Exhibit (a)(iii)
Conformed copy
TELEFONAKTIEBOLAGET LM ERICSSON
AND
CITIBANK, N.A.,
As Depositary
HOLDERS FROM TIME TO TIME OF AMERICAN
DEPOSITARY RECEIPTS
-------------------------------------
Amendment No. 1
to
Amended and Restated
Deposit Agreement
Dated as of February 10, 1997
Conformed copy
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT, is made as of
February 10, 1997 (the "Amendment"), by and among Telefonaktiebolaget LM
Ericsson, a public company organized and existing under the laws of Sweden (the
"Company"), CITIBANK, N.A., a national banking association organized under the
laws of the United States of America and acting solely as depositary ("the
Depositary"), and all Holders from time to time of American Depositary Receipts
issued under the Deposit Agreement.
W I T N E S S E T H T H A T
WHEREAS, the parties hereto entered into that certain Amended and Restated
Deposit Agreement, dated as of September 26, 1995 (the "Deposit Agreement"), for
the creation of American Depositary Receipts ("ADRs") evidencing American
Depositary Shares ("ADSs") representing the Shares (as defined in the Deposit
Agreement) so deposited and for the execution and delivery of such ADRs
evidencing such ADSs;
WHEREAS, the Staff of the Securities and Exchange Commission (the
"Commission") has announced certain amendments to Rule F-6 3.a. and Rule F-6
4.a. (the "Rule F-6 Amendments") promulgated under the Securities Act of 1933,
as amended, effective as of July 15, 1996; and
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement and the form of ADR annexed thereto as Exhibit A for the purposes set
forth herein;
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. Reports. Section 4.09 of the Deposit Agreement is amended by
deleting the second sentence of the second paragraph through the remainder of
the paragraph and the third paragraph in its entirety in accordance with the
Rule F-6 Amendments.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. Reference to the Deposit Agreement. The form of ADR as
attached hereto Exhibit A is amended as of the Effective Date by deleting the
first sentence of Section 1 of the ADR and inserting the following in its stead:
"This American Depositary Receipt is one of an issue (herein called
the Receipts), all issued and to be issued upon the terms and
Conformed copy
conditions set forth in the Amended and Restated Deposit Agreement,
dated as of September 26, 1995 (which amends, restates and
supersedes that certain Deposit Agreement, dated as of May 17, 1983,
as amended by that certain amendment No. 1 to Deposit Agreement,
dated as of September 20, 1990 and that certain amendment No. 2 to
Deposit Agreement, dated as of March 1, 1994) as further amended by
Amendment No. 1 to Amended and Restated Deposit Agreement, dated as
of February 10, 1997 (as so amended, the "Deposit Agreement"), by
and among the Company, the Depositary and all Holders from time to
time of Receipts issued thereunder, each of whom by accepting a
Receipt agrees to become a party thereto and be bound by all the
terms and provisions thereof."
SECTION 3.02. Compliance with U.S. Securities Laws. The form of the Face
of Receipt in Exhibit A of the Deposit Agreement is amended by deleting
paragraph (12) in its entirety and substituting for it the following paragraph:
Notwithstanding anything in the Deposit Agreement or this form of
Receipt to the contrary, each of the Company and the Depositary
agree that it will not exercise any rights it has under this Deposit
Agreement to prevent the withdrawal or delivery of Deposited
Securities in a manner which would violate the United States
securities laws, including without being limited to, General
Instruction 1. A(1) to Form. F-6 Registration Statement, as amended
from time to time, under the Securities Act of 1933.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Effective Date. This Amendment is dated as of the date set
forth above and shall be effective as of such date (the "Effective Date").
SECTION 4.02. New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRS printed or amended that reflect the changes to
the form of ADR effected by this Amendment. All ADRs issued hereunder after the
date hereof, once such new ADRs are available, whether upon the deposit of
Shares or other Deposited Securities or upon the transfer, combination or
split-up of existing ADRs, shall reflect the changes to the form of ADR effected
by this Amendment. However, ADRs issued prior or subsequent to the date hereof,
which do not reflect the changes to the from of ADR affected 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.
SECTION 4.03. Notice of Amendment to Holders. The Depositary is hereby
directed to send notices informing the Holders (i) of the terms of this
Amendment, (ii) of the Effective Date of this Amendment and (iii) that the
Holders shall be given the opportunity, but that it is unnecessary, to surrender
outstanding Receipts.
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Conformed copy
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.
TELEFONAKTIEBOLAGET LM ERICSSON
By:
----------------------------
Name: Lars Ramqvist
Title: President and Chief Executive Officer
CITIBANK, N.A., as Depositary
By:
----------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
3
Conformed copy
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED B SHARES OF
TELEFONAKTIEBOLAGET LM ERICSSON
(A public company Incorporated under the laws of Sweden)
No.
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as Depositary (herein called the
Depositary), hereby certifies that ________________ is the owner of
____________________________ American Depositary Shares, representing deposited
B Shares, nominal value 2.5 Swedish kronor each (herein called Shares), of
TELEFONAKTIEBOLAGET LM ERICSSON, a public company incorporated under the laws of
Sweden (herein called the Company). At the date hereof, each American Depositary
share represents one Share (or evidence of rights to receive one Share)
deposited under the Deposit Agreement at the principal Stockholm office either
of Skandinaviska Enskilda Banken, or of Svenska Handelsbanken (herein called the
Custodian or, together, the Custodians). The address of the Depositary's
principal executive office is 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue (herein called the Receipts), all issued and to be issued upon the terms
and conditions set forth In the Amended at Restated Deposit Agreement dated as
of September 26,1995 (which amends, restates and supersedes that certain Deposit
Agreement, dated as of May 17, 1983, as amended by that certain amendment No. 1
to Deposit Agreement, dated as of September 20, 1990 and that certain amendment
No. 2 to Deposit Agreement, date as of March 1, 1994) as further amended by
Amendment No. 1 to Amended and Restated Deposit Agreement, dated as of February
10, 1997 (as so amended, the "Deposit Agreement"), by and among the Company, the
Depositary and all Holders from time to time or Receipts issued thereunder, each
of whom by accepting a Receipt agrees to become a party thereto and be bound by
all the terms and provisions thereof. The Deposit Agreement sets forth the
rights Holders of the Receipts and the rights and duties of the Depositary in
respect of the Shares deposited thereunder and any and all other securities,
property and cash from time to time received in respect or 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
principal offices of the Depositary and the Custodians. The statements made on
the face and the reverse of this Receipt are summaries of certain provisions or
the Deposit Agreement and are qualified by and subject to the detailed
provisions of the Deposit Agreement, to which reference is hereby made. The
terms "deposit," "surrender," "deliver," "transfer" or "withdraw" when used with
respect to Shares, shall refer, where the context requires, to an entry or
entries or an electronic transfer or transfers in an account or accounts
maintained by institutions authorized under applicable law to effect transfers
of securities (which may but need not be the VPC (as defined in paragraph (3)
below)), and not to the physical transfer of certificates representing the
Shares.
(2) Surrender of Receipts and Withdrawal of Shares. Upon surrender at the
Principal Office of the Depositary of this Receipt, and upon payment of the fee
of the Depositary provided in paragraph (6) of 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 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
certificates in the name of the Holder hereof or as ordered by him or by the
delivery of certificates endorsed or accompanied by proper instruments of
transfer. Such delivery will be made without unreasonable delay and, at the
option of the Holder hereof, either at the office of any Custodian or at the
Principal Office of the Depositary, provided that the forwarding of certificates
for Shares or other Deposited Securities for such delivery at the Principal
office of the Depositary in the Borough of Manhattan. The City of New York shall
be at the risk and expense of the Holder hereof.
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(3) Transfers, Split-Ups and Combinations. This Receipt is transferable on
the books of the Depositary by the Holder hereof in person or by duty authorized
attorney, upon surrender of this Receipt properly endorsed or accompanied by
proper instruments of transfer and duly stamped as may be required by law;
provided, however that the Depositary may close the transfer books, at any time
or from time to time, when deemed expedient by it in connection with the
performance of its duties under the Deposit Agreement. This Receipt may be spilt
into other Receipts or may be combined with other Receipts into one Receipt
representing 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 or the
Custodian may require payment of a sum sufficient to reimburse it for any tax or
other governmental charge and any stock transfer or registration fee with
respect thereto and payment of any applicable fees as provided in paragraph (6)
of 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 such regulations, if any, as the Depositary may establish consistent with
the provisions of the Deposit Agreement.
The Depositary may refuse to execute and deliver Receipts, register the
transfer of any Receipt, make any distribution of, or related to, Deposited
Securities until it has received such proof of citizenship, residence, exchange
control approval or other information as it may deem necessary or proper. The
delivery of Receipts against deposits of Shares generally may be suspended, or
the delivery of Receipts 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 or surrenders of Outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Depositary or the Company (or the appointed agent of the Company for
transfer and registration of Shares, which may but need not be the
Vardepapperscentralen VPC AB (the "VPC") or its successor as agent of the
Company for the transfer and registration for Shares) 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 due to compliance with any requirement of applicable
law or governmental regulation relating to Receipts or to the withdrawal of any
Deposited Securities. Without limitation of the foregoing, the Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares which,
if sold by the holder thereof in the United States or its territories, would be
subject to the registration provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares.
(4) Liability of Holder for Taxes. If any tax or other governmental charge
shall become payable with respects to any Deposited Securities represented
hereby, such tax or other governmental charge shall be payable by the Holder
hereof to the Depositary. The Depositary may refuse to effect any registration
of transfer of this Receipt or any withdrawal of Deposited Securities.
represented hereby 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 hereby, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge, the Holder hereof remaining liable for
any deficiency.
(5) Warranties by Depositor. Every person depositing Shares under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Shares and each certificate therefor are valid and that the person making such
deposit is duly authorized so to do. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts.
(6) Charges of Depositary. The Depositary will charge the party to whom
Receipts are delivered against deposits, and the party surrendering Receipts for
delivery of Deposited Securities, $5.00 for each 100 American Depositary Shares
(or portion thereof) represented by the Receipts issued or surrendered. Any and
all expenses of the Depositary, including, without limitation. the charges and
expenses of the Custodians under or in connection with the Deposit Agreement,
other than those foes expressed to be paid by the Holders in the preceding
sentence, or as may be agreed from time to time between the Company and the
Depositary, will be borne by the Depositary, except (i) taxes and other
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governmental charges, (ii) share transfer registration fees on deposits of
Shares, (iii) such cable, telex and facsimile transmission and delivery charges
as are expressly provided in the Deposit Agreement to be at the expense of
persons depositing shares or Holders of Receipts, and (iv) such expenses as are
incurred by the Depositary in the conversion of foreign currency into dollars:
(7) Title to Receipts. It is a condition of this Receipt, and every
successive Holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the American Depositary Shares evidenced
hereby), when property endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case or 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.
(8) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid of obligatory for any purpose,
unless this Receipt shall have been executed by the Depositary by the manual
signature off a duly authorized officer or, if a Registrar for the Receipts
shall have been appointed, by the manual signature of a duly authorized officer
of such Registrar,
(9) Pre-release. Pursuant to the Deposit Agreement, the Depositary may
issue Receipts for evidence of rights to receive Shares from the Company, or any
Custodian, Registrar, transfer agent, clearing agency or other entity involved
in ownership records or transaction records in respect of the Shares. Such
evidence of rights is required to consist of written blanket or specific
guarantees of ownership of Shares furnished on behalf of the holder thereof. The
Depositary is not permitted to lend Shares or Receipts; except that the
Depositary may (i) issue Receipts prior to the receipt of Shares pursuant to
Section 2.02 of the Deposit Agreement and (ii) deliver Shares prior to the
receipt and cancellation of Receipts pursuant to Section 2.03 of the Deposit
Agreement, including Receipts which were issued under (i) above but for which
Shares may not have been received. The Depositary may receive Receipts in lieu
of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. The Depositary is required to cause each such transaction to be (a)
accompanied by (x) a written representation from the person to whom Receipts or
Shares are to be delivered that such person, or its customer, owns the Shares or
Receipts to be remitted, as the case may be, or (y) such other evidence of
ownership of shares or Receipts, as the case may be, as the Depositary deems
appropriate, (b) at all times fully collateralized (marked to market daily) with
cash, United States Government securities or other collateral of comparable
safety and liquidity, (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. Pursuant to the Deposit
Agreement, the Depositary has agreed to limit the number of Receipts and Shares
involved in such transactions at any one time to thirty percent (30%) of the
face amount of Receipts outstanding (without giving effect to Receipts
outstanding under (i) above), or principal amount of Shares actually deposited
under the Deposit Agreement, respectively. Pursuant to the Deposit Agreement,
the Depositary is required to set limits with respect to the number of Receipts
and Shares involved in such transactions with any one person on a case-by-case
basis as it deems appropriate. Pursuant to the Deposit Agreement collateral
(but. not any earnings thereon) is required to be held for the benefit of the
Holder only. The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
(10) Power of Attorney. The Holder hereby agrees that, upon acceptance of
this Receipt issued in accordance with the terms of the Deposit Agreement, the
Holder appoints the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any all steps or action provided for
or contemplated herein and in the Deposit Agreement with respect to the
Deposited Securities, including but not limited to those set forth in Article IV
of the Deposit Agreement, and to take such further steps or action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes hereof and of the Deposit Agreement.
(11) Disclosure of Interest. The Holder of this Receipt agrees to comply
with the Company's Articles of Association, as they may be amended from time to
time, and the laws of Sweden, with respect to disclosure requirements, if any,
regarding ownership of Deposited Securities and shares in and other securities
and debt obligations of the Company, all as if this Receipt were to the extent
practicable the Shares represented hereby.
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The Depositary shall, at the Company's request, send to any Holder
specified by the Company a notice requiring such Holder to notify the Depositary
as to whether any of such Holder's American Depositary Shares represented by any
of the Receipts held by or registered in the name of such Holder are being held,
directly or indirectly, for some person other than such Holder and, if so, the
name, address and citizenship of such other person or persons. Each Holder will
provide to the Depositary at the Depositary's Principal Office the information
requested in the Depositary's notice within five (5) business days after the
date of the notice and the Depositary shall forthwith furnish the Company with
the information provided. Should any Holder fail to provide the information
sought within such five (5) business days, the Depositary shall notify the
Company accordingly and, upon receipt of written instructions from the Company
to that effect, the Depositary shall (i) discontinue the registration of
transfers of all Receipts registered in the name of such Holder; (ii) suspend
the distribution of payments of dividends to such Holder and (iii) not give any
further notices to such Holder; until such information is provided pursuant to
Section 3.04 of the Deposit Agreement.
(12) Compliance with U.S. Securities Laws. Notwithstanding anything in the
Deposit Agreement or this form of Receipt to the contrary, each of the Company
and the Depositary agree that it will not exercise any rights it has under this
Deposit Agreement to prevent the withdrawal or delivery of Deposited Securities
in a manner which would violate the United States securities laws, including
without being limited to, General Instruction I.A(1) to Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
Dated:
Countersigned CITIBANK, N.A.,
as Depositary
By: By:
------------------------ ------------------------
Authorized Officer Vice President
The address of the Principal Office of the Depositary is 000 Xxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
Dividends and Distributions; Rights. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Deposited Securities, the
Depositary will, if at the time of receipt thereof any amounts received in a
foreign currency can in the judgment of the Depositary be Converted on a
reasonable basis into United States dollars transferable to the United States
and, subject to the provisions of the Deposit Agreement, convert such dividend
or distribution into United States dollars and will distribute the amount thus
received to the Holders of Receipts entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively; provided, however, that the amount distributed will be
reduced by any amounts required to be withheld by the Company or the Depositary
on account of taxes. If in the judgment or the Depositary amounts received in
foreign currency may not be converted on a reasonable basis into United States
dollars transferable to the United States, or may not be so convertible for all
of the Holders of Receipts entitled thereto, the Depositary may in its
discretion make such conversion, if any, and distribution in United States
dollars to the extent permissible to the Holders of Receipts entitled thereto
and may distribute the balance of the foreign currency received and not so
convertible by the Depositary to, or hold such balance for the account of, the
Holders of Receipts entitled thereto. If in the opinion of the Depositary any
distribution other than cash or Shares upon any Deposited Securities 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 for the purpose of
effecting such distribution, including the sale (at public or private sale) of
the securities or property thus received, or any part thereof, and the net
proceeds of any such sale will be distributed by the Depositary to the Holders
of Receipts entitled thereto as in the case of a distribution received in cash.
If any distribution upon any Deposited Securities consists of a dividend in, or
free distribution of, Shares, the Depositary may with the Company's approval,
and shall if the Company shall so request, distribute to the Holders of
outstanding Receipts entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts for an aggregate number of American Depositary
Shares representing the number of Shares received as such dividend or free
distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary may sell the number of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
converted into United States dollars if not in such dollars (if such conversion
may in the judgment of the Depositary be achieved on a reasonable basis), to the
Holders or Receipts entitled thereto. If additional Receipts are not so
distributed (except as pursuant to the preceding sentence), each American
Depositary Share shill thenceforth also represent the additional Shares
distributed upon the Deposited securities represented thereby. In the event that
the Company dealt 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
nature, the Depositary shall have discretion as to whether such rights are to be
made available to the Holders of Receipts: provided, however, that the
Depositary will, if requested by the Company, either (a) make such rights
available to Holders of Receipts by means of warrants or otherwise, if lawful
and feasible, or (b) if making such rights available is not lawful or not
feasible, or if the rights represented by such warrants or other instruments are
not exercised and appear to be about to lapse, sell such or warrants or other
instruments at public or private sale, at such place or places and upon such
terms as the Depositary may deem proper, and allocate the proceeds of such sales
for account of the Holders of Receipts otherwise entitled thereto upon an
averaged or other practicable basis without regard to any distinctions among
such Holders because of exchange restrictions, or the date of delivery of any
Receipt or Receipts, or otherwise.
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
the Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, the Depositary will fix a record date for the
determination of the Holders of Receipts who shall be entitled to receive such
dividend, distribution or rights, or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting, subject
to the provisions of the Deposit Agreement.
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Voting of Deposited Securities. Upon receipt of notice of any meeting of
holders of Deposited Securities, the Depositary will mail to the Holders of
Receipts a notice which will contain (a) such information as is contained in
such notice of meeting and (b) a statement that the Holders of Receipts at the
close of business on a specified record date will be entitled to instruct the
Depositary as to the exercise of voting rights, if any, pertaining to the amount
of Deposited Securities represented by their respective American Depositary
Shares, and a brief statement as to the manner in which such instructions may be
given. Upon the written request of a Holder of a Receipt or Receipts on such
record date, received on or before the date established by the Depositary for
such purpose, together with (i) such Holder's Receipt or Receipts for such
Shares as to which voting instructions are being given and (ii) such Holder's
instructions that such Receipt or Receipts are to be held in a blocked account
until the Shares represented by such Receipt or Receipts are voted, the
Depositary will endeavor insofar as practicable to vote or use to be voted the
amount of Deposited Securities represented by such Receipt or Receipts in
accordance with such instructions. The Depositary agrees not to vote the Shares
or other Deposited Securities represented by a Receipt unless it receives
instructions from the Holder of such Receipts,
Changes Affecting Deposited Securities. Upon any 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 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 the American Depositary Shares shall
thenceforth represent the new Deposited Securities so received in exchange or
conversion, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may with the Company's approval, and
shall if the Company shall so request, execute and deliver additional Receipts
as in the case of a stock dividend, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts.
Reports; Inspection of Transfer Books. The Depositary will make available
for inspection by Holders of Receipts at its Principal office any reports and
communications received from the Company. Including any proxy soliciting
material, which are both (a) received by the Depositary as the holder of the
Deposited Securities, and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary will also send to Holders of
Receipts copies of such reports when furnished by the Company as provided in the
Deposit Agreement. The Depositary will keep books for the registration of
Receipts and their transfer which at all reasonable times will be open or
inspection by the 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.
Liability of the Company and Depositary. Neither the Depositary nor the
Company shall incur any liability to any Holder of this Receipt, if by reason of
any provision of any present or future law of any country or of any governmental
authority or by reason of any provision, present or future, of the Articles of
Association of the Company, or by reason of any act of God or war or other
circumstance beyond its control, the Depositary or the Company shall be
prevented or forbidden from doing or performing any act or thing which by the
terms of the Deposit Agreement it is provided shall be done or performed.
Neither the Company nor the Depositary assumes any obligation or shall be
subject to any liability under the Deposit Agreement to Holders of Receipts,
except that they agree to use their best judgment and good faith in the
performance of such duties as in specifically set forth in the Deposit
Agreement. Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense and liability, unless indemnity satisfactory
to it against all expense and liability 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 Custodians being solely to the
Depositary. Neither the Depositary nor the Company shall be liable for any
action or non-action by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Holder
of a Receipt, or any other person believed by it in good faith to be competent
to give such advice or information. The Depositary will 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 effect of any
such vote, provided that any such action or non-action is in good faith. The
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Conformed copy
Depositary may own and deal in any class of securities of the Company and its
affiliates and in Receipts. The Company agrees to indemnify the Depositary and
each Custodian against, and hold each of them harmless from, any liability or
expense which may arise out of acts performed in accordance with the provisions
of the Deposit Agreement and of the Receipts, as the same may be amended,
modified of supplemented from time to time, (i) by either the Depositary or any
Custodian, except for any liability arising out of the negligence or bad faith
of either of them, or (ii) by the Company or any of its agents.
Resignation and Removal of Depositary; Substitution of Custodian. The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal, effective 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 appoint a substitute or additional custodian and the
term "Custodian" shall also refer to such substitute or additional custodian.
Amendment of Deposit Agreement and Receipts. The Receipts and the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary. Any amendment which shall impose or increase any
fees or charges (other than the fees of the Depositary for the execution and
delivery or the cancellation of Receipts and taxes or other governmental
charges), or which shall otherwise prejudice any substantial existing right of
Holders of Receipts, shall, however, not become effective as to outstanding
Receipts until the expiration of three months 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 at amended thereby. In no event shall any
amendment impair the right of the Holder hereof to surrender this Receipt and
receive therefor the Deposited Securities represented hereby.
Termination of Deposit Agreement. The Depositary will 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 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate the Deposit Agreement at any time 60 days after the
Depositary shall have resigned, if a successor depositary shall not have been
appointed and accepted its appointment. If any Receipts shall remain outstanding
after the date of termination, the Depositary thereafter will discontinue the
registration of transfers of Receipts, will suspend the distribution of
dividends to the holders thereof, and will not give any further notices of
perform any further acts under the Deposit Agreement, except the collection of
dividends and other distributions pertaining to Deposited Securities, the sale
of rights and the delivery of 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 Depository. At any time after the expiration of one year from the date of
termination, the Depositary may sell the Deposited Securities then held under
the Deposit Agreement and may thereafter hold the net proceeds of any such sale,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, for the pro rata benefit of the Holders of
Receipts not theretofore surrendered. After making such sale, the Depositary
shall be discharged from all obligations under the Deposit Agreement, except for
its obligations under Section 5.08 thereof and except to account for the claims
of Holders, as creditors of the Depositary, for such net proceeds and other
cash, after deducting, or charging, as the case may be, the foes 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 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 for the Company's obligations
under Section 5.08 thereof.
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Conformed copy
Available Information. The Company currently is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934 and accordingly
files certain reports with the Securities and Exchange Commission (the
"Commission"). Such reports and other information may be inspected and copied at
public reference facilities maintained by the Commission in Washington, D.C.
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