicitation, or otherwise take action.
21
SECTION
4.8 Voting of Deposited
Securities. Subject to the next sentence, as soon as
practicable after receipt of notice of any meeting at which the holders of
Shares are entitled to vote, or of solicitation of consents or proxies from
holders of Shares or other Deposited Securities, the Depositary shall fix the
ADS Record Date in respect of such meeting or solicitation of consent or proxy.
The Depositary shall, if requested by the Company in writing in a timely manner
(the Depositary having no obligation to take any further action if the request
shall not have been received by the Depositary at least 30 days prior to the
date of such vote or meeting) and at the Company's expense and provided no U.S.
legal prohibitions exist, mail by regular, ordinary mail delivery (or by
electronic mail or as otherwise may be agreed between the Company and the
Depositary in writing from time to time) or otherwise distribute to Holders as
of the ADS Record Date: (a) such notice of meeting or solicitation of consent or
proxy; (b) a statement that the Holders at the close of business on the ADS
Record Date will be entitled, subject to any applicable law, the provisions of
this Deposit Agreement, the Company’s Articles of Association and the provisions
of or governing the Deposited Securities (which provisions, if any, shall be
summarized in pertinent part by the Company), to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Shares or other
Deposited Securities represented by such Holder's American Depositary Shares;
and (c) a brief statement as to the manner in which such instructions may be
given, including an express indication that, if no specific voting instruction
is received prior to the date set by the Depositary therefor, then the Holders
of those American Depositary Shares for which no specific voting instructions
have been timely received shall in each case be deemed to have instructed the
Depositary to give a discretionary proxy to a person designated by the
Company. Voting instructions may be given only in respect of a number
of American Depositary Shares representing an integral number of Shares or other
Deposited Securities. Upon the timely receipt of written instructions
of a Holder of American Depositary Shares on the ADS Record Date of voting
instructions in the manner specified by the Depositary, the Depositary shall
endeavor, insofar as practicable and permitted under applicable law, the
provisions of this Deposit Agreement, the Company’s Articles of Association and
the provisions of or governing the Deposited Securities, to vote or cause the
Custodian to vote the Shares and/or other Deposited Securities (in person or by
proxy) represented by American Depositary Shares evidenced by such Receipt in
accordance with such voting instructions.
Neither
the Depositary nor the Custodian shall, under any circumstances exercise any
discretion as to voting, and neither the Depositary nor the Custodian shall
vote, attempt to exercise the right to vote, or in any way make use of for
purposes of establishing a quorum or otherwise, the Shares or other Deposited
Securities represented by American Depositary Shares except pursuant to and in
accordance with such written or deemed instructions from Holders.
22
To the
extent voting instruction cards are not so received by the Depositary from any
Holder, the Depositary shall deem such Holder to have so instructed the
Depositary to give a discretionary proxy to a person designated by the Company
and the Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to give a discretionary proxy to
a person designated by the Company to vote the Deposited Securities represented
by the American Depositary Shares evidenced by such Holder's Receipts as to
which such instructions are not so given, provided that no such instruction
shall be deemed given and no discretionary proxy shall be given (i) with respect
to any matter as to which the Company informs the Depositary (and the Company
agrees to provide such information promptly in writing when and if applicable)
that (x) the Company does not wish such proxy given, (y) substantial opposition
exists or (z) materially affects the rights of holders of Shares and (ii)
unless, with respect to such meeting, the Depositary has been provided with an
opinion of counsel to the Company, in form and substance satisfactory to the
Depositary, to the effect that (a) the granting of such discretionary proxy does
not subject the Depositary to any reporting obligations in the Kingdom of Spain,
(b) the granting of such proxy will not result in a violation of Spanish law,
rule, regulation or permit, (c) the voting arrangement and deemed instruction as
contemplated herein will be given effect under Spanish law, and (d) the granting
of such discretionary proxy will not result in the Shares represented by the
ADSs being considered assets of the Depositary under Spanish law.
Notwithstanding
the above, save for applicable provisions of Spanish law, and in accordance with
the terms of Section 5.3, the Depositary shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities or the manner in which such vote is
cast or the effect of any such vote.
There can
be no assurance that Holders or Beneficial Owners generally or any Holder or
Beneficial Owner in particular will receive the notice described above with
sufficient time to enable the Holder to return voting instructions to the
Depositary in a timely manner.
SECTION
4.9 Changes Affecting Deposited
Securities. Upon any change in par value, split-up,
subdivision cancellation, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation or sale of assets affecting the Company or to
which it is otherwise a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares representing
the right to receive such additional securities. Alternatively, the
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of an opinion
of counsel to the Company, furnished at the expense of the Company, satisfactory
to the Depositary that such distributions are not in violation of any applicable
laws or regulations, execute and deliver additional Receipts as in the case of a
stock dividend on the Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts, in either case, as well as in the event of
newly deposited Shares, with necessary modifications to the form of Receipt
contained in Exhibit A hereto, specifically describing such new Deposited
Securities and/or corporate change. The Company agrees to, jointly with the
Depositary, amend the Registration Statement on Form F-6 as filed with the
Commission to permit the issuance of such new form of Receipts. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall, if the Company requests, subject to receipt of an opinion
of counsel to the Company, furnished at the expense of the Company, satisfactory
to the Depositary that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes and governmental charges) for the account of
the Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or to any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
23
SECTION
4.10 Available
Information. As of the date of the Deposit Agreement, the
Company publishes information in English required to maintain the exemption from
registration under Rule 12g3-2(b) under the Exchange Act on its Internet Web
site (xxx.xxxxxxx.xxx) or through an electronic information delivery system
generally available to the public in its primary trading market. Should the
Company become subject to the periodic reporting or other informational
requirements under the Securities Exchange Act of 1934, it will be required in
accordance therewith to file reports and other information with the U.S.
Securities and Exchange Commission. The Depositary does not assume
any duty to determine if the Company is complying with the current requirements
of Rule 12g3-2(b) under the Exchange Act or to take any action if the Company is
not complying with those requirements.
The
Company represents that as of the date of this Deposit Agreement, the statements
in this Section 4.10 and in Article (12) of the Receipts with respect to the
exemption from registration under Rule 12g3-2(b) under the Securities Exchange
Act of 1934, as amended, are true and correct. The Company agrees to
promptly notify the Depositary and all Holders in the event of any change in the
truth of any such statements.
24
SECTION
4.13 Taxation;Withholding. The
Depositary will, and will instruct the Custodian to, forward to the Company or
its agents such information from its records as the Company may reasonably
request to enable the Company or its agents to file necessary tax reports with
governmental authorities or agencies. The Depositary, the Custodian or the
Company and its agents may, but shall not be obligated to, file such reports as
are necessary to reduce or eliminate applicable taxes on dividends and on other
distributions in respect of Deposited Securities under applicable tax treaties
or laws for the Holders and Beneficial Owners. Holders and Beneficial Owners of
American Depositary Shares may be required from time to time, and in a timely
manner, to file such proof of taxpayer status, residence and beneficial
ownership (as applicable), to execute such certificates and to make such
representations and warranties, or to provide any other information or
documents, as the Depositary or the Custodian may deem necessary or proper to
fulfill the Depositary's or the Custodian's obligations under applicable law.
The Holders and Beneficial Owners shall indemnify the Depositary, the Company,
the Custodian and any of their respective directors, employees, agents and
Affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
The
Company shall remit to the appropriate governmental authority or agency any
amounts required to be withheld by the Company and owing to such governmental
authority or agency. Upon any such withholding, the Company shall
remit to the Depositary information about such taxes and/or governmental charges
withheld or paid, and, if so requested, the tax receipt (or other proof of
payment to the applicable governmental authority) therefor, in each case, in a
form satisfactory to the Depositary. The Depositary shall, to the
extent required by U.S. law, report to Holders: (i) any taxes withheld by it;
(ii) any taxes withheld by the Custodian, subject to information being provided
to the Depositary by the Custodian; and (iii) any taxes withheld by the Company,
subject to information being provided to the Depositary by the Company. The
Depositary and the Custodian shall not be required to provide the Holders with
any evidence of the remittance by the Company (or its agents) of any taxes
withheld, or of the payment of taxes by the Company, except to the extent the
evidence is provided by the Company to the Depositary. Neither the
Depositary nor the Custodian shall be liable for the failure by any Holder or
Beneficial Owner to obtain the benefits of credits on the basis of non-U.S. tax
paid against such Holder's or Beneficial Owner's income tax
liability.
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 shall withhold the amount required to be withheld and 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 and charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes and charges to the Holders entitled thereto in proportion to the
number of American Depositary Shares held by them respectively.
25
The
Depositary is under no obligation to provide the Holders and Beneficial Owners
with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
American Depositary Shares.
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION
5.1 Maintenance of Office and
Transfer Books by the Registrar. Until termination of this
Deposit Agreement in accordance with its terms, the Depositary or if a Registrar
for the Receipts shall have been appointed, the Registrar shall maintain in the
Borough of Manhattan, the City of New York, an office and facilities for the
execution and delivery, registration, registration of transfers, combination and
split-up of Receipts, the surrender of Receipts and the delivery and withdrawal
of Deposited Securities in accordance with the provisions of this Deposit
Agreement.
The
Depositary or the Registrar as applicable, shall keep books for the registration
of Receipts and transfers of Receipts which at all reasonable times shall be
open for inspection by the Company and by the Holders of such Receipts, provided
that such inspection shall not be, to the Depositary’s or the Registrar's
knowledge, for the purpose of communicating with Holders of such Receipts in the
interest of a business or object other than the business of the Company or other
than a matter related to this Deposit Agreement or the Receipts.
The
Depositary or the Registrar, as applicable, may close the transfer books with
respect to the Receipts, at any time or from time to time, when deemed necessary
or advisable by it in connection with the performance of its duties
hereunder.
If any
Receipts or the American Depositary Shares evidenced thereby are listed on one
or more stock exchanges or automated quotation systems in the United States, the
Depositary shall act as Registrar or appoint a Registrar or one or more
co-registrars for registration of Receipts and transfers, combinations and
split-ups, and to countersign such Receipts in accordance with any requirements
of such exchanges or systems. Such Registrar or co-registrars may be removed and
a substitute or substitutes appointed by the Depositary.
If any
Receipts or the American Depositary Shares evidenced thereby are listed on one
or more securities exchanges, markets or automated quotation systems, (i) the
Depositary shall be entitled to, and shall, take or refrain from taking such
action(s) as it may deem necessary or appropriate to comply with the
requirements of such securities exchange(s), market(s) or automated quotation
system(s) applicable to it, notwithstanding any other provision of this Deposit
Agreement; and (ii) upon the reasonable request of the Depositary, the Company
shall provide the Depositary such information and assistance as may be
reasonably necessary for the Depositary to comply with such requirements, to the
extent that the Company may lawfully do so.
26
SECTION
5.2 Exoneration. Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of this Deposit Agreement or
shall incur any liability (i) if the Depositary, the Custodian or the Company or
their respective controlling persons or agents shall be prevented or forbidden
from, or subjected to any civil or criminal penalty or restraint on account of,
or delayed in, doing or performing any act or thing required by the terms of the
Deposit Agreement and any Receipt, by reason of any provision of any present or
future law or regulation of the United States or any state thereof, the Kingdom
of Spain or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of the possible criminal
or civil penalties or restraint, or by reason of any provision, present or
future, of the Company’s Articles of Association or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement or in the Company’s Articles of Association or
provisions of or governing Deposited Securities, (iii) for any action or
inaction of the Depositary, the Custodian or the Company or their respective
controlling persons or agents in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner 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 Holders of American Depositary Shares or (v) for
any special, consequential, indirect or punitive damages for any breach of the
terms of this Deposit Agreement or otherwise.
The
Depositary, its controlling persons, its agents, the Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request, opinion or other document believed by it to be
genuine and to have been signed or presented by the proper party or
parties.
No
disclaimer of liability under the Securities Act is intended by any provision of
this Deposit Agreement.
SECTION
5.3 Standard of
Care. The Company and the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under this
Deposit Agreement or any Receipts to any Holder(s) or Beneficial Owner(s) or
other persons (except for the Company’s and the Depositary’s obligations
specifically set forth in Section 5.8), provided, that the Company and the
Depositary and their respective agents agree to perform their respective
obligations specifically set forth in this Deposit Agreement or the applicable
ADRs without gross negligence or willful misconduct.
27
Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, or agents, 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, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expenses (including fees and disbursements of counsel) and
liabilities be furnished as often as may be required (and no Custodian shall be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary).
The
Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any vote is cast (provided that any such action or omission is in good faith and
in accordance with the terms of the Deposit Agreement) or the effects of any
vote. The Depositary shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company, or for any action or non action by
it in reliance upon the opinion, advice of or information from legal counsel,
accountants, any person representing Shares for deposit, any Holder or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary and its agents shall not be liable for
any acts or omissions made by a successor depositary whether in connection with
a previous act or omission of the Depositary or in connection with any matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises the
Depositary performed its obligations without gross negligence or willful
misconduct while it acted as Depositary.
SECTION
5.4 Resignation and Removal of
the Depositary; Appointment of Successor Depositary. The
Depositary may at any time resign as Depositary hereunder by written notice of
resignation delivered to the Company, such resignation to be effective on the
earlier of (i) the 90th day after delivery thereof to the Company (whereupon the
Depositary shall, in the event no successor depositary has been appointed by the
Company, be entitled to take the actions contemplated in Section 6.2 hereof), or
(ii) upon the appointment by the Company of a successor depositary and its
acceptance of such appointment as hereinafter provided, save that, any amounts,
fees, costs or expenses owed to the Depositary hereunder or in accordance with
any other agreements otherwise agreed in writing between the Company and the
Depositary from time to time shall be paid to the Depositary prior to such
resignation.
The
Depositary may at any time be removed by the Company by written notice of such
removal, which removal shall be effective on the later of (i) the 90th day after
delivery thereof to the Depositary (whereupon the Depositary shall be entitled
to take the actions contemplated in Section 6.2 hereof), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided, save that, any amounts, fees, costs or
expenses owed to the Depositary hereunder or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such
removal.
28
In case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
the City of New York. The Company shall give notice to the Depositary of the
appointment of a successor depositary not more than 90 days after delivery by
the Depositary of written notice of resignation or by the Company of removal,
each as provided in this section. In the event that a successor
depositary is not appointed or notice of the appointment of a successor
depositary is not provided by the Company in accordance with the preceding
sentence, the Depositary shall be entitled to take the actions contemplated in
Section 6.2 hereof. Every successor depositary shall be required by the Company
to execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed (except as required by applicable
law), shall become fully vested with all the rights, powers, duties and
obligations of its predecessor. The predecessor depositary, upon
payment of all sums due to it and on the written request of the Company, shall
(i) execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder (other than as contemplated in Sections
5.8 and 5.9), (ii) duly assign, transfer and deliver all right, title and
interest to the Deposited Securities to such successor, and (iii) deliver to
such successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail
notice of its appointment to such Holders. If the Company shall have
used its reasonable efforts to appoint a successor depositary it shall have no
liability to Holders for any failure to appoint such a successor.
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
Custodian. The Custodian or its successors in acting hereunder
shall be subject at all times and in all respects to the direction of the
Depositary for the Deposited Securities for which the Custodian acts as
custodian and shall be responsible solely to it. If any Custodian
resigns or is discharged from its duties hereunder with respect to any Deposited
Securities and no other Custodian has previously been appointed hereunder, the
Depositary shall promptly appoint a substitute custodian. The
Depositary shall require such resigning or discharged Custodian to deliver the
Deposited Securities held by it, together with all such records maintained by it
as Custodian with respect to such Deposited Securities as the Depositary may
request, to the Custodian designated by the Depositary. Whenever the
Depositary determines, in its discretion, that it is appropriate to do so, it
may appoint an additional entity to act as Custodian with respect to any
Deposited Securities, or discharge the Custodian with respect to any Deposited
Securities and appoint a substitute custodian, which shall thereafter be
Custodian hereunder with respect to the Deposited Securities. After
any such change, the Depositary shall give notice thereof in writing to all
Holders.
29
Upon the
appointment of any successor depositary, any Custodian then acting hereunder
shall, unless otherwise instructed by the Depositary, continue to be the
Custodian of the Deposited Securities without any further act or writing and
shall be subject to the direction of the successor depositary. 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 to act on
the direction of such successor depositary.
SECTION
5.6 Notices and
Reports. On or before the first date on which the Company
gives notice, by publication or otherwise, of any meeting of holders of Shares
or other Deposited Securities, or of any adjourned meeting of such holders, or
of the taking of any action by such holders other than at a meeting, or of the
taking of any action in respect of any cash or other distributions or the
offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in
English but otherwise in the form given or to be given to holders of Shares or
other Deposited Securities. The Company shall also furnish to the Custodian and
the Depositary a summary, in English, of any applicable provisions or proposed
provisions of the Company’s Articles of Association that may be relevant or
pertain to such notice of meeting or be the subject of a vote
thereat.
The
Company will also transmit to the Depositary (a) English language versions of
the other notices, reports and communications which are made generally available
by the Company to holders of its Shares or other Deposited Securities and (b)
English language versions of the Company's annual and other reports prepared in
accordance with the applicable requirements of the Commission under Rule
12g3-2(b). The Depositary shall arrange, at the request of the
Company and at the Company's expense, for the mailing of copies thereof to all
Holders, or by any other means as agreed between the Company and the Depositary
(at the Company’s expense) or make such notices, reports and other
communications available for inspection by all Holders, provided, that, the
Depositary shall have received evidence sufficiently satisfactory to it,
including in the form of an opinion of local and/or U.S. counsel or counsel of
other applicable jurisdiction, furnished at the expense of the Company, as the
Depositary in its discretion so requests, that the distribution of such notices,
reports and any such other communications to Holders from time to time is valid
and does not or will not infringe any local, U.S. or other applicable
jurisdiction regulatory restrictions or requirements if so distributed and made
available to Holders. The Company will timely provide the Depositary
with the quantity of such notices, reports, and communications, as requested by
the Depositary from time to time, in order for the Depositary to effect such
mailings. The Company has delivered to the Depositary and the Custodian a copy
of the Company’s Articles of Association along with the provisions of or
governing the Shares and any other Deposited Securities issued by the Company or
any Affiliate of the Company, in connection with the Shares, in each case along
with a certified English translation thereof, and promptly upon any amendment
thereto or change therein, the Company shall deliver to the Depositary and the
Custodian a copy of such amendment thereto or change therein (along with a
certified English translation thereof). The Depositary may rely upon such copy
for all purposes of this Deposit Agreement.
30
The
Depositary will, at the expense of the Company, make available a copy of any
such notices, reports or communications issued by the Company and delivered to
the Depositary for inspection by the Holders of the Receipts evidencing the
American Depositary Shares representing such Shares governed by such provisions
at the Depositary's Principal Office, at the office of the Custodian and at any
other designated transfer office.
SECTION
5.7 Issuance of Additional
Shares, ADSs etc. The Company agrees that in the event it or
any of its Affiliates proposes (i) an issuance, sale or distribution of
additional Shares, (ii) an offering of rights to subscribe for Shares or other
Deposited Securities, (iii) an issuance of securities convertible into or
exchangeable for Shares, (iv) an issuance of rights to subscribe for securities
convertible into or exchangeable for Shares, (v) an elective dividend of cash or
Shares, (vi) a redemption of Deposited Securities, (vii) a meeting of holders of
Deposited Securities, or solicitation of consents or proxies, relating to any
reclassification of securities, merger, subdivision, amalgamation or
consolidation or transfer of assets or (viii) any reclassification,
recapitalization, reorganization, merger, amalgamation, consolidation or sale of
assets which affects the Deposited Securities, it will obtain U.S. legal advice
and take all steps necessary to ensure that the application of the proposed
transaction to Holders and Beneficial Owners does not violate the registration
provisions of the Securities Act, or any other applicable laws (including,
without limitation, the Investment Company Act of 1940, as amended, the Exchange
Act or the securities laws of the states of the United States). In
support of the foregoing or at the reasonable request of the Depositary where it
deems necessary, the Company will furnish to the Depositary, at it’s own expense
(a) a written opinion of U.S. counsel (reasonably satisfactory to the
Depositary) stating whether or not application of such transaction to Holders
and Beneficial Owners (1) requires a registration statement under the Securities
Act to be in effect or is exempt from the registration requirements of the
Securities Act and/or (2) dealing with such other reasonable issues requested by
the Depositary and (b) an opinion of Spanish counsel (reasonably satisfactory to
the Depositary) stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws, rules or regulations of the Kingdom
of Spain and (2) all requisite regulatory consents and approvals have
been obtained in the Kingdom of Spain. If the filing of a
registration statement is required, the Depositary shall not have any obligation
to proceed with the transaction unless it shall have received evidence
reasonably satisfactory to it that such registration statement has been declared
effective and that such distribution is in accordance with all applicable laws
or regulations. If, being advised by counsel, the Company determines
that a transaction is required to be registered under the Securities Act, the
Company will either (i) register such transaction to the extent necessary, (ii)
alter the terms of the transaction to avoid the registration requirements of the
Securities Act or (iii) direct the Depositary to take specific measures, in each
case as contemplated in this Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act.
The
Company agrees with the Depositary that neither the Company nor any of its
Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act or have been registered under the Securities Act (and such registration
statement has been declared effective).
31
Notwithstanding
anything else contained in this Deposit Agreement, nothing in this Deposit
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
SECTION
5.8 Indemnification. The
Company agrees to indemnify the Depositary, any Custodian and each of their
respective directors, officers, employees, agents and Affiliates against, and
hold each of them harmless from, any losses, liabilities, taxes, costs, claims,
judgments, proceedings, actions, demands and any charges or expenses of any kind
whatsoever (including, but not limited to, reasonable attorney’s fees and
expenses and, in each case, fees and expenses of counsel, in each case,
irrevocable value added tax and any similar tax charged or otherwise imposed in
respect thereof) (collectively referred to as “Losses”) which the Depositary or
any agent thereof may incur or which may be made against it as a result of or in
connection with its appointment or the exercise of its powers and duties under
this Agreement or that may arise (a) out of or in connection with any offer,
issuance, sale, resale, transfer, deposit or withdrawal of Receipts, American
Depositary Shares, the Shares, or other Deposited Securities, as the case may
be, (b) out of or in connection with any offering documents in respect thereof
or (c) out of or in connection with acts performed or omitted, including, but
not limited to, any delivery by the Depositary on behalf of the Company of
information regarding the Company in connection with this Deposit Agreement, the
Receipts, the American Depositary Shares, the Shares, or any Deposited
Securities, in any such case (i) by the Depositary, the Custodian or any of
their respective directors, officers, employees, agents and Affiliates, except
to the extent any such Losses directly arise out
of the gross negligence or willful misconduct of any of them, or (ii) by the
Company or any of its directors, officers, employees, agents and
Affiliates. Notwithstanding the above, in no event shall the
Depositary or any of its directors, officers, employees, agents and/or
Affiliates be liable for any indirect, special, punitive or consequential
damages to the Company, Holders, Beneficial Owners or any other
person.
Any
person seeking indemnification hereunder (an "Indemnified Person") shall notify
the person from whom it is seeking indemnification (the "Indemnifying Person")
of the commencement of any indemnifiable action or claim promptly after such
Indemnified Person becomes aware of such commencement (provided that the failure
to make such notification shall not affect such Indemnified Person's rights to
indemnification except to the extent the Indemnifying Person is materially
prejudiced by such failure) and shall consult in good faith with the
Indemnifying Person as to the conduct of the defense of such action or claim
that may give rise to an indemnity hereunder, which defense shall be reasonable
under the circumstances. No Indemnified Person shall compromise or settle any
action or claim that may give rise to an indemnity hereunder without the consent
of the Indemnifying Person, which consent shall not be unreasonably
withheld.
The
obligations set forth in this Section shall survive the termination of this
Deposit Agreement and the succession or substitution of any party
hereto.
32
SECTION
5.9 Fees and Charges of
Depositary. The Company, the Holders, the Beneficial Owners,
and persons depositing Shares or surrendering ADSs for cancellation and
withdrawal of Deposited Securities shall be required to pay to the Depositary
the Depositary's fees and related charges identified as payable by them
respectively as provided for under Article (9) of the Receipt. All
fees and charges so payable may, at any time and from time to time, be changed
by agreement between the Depositary and the Company, but, in the case of fees
and charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without
charge, a copy of its latest fee schedule to anyone upon request.
The
Depositary and the Company may reach separate agreement in relation to the
payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
by both parties in the performance of its obligations hereunder and in respect
of the actual costs and expenses of the Depositary in respect of any notices
required to be given to the Holders in accordance with Section 6.1
hereof.
In
connection with any payment by the Company to the Depositary:
|
(i)
|
all
fees, taxes, duties, charges, costs and expenses which are payable by the
Company shall be paid or be procured to be paid by the Company (and any
such amounts which are paid by the Depositary shall be reimbursed to the
Depositary by the Company upon demand therefor);
and
|
|
(ii)
|
such
payment shall be subject to all necessary Spanish exchange control and
other consents and approvals having been obtained. The Company undertakes
to use its reasonable endeavours to obtain all necessary approvals that
are required to be obtained by it in this
connection.
|
The
Company agrees to promptly pay to the Depositary such other expenses, fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to from time to
time. Responsibility for payment of such charges may at any time and
from time to time be changed by agreement between the Company and the
Depositary. In the discretion of the Depositary, the Depositary
shall present its statement for such expenses and fees or charges to the Company
upon receipt or payment of any relevant invoice by the Depositary, once every
three months, semiannually or annually.
All
payments by the Company to the Depositary under this Section 5.9 shall be paid
without set-off or counterclaim, and free and clear of and without deduction or
withholding for or on account of, any present or future taxes, levies, imports,
duties, fees, assessments or other charges of whatever nature, imposed by law,
rule, regulation, court, tribunal or by any department, agency or other
political subdivision or taxing authority thereof or therein, and all interest,
penalties or similar liabilities with respect thereto.
33
The right
of the Depositary to receive payment of fees, charges and expenses as provided
above shall survive the termination of this Deposit Agreement. As to
any Depositary, upon the resignation or removal of such Depositary as described
in Section 5.4 hereof, such right shall extend for those fees, charges and
expenses incurred prior to the effectiveness of such resignation or
removal.
ARTICLE
VI
AMENDMENT
AND TERMINATION
SECTION
6.1 Amendment/Supplement. Subject
to the terms and conditions of this Section 6.1 and applicable law, the Receipts
outstanding at any time, the provisions of this Deposit Agreement and the form
of Receipt attached hereto and to be issued under the terms hereof may at any
time and from time to time be amended or supplemented by written agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable without the consent of the Holders or Beneficial Owners.
Any amendment or supplement which shall impose or increase any fees or charges
(other than charges in connection with foreign exchange control regulations, and
taxes and other governmental charges, delivery and other such expenses), or
which shall otherwise materially prejudice any substantial existing right of
Holders or Beneficial Owners, shall not, however, become effective as to
outstanding Receipts until 30 days after notice of such amendment or supplement
shall have been given to the Holders of outstanding Receipts. The parties hereto
agree that any amendments or supplements which (i) are reasonably necessary (as
agreed by the Company and the Depositary) in order for (a) the American
Depositary Shares to be registered on Form F-6 under the Securities Act or (b)
the American Depositary Shares or the Shares to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such American Depositary Share or Shares,
to consent and agree to such amendment or supplement and to be bound by the
Deposit Agreement as amended and supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the Receipt at any time in accordance with such changed
laws, rules or regulations. Such amendment or supplement to the
Deposit Agreement in such circumstances may become effective before a notice of
such amendment or supplement is given to Holders or within any other period of
time as required for compliance with such laws, rules or regulations.
34
SECTION
6.2 Termination. The
Depositary shall, at any time at the written direction of the Company, terminate
this Deposit Agreement by mailing notice of such termination to the Holders of
all Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination, provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the terms
of this Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time to
time, prior to such termination shall take effect. If 90 days shall have expired
after (i) the Depositary shall have delivered to the Company a written notice of
its election to resign, or (ii) the Company shall have delivered to the
Depositary a written notice of the removal of the Depositary, and in either case
a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4, the Depositary may terminate this
Deposit Agreement by mailing notice of such termination to the Holders of all
Receipts then outstanding at least 30 days prior to the date fixed for such
termination. On and after the date of termination of this Deposit Agreement, the
Holder will, upon surrender of such Receipt at the Principal Office of the
Depositary, upon the payment of the charges of the Depositary for the surrender
of Receipts referred to in Section 2.6 and subject to the conditions and
restrictions therein set forth, and upon payment of any applicable taxes and/or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of this Deposit
Agreement, the Registrar thereafter shall discontinue the registration of
transfers of Receipts, and the Depositary shall suspend the distribution of
dividends to the Holders 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 or other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in Section 2.6,
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, or charging, as the
case may be, in each case, the charges of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder in accordance with the terms
and conditions of this Deposit Agreement and any applicable taxes and/or
governmental charges or assessments). At any time after the expiration of six
months from the date of termination of this Deposit Agreement, 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, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders of Receipts whose Receipts have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement with respect to the
Receipts and the Shares, Deposited Securities and American Depositary Shares,
except to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case, the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of this Deposit Agreement and any
applicable taxes and/or governmental charges or assessments). Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary hereunder.
35
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 together shall
constitute one and the same agreement. Copies of this Deposit Agreement shall be
maintained with the Depositary and shall be open to inspection by any Holder
during business hours.
SECTION
7.2 No Third-Party
Beneficiaries. This Deposit Agreement is for the exclusive
benefit of the parties hereto (and their successors) and shall not be deemed to
give any legal or equitable right, remedy or claim whatsoever to any other
person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give
rise to a partnership or joint venture among the parties hereto nor establish a
fiduciary or similar relationship among the parties. The parties
hereto acknowledge and agree that (i) the Depositary and its Affiliates may at
any time have multiple banking relationships with the Company and its
Affiliates, (ii) the Depositary and its Affiliates may be engaged at any time in
transactions in which parties adverse to the Company or the Holders or
Beneficial Owners may have interests and (iii) nothing contained in this
Agreement shall (a) preclude the Depositary or any of its Affiliates from
engaging in such transactions or establishing or maintaining such relationships,
or (b) obligate the Depositary or any of its Affiliates to disclose such
transactions or relationships or to account for any profit made or payment
received in such transactions or relationships.
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 Holders and Beneficial
Owners as Parties; Binding Effect. The Holders and Beneficial
Owners from time to time of American Depositary Shares shall be parties to the
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of any Receipt by acceptance hereof or any beneficial interest
therein.
SECTION
7.5 Notices. Any
and all notices to be given to the Company shall be deemed to have been duly
given if personally delivered or sent by mail, air courier or cable, telex,
facsimile transmission or electronic transmission, confirmed by letter,
addressed to Grifols, S.A., Torre Mapfre - Planta 26, x/ xx xx Xxxxxx
00-00, 00000 Xxxxxxxxx, Xxxxx, Attention: Xxxxx Xxxxxxx, Head of Investor
Relations, or to any other address which the Company may specify in writing to
the Depositary.
Any and
all notices to be given to the Depositary shall be deemed to have been duly
given if personally delivered or sent by mail, air courier or cable, telex,
facsimile transmission or by electronic transmission (if agreed by the Company
and the Depositary), at the Company’s expense, unless otherwise agreed in
writing between the Company and the Depositary, confirmed by letter, addressed
to Deutsche Bank Trust Company Americas, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, XXX Attention: ADR Department,
telephone: (000) 000 000-0000,
facsimile: (000) 000 000 0000 or to any other address
which the Depositary may specify in writing to the Company.
36
Any and
all notices to be given to any Holder shall be deemed to have been duly given if
personally delivered or sent by mail or cable, telex, facsimile transmission or
by electronic transmission (if agreed by the Company and the Depositary), at the
Company’s expense, unless otherwise agreed in writing between the Company and
the Depositary, addressed to such Holder at the address of such Holder as it
appears on the transfer books for Receipts of the Depositary, or, if such Holder
shall have filed with the Depositary a written request that notices intended for
such Holder be mailed to some other address, at the address specified in such
request. Notice to Holders shall be deemed to be notice to Beneficial Owners for
all purposes of this Deposit Agreement.
Delivery
of a notice sent by mail, air courier or cable, telex, facsimile or electronic
transmission shall be deemed to be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex, facsimile or electronic transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex, facsimile or electronic
transmission received by it from the other or from any Holder, notwithstanding
that such cable, telex, facsimile or electronic transmission shall not
subsequently be confirmed by letter as aforesaid, as the case may
be.
SECTION
7.6 Governing Law and
Jurisdiction. This Deposit Agreement and the Receipts shall be
interpreted in accordance with, and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by, the laws of the State of New
York without reference to the principles of choice of law thereof. Except as set
forth in the following paragraph of this Section 7.6, the Company and the
Depositary agree that the federal or state courts in the City of New York shall
have jurisdiction to hear and determine any suit, action or proceeding and to
settle any dispute between them that may arise out of or in connection with this
Deposit Agreement and, for such purposes, each irrevocably submits to the
non-exclusive jurisdiction of such courts. The Company hereby irrevocably
designates, appoints and empowers Grifols USA, LLC (the "Agent") now at 0000
Xxxxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000-0000, as its authorized agent to receive
and accept for and on its behalf, and on behalf of its properties, assets and
revenues, service by mail of any and all legal process, summons, notices and
documents that may be served in any suit, action or proceeding brought against
the Company in any federal or state court as described in the preceding sentence
or in the next paragraph of this Section 7.6. If for any reason the Agent shall
cease to be available to act as such, the Company agrees to designate a new
agent in the City of New York on the terms and for the purposes of this Section
7.6 reasonably satisfactory to the Depositary. The Company further hereby
irrevocably consents and agrees to the service of any and all legal process,
summons, notices and documents in any suit, action or proceeding against the
Company, by service by mail of a copy thereof upon the Agent (whether or not the
appointment of such Agent shall for any reason prove to be ineffective or such
Agent shall fail to accept or acknowledge such service), with a copy mailed to
the Company by registered or certified air mail, postage prepaid, to its address
provided in Section 7.5 hereof. The Company agrees that the failure of the Agent
to give any notice of such service to it shall not impair or affect in any way
the validity of such service or any judgment rendered in any action or
proceeding based thereon.
37
Notwithstanding
the foregoing, the Depositary and the Company unconditionally agree that in the
event that a Holder or Beneficial Owner brings a suit, action or proceeding
against (a) the Company, (b) the Depositary in its capacity as Depositary under
this Deposit Agreement or (c) against both the Company and the Depositary, in
any state or federal court of the United States, and the Depositary or the
Company have any claim, for indemnification or otherwise, against each other
arising out of the subject matter of such suit, action or proceeding, then the
Company and the Depositary may pursue such claim against each other in the state
or federal court in the United States in which such suit, action, or proceeding
is pending, and for such purposes, the Company and the Depositary irrevocably
submit to the non-exclusive jurisdiction of such courts. The Company agrees that
service of process upon the Agent in the manner set forth in the preceding
paragraph shall be effective service upon it for any suit, action or proceeding
brought against it as described in this paragraph.
The
Company irrevocably and unconditionally waives, to the fullest extent permitted
by law, any objection that it may now or hereafter have to the laying of venue
of any actions, suits or proceedings brought in any court as provided in this
Section 7.6, and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE
OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS)
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING
AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs,
THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE
BREACH HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY
OTHER THEORY).
The
provisions of this Section 7.6 shall survive any termination of this Deposit
Agreement, in whole or in part.
SECTION
7.7 Assignment. Subject
to the provisions of Section 5.4 hereof, this Deposit Agreement may not be
assigned by either the Company or the Depositary.
SECTION
7.8 Compliance with U.S.
Securities Laws. Notwithstanding anything in this Deposit
Agreement to the contrary, the withdrawal or delivery of Deposited Securities
will not be suspended by the Company or the Depositary except as would be
permitted by Instruction I.A.(1) of the General Instructions to Form F-6
Registration Statement, as amended from time to time, under the Securities
Act.
38
SECTION
7.10 Agents. The
Depositary shall be entitled, in its sole but reasonable discretion, to appoint
one or more agents (the "Agents") of which it shall have control for the
purpose, inter alia, of
making distributions to the Holders or otherwise carrying out its obligations
under this Agreement.
SECTION
7.11 Exclusivity. The
Company agrees not to appoint any other depositary for the issuance or
administration of depositary receipts evidencing any class of stock of the
Company so long as Deutsche Bank Trust Company Americas is acting as Depositary
hereunder.
39
IN
WITNESS WHEREOF, GRIFOLS, S.A. and DEUTSCHE BANK TRUST COMPANY AMERICAS have
duly executed this Deposit Agreement as of the day and year first above set
forth and all Holders and Beneficial Owners shall become parties hereto upon
acceptance by them of American Depositary Shares evidenced by Receipts issued in
accordance with the terms hereof.
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GRIFOLS,
S.A.
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Title:
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DEUTSCHE
BANK TRUST COMPANY AMERICAS
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Number
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CUSIP
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American Depositary Shares (Each
American Depositary Share representing one-half of one Fully Paid Ordinary
Share)
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EXHIBIT
A
[FORM
OF FACE OF RECEIPT]
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
Of
GRIFOLS,
S.A.
(Incorporated
under the laws of the Kingdom of Spain)
DEUTSCHE
BANK TRUST COMPANY AMERICAS, as depositary (herein called the "Depositary"),
hereby certifies that _____________is the owner of ______________ American
Depositary Shares (hereinafter "ADS"), representing deposited ordinary shares,
including evidence of rights to receive such ordinary shares, (the "Shares") of
Grifols, S.A. (the “Company”), a company incorporated under the laws of the
Kingdom of Spain (the "Company"). As of the date of the Deposit Agreement
(hereinafter referred to), each ADS represents one-half of one Share deposited
under the Deposit Agreement with the Custodian which at the date of execution of
the Deposit Agreement is Deutsche Bank Sociedad Anónima Española (the
"Custodian"). The ratio of Depositary Shares to shares of stock is subject to
subsequent amendment as provided in Article IV of the Deposit
Agreement. The Depositary’s Principal Office is located at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
(1) The Deposit
Agreement. This American Depositary Receipt is one of an issue
of American Depositary Receipts ("Receipts"), all issued and to be issued upon
the terms and conditions set forth in the Deposit Agreement, dated as of
[______________, 2009] (as amended from time to time, the "Deposit Agreement"),
by and among the Company, the Depositary, and all Holders and Beneficial Owners
from time to time of Receipts issued thereunder, each of whom by accepting a
Receipt agrees to become a party thereto and becomes bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights and obligations
of Holders and Beneficial Owners of 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, other securities, property and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Principal Office of the Depositary and the Custodian.
A-1
Each
owner and each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms and conditions of the Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound by
the terms of the Deposit Agreement and applicable ADR(s), and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in the Deposit Agreement and
applicable ADR(s), to adopt any and all procedures necessary to comply with
applicable law and to take such action as the Depositary in its sole discretion
may deem necessary or appropriate to carry out the purposes of the Deposit
Agreement and the applicable ADR(s), the taking of such actions to be the
conclusive determinant of the necessity and appropriateness
thereof.
The
statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and the Company’s Articles of Association
(as in effect on the date of the Deposit Agreement) and are qualified by and
subject to the detailed provisions of the Deposit Agreement, to which reference
is hereby made. All capitalized terms used herein which are not otherwise
defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made
arrangements for the acceptance of the American Depositary Shares into
DTC. Each Beneficial Owner of American Depositary Shares held through
DTC must rely on the procedures of DTC and the DTC Participants to exercise and
be entitled to any rights attributable to such American Depositary
Shares. The Receipt evidencing the American Depositary Shares held
through DTC will be registered in the name of a nominee of DTC. So
long as the American Depositary Shares are held through DTC or unless otherwise
required by law, ownership of beneficial interests in the Receipt registered in
the name of DTC (or its nominee) will be shown on, and transfers of such
ownership will be effected only through, records maintained by (i) DTC (or its
nominee), or (ii) DTC Participants (or their nominees).
(2) Surrender of Receipts and
Withdrawal of Deposited Securities. Upon surrender, at the
Principal Office of the Depositary, of ADSs evidenced by this Receipt for the
purpose of withdrawal of the Deposited Securities represented thereby, and upon
payment of (i) the fees and charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Article (9) hereof or
in Section 5.9 of the Deposit Agreement) and (ii) all applicable taxes and/or
governmental charges payable in connection with such surrender and withdrawal,
and, subject to the terms and conditions of the Deposit Agreement, the Company’s
Articles of Association, Section 7.8 of the Deposit Agreement, Article (22) of
this Receipt and the provisions of or governing the Deposited Securities and
other applicable laws, the Holder of the American Depositary Shares evidenced
hereby is entitled to Delivery, to him or upon his order, of the Deposited
Securities represented by the ADS so surrendered. Subject to the last
sentence of this paragraph, such Deposited Securities may be delivered in
certificated form or by electronic delivery. ADS may be surrendered for the
purpose of withdrawing Deposited Securities by delivery of a Receipt evidencing
such ADS (if held in certificated form) or by book-entry delivery of such ADS to
the Depositary.
A-2
A Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer in
blank, and if the Depositary so requires, the Holder 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 (without unreasonable delay) at the
designated office of the Custodian (subject to the terms and conditions of the
Deposit Agreement, to the Company’s Articles of Association, and to the
provisions of or governing the Deposited Securities and applicable laws, now or
hereafter in effect) or through a book entry Delivery of the Shares, to or upon
the written order of the person or persons designated in the order delivered to
the Depositary as provided above, the Deposited Securities represented by such
ADSs, together with any certificate or other proper documents of or relating to
title for the Deposited Securities or evidence of the electronic transfer
thereof (if available) as the case may be to or for the account of such
person.
The
Depositary may, in its discretion, refuse to accept for surrender a number of
American Depositary Shares representing a number of Shares other than a whole
number of Shares. In the case of surrender of a Receipt evidencing a
number of ADSs representing other than a whole number of Shares, the Depositary
shall cause ownership of the appropriate whole number of Shares to be Delivered
in accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt so surrendered and remit the proceeds thereof (net of
(a) applicable fees and charges of, and expenses incurred by, the Depositary and
(b) taxes and governmental charges) to the person surrendering the
Receipt. At the request, risk and expense of any Holder so
surrendering a Receipt, and for the account of such Holder, the Depositary shall
direct the Custodian to forward (to the extent permitted by law) any cash or
other property (other than securities) held in respect of, and any certificate
or certificates and other proper documents of or relating to title to, the
Deposited Securities represented by such Receipt to the Depositary for delivery
at the Principal Office of the Depositary, and for further delivery to such
Holder. Such direction shall be given by letter or, at the request,
risk and expense of such Holder, by cable, telex or facsimile
transmission. Upon receipt by the Depositary, the Depositary may make
delivery to such person or persons at the Principal Office of the Depositary of
any dividends or distributions with respect to the Deposited Securities
represented 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.
A-3
(3) Transfers, Split-Ups and
Combinations of Receipts. Subject to the terms and conditions
of the Deposit Agreement, the Registrar shall register transfers of Receipts on
its books, upon surrender at the Principal Office of the Depositary of a Receipt
by the Holder thereof in person or by duly authorized attorney, properly
endorsed (in the case of a certificated Receipt) or accompanied by proper
instruments of transfer (including signature guarantees in accordance with
standard industry practice) and duly stamped as may be required by the laws of
the State of New York and of the United States of America and of any other
applicable jurisdiction. Subject to the terms and conditions of the
Deposit Agreement, including payment of the applicable fees and charges of the
Depositary, the Depositary shall execute a new Receipt or Receipts (and if
necessary, cause the Registrar to countersign such Receipt(s)) and deliver same
to or upon the order of the person entitled to such Receipts evidencing the same
aggregate number of ADSs as those evidenced by the Receipts surrendered. Upon
surrender of a Receipt or Receipts for the purpose of effecting a split-up or
combination of such Receipt or Receipts upon payment of the applicable fees and
charges of the Depositary, and subject to the terms and conditions of the
Deposit Agreement, the Depositary shall execute and deliver a new Receipt or
Receipts for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as the Receipt or Receipts surrendered.
(4) Pre-Conditions to
Registration, Transfer, Etc. As a condition precedent to the
execution and delivery, registration of transfer, split-up, subdivision
combination or surrender of any Receipt, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or 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), any brokerage fees applied by Spanish stock exchanges
or the relevant member of such stock exchanges acting as a broker/dealer or any
other person authorized under Spanish law to act in a similar capacity
and payment of any applicable fees and charges of the Depositary as
provided in the Deposit Agreement and in this Receipt, (ii) the production of
proof satisfactory to it as to the identity and genuineness of any signature or
any other matters and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of Receipts and ADSs or to
the withdrawal of Deposited Securities and (B) such reasonable regulations of
the Depositary consistent with the Deposit Agreement and applicable
law.
The
issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the issuance of ADSs against the deposit
of particular Shares may be withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of transfer
of 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, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange upon which the Receipts or Shares
are listed, or under any provision of the Deposit Agreement or provisions of, or
governing, the Deposited Securities or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (22) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, the Holders of Receipts are entitled to surrender outstanding ADSs to
withdraw the Deposited Securities at any time 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,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities, and
(iv) other circumstances specifically contemplated by Section I.A.(l) of the
General Instructions to Form F-6 (as such General Instructions may be amended
from time to time). Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the U.S.
Securities Act, unless a registration statement is in effect as to such
Shares.
A-4
(5) Compliance With Information
Requests. Notwithstanding any other provision of the Deposit
Agreement or this Receipt, each Holder and Beneficial Owner of the ADSs
represented hereby agrees to comply with requests from the Company pursuant to
the laws of Spain and any stock exchange on which the Shares are, or will be
registered, traded or listed, the Company’s Articles of
Association, which are made to provide information as to the capacity in which
such Holder or Beneficial Owner owns ADSs and regarding the identity of any
other person interested in such ADSs and the nature of such interest and various
other matters whether or not they are Holders and/or Beneficial Owner at the
time of such request. The Depositary agrees to use reasonable efforts to forward
any such requests to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
(6) Liability of Holder for
Taxes, Duties and Other Charges. If any tax or other
governmental charge shall become payable by the Depositary or the Custodian with
respect to any Shares, Deposited Securities, Receipts or ADSs, such tax, or
other governmental charge shall be payable by the Holders and Beneficial Owners
to the Depositary and such Holders and Beneficial Owners shall be deemed liable
therefor. The Company, the Custodian and/or the Depositary may withhold or
deduct from any distributions made in respect of Deposited Securities and may
sell for the account of the Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in payment
of such taxes (including applicable interest and penalties) or charges, with the
Holder and the Beneficial Owner hereof remaining fully liable for any
deficiency. In addition to any other remedies available to it, the
Depositary and the Custodian may refuse the deposit of Shares, and the
Depositary may refuse to issue ADSs, to deliver ADSs, register the transfer,
split-up or combination of ADRs and (subject to Article (22) hereof) the
withdrawal of Deposited Securities, until payment in full of such tax, charge,
penalty or interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian and each of their
respective agents, officers, directors, employees and Affiliates for, and hold
each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used by
the Depositary to report distribution rates (which in any case will not be less
than two decimal places). Any excess amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any other fees
and expenses payable or owing hereunder and shall not be subject to
escheatment.
A-5
(7) Representations and
Warranties of Depositors; Ongoing Covenant. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares (and the certificates therefor) are
duly authorized, validly issued, fully paid, non-assessable and were legally
obtained by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares, have been validly waived or exercised, (iii) the person
making such deposit is duly authorized so to do, (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim and are not, and the ADSs issuable upon such deposit
will not be, Restricted Securities and (v) the Shares presented for deposit have
not been stripped of any rights or entitlements. Such representations
and warranties shall survive the deposit and withdrawal of Shares and the
issuance, cancellation and transfer of ADSs. If any such
representations or warranties are false in any way, the Company and Depositary
shall be authorized, at the cost and expense of the person depositing Shares, to
take any and all actions necessary to correct the consequences
thereof.
By
holding Receipts, ADSs or interests therein, Holders (other than Cede & Co.
or any other nominee of DTC) and Beneficial Owners covenant and agree that they
shall not, at any time, own or control such number of ADSs that represents more
than three percent (3%) of the Shares. Such Holders and
Beneficial Owners covenant and agree to immediately comply with the provisions
of Section 3.4 of the Deposit Agreement and Article (24) hereof should they
breach such covenant and agreement.
(8) Filing Proofs, Certificates
and Other Information. Any person presenting Shares for
deposit, any Holder and any Beneficial Owner may be required, and every Holder
and Beneficial Owner agrees, from time to time to provide to the Depositary such
proof of citizenship or residence, taxpayer status, payment of all applicable
taxes or other governmental charges, exchange control approval, legal or
beneficial ownership of ADSs and Deposited Securities, compliance with
applicable laws and the terms of the Deposit Agreement and the provisions of, or
governing, the Deposited Securities or other information as the Depositary deems
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under the Deposit Agreement.
Subject to Article (22) hereof and the terms of the Deposit Agreement, the
Depositary and the Registrar, as applicable, may withhold the delivery or
registration of transfer of any Receipt or the distribution or sale of any
dividend or other 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 certifications are executed, or such representations and
warranties made, or such information and documentation are
provided.
(9) Charges of
Depositary. The Depositary shall charge the following fees for
the services performed under the terms of the Deposit Agreement; provided,
however, that no fees shall be payable upon distribution of cash dividends so
long as the charging of such fee is prohibited by the exchange, if any, upon
which the ADSs are listed:
A-6
(i) to
any person to whom ADSs are issued or to any person to whom a distribution is
made in respect of ADS distributions pursuant to stock dividends or other free
distributions of stock, bonus distributions, stock splits or other distributions
(except where converted to cash), a fee not in excess of U.S. $ 5.00 per 100
ADSs (or fraction thereof) so issued under the terms of the Deposit Agreement to
be determined by the Depositary;
(ii) to
any person surrendering ADSs for cancellation and withdrawal of Deposited
Securities including, inter
alia, cash distributions made pursuant to a cancellation or withdrawal, a
fee not in excess of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so
surrendered;
(iii) to
any Holder of ADSs, a fee not in excess of U.S. $ 2.00 per 100
ADS held for the distribution of cash proceeds, including cash
dividends or sale of rights and other entitlements, not made pursuant to a
cancellation or withdrawal;
(iv) to any
holder of ADSs, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or portion
thereof) issued upon the exercise of rights;
(v) for the
operation and maintenance costs in administering the ADSs an annual fee of U.S.
$ 2.00 per 100 ADS; provided, however, that if the Depositary imposes a fee
under this clause (v), then the total of fees assessed under this clause (v),
combined with the total of fees assessed under clause (iii) above, shall not
exceed U.S. $ 2.00 per 100 ADS in any calendar year; and
(vi) for the
expenses incurred by the Depositary, the Custodian or their respective agents in
connection with inspections of the relevant share register maintained by the
local registrar and/or performing due diligence on the central securities
depository for Spain, an annual fee of U.S.$1.00 per 100 ADSs (such
fee to be assessed against Holders of record as at the date or dates set by the
Depositary as it sees fit and collected at the sole discretion of the Depositary
by billing such Holders for such fee or by deducting such fee from one or more
cash dividends or other cash distributions).
In
addition, Holders, Beneficial Owners, person depositing Shares for deposit and
person surrendering ADSs for cancellation and withdrawal of Deposited Securities
will be required to pay the following charges:
(i) taxes
(including applicable interest and penalties) and other governmental
charges;
(ii) such
registration fees as may from time to time be in effect for the registration of
Shares or other Deposited Securities with the Foreign Registrar and applicable
to transfers of Shares or other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such
cable, telex , facsimile and electronic transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners of
ADSs;
(iv) the
expenses and charges incurred by the Depositary in the conversion of Foreign
Currency;
A-7
(v) such
fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory requirements
applicable to Shares, Deposited Securities, ADSs and ADRs;
(vi) the
fees and expenses incurred by the Depositary in connection with the delivery of
Deposited Securities, including any fees of a central depository for securities
in the local market, where applicable;
(vii) any
additional fees, charges, costs or expenses that may be incurred by the
Depositary from time to time.
Any other
charges and expenses of the Depositary under the Deposit Agreement will be paid
by the Company upon agreement between the Depositary and the
Company. All fees and charges may, at any time and from time to time,
be changed by agreement between the Depositary and Company but, in the case of
fees and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (20) of this Receipt.
(10) Title to
Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) is
transferable by delivery of the Receipt, provided it has been properly endorsed
or accompanied by proper instruments of transfer, such Receipt being a
certificated security under the laws of the State of New
York. Notwithstanding any notice to the contrary, the Depositary may
deem and treat the Holder of this Receipt (that is, the person in whose name
this Receipt is registered on the books of the Depositary) as the absolute owner
hereof for all purposes. The Depositary shall have no obligation or
be subject to any liability under the Deposit Agreement or this Receipt to any
holder of this Receipt or any Beneficial Owner unless such holder is the Holder
of this Receipt registered on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner or the Beneficial Owner’s representative
is the Holder registered on the books of the Depositary.
(11) Validity of
Receipt. This Receipt shall not be entitled to any benefits
under the Deposit Agreement or be valid or enforceable for any purpose, unless
this Receipt has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) if a Registrar
for the Receipts shall have been appointed, countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar and (iv)
registered in the books maintained by the Depositary or the Registrar, as
applicable, for the issuance and transfer of Receipts. Receipts
bearing the facsimile signature of a duly-authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly-authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the execution and delivery of such Receipt by the Depositary
or did not hold such office on the date of issuance of such
Receipts.
A-8
(12) Available Information;
Reports; Inspection of Transfer Books. As of the date of the
Deposit Agreement, the Company publishes information in English required to
maintain the exemption from registration under Rule 12g3-2(b) under the Exchange
Act on its Internet Web site (xxx.xxxxxxx.xxx) or through an electronic
information delivery system generally available to the public in its primary
trading market. Should the Company become subject to the periodic reporting or
other informational requirements under the Securities Exchange Act of 1934, it
will be required in accordance therewith to file reports and other information
with the U.S. Securities and Exchange Commission. The Depositary does
not assume any duty to determine if the Company is complying with the current
requirements of Rule 12g3-2(b) under the Exchange Act or to take any
action if the Company is not complying with those requirements.
The
Depositary shall make available during normal business hours on any Business Day
for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the
Company.
The
Depositary or the Registrar, as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary’s or the
Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the
Receipts.
The
Depositary or the Registrar, as applicable, may close the transfer books with
respect to the Receipts, at any time or from time to time, when deemed necessary
or advisable by it in good faith in connection with the performance of its
duties hereunder, or at the reasonable written request of the Company subject,
in all cases, to Article (22) hereof.
|
Dated:
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DEUTSCHE
BANK TRUST COMPANY
AMERICAS, as Depositary
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By:
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Vice
President
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The
address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
A-9
[FORM
OF REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF THE
DEPOSIT AGREEMENT
(13) Dividends and Distributions
in Cash, Shares, etc. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Shares, rights securities or other entitlements under the Deposit Agreement,
the Depositary will, if at the time of receipt thereof any amounts received in a
Foreign Currency can, in the judgment of the Depositary (upon the terms of the
Deposit Agreement), be converted on a practicable basis, into Dollars
transferable to the United States, promptly convert or cause to be converted
such dividend, distribution or proceeds into Dollars and will distribute
promptly the amount thus received (net of applicable fees and charges of, and
expenses incurred by, the Depositary and taxes and governmental charges
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of ADS representing such Deposited Securities held by such Holders
respectively as of the ADS Record Date. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Holder a fraction of one cent. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto. If the Company, the Custodian 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, duties or other governmental charges, the amount distributed to Holders
on the ADSs representing such Deposited Securities shall be reduced accordingly.
Such withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Any Foreign
Currency received by the Depositary shall be converted upon the terms and
conditions set forth in the Deposit Agreement.
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall or cause such Shares to be deposited
with the Custodian and registered, as the case may be, in the name of the
Depositary, the Custodian or their nominees. Upon receipt of
confirmation of such deposit, the Depositary shall, subject to and in accordance
with the Deposit Agreement, establish the ADS Record Date and either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of ADSs held as of the ADS Record Date, additional ADSs, which represent in
aggregate the number of Shares received as such dividend, or free distribution,
subject to the terms of the Deposit Agreement (including, without limitation,
the applicable fees and charges of, and expenses incurred by, the Depositary,
and taxes), or (ii) if additional ADSs are not so distributed, each ADS issued
and outstanding after the ADS Record Date shall, to the extent permissible by
law, thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby (net of the
applicable fees and charges of, and the expenses incurred by, the Depositary,
and taxes and governmental charges). In lieu of delivering fractional
ADSs, the Depositary shall sell the number of Shares represented by the
aggregate of such fractions and distribute the proceeds upon the terms set forth
in the Deposit Agreement.
A-10
In the
event that (x) the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, or, (y) if the Company, in the fulfillment
of its obligations under the Deposit Agreement, has either (a) furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), or (b) fails to timely
deliver the documentation contemplated in the Deposit Agreement, the Depositary
may dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of taxes and/or governmental charges and fees and charges of, and expenses
incurred by, the Depositary) to Holders entitled thereto upon the terms of the
Deposit Agreement. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
Upon
timely receipt of a notice indicating that the Company wishes an elective
distribution to be made available to Holders upon the terms described in the
Deposit Agreement, the Depositary shall, upon provision of all documentation
required under the Deposit Agreement, (including, without limitation, any legal
opinions the Depositary may reasonably request, to be furnished at the expense
of the Company) determine whether such distribution is lawful and reasonably
practicable. If so, the Depositary shall, subject to the terms and
conditions of the Deposit Agreement, establish an ADS Record Date according to
Article (14) hereof and establish procedures to enable the Holder hereof to
elect to receive the proposed distribution in cash or in additional
ADSs. If a Holder elects to receive the distribution in cash, the
dividend shall be distributed as in the case of a distribution in
cash. If the Holder hereof elects to receive the distribution in
additional ADSs, the distribution shall be distributed as in the case of a
distribution in Shares upon the terms described in the Deposit
Agreement. If such elective distribution is not lawful or reasonably
practicable or if the Depositary did not receive satisfactory documentation set
forth in the Deposit Agreement, the Depositary shall, to the extent permitted by
law, distribute to Holders, on the basis of the same determination as is made in
Spain in respect of the Shares for which no election is made, either (x) cash or
(y) additional ADSs representing such additional Shares, in each case, upon the
terms described in the Deposit Agreement. Nothing herein shall
obligate the Depositary to make available to the Holder hereof a method to
receive the elective distribution in Shares (rather than ADSs). There
can be no assurance that the Holder hereof will be given the opportunity to
receive elective distributions on the same terms and conditions as the holders
of Shares.
A-11
Upon
receipt by the Depositary of a notice indicating that the Company wishes rights
to subscribe for additional Shares to be made available to Holders of ADSs, the
Company shall determine whether it is lawful and reasonably practicable to make
such rights available to the Holders. The Depositary shall make such rights
available to any Holders only if the Company shall have timely requested that
such rights be made available to Holders, the Depositary shall have received the
documentation required by the Deposit Agreement, and the Depositary shall have
determined that such distribution of rights is lawful and reasonably
practicable. If such conditions are not satisfied, the Depositary
shall sell the rights as described below. In the event all conditions
set forth above are satisfied, the Depositary shall establish an ADS Record Date
and establish procedures (x) to distribute such rights (by means of warrants or
otherwise) and (y) to enable the Holders to exercise the rights (upon payment of
the applicable fees and charges of, and expenses incurred by, the Depositary and
taxes and other governmental charges). Nothing herein or in the
Deposit Agreement shall obligate the Depositary to make available to the Holders
a method to exercise such rights to subscribe for Shares (rather than
ADSs). If (i) the Company does not timely request the Depositary to
make the rights available to Holders or if the Company requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive the
documentation required by the Deposit Agreement or determines it is not lawful
or reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity or otherwise, at such place
and upon such terms (including public and/or private sale) as it may deem
proper. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable fees and charges of, and expenses
incurred by, the Depositary and taxes and governmental charges) upon the terms
hereof and in the Deposit Agreement. If the Depositary is unable to
make any rights available to Holders or to arrange for the sale of the rights
upon the terms described above, the Depositary shall allow such rights to
lapse. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding
anything herein to the contrary, if registration (under the Securities Act
and/or any other applicable law) of the rights or the securities to which any
rights relate may be required in order for the Company to offer such rights or
such securities to Holders and to sell the securities represented by such
rights, the Depositary will not distribute such rights to the Holders (i) unless
and until a registration statement under the Securities Act (and/or such other
applicable law) covering such offering is in effect or (ii) unless the Company
furnishes to the Depositary opinion(s) of counsel for the Company in the United
States and counsel to the Company in any other applicable country in which
rights would be distributed, in each case satisfactorily to the Depositary, to
the effect that the offering and sale of such securities to Holders and
Beneficial Owners are exempt from, or do not require registration under, the
provisions of the Securities Act or any other applicable laws. In the
event that the Company, the Depositary or the Custodian shall be required to
withhold and does withhold from any distribution of property (including rights)
an amount on account of taxes or other governmental charges, the amount
distributed to the Holders shall be reduced accordingly. 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
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes and charges.
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as the
holders of Shares or to exercise such rights. Nothing herein shall
obligate the Company to file any registration statement in respect of any rights
or Shares or other securities to be acquired upon the exercise of such
rights.
A-12
Upon
receipt of a notice regarding property other than cash, Shares or rights to
purchase additional Shares, to be made to Holders of ADSs, the Depositary shall
determine, upon consultation with the Company, whether such distribution to
Holders is lawful and practicable. The Depositary shall not make such
distribution unless (i) the Company shall have timely requested the Depositary
to make such distribution to Holders, (ii) the Depositary shall have received
the documentation required by the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is lawful and reasonably
practicable. Upon satisfaction of such conditions, the Depositary
shall distribute the property so received to the Holders of record as of the ADS
Record Date, in proportion to the number of ADSs held by such Holders
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes and governmental charges withheld. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
If the
conditions above are not satisfied, the Depositary shall sell or cause such
property to be sold in a public or private sale, at such place or places and
upon such terms as it may deem proper and shall distribute the proceeds of such
sale received by the Depositary (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes and governmental charges) to
the Holders upon the terms hereof and of the Deposit Agreement. If
the Depositary is unable to sell such property, the Depositary may dispose of
such property in any way it deems reasonably practicable under the
circumstances.
(14) Fixing of Record
Date. Whenever necessary in connection with any distribution
(whether in cash, shares, rights or other distribution), or whenever for any
reason the Depositary causes a change in the number of Shares that are
represented by each ADS, or whenever the Depositary shall receive notice of any
meeting of holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, or any other matter, the Depositary shall fix a record date ("ADS
Record Date") as close as practicable to the record date fixed by the Company
with respect to the Shares (if applicable) for the determination of the Holders
who shall be entitled to receive such distribution, to give instructions for the
exercise of voting rights at any such meeting, or to give or withhold such
consent, or to receive such notice or solicitation or to otherwise take action,
or to exercise the rights of Holders with respect to such changed number of
Shares represented by each ADS or for any other reason. Subject to applicable
law and the terms and conditions of this Receipt and the Deposit Agreement, only
the Holders of record at the close of business in New York on such ADS Record
Date shall be entitled to receive such distributions, to give such voting
instructions, to receive such notice or solicitation, or otherwise take
action.
A-13
(15) Voting of Deposited
Securities. As soon as practicable after receipt of notice of
any meeting at which the holders of Shares are entitled to vote, or of
solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such
meeting or solicitation of such consent or proxy. The Depositary shall, if
requested by the Company in writing in a timely manner (the Depositary having no
obligation to take any further action if the request shall not have been
received by the Depositary at least 30 days prior to the date of such vote or
meeting), at the Company's expense and provided no U.S. legal prohibitions
exist, mail by ordinary, regular mail delivery or by electronic transmission (or
as otherwise agreed by the Company and the Depositary), unless otherwise agreed
in writing by the Company and the Depositary, to Holders as of the ADS Record
Date: (a) such notice of meeting or solicitation of consent or proxy; (b) a
statement that the Holders at the close of business on the ADS Record Date will
be entitled, subject to any applicable law, the provisions of the Deposit
Agreement, the Company’s Articles of Association and the provisions of or
governing Deposited Securities (which provisions, if any, shall be summarized in
pertinent part by the Company), to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Shares or other Deposited
Securities represented by such Holder's ADSs; and (c) a brief statement as to
the manner in which such instructions may be given, including an express
indication that, if no specific voting instruction is received prior to the date
set by the Depositary therefor, then the Holders of those American Depositary
Shares for which no specific voting instructions have been timely received shall
in each case be deemed to have instructed the Depositary to give a proxy to a
person designated by the Company. Upon the timely receipt of written
instructions of a Holder of ADSs on the ADS Record Date, the Depositary shall
endeavor, insofar as practicable and permitted under applicable law and the
provisions of the Company’s Articles of Association and the provisions of the
Deposited Securities, to vote or cause the Custodian to vote the Shares and/or
other Deposited Securities represented by ADSs evidenced by such Receipt in
accordance with such instructions.
Neither
the Depositary nor the Custodian shall, under any circumstances exercise any
discretion as to voting, and neither the Depositary nor the Custodian shall
vote, attempt to exercise the right to vote, or in any way make use of, for
purposes of establishing a quorum or otherwise the Shares or other Deposited
Securities represented by ADSs except pursuant to and in accordance with such
written instructions from Holders.
To the
extent voting instruction cards are not so received by the Depositary from any
Holder, the Depositary shall deem such Holder to have so instructed the
Depositary to give a discretionary proxy to a person designated by the Company
and the Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to give a discretionary proxy to
a person designated by the Company to vote the Deposited Securities represented
by the American Depositary Shares evidenced by such Holder's Receipts as to
which such instructions are so given, provided that no such instruction shall be
deemed given and no discretionary proxy shall be given (i) with respect to any
matter as to which the Company informs the Depositary (and the Company agrees to
provide such information promptly in writing when and if applicable) that (x)
the Company does not wish such proxy given, (y) substantial opposition exists or
(z) materially affects the rights of holders of Shares and (ii) unless, with
respect to such meeting, the Depositary has been provided with an opinion of
counsel to the Company, in form and substance satisfactory to the Depositary, to
the effect that (a) the granting of such discretionary proxy does not subject
the Depositary to any reporting obligations in the Kingdom of Spain, (b) the
granting of such proxy will not result in a violation of Spanish law, rule,
regulation or permit, (c) the voting arrangement and deemed instruction as
contemplated herein will be given effect under Spanish law, and (d) the granting
of such discretionary proxy will not result in the Shares represented by the
ADSs being considered assets of the Depositary under Spanish law.
A-14
There can
be no assurance that Holders or Beneficial Owners generally or any Holder or
Beneficial Owner in particular will receive the notice described above with
sufficient time to enable the Holder to return voting instructions to the
Depositary in a timely manner.
Notwithstanding
the above, and in accordance with Section 5.3 of the Deposit Agreement, the
Depositary shall not be liable for any failure to carry out any instructions to
vote any of the Deposited Securities, or for the manner in which such vote is
cast or the effect of any such vote.
(16) Changes Affecting Deposited
Securities. Upon any change in par value, split-up,
subdivision cancellation, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation or sale of assets affecting the Company or to
which it otherwise is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement or
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the Receipts shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. Alternatively, the Depositary may, with the
Company's approval, and shall, if the Company shall so request, subject to the
terms of the Deposit Agreement and receipt of satisfactory documentation
contemplated by the Deposit Agreement, execute and deliver additional Receipts
as in the case of a stock dividend on the Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts, in either case, as well
as in the event of newly deposited Shares, with necessary modifications to this
form of Receipt specifically describing such new Deposited Securities and/or
corporate change. Notwithstanding the foregoing, in the event that any security
so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company's approval, and shall if the Company requests,
subject to receipt of satisfactory legal documentation contemplated in the
Deposit Agreement, sell such securities at public or private sale, at such place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of fees and charges of, and expenses incurred by,
the Depositary and taxes and governmental charges) for the account of the
Holders otherwise entitled to such securities and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to the Deposit Agreement. The Depositary shall not be responsible
for (i) any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or any Holder in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
A-15
(17) Exoneration. Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of the Deposit Agreement or
shall incur any liability (i) if the Depositary, the Custodian or the Company or
their respective controlling persons or agents shall be prevented or forbidden
from, or subjected to any civil or criminal penalty or restraint on account of,
or delayed in, doing or performing any act or thing required by the terms of the
Deposit Agreement and this Receipt, by reason of any provision of any present or
future law or regulation of the United States or any state thereof, the Kingdom of Spain or any
other country, or of any other governmental authority or regulatory authority or
stock exchange, or on account of the possible criminal or civil penalties or
restraints or by reason of any provision, present or future of the Company’s
Articles of Association or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control, (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in the Deposit Agreement or
in the Company’s Articles of Association or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the Custodian or
the Company or their respective controlling persons or agents in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for any inability by a Holder
or Beneficial Owner 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 Holders of ADS or
(v) for any special, consequential, indirect or punitive damages for any breach
of the terms of the Deposit Agreement. The Depositary, its
controlling persons, its agents, any Custodian and the Company, its controlling
persons and its agents may rely and shall be protected in acting upon any
written notice, request, opinion or other document believed by it to be genuine
and to have been signed or presented by the proper party or
parties. If the Company shall have used its reasonable efforts to
appoint a successor depositary it shall have no liability to Holders for any
failure to appoint such a successor. No disclaimer of liability
under the Securities Act is intended by any provision of the Deposit
Agreement.
(18) Standard of
Care. The Company and the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons (except for the Company’s and the Depositary’s obligations specifically
set forth in Section 5.8 of the Deposit Agreement), provided, that the Company
and the Depositary and their respective agents agree to perform their respective
obligations specifically set forth in the Deposit Agreement without gross
negligence or willful misconduct. The Depositary and its agents shall
not be liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast (provided that
any such action or omission is in good faith and in accordance with the terms of
the Deposit Agreement) or the effect of any vote. The Depositary
shall not incur any liability for any failure to determine that any distribution
or action may be lawful or reasonably practicable, for the content of any
information submitted to it by the Company for distribution to the Holders or
for any inaccuracy of any translation thereof, for any investment risk
associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon the
terms of the Deposit Agreement or for the failure or timeliness of any notice
from the Company. In no event shall the Depositary or any of its
agents (including, without limitation, its Agents) be liable for any indirect,
special, punitive or consequential damages.
A-16
(19) Resignation and Removal of
the Depositary; Appointment of Successor Depositary. The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice of resignation delivered to the Company, such resignation to be
effective on the earlier of (i) the 90th day
after delivery thereof to the Company, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement, save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such resignation. The
Company shall use reasonable efforts to appoint such successor depositary, and
give notice to the Depositary of such appointment, not more than 90 days after
delivery by the Depositary of written notice of resignation as provided in the
Deposit Agreement. The Depositary may at any
time be removed by the Company by written notice of such removal which notice
shall be effective on the later of (i) the 90th day
after delivery thereof to the Depositary, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such removal. In case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its best efforts to appoint a successor depositary which shall
be a bank or trust company having an office in the Borough of Manhattan, the
City of New York. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. 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.
A-17
(20) Amendment/Supplement. Subject
to the terms and conditions of this Article (20), and applicable law, this
Receipt and any provisions of the Deposit Agreement may at any time and from
time to time be amended or supplemented by written agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until 30 days after notice of such amendment or supplement shall have
been given to the Holders of outstanding Receipts. The parties hereto agree that
any amendments or supplements which (i) are reasonably necessary (as agreed by
the Company and the Depositary) in order for (a) the ADSs to be registered on
Form F-6 under the Securities Act or (b) the ADSs or Shares to be traded solely
in electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such ADS, to consent
and agree to such amendment or supplement and to be bound by the Deposit
Agreement as amended or supplemented thereby. In no event shall any amendment or
supplement impair the right of the Holder to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except in order to comply
with mandatory provisions of applicable law. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the Receipt at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement to the Deposit Agreement in
such circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, or rules or regulations.
A-18
(21) Termination. The
Depositary shall, at any time at the written direction of the Company, terminate
the Deposit Agreement by mailing notice of such termination to the Holders of
all Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the terms
of the Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time to
time, prior to such termination shall take effect. If 90 days shall have expired
after (i) the Depositary shall have delivered to the Company a written notice of
its election to resign, or (ii) the Company shall have delivered to the
Depositary a written notice of the removal of the Depositary, and in either case
a successor depositary shall not have been appointed and accepted its
appointment as provided herein and in the Deposit Agreement, the Depositary may
terminate the Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed for such termination. On and after the date of termination of the Deposit
Agreement, the Holder will, upon surrender of such Holder's Receipt at the
Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the surrender of Receipts referred to in Article (2) hereof and
in the Deposit Agreement and subject to the conditions and restrictions therein
set forth, and upon payment of any applicable taxes and/or governmental charges,
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of the Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of Receipts, and the Depositary
shall suspend the distribution of dividends to the Holders 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 as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in the Deposit
Agreement, 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, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes and/or governmental charges or assessments). At any time
after the expiration of six months from the date of termination of the Deposit
Agreement, 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, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders of
Receipts whose Receipts have not theretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations under the Deposit
Agreement with respect to the Receipts and the Shares, Deposited Securities and
ADSs, except to account for such net proceeds and other cash (after deducting,
or charging, as the case may be, in each case the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes and/or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
(22) Compliance with U.S.
Securities Laws; Regulatory Compliance. Notwithstanding any
provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Instruction I.A.(1) of
the General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act.
A-19
(23) Certain Rights of the
Depositary; Limitations. Subject to the further terms and
provisions of this Article (23), the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its affiliates and in ADSs. The Depositary may issue ADSs against
evidence of rights to receive Shares from the Company, any agent of the Company
or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
ownership of Shares furnished on behalf of the holder thereof. In its capacity
as Depositary, the Depositary shall not lend Shares or ADSs; provided, however, that the
Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to Section
2.3 of the Deposit Agreement and (ii) deliver Shares prior to the receipt and
cancellation of ADSs pursuant to Section 2.6 of the Deposit Agreement, including
ADSs which were issued under (i) above but for which Shares may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) accompanied
by or subject to a written agreement whereby the person or entity (the
"Applicant") to whom ADSs or Shares are to be delivered (1) represents that at
the time of the Pre-Release Transaction the Applicant or its customer owns the
Shares or ADSs that are to be delivered by the Applicant under such Pre-Release
Transaction, (2) agrees to indicate the Depositary as owner of such Shares or
ADSs in its records and to hold such Shares or ADSs in trust for the Depositary
until such Shares or ADSs are delivered to the Depositary or the Custodian, (3)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (4) agrees to any additional restrictions or
requirements that the Depositary deems appropriate; (b) at all times fully
collateralized with cash, U.S. government securities 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
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above), 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 also set limits with
respect to the number of ADSs and Shares involved in Pre-Release Transactions
with any one person on a case by case basis as it deems appropriate. The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not earnings thereon, shall be held for the benefit of the Holders (other than
the Applicant).
(24) Ownership Restrictions;
Obligations; Remedies. Holders and Beneficial Owners
shall comply with any limitations on ownership of Shares under the Articles of
Incorporation of the Company or applicable Spanish law as if they held the
number of Shares their American Depositary Shares
represent. The Company shall inform the Holders, Beneficial
Owners and the Depositary of any such ownership restrictions in place from time
to time. By holding Receipts, ADSs or interests therein, Holders (other than
Cede & Co. or any other nominee of DTC) and Beneficial Owners agree to
notify the Company in writing at such time as they own or otherwise control such
number of ADSs as equals or exceeds three percent (3%) of the voting shares of
the Company. The Company reserves the right to instruct Holders
and Beneficial Owners who provide such notices to deliver their ADSs for
cancellation and withdrawal of the Deposited Securities so as to permit the
Company to deal directly with them as holders of Shares and Holders
and Beneficial Owners agree to comply with such
instructions. At all times the Company agrees to post on its
website (xxx.xxxxxxx.xxx) the number of outstanding voting shares of the Company
so as to enable Holders and Beneficial Owners to determine if they have met or
exceeded the three percent threshold set forth above.
(25) Waiver. EACH
PARTY TO THE DEPOSIT AGREEMENT INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS) HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY).
A-20
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s) unto
______________________________ whose taxpayer identification number is
_______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
|
Dated:
|
Name:
|
||
|
By:
|
|||
|
Title:
|
|||
|
NOTICE:
The signature of the Holder to this assignment must correspond with the
name as written upon the face of the within instrument in every
particular, without alteration or enlargement or any change
whatsoever.
|
|||
|
If
the endorsement be executed by an attorney, executor, administrator,
trustee or guardian, the person executing the endorsement must give
his/her full title in such capacity and proper evidence of authority to
act in such capacity, if not on file with the Depositary, must be
forwarded with this Receipt.
|
|||
SIGNATURE
GUARANTEED
________________________
A-21
|
Page
|
|||||
|
ARTICLE
I DEFINITIONS
|
3
|
||||
|
SECTION
1.1
|
"Affiliate"
|
3
|
|||
|
SECTION
1.2
|
"Agent"
|
3
|
|||
|
SECTION
1.3
|
"American
Depositary Share(s)" and "ADS(s)"
|
3
|
|||
|
SECTION
1.4
|
"ADS
Record Date"
|
3
|
|||
|
SECTION
1.5
|
"Beneficial
Owner"
|
4
|
|||
|
SECTION
1.6
|
"Business
Xxx"
|
0
|
|||
|
SECTION
1.7
|
"Commission"
|
4
|
|||
|
SECTION
1.8
|
"Company"
|
4
|
|||
|
SECTION
1.9
|
"Custodian"
|
4
|
|||
|
SECTION
1.10
|
"Deliver"
and "Delivery"
|
4
|
|||
|
SECTION
1.11
|
"Deposit
Agreement"
|
5
|
|||
|
SECTION
1.12
|
"Depositary"
|
5
|
|||
|
SECTION
1.13
|
"Deposited
Securities"
|
5
|
|||
|
SECTION
1.14
|
"Dollars"
and "$"
|
5
|
|||
|
SECTION
1.15
|
"DRS/Profile"
|
5
|
|||
|
SECTION
1.16
|
"DTC"
|
5
|
|||
|
SECTION
1.17
|
"Exchange
Act"
|
5
|
|||
|
SECTION
1.18
|
"Foreign
Currency"
|
5
|
|||
|
SECTION
1.19
|
"Foreign
Xxxxxxxxx"
|
0
|
|||
|
SECTION
1.20
|
"Holder"
|
6
|
|||
|
SECTION
1.21
|
“Indemnified
Person” and “Indemnifying Person”
|
6
|
|||
|
SECTION
1.22
|
“Pre-Release”
|
6
|
|||
|
SECTION
1.23
|
"Principal
Office"
|
6
|
|||
|
SECTION
1.24
|
"Receipt(s)";
"American Depositary Receipt(s)" and "ADR(s)"
|
6
|
|||
|
SECTION
1.25
|
"Registrar"
|
7
|
|||
|
SECTION
1.26
|
"Restricted
Securities"
|
7
|
|||
|
SECTION
1.27
|
"Securities
Act"
|
8
|
|||
|
SECTION
1.28
|
"Shares"
|
8
|
|||
|
SECTION
1.29
|
"United
States" or "U.S."
|
8
|
|||
|
ARTICLE
II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT
OF
|
|||||
|
SHARES;
EXECUTION AND DELIVERY, TRANSFER AND
|
|||||
|
SURRENDER
OF RECEIPTS
|
8
|
||||
|
SECTION
2.1
|
Appointment
of Depositary
|
8
|
|||
|
SECTION
2.2
|
Form
and Transferability of Receipts
|
9
|
|||
|
SECTION
2.3
|
Deposits
|
11
|
|||
|
SECTION
2.4
|
Execution
and Delivery of Receipts
|
13
|
|||
|
SECTION
2.5
|
Transfer
of Receipts; Combination and Split-up of Receipts
|
15
|
|||
(i)
|
Page
|
|||||
|
SECTION
2.6
|
Surrender
of Receipts and Withdrawal of Deposited Securities
|
16
|
|||
|
SECTION
2.7
|
Limitations
on Execution and Delivery, Transfer, etc. of
|
||||
|
Receipts;
Suspension of Delivery, Transfer, etc
|
19
|
||||
|
SECTION
2.8
|
Lost
Receipts, etc
|
20
|
|||
|
SECTION
2.9
|
Cancellation
and Destruction of Surrendered Receipts;
|
||||
|
Maintenance
of Records
|
21
|
||||
|
SECTION
2.10
|
Pre-Release
|
21
|
|||
|
ARTICLE
III CERTAIN OBLIGATIONS OF HOLDERS
|
|||||
|
AND
BENEFICIAL OWNERS OF RECEIPTS
|
22
|
||||
|
SECTION
3.1
|
Proofs,
Certificates and Other Information
|
22
|
|||
|
SECTION
3.2
|
Liability
for Taxes and Other Charges
|
23
|
|||
|
SECTION
3.3
|
Representations
and Warranties on Deposit of Shares
|
24
|
|||
|
SECTION
3.4
|
Compliance
with Information Requests
|
25
|
|||
|
ARTICLE
IV THE DEPOSITED SECURITIES
|
25
|
||||
|
SECTION
4.1
|
Cash
Distributions
|
25
|
|||
|
SECTION
4.2
|
Distribution
in Shares
|
26
|
|||
|
SECTION
4.3
|
Elective
Distributions in Cash or Shares
|
28
|
|||
|
SECTION
4.4
|
Distribution
of Rights to Purchase Shares
|
29
|
|||
|
SECTION
4.5
|
Distributions
Other Than Cash, Shares or Rights to Purchase
|
||||
|
Shares
|
32
|
||||
|
SECTION
4.6
|
Conversion
of Foreign Currency
|
34
|
|||
|
SECTION
4.7
|
Fixing
of Record Date
|
36
|
|||
|
SECTION
4.8
|
Voting
of Deposited Securities
|
37
|
|||
|
SECTION
4.9
|
Changes
Affecting Deposited Securities
|
38
|
|||
|
SECTION
4.10
|
Available
Information
|
40
|
|||
|
SECTION
4.11
|
Reports
|
40
|
|||
|
SECTION
4.12
|
List
of Holders
|
40
|
|||
|
SECTION
4.13
|
Taxation/Withholding
|
40
|
|||
|
ARTICLE
V THE DEPOSITARY, THE CUSTODIAN AND THE
COMPANY
|
42
|
||||
|
SECTION
5.1
|
Maintenance
of Office and Transfer Books by the Xxxxxxxxx
|
00
|
|||
|
SECTION
5.2
|
Exoneration
|
43
|
|||
|
SECTION
5.3
|
Standard
of Care
|
45
|
|||
|
SECTION
5.4
|
Resignation
and Removal of the Depositary; Appointment of
|
||||
|
Successor
Depositary
|
46
|
||||
|
SECTION
5.5
|
The
Custodian
|
48
|
|||
|
SECTION
5.6
|
Notices
and Reports
|
49
|
|||
|
SECTION
5.7
|
Issuance
of Additional Shares, ADSs etc.
|
50
|
|||
|
SECTION
5.8
|
Indemnification
|
52
|
|||
|
SECTION
5.9
|
Fees
and Charges of Depositary
|
53
|
|||
|
SECTION
5.10
|
Restricted
Securities Owners
|
55
|
|||
|
ARTICLE
VI AMENDMENT AND TERMINATION
|
56
|
||||
(ii)
|
Page
|
|||||
|
SECTION
6.1
|
Amendment/Supplement
|
56
|
|||
|
SECTION
6.2
|
Termination
|
57
|
|||
|
ARTICLE
VII MISCELLANEOUS
|
59
|
||||
|
SECTION
7.1
|
Counterparts
|
59
|
|||
|
SECTION
7.2
|
No
Third-Party Beneficiaries
|
59
|
|||
|
SECTION
7.3
|
Severability
|
60
|
|||
|
SECTION
7.4
|
Holders
and Beneficial Owners as Parties; Binding Effect
|
60
|
|||
|
SECTION
7.5
|
Notices
|
60
|
|||
|
SECTION
7.6
|
Governing
Law and Jurisdiction
|
62
|
|||
|
SECTION
7.7
|
Assignment
|
64
|
|||
|
SECTION
7.8
|
Agents
|
64
|
|||
|
SECTION
7.9
|
Exclusivity
|
64
|
|||
|
SECTION
7.10
|
Compliance
with U.S. Securities Laws
|
64
|
|||
|
SECTION
7.11
|
Titles
|
64
|
|||
|
EXHIBIT A Form of Face
of Receipt
|
A-1
|
||||
|
EXHIBIT B Form of
Reverse of Receipt
|
B-1
|
||||
(iii)
