AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of March , 2004 (the "Amendment"), to the
Deposit Agreement dated as of January 15, 2001 (as so amended hereby, the
"Deposit Agreement"), among CNOOC Limited, incorporated under the laws of Hong
Kong Special Administrative Region of the PRC (the "Company"), JPMorgan Chase
Bank (fka Xxxxxx Guaranty Trust Company of New York), as depositary (the
"Depositary"), and all holders from time to time of American depositary receipts
("ADRs") issued thereunder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Depositary executed the Deposit Agreement
for the purposes set forth therein;
WHEREAS, the shareholders of the Company have approved a 5-for-1 share
subdivision proposal at an extraordinary general meeting held on March 16, 2004;
and
WHEREAS, pursuant to paragraph (16) of the form of ADR contained in the
Deposit Agreement, the Company and the Depositary desire to amend the terms of
the Deposit Agreement and ADRs.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment,
all capitalized terms used, but not otherwise defined, herein shall have the
meaning given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Deposit
Agreement to the term "Deposit Agreement" shall, as of the Effective Date (as
herein defined), refer to the Deposit Agreement, dated as of January 15, 2001 as
further amended by this Amendment.
SECTION 2.02. Section 1(c) of the Deposit Agreement is amended by
replacing "20" with "100".
SECTION 2.02. Section 1(l) of the Deposit Agreement is amended by
replacing "HK$0.10" with "HK$0.02".
SECTION 2.03. Section 17(a) of the Deposit Agreement is amended to read
as follows:
JPMorgan Chase Bank
Four Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ADR Administration
Fax: (000) 000-0000
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. The face of the form of ADR is amended by replacing "20
Shares" with "100 Share" and by replacing "HK$0.10 per share" with "HK$0.02 per
share".
SECTION 3.02. The first paragraph of the form of ADR is amended by
replacing "20 Shares" with "100 Shares" and by replacing "HK$0.10 per share"
with "HK$0.02 per share".
SECTION 3.03. The form of ADR shall be in the form set forth as Exhibit
A hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents
and warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been,
respectively, duly and validly authorized, executed and delivered by
the Company, and constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement
as amended hereby, and any other document furnished hereunder or
thereunder in Hong Kong, neither of such agreements need to be filed or
recorded with any court or other authority in Hong Kong, nor does any
stamp or similar tax or governmental charge need to be paid in Hong
Kong on or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date
set forth above and shall be effective as of March , 2004 (the "Effective
Date").
SECTION 5.02. Outstanding ADRs. ADRs issued prior or subsequent to the
date hereof, which do not reflect the changes to the form of ADR effected
hereby, do not need to be called in for exchange and may remain outstanding
until such time as the Holders thereof choose to surrender them for any reason
under the Deposit Agreement. The Depositary is authorized and directed to take
any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. Indemnification. The parties hereto shall be entitled to
the benefits of the indemnification provisions of Section 16 of the Deposit
Agreement in connection with any and all liability it or they may incur as a
result of the terms of this Amendment and the transactions contemplated herein.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
CNOOC LIMITED
By:_____________________
Name: Chengyu Fu
Title: Chairman of the Board of Directors
and Chief Executive Officer
JPMORGAN CHASE BANK
By:_____________________
Name:
Title:
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
No. of ADSs:
----
Number
Each ADS represents
100 Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
100 Shares, par value HK$0.02 per share,
of
CNOOC LIMITED
(Incorporated under the
laws of Hong Kong)
JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder
(the "Depositary"), hereby certifies that ________ is the registered owner (a
"Holder") of ___________ American Depositary Shares ("ADSs"), each (subject to
paragraph (13)) representing 100 Shares, par value HK$0.02 per share (including
the rights to receive the Shares described in paragraph (1), the "Shares" and,
together with any other securities, cash or property from time to time held by
the Depositary in respect or in lieu of deposited Shares, the "Deposited
Securities"), of CNOOC LIMITED, a corporation organized under the laws of Hong
Kong (the "Company"), deposited under the Deposit Agreement dated as of January
15, 2001 (as amended from time to time, the "Deposit Agreement") among the
Company, the Depositary and all Holders from time to time of American Depositary
Receipts issued thereunder ("ADRs"), each of whom by accepting an ADR becomes a
party thereto. The Deposit Agreement and this ADR (which includes the provisions
set forth on the reverse hereof) shall be governed by and construed in
accordance with the law of the State of New York.
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(1) Issuance of ADRs. This ADR is one of the ADRs issued and to be
issued under the Deposit Agreement. Subject to paragraph (4), the Depositary may
so issue ADRs for delivery at the Transfer Office (defined in paragraph (3))
only against deposit with the Custodian of: (a) Shares in form satisfactory to
the Custodian; (b) rights to receive Shares from the Company or any registrar,
transfer agent, clearing agent or other entity recording Share ownership or
transactions; or (c) other rights to receive Shares (until such Shares are
actually deposited pursuant to (a) or (b) above, "Pre-released ADRs") only if
(i) Pre-released ADRs are fully collateralized (marked to market daily) with
cash or U.S. government securities held by the Depositary for the benefit of
Holders (but such collateral shall not constitute "Deposited Securities"), (ii)
each recipient of Pre-released ADRs agrees in writing with the Depositary that
such recipient (a) owns such Shares, (b) assigns all beneficial right, title and
interest therein to the Depositary, (c) holds such Shares for the account of the
Depositary and (d) will deliver such Shares to the Custodian as soon as
practicable and promptly upon demand therefor, and (iii) all Pre-released ADRs
evidence not more than 30% of all ADSs (excluding those evidenced by
Pre-released ADRs), provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate. The
Depositary may retain for its own account any earnings on collateral for
Pre-released ADRs and its charges for issuance thereof. At the request, risk and
expense of the person depositing Shares, the Depositary may accept deposits of
Shares for forwarding to the Custodian and may deliver ADRs at a place other
than its office. Every person depositing Shares under the Deposit Agreement
represents and warrants that such Shares are validly issued and outstanding,
fully paid, nonassessable and free of pre-emptive rights, that the person making
such deposit is duly authorized so to do and that such Shares (A) are not
"restricted securities" as such term is defined in Rule 144 under the Securities
Act of 1933 unless at the time of deposit they may be freely transferred in
accordance with Rule 144(k) and may otherwise be offered and sold freely in the
United States or (B) have been registered under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and issuance
of ADRs. The Depositary will not knowingly accept for deposit under the Deposit
Agreement any Shares required to be registered under the Securities Act of 1933
and not so registered; the Depositary may refuse to accept for such deposit any
Shares identified by the Company in order to facilitate the Company's compliance
with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and
(5), upon surrender of (a) a certificated ADR in form satisfactory to the
Depositary at the Transfer Office or (b) proper instructions and documentation
in the case of a Direct Registration ADR, the Holder hereof is entitled to
delivery at the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR. At the request, risk and expense
of the Holder hereof, the Depositary may deliver such Deposited Securities at
such other place as may have been requested by the Holder. Notwithstanding any
other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, which,
in the case of Direct Registration ADRs, shall include the Direct Registration
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System, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Deposit Agreement, and (b)
facilities for the delivery and receipt of ADRs. The term ADR Register includes
the Direct Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of negotiable instruments under the law of the State of New York;
provided that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this ADR is registered on the ADR Register as the
absolute owner hereof for all purposes. Subject to paragraphs (4) and (5), this
ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by duly authorized attorney upon
surrender of this ADR at the Transfer Office properly endorsed (in the case of
ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer and duly stamped as may be required by applicable law;
provided that the Depositary may close the ADR Register at any time or from time
to time when deemed expedient by it or requested by the Company. At the request
of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct Registration ADR, or vice versa, execute and
deliver a certificated ADR or a Direct Registration ADR, as the case may be, for
any authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as evidenced by the certificated ADR or Direct Registration ADR, as the
case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration
of transfer, split-up or combination of any ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of paragraph
(2), the withdrawal of any Deposited Securities, and from time to time in the
case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including, without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, and compliance with applicable law, regulations, provisions of or
governing Deposited Securities and the terms of the Deposit Agreement and this
ADR, as it may deem necessary or proper; and (c) compliance with such
regulations as the Depositary may establish consistent with the Deposit
Agreement. The issuance of ADRs, the acceptance of deposits of Shares, the
registration, registration of transfer, split-up or combination of ADRs or,
subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may be suspended, generally or in particular instances, when the ADR
Register or any register for Deposited Securities is closed or when any such
action is deemed advisable by the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable
by or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other
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governmental charge shall be paid by the Holder hereof to the Depositary. The
Depositary may refuse to effect any registration, registration of transfer,
split-up or combination hereof or, subject to the last sentence of paragraph
(2), any withdrawal of such Deposited Securities until such payment is made. The
Depositary may also deduct from any distributions on or in respect of Deposited
Securities, or may sell by public or private sale for the account of the Holder
hereof any part or all of such Deposited Securities (after attempting by
reasonable means to notify the Holder hereof prior to such sale), and may apply
such deduction or the proceeds of any such sale in payment of such tax or other
governmental charge, the Holder hereof remaining liable for any deficiency, and
shall reduce the number of ADSs evidenced hereby to reflect any such sales of
Shares. In connection with any distribution to Holders, the Company will remit
to the appropriate governmental authority or agency all amounts (if any)
required to be withheld and owing to such authority or agency by the Company;
and the Depositary and the Custodian will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Depositary or the Custodian. If the Depositary
determines that any distribution in property other than cash (including Shares
or rights) on Deposited Securities is subject to any tax that the Depositary or
the Custodian is obligated to withhold, the Depositary may dispose of all or a
portion of such property in such amounts and in such manner as the Depositary
deems necessary and practicable to pay such taxes, by public or private sale,
and the Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the Holders
entitled thereto.
(6) Disclosure of Interests. To the extent that the provisions of or
governing any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary in the Depositary's compliance with any Company
instructions in respect thereof, and the Depositary will use reasonable efforts
to comply with such Company instructions.
The Depositary agrees that it shall cooperate with the Company in
enforcing the provisions of the Hong Kong Securities and Futures Ordinance (as
may from time to time be amended, modified or re-enacted) (the "Ordinance") and
any other legislation or regulations of Hong Kong from time to time relating to
disclosure of interests in Deposited Securities, other Shares and other
securities, including sanctions that the Company may invoke in the event a
Holder fails to provide certain requested information concerning interests in
ADRs or Deposited Securities. Such sanctions may include limitations on the
transfer of such Shares.
A Holder also may have a duty under the Ordinance to notify the Company
and The Stock Exchange of Hong Kong Limited if such Holder becomes aware that
his interest in Shares evidenced by ADRs, together with any other interests of
his in Shares, is the equivalent of 5% or more of the issued share capital of
the Company. Under the Ordinance, the Company has rights and duties to make
inquiries to persons whom the Company knows or has reasonable cause to believe
to be interested in Shares or equity derivatives in respect of Shares or have a
short position in Shares concerning such persons' interest in Shares or equity
derivatives in Shares or
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short position in Shares. Failure by a Holder to disclose his interest in Shares
in accordance with the provisions of the Ordinance may be subject to sanctions
and criminal penalties.
(7) Charges of Depositary. The Depositary may charge each person to
whom ADRs are issued against deposits of Shares, including deposits in respect
of Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph (10)), and each person surrendering ADRs for withdrawal of
Deposited Securities (including, without limitation, on the termination of the
Deposit Agreement), U.S. $5.00 for each 100 ADSs (or portion thereof) evidenced
by the ADRs delivered or surrendered. The Depositary may sell (by public or
private sale) sufficient securities and property received in respect of Share
Distributions, Rights and Other Distributions prior to such deposit to pay such
charge. The Company will pay all other reasonable charges and expenses of the
Depositary and any agent of the Depositary (except the Custodian), which are
agreed by the Company and the Depositary from time to time, except (i) stock
transfer and other taxes and other governmental charges (which are payable by
Holders or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders delivering, Shares, ADRs or Deposited Securities (which are payable
by such persons or Holders), (iii) transfer or registration fees for the
registration of transfer of Deposited Securities on any applicable register in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date of
the Deposit Agreement), and (iv) expenses of the Depositary in connection with
the conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency). These charges may be changed in the manner indicated in
paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will mail copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by the Company. The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and, accordingly, files
certain reports with the United States Securities and Exchange Commission (the
"Commission"). Such reports and other information may be inspected and copied at
public reference facilities maintained by the Commission located at the date
hereof at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
(9) Execution. This ADR shall not be valid for any purpose unless
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By:
-----------------------------------------------
Authorized Officer
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The Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4)
and (5), to the extent practicable, the Depositary will distribute by mail to
each Holder entitled thereto on the record date set by the Depositary therefor
at such Holder's address shown on the ADR Register, in proportion to the number
of Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs:
(a) Cash. Any U.S. dollars available to the Depositary
resulting from a cash dividend or other cash distribution or the net proceeds of
sales of any other distribution or portion thereof authorized in this paragraph
(10) ("Cash"), on an averaged or other practicable basis, subject to (i)
appropriate adjustments for taxes withheld, (ii) such distribution being
impermissible or impracticable with respect to certain Holders, and (iii)
deduction of the Depositary's expenses in (1) converting any foreign currency to
U.S. dollars by sale or in such other manner as the Depositary may determine to
the extent that it determines that such conversion may be made on a reasonable
basis, (2) transferring foreign currency or U.S. dollars to the United States by
such means as the Depositary may determine to the extent that it determines that
such transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time, and (4)
making any sale by public or private means in any commercially reasonable
manner.
(b) Shares. (i) Additional ADRs evidencing whole ADSs
representing any Shares available to the Depositary resulting from a dividend or
free distribution on Deposited Securities consisting of Shares (a "Share
Distribution"), and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash.
(c) Rights. (i) Warrants or other instruments in the
discretion of the Depositary representing rights to acquire additional ADRs in
respect of any rights to subscribe for additional Shares or rights of any nature
available to the Depositary as a result of a distribution on Deposited
Securities ("Rights"), to the extent that the Company timely furnishes to the
Depositary evidence satisfactory to the Depositary that the Depositary may
lawfully distribute the same (the Company has no obligation so to furnish such
evidence), or (ii) to the extent the Company does not so furnish such evidence
and sales of Rights are practicable, any U.S. dollars available to the
Depositary from the net proceeds of sales of Rights as in the case of Cash, or
(iii) to the extent the Company does not so furnish such evidence and such sales
cannot practicably be accomplished by reason of the nontransferability of the
Rights, limited markets therefor, their short duration or otherwise, nothing
(and any Rights may lapse).
(d) Other Distributions. (i) Securities or property available
to the Depositary resulting from any distribution on Deposited Securities other
than Cash, Share Distributions and Rights ("Other Distributions"), by any means
that the Depositary may deem equitable and practicable or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will
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be distributed by checks drawn on a bank in the United States for whole dollars
and cents (any fractional cents being withheld without liability for interest
and added to future Cash distributions).
(11) Record Dates. The Depositary may, after consultation with the
Company if practicable, fix a record date (which shall be as near as practicable
to any corresponding record date set by the Company) for the determination of
the Holders who shall be entitled to receive any distribution on or in respect
of Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters, and only
such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after
receipt from the Company of notice of any meeting or solicitation of consents or
proxies of holders of Shares or other Deposited Securities, the Depositary shall
mail to Holders a notice stating (a) such information as is contained in such
notice and any solicitation materials, (b) that each Holder on the record date
set by the Depositary therefor will be entitled to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs, and (c) the
manner in which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted (or to grant a
discretionary proxy to a person designated by the Company to vote) the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4)
and (5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange) or
cash, securities or property on the record date set by the Depositary therefor
to reflect any change in par value, split-up, consolidation, cancellation or
other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities, and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, regulation, the provisions of or
governing any Deposited Securities, act of God, war or other circumstance beyond
its control shall prevent, delay or subject to any civil or criminal penalty any
act which the Deposit Agreement or this ADR provides shall be done or performed
by it, or (ii) by reason of any exercise or failure to exercise
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any discretion given it in the Deposit Agreement or this ADR; (b) assume no
liability except to perform its obligations to the extent they are specifically
set forth in this ADR and the Deposit Agreement without gross negligence or bad
faith; (c) in the case of the Depositary and its agents, be under no obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or this ADR; (d) in the case of the Company
and its agents hereunder, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense (including
reasonable fees and disbursements of counsel) and liability be furnished as
often as may be required; or (e) not be liable for any action or inaction by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder, or any other person
believed by it to be competent to give such advice or information. The
Depositary, its agents and the Company may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by them
to be genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, for the
manner in which any such vote is cast or for the effect of any such vote. The
Depositary and its agents may own and deal in any class of securities of the
Company and its affiliates and in ADRs. The Company has agreed to indemnify the
Depositary and its agents under certain circumstances, and the Depositary has
agreed to indemnify the Company against losses incurred by the Company to the
extent such losses are due to the negligence or bad faith of the Depositary. No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The
Depositary may resign as Depositary by written notice of its election to do so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary; resignation of the
Depositary shall only take effect upon the appointment of and acceptance by a
successor depositary. The Depositary may appoint substitute or additional
Custodians, and the term "Custodian" refers to each Custodian or all Custodians
as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs
and the Deposit Agreement may be amended by the Company and the Depositary;
provided that any amendment that imposes or increases any fees or charges (other
than stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding the foregoing, if
any governmental
A-9
body should adopt new laws, rules or regulations which would require amendment
or supplementation of the Deposit Agreement or the form of ADR to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the form of ADR at any time in accordance with such
changed rules. Such amendment or supplement to the Deposit Agreement or the form
of ADR in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance.
(17) Termination. Upon the resignation or removal of the Depositary
pursuant to the Deposit Agreement, the Depositary may, and shall at the written
direction of the Company, terminate the Deposit Agreement and this ADR by
mailing notice of such termination to the Holders at least 30 days prior to the
date fixed in such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further acts under
the Deposit Agreement and this ADR, except to receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn. As soon as practicable after the expiration of six months from the
date so fixed for termination, the Depositary shall sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in a
segregated account the net proceeds of such sales, together with any other cash
then held by it under the Deposit Agreement, without liability for interest, in
trust for the pro rata benefit of the Holders of ADRs not theretofore
surrendered. After making such sale, the Depositary shall be discharged from all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such net proceeds and other cash. After the date so fixed for termination,
the Company shall be discharged from all obligations under the Deposit
Agreement, except for its obligations to the Depositary and its agents.
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