Exhibit d(2)
Exhibit A to Deposit Agreement
NO.
___________________________________
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents two (2) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR CLASS B SHARES WITHOUT PAR VALUE
OF QUILMES INDUSTRIAL (QUINSA), SOCIETE ANONYME
(ORGANIZED UNDER THE LAWS OF THE GRAND-DUCHY OF LUXEMBOURG)
The Bank of New York as depositary (hereinafter called the "Depositary"),
hereby certifies that _____________________, or registered assigns IS THE OWNER
OF _____________________________________,
AMERICAN DEPOSITARY SHARES
representing deposited Class B Shares, without par value (herein called
"Shares") of Quilmes Industrial (Quinsa), Societe Anonyme, incorporated under
the laws of the Grand-Duchy of Luxembourg (herein called the "Company"). At the
date hereof, each American Depositary Share represents two (2) Shares which is
either deposited or subject to deposit under the deposit agreement at the
Luxembourg office of Banque et Caisse d'Epargne de l'Etat (herein called the
"Custodian"). The Depositary's Corporate Trust Office is located at a different
address than its principal executive office. Its Corporate Trust Office is
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive
office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the amended and restated deposit agreement, dated as of February 28, 2002
(herein called 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 become bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights of Holders and Beneficial Owners of the Receipts
and the rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property, and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Depositary's Corporate Trust Office in New
York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms not defined herein shall have the meanings set
forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Holder
hereof is entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American Depositary Shares
for which this Receipt is issued. Delivery of such Deposited Securities may be
made by the delivery of (a) certificates in the name of the Holder hereof or as
ordered by him or by certificates properly endorsed or accompanied by proper
instruments of transfer to such Holder or as ordered by him and (b) any other
securities, property and cash to which such Holder is then entitled in respect
of this Receipt to such Holder or as ordered by him. Such delivery will be made
at the option of the Holder hereof, either at the office of the Custodian or at
the Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Holder hereof. Notwithstanding any other provision of the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may be suspended only for (i) temporary delays caused by closing the
transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign
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laws or governmental regulations relating to the Receipts or to the withdrawal
of the Deposited Securities.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Holder hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of Shares or the presentor of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any reasonable regulations the Depositary and the Company may establish
consistent with the provisions of the Deposit Agreement or this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to Article (22) hereof. 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 Securities Act of 1933,
unless a registration statement is in effect as to such Shares or to the extent
the Depositary has received written instructions with respect thereto from the
Company as to any Shares or Deposited Securities the deposit of which would
violate any applicable law or the Company's Articles of Incorporation.
4. LIABILITY OF HOLDER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Holder hereof to the Depositary. The
Depositary may
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refuse to effect any transfer of this Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Holder hereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge and the Holder hereof shall remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, nonassessable and free of any pre-emptive rights
of the holders of outstanding Shares and that the person making such deposit is
duly authorized so to do. Every such person shall also be deemed to represent
that the deposit of such Shares and the sale of Receipts evidencing American
Depositary Shares representing such Shares by that person are not restricted
under the Securities Act of 1933. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Holder of a Receipt may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may reasonably require by written request to the Depositary
consistent with its obligations thereunder. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made. The Depositary shall provide the Company with copies or originals of any
such proofs of citizenship or residence, exchange control approval and any other
information or documents which the Company may reasonably request and which the
Depositary shall request and receive from any Holder or person presenting Shares
for deposit. No Share shall be accepted for deposit unless accompanied by
evidence satisfactory to the Depositary (which may be an opinion of counsel)
that any necessary approval has been granted by, or there has been compliance
with the rules and regulations of, the governmental agency in Luxembourg, if
any, which is then performing the function of the regulation of currency
exchange.
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7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3 of the Deposit Agreement), or by Holders, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Shares generally on the
Share register of the Company or Foreign Registrar and applicable to transfers
of Shares to or from the name of the Depositary or its nominee or the Custodian
or its nominee on the making of deposits or withdrawals hereunder, (3) such
cable, telex and facsimile transmission expenses as are expressly provided in
the Deposit Agreement, (4) such expenses as are incurred by the Depositary in
the conversion of foreign currency pursuant to Section 4.5 of the Deposit
Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares (or
portion thereof) for the execution and delivery of Receipts pursuant to Section
2.3, 4.3 or 4.4 of the Deposit Agreement and the surrender of Receipts pursuant
to Section 2.5 or 6.2 of the Deposit Agreement, (6) a fee of $.02 or less per
American Depositary Share (or portion thereof) for any cash distribution made
pursuant to the Deposit Agreement, including, but not limited to Sections 4.1
through 4.4 thereof, (7) a fee for the distribution of securities pursuant to
Section 4.2 of the Deposit Agreement, such fee being in an amount equal to the
fee for the execution and delivery of American Depositary Shares referred to
above which would have been charged as a result of the deposit of such
securities (for purposes of this clause 7 treating all such securities as if
they were Shares) but which securities are instead distributed by the Depositary
to Holder, (8) a fee of $.02 or less per American Depositary Share (or portion
thereof)for depositary services, which will accrue on the last day of each
calendar year and which will be payable as provided in clause (9) below;
provided, however, that no fee will be assessed under this clause (8) if a fee
was charged pursuant to clause (6) above during that calendar year and (9) any
other charge payable by the Depositary, any of the Depositary's agents,
including the Custodian, or the agents of the Depositary's agents in connection
with the servicing of Shares or other Deposited Securities (which charge shall
be assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.6 of the Deposit Agreement and shall be payable at the
sole discretion of the Depositary by billing such Owners for such charge or by
deducting such charge from one or more cash dividends or other cash
distributions).
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The Depositary, subject to Article (8) hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
The Depositary may issue Receipts against the delivery by the Company (or
any agent of the Company recording Share ownership) of rights to receive Shares
from the Company (or any such agent). No such issue of Receipts will be deemed a
"Pre-Release" that is subject to the restrictions of the following paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.3 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of shares pursuant to Section 2.2
thereof ("Pre-Release"). The Depositary may, pursuant to Section 2.5 of the
Deposit Agreement, deliver Shares upon the receipt and cancellation of Receipts
which have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Holders, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in satisfaction of such Pre-Release, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited hereunder; provided, however, that the Depositary reserves the right
to disregard such limit from time to time as it deems reasonably appropriate,
and may, with the prior written consent of the Company, change such limit for
purposes of general application. The Depositary will also set Dollar limits with
respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Holders under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
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Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Holder of this
Receipt by accepting or holding the same consents and agrees, that title to this
Receipt when properly endorsed or accompanied by proper instruments of transfer,
is transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary, notwithstanding any notice
to the contrary, may treat the person in whose name this Receipt is registered
on the books of the Depositary as the absolute owner hereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Securities and Exchange Commission (hereinafter called the "Commission"). Such
reports and communications will be available for inspection and copying at the
public reference facilities maintained by the Commission located at 000 Xxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Holders of Receipts
at its Corporate Trust Office any reports and communications, including any
proxy soliciting material, received from the Company which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall also, upon written request, send to the Holders of Receipts
copies of such reports furnished by the Company pursuant to the Deposit
Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English.
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The Depositary 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 Holders of Receipts, provided that such inspection shall
not be for the purpose of communicating with Holders of Receipts in the interest
of a business or object other than the business of the Company or a matter
related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution by the Company in respect of any Deposited Securities, the
Depositary shall, as promptly as practicable, if at the time of receipt thereof
any amounts received in a foreign currency can in the judgment of the Depositary
be converted on a reasonable basis into United States dollars transferable to
the United States, and subject to the Deposit Agreement, convert such dividend
or distribution into Dollars and shall distribute the amount thus received (net
of the fees of the Depositary as provided in the Deposit Agreement, if
applicable) to the Holders of Receipts entitled thereto, provided, however, that
in the event that the Company or the Depositary shall be required to withhold
and does withhold from such cash dividend or such other cash distribution in
respect of any Deposited Securities an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary shall cause the securities or property received by it to be
distributed to the Holders of Receipts entitled thereto, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution, net of the fees and expenses of the Depositary, provided, however,
that if in the opinion of the Depositary such distribution cannot be made
proportionately among the Holders of Receipts entitled thereto, or if for any
other reason the Depositary deems such distribution not to be feasible, the
Depositary may adopt such method as it may deem equitable and practicable for
the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees of the
Depositary as provided in Section 5.9 of the Deposit Agreement) shall be
distributed by the Depositary to the Holders of Receipts entitled thereto as in
the case of a distribution received in cash, as provided in Section 4.1 of the
Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, upon consultation with
the Company to the extent practicable, distribute to the Holders of outstanding
Receipts entitled thereto, additional Receipts evidencing an aggregate number of
American Depositary Shares representing the amount of Shares received as such
dividend or free distribution, subject
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to the terms and conditions of the Deposit Agreement with respect to the deposit
of Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 of the Deposit Agreement and the payment of the fees of the
Depositary as provided in Section 5.9 of the Deposit Agreement. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary shall sell the amount of Shares represented by the aggregate of
such fractions and distribute the net proceeds, all in the manner and subject to
the conditions set forth in the Deposit Agreement. If additional Receipts are
not so distributed, each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities
represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Holders of Receipts
entitled thereto.
13. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed, as promptly as praticable, to the Holders
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.9 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or
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agency thereof which is required for such conversion is denied or in the opinion
of the Depositary is not obtainable, or if any such approval or license is not
obtained within a reasonable period as determined by the Depositary, the
Depositary may distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary to, or in its discretion may hold such foreign currency uninvested
and without liability for interest thereon for the respective accounts of, the
Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Holders entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Holders entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Holders entitled thereto.
14. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Holders or in disposing of such rights on
behalf of any Holders and making the net proceeds available to such Holders or,
if by the terms of such rights offering or for any other reason, the Depositary
may not either make such rights available to any Holders or dispose of such
rights and make the net proceeds available to such Holders, then the Depositary
shall allow the rights to lapse. If at the time of the offering of any rights
the Depositary determines in its discretion that it is lawful and feasible to
make such rights available to all Holders or to certain Holders but not to other
Holders, the Depositary may distribute, to any Holder to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Holder, warrants or other instruments therefor in
such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if a
Holder of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Holder under the Deposit Agreement, the Depositary will make such rights
available to such Holder upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) such Holder has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
In the case of a distribution pursuant to this paragraph, such Receipts shall be
legended in accordance with applicable U.S. laws, and shall be subject to the
appropriate restrictions on sale, deposit, cancellation and transfer under such
laws.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Holders, then upon receipt of instructions pursuant to such
warrants or other
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instruments to the Depositary from such Holder to exercise such rights, upon
payment by such Holder to the Depositary for the account of such Holder of an
amount equal to the purchase price of the Shares to be received upon the
exercise of the rights, and upon payment of the fees of the Depositary and any
other charges as set forth in such warrants or other instruments or as may be
requested by the Company to the Depositary in writing, the Depositary shall, on
behalf of such Holder, exercise the rights and purchase the Shares, and the
Company shall cause the Shares so purchased to be delivered to the Depositary on
behalf of such Holder. As agent for such Holder, the Depositary will cause the
Shares so purchased to be deposited pursuant to Section 2.2 of the Deposit
Agreement, and shall, pursuant to Section 2.3 of the Deposit Agreement, execute
and deliver Receipts to such Holder.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Holders, the Depositary
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Holders to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.9 of the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such Holders otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Holders because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Holders unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to Holders or
are registered under the provisions of such Act; provided, however, that the
Company shall have no obligation to file any such registration statement. If a
Holder of Receipts requests distribution of warrants or other instruments,
notwithstanding that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has received an opinion
from recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Holder is exempt from such
registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Holders in general
or any Holder in particular.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary and the Company causes a change in the number of Shares that are
represented by each American
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Depositary Share, or whenever the Depositary shall receive notice of any meeting
of holders of Shares or other Deposited Securities, the Depositary shall fix a
record date (which shall be the same date as, to the extent practicable to, any
corresponding record date set by the Company) (a) for the determination of the
Holders of Receipts who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii) entitled
to give instructions for the exercise of voting rights at any such meeting, or
(b) on or after which each American Depositary Share will represent the changed
number of Shares, subject to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Each of the Company's Class B shares entitles the holder thereof to cast
one vote at any shareholder's meeting. Class A and Class B shares shall normally
vote as one class at any shareholders' meeting provided that any resolutions
affecting the respective rights of particular classes must be approved
separately by the quorum and majority requirements established by law for each
class.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Holders of Receipts a
notice, the form of which notice shall be approved by the Company, which shall
contain (a) such information as is contained in such notice of meeting, (b) a
statement that the Holders of Receipts as of the close of business on a
specified record date will be entitled, subject to any applicable provision of
Luxembourg law, the Articles of Incorporation of the Company and the provisions
of or governing the Deposited Securities, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount of Shares or
other Deposited Securities represented by their respective American Depositary
Shares and (c) a statement as to the manner in which such instructions may be
given or deemed given in accordance with the last sentence of this paragraph if
no instruction is received. Upon the written request of an Holder of a Receipt
on such record date, received on or before the date established by the
Depositary for such purpose (the "Instruction Date"), the Depositary shall
endeavor, in so far as practicable to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request. The Depositary shall not vote or attempt to exercise the right
to vote that attaches to the Shares or other Deposited Securities, other than in
accordance with such instructions or deemed instructions. If no instructions are
received by the Depositary from any Holder with respect to any of the Deposited
Securities represented by the American Depositary Shares evidenced by such
Holder's Receipt on or before the date established by the Depositary for such
purpose, the Depositary shall deem such Holder to have instructed the Depositary
to give a discretionary proxy to the Chairman of the Board of Directors of the
Company or to a person designated by the Company with respect to such Deposited
Securities and the Depositary shall give a discretionary proxy to the Chairman
of the Board of Directors of the Company or to a person designated by the
Company to vote
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such Deposited Securities, provided, that no such instruction shall be given
with respect to any matter as to which the Company informs the Depositary (and
the Company agrees to provide such information as promptly as practicable in
writing) that (x) the Company does not wish such proxy given, (y) substantial
shareholder opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance with the provisions set
forth in the preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent or additionally represent the right to receive the
new Deposited Securities so received in exchange, conversion or otherwise,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may, and shall if the Company shall so request,
execute and deliver additional Receipts as in the case of a dividend in Shares,
or call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities. If requested in
writing by the Company, upon the occurrence of any such change, conversion or
exchange covered by Section 4.8 of the Deposit Agreement in respect of Deposited
Securities, the Depositary shall give notice thereof to all Holders, at the
Company's expense (unless otherwise agreed in writing by the Company and the
Depositary).
18. LIABILITY AND INDEMNIFICATION OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Holder or Beneficial Owner of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States, Luxembourg or any
other country, or of any governmental or regulatory authority or stock exchange,
or by reason of any provision, present or future, of the Articles of
Incorporation of the Company, or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or terrorism or other
circumstances beyond its control, the Depositary or its agents or the Company or
its agents shall be prevented or forbidden from, or be subject to any civil or
criminal penalty on account of, doing or performing any act or thing which by
the terms of the Deposit
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Agreement it is provided shall be done or performed; nor shall the Depositary or
its agents or the Company or its agents incur any liability to any Holder or
Beneficial Owner of a Receipt by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement or in the Articles of Incorporation or provisions of or
governing any Deposited Securities. Where, by the terms of a distribution
pursuant to Sections 4.1, 4.2 or 4.3 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.4 of the Deposit Agreement, or for any other
reason, such distribution or offering may not be made available to Holders of
Receipts, and the Depositary may not dispose of such distribution or offering on
behalf of such Holders and make the net proceeds available to such Holders, then
the Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
Neither the Company, the Depositary nor their respective directors,
employees, agents and affiliates assume any obligation nor shall be subject to
any liability under the Deposit Agreement or Receipts to Holders or Beneficial
Owners of Receipts or any other persons, except that they agree to perform their
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. The Depositary shall not be subject to any liability with respect
to the validity or worth of the Deposited Securities.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates 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 expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Holder or
holder of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information. Each of the Depositary, the
Company and their directors, employees, agents and controlling persons may rely
and shall be protected in acting upon any written notice, request, direction or
other document believed by such person to be genuine and to have been signed or
presented by the proper party or parties.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the
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Depositary, provided that in connection with the issue out of which such
potential liability arises the Depositary performed its obligations without
negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
The Company agrees to indemnify the Depositary, its directors, employees,
agents and affiliates and any Custodian against, and hold each of them harmless
from, any liability or expense (including, but not limited to, the fees and
expenses of counsel) which may arise out of acts performed or omitted, in
accordance with the provisions of the Deposit Agreement and of the Receipts, as
the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by 30 Business Days prior
written notice of such removal, effective upon the later of (i) the 30th
Business Day after delivery of the notice of the Depositary or (ii) the
appointment by the Company of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. Whenever the Depositary in its
discretion determines that it is in the best interest of the Holders of Receipts
to do so, it may appoint substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than
taxes and other governmental charges, registration fees, cable, telex or
facsimile transmission costs, delivery costs or other such expenses), or which
shall otherwise prejudice any substantial existing right of Holders of Receipts,
shall, however, not become effective as to
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outstanding Receipts until the expiration of thirty days after notice of such
amendment shall have been given to the Holders of outstanding Receipts. Every
Holder of a Receipt at the time any amendment so becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Holder of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company terminate
the Deposit Agreement by mailing notice of such termination to the Holders of
all Receipts then outstanding at least 60 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Holders
of all Receipts then outstanding if at any time 60 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in the Deposit Agreement. On and after the
date of termination, the Holder of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5 of
the Deposit Agreement and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt. If any Receipts shall remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter shall
discontinue the registration of transfers of Receipts, 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, together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder of such Receipt in accordance with the terms and conditions of the
Deposit Agreement and any applicable taxes or governmental charges). At any time
after the expiration of one year from the date of termination of the Deposit
Agreement, the Depositary may sell the Deposited Securities then held under the
Deposit Agreement and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it thereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Holders of
Receipts which have not theretofore been surrendered, such Holders thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
- 16 -
under the Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Holder of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except for its obligations to the Depositary under Sections
5.8 and 5.9 of the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under the Deposit Agreement to prevent the withdrawal or
delivery of Deposited Securities in a manner which would violate the United
States securities laws, including, but not limited to, Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
23. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.
The Company hereby (i) irrevocably designates and appoints National
Registered Agents, Inc., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
in the State of New York, as the Company's authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to the Shares
or Deposited Securities, the American Depositary Shares, the Receipts or this
Agreement, (ii) consents and submits to the jurisdiction of any state or federal
court in the State of New York in which any such suit or proceeding may be
instituted, and (iii) agrees that service of process upon said authorized agent
shall be deemed in every respect effective service of process upon the Company
in any such suit or proceeding. The Company agrees to deliver, upon the
execution and delivery of the Deposit Agreement, a written acceptance by such
agent of its appointment as such agent. The Company further agrees to take any
and all action, including the filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in
full force and effect for so long as any American Depositary Shares or Receipts
remain outstanding or the Deposit Agreement remains in force. In the event the
Company fails to continue such designation and appointment in full force and
effect, the Company hereby waives personal service of process upon it and
consents that any such service of process may be made by certified or registered
mail, return receipt requested, directed to the Company at its address last
specified for notices hereunder, and service so made shall be deemed completed
seven (7) days after the same shall have been so mailed.
24. DISCLOSURE OF INTEREST
Each Holder and Beneficial Owner agrees to comply with requests from the
Company which are made pursuant to applicable law or the Company's Articles of
- 17 -
Incorporation or other such corporate document of the Company to provide
information as to the capacity in which such Holders or Beneficial Owners owns
American Depositary Shares and regarding the identity of any other person
interested in such American Depositary Shares and regarding the nature of such
interest, all as if such American Depositary Shares were to the extent
practicable the underlying Shares. The Depositary agrees to use its reasonable
efforts to forward to any Holder, at the written request and expense of the
Company, any written request by the Company for such information. If the Company
requests information from the Depositary, the Custodian or the nominee of
either, as the registered owner of the Shares, the obligations of the
Depositary, Custodian or such nominee, as the case may be, shall be limited to
disclosing to the Company the information contained in the register.
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