AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 2 dated
as
of _________, 2006 (the "Amendment") to the Deposit Agreement dated as of
October 16, 1998, as amended as of August 27, 2003 (as so hereby amended, the
"Deposit Agreement"), by and among the signatories hereto.
W
I T
N E S S E T H:
WHEREAS,
Sanpaolo IMI S.p.A. entered into the Deposit Agreement with JPMorgan Chase
Bank,
N.A., as depositary (the "Depositary") and all holders from time to time of
American depositary receipts ("ADRs") issued thereunder for the purposes set
forth therein;
WHEREAS,
Banca Intesta S.p.A. (the "Company") intends to enter into a business
combination (the "Combination") with Sanpaolo IMI S.p.A. to become effective
as
of January 1, 2007 pursuant to which each ordinary share of Sanpaolo IMI S.p.A.
will be exchanged for 3.115 Shares of the Company;
WHEREAS,
at the effectiveness of the Combination the Company will change its name to
Intesa Sanpaolo S.p.A.
WHEREAS,
in accordance with paragraph (13) of the form of ADR, the Depositary may amend
the ADRs issued under the Deposit Agreement or distribute additional or amended
ADRs to reflect any change in par value, split-up, consolidation, cancellation
or other reclassification of Deposited Securities, any Share Distribution or
Other Distribution not distributed to Holders or any cash, securities or
property available to the Depositary in respect of Deposited Securities from
any
recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of
the
Sanpaolo IMI S.p.A.;
WHEREAS,
the Company, as successor to Sanpaolo IMI S.p.A. wishes to now amend the Deposit
Agreement in accordance with said paragraph (13) to reflect that, on the
effectiveness of the Combination, the Company is the issuer of the Deposited
Securities under the Deposit Agreement;
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:
1
ARTICLE
I
DEFINITIONS
SECTION
1.01. 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. All
references in the Deposit Agreement to the terms "Deposit Agreement" shall,
as
of the Effective Date (as herein defined), refer to the Deposit Agreement as
amended hereby.
SECTION
2.02.
All
references in the Deposit Agreement to the "Company" shall be references to
Banca Intesa S.p.A. and all references to the "Depositary" shall be references
to "JPMorgan Chase Bank, N.A.".
SECTION
2.03. All
references in the Deposit Agreement to the "lire", "lira" and Lit." are
deleted.
SECTION
2.04. The
address of the Company set forth in Section 17 shall read as
follows:
Banca
Intesa S.p.A.
Xxxxxx
Xxxxx 0
00000
Xxxxx, Xxxxx
Attention:
Xxxxxx Xxxxxxxxx
Fax:
x00
00 0000 0000
SECTION
2.05. The
phrase "before the first" in Section 14 shall be deleted and replaced with
"promptly following the".
2
ARTICLE
III
AMENDMENTS
TO THE FORM OF ADR
SECTION
3.01.
The
form
of ADR in Exhibit A to the Deposit Agreement (the "ADR") is amended as provided
in this Article.
SECTION
3.02.
All
references in the ADR to the "Company" shall be references to "Banca Intesa
S.p.A. and its successors" and all references to the "Depositary" shall be
references to "JPMorgan Chase Bank, N.A.".
SECTION
3.03. Paragraph
(8) of the form of ADR is amended to read as follows:
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will distribute copies of such communications
(or English translations or summaries thereof) to Holders when furnished by
the
Company. The Company furnishes the United States Securities and Exchange
Commission (the "Commission") with certain public reports and documents required
by foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange
Act of 1934 or is otherwise subject to the periodic reporting requirements
of
the Securities Exchange Act of 1934 and accordingly files certain reports with
the Commission. Such reports and documents may be inspected and copied at the
public reference facilities maintained by the Commission located at the date
of
the Deposit Agreement at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
SECTION
3.04. Paragraph
(14) of the form of ADR is amended by inserting the following at the conclusion
thereof:
Neither
the Company nor the Depositary nor any of their respective agents shall be
liable to Holders or beneficial owners of interests in ADSs for any indirect,
special, punitive or consequential damages.
3
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
January 1, 2007 (the “Effective Date”).
SECTION
4.02. Outstanding
Receipts.
As a
result of the Combination provisions, ADRs issued prior or subsequent to the
date hereof, which do not reflect the changes to the ADR effected hereby (as
set
forth in Exhibit A hereto), shall be called in for exchange. The Depositary
is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
SECTION
4.03. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement as amended hereby in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
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.
|
BANCA
INTESA S.p.A.
|
|
|
By:_____________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
JPMORGAN
CHASE BANK, N.A.
|
|
|
By:_____________________________
|
|
|
Name:
|
|
|
Title:
|
4
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT
TO DEPOSIT AGREEMENT
[FORM
OF
FACE OF ADR]
|
|
No.
of ADSs:
|
|
|
Number
|
||
|
Each
ADS represents
Six
Shares
CUSIP:
|
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
INTESA
SANPAOLO S.p.A.
(Incorporated
under the
laws
of
the Republic of Italy)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary hereunder (the "Depositary"), hereby certifies
that
is the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing six
ordinary shares (including the rights to receive Shares described in paragraph
(1), "Shares" and, together with any other securities, cash or property from
time to time held by the Depositary in respect or in lieu of deposited Shares,
the "Deposited Securities"), of Intesa Sanpaolo S.p.A., a corporation organized
under the laws of the Republic of Italy, and its successors (the "Company")
as
successor to Sanpaolo IMI S.p.A., deposited under the Deposit Agreement dated
as
of October 16, 1998 (as amended from time to time, the "Deposit Agreement")
among the Company, the Depositary and all Holders from time to time of American
Depositary Receipts issued thereunder ("ADRs"), each of whom by accepting an
ADR
becomes a party thereto. The Deposit Agreement and this ADR (which includes
the
provisions set forth on the reverse hereof) shall be governed by and construed
in accordance with the laws of the State of New York.
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Shares in form satisfactory to the Custodian; (b) rights to receive Shares
from
the Company or any registrar, transfer agent, clearing agent or other entity
recording Share ownership or transactions; or, (c) other rights to receive
Shares (until such Shares are actually deposited pursuant to (a) or (b) above,
"Pre-released ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market daily) with cash or U.S. government securities held by the
Depositary for the benefit of Holders (but such collateral shall not constitute
"Deposited Securities"), (ii) each recipient of Pre-released ADRs agrees in
writing with the Depositary that such recipient (a) owns such Shares, (b)
assigns all beneficial right, title and interest therein to the Depositary,
(c)
holds such Shares for the account of the Depositary and (d) will deliver such
Shares to the Custodian as soon as practicable and promptly upon demand therefor
and (iii) all Pre-released ADRs evidence not more than 30% of all ADSs
(excluding those evidenced by Pre-released ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard such limit from time
to
time to the extent that it determines unusual market conditions require the
issue of pre-released ADRs in addition to 30% of all such ADRs. The Depositary
may retain for its own account any earnings on collateral for Pre-released
ADRs
and its charges for issuance thereof. At the request, risk and expense of the
person depositing Shares, the Depositary may accept deposits for forwarding
to
the Custodian and may deliver ADRs at a place other than its office. Every
person depositing Shares under the Deposit Agreement represents and warrants
that such Shares are validly issued and outstanding, fully paid, nonassessable
and free of pre-emptive rights, that the person making such deposit is duly
authorized so to do and that such Shares (A) are not "restricted securities"
as
such term is defined in Rule 144 under the Securities Act of 1933 unless at
the
time of deposit they may be freely transferred in accordance with Rule 144(k)
and may otherwise be offered and sold freely in the United States or (B) have
been registered under the Securities Act of 1933. Such representations and
warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary will not knowingly accept for deposit under the Deposit Agreement
any
Shares required to be registered under the Securities Act of 1933 and not so
registered; the Depositary may refuse to accept for such deposit any Shares
identified by the Company in order to facilitate the Company's compliance with
such Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, the
Holder hereof is entitled to delivery at the Custodian's office of the Deposited
Securities at the time represented by the ADSs evidenced by this ADR. At the
request, risk and expense of the Holder hereof, the Depositary may deliver
such
Deposited Securities at such other place as may have been requested by the
Holder. Notwithstanding any other provision of the Deposit Agreement or this
ADR, the withdrawal of Deposited Securities may be restricted only for the
reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be amended from time to time) under the Securities Act of
1933.
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a
register (the "ADR Register") for the registration, registration of transfer,
combination and split-up of ADRs, and, in the case of Direct Registration ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company or
a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed (in the case of ADRs in certificated
form) or upon delivery to the Depositary of proper instruments of transfer,
is
transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes. Subject to paragraphs (4) and (5), this ADR is
transferable on the ADR Register and may be split into other ADRs or combined
with other ADRs into one ADR, evidencing the same number of ADSs evidenced
by
this ADR, by the Holder hereof or by duly authorized attorney upon surrender
of
this ADR at the Transfer Office properly endorsed (in the case of ADRs in
certificated form) or upon delivery to the Depositary of proper instruments
of
transfer and duly stamped as may be required by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company. At the request of a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR with
a
Direct Registration ADR, or vice versa, execute and deliver a certificated
ADR
or a Direct Registration ADR, as the case may be, for any authorized number
of
ADSs requested, evidencing the same aggregate number of ADSs as those evidenced
by the certificated ADR or Direct Registration ADR, as the case may be,
substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject to
the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Shares or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity and genuineness
of any signature and (ii) such other information, including without limitation,
information as to citizenship, residence, exchange control approval, beneficial
ownership of any securities, compliance with applicable law, regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and this ADR, as it may deem necessary or proper; and (c) compliance
with such regulations as the Depositary may establish consistent with the
Deposit Agreement. The issuance of ADRs, the acceptance of deposits of Shares,
the registration, registration of transfer, split-up or combination of ADRs
or,
subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may be suspended, generally or in particular instances, when the
ADR
Register or any register for Deposited Securities is closed or when any such
action is deemed advisable by the Depositary or the Company.
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary may also deduct from any distributions on or in respect
of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required
to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. If the Depositary determines that any distribution in property other
than cash (including Shares or rights) on Deposited Securities is subject to
any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such amounts
and
in such manner as the Depositary deems necessary and practicable to pay such
taxes, by public or private sale, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction
of
such taxes to the Holders entitled thereto. The Depositary and the Company
agree
to use reasonable efforts to make and maintain arrangements (in addition to
or
in substitution of the arrangements described in this section) to enable persons
that are considered U. S. residents for purposes of applicable law to receive
any rebates, tax credits or other benefits, including a reduced withholding
tax
rate at source, (pursuant to treaty or otherwise) relating to distributions
on
the ADSs to which such persons are entitled. The Depositary agrees to establish
procedures to enable Holders to take advantage of any such rebates, tax credits
or other benefits and to provide a copy of such procedures to the Company and,
on an annual basis, to each Holder of ADRs.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited Securities may require
disclosure of or impose limits on beneficial or other ownership of Deposited
Securities, other Shares and other securities and may provide for blocking
transfer, voting or other rights to enforce such disclosure or limits, Holders
and all persons holding ADRs agree to comply with all such disclosure
requirements and ownership limitations and to cooperate with the Depositary
in
the Depositary's compliance with any Company instructions in respect thereof,
and the Depositary will use reasonable efforts to comply with such Company
instructions.
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADSs are issued against deposits
of
Shares, including deposits in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADSs for withdrawal of Deposited Securities, U.S. $5.00 for each
100 ADSs (or portion thereof) delivered or surrendered. The Depositary may
sell
(by public or private sale) sufficient securities and property received in
respect of Share Distributions, Rights and Other Distributions prior to such
deposit to pay such charge. The Company will pay all other charges and expenses
of the Depositary and any agent of the Depositary (except the Custodian)
pursuant to agreements from time to time between the Company and the Depositary,
except (i) stock transfer or other taxes and other governmental charges (which
are payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) transfer or registration fees
for
the registration of transfer of Deposited Securities on any applicable register
in connection with the deposit or withdrawal of Deposited Securities (which
are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement), and (iv) expenses of the Depositary in connection with
the conversion of foreign currency into U.S. dollars (which are paid out of
such
foreign currency). These charges may be changed in the manner indicated in
paragraph (16).
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will distribute copies of such communications
(or English translations or summaries thereof) to Holders when furnished by
the
Company. The Company furnishes the United States Securities and Exchange
Commission (the "Commission") with certain public reports and documents required
by foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange
Act of 1934 or is otherwise subject to the periodic reporting requirements
of
the Securities Exchange Act of 1934 and accordingly files certain reports with
the Commission. Such reports and documents may be inspected and copied at the
public reference facilities maintained by the Commission located at the date
of
the Deposit Agreement at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary by
the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
|
JPMORGAN
CHASE BANK, N.A., as Depositary
|
|
|
By
_____________________________
|
|
|
Authorized
Officer
|
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
distribute by mail to each Holder entitled thereto on the record date set by
the
Depositary therefor at such Holder's address shown on the ADR Register, in
proportion to the number of Deposited Securities (on which the following
distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged
or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses
in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made
on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at
a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received
in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities ("Rights"), to the extent
that
the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company
has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any
U.S.
dollars available to the Depositary from the net proceeds of sales of Rights
as
in the case of Cash, or (iii) to the extent the Company does not so furnish
such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions and
Rights ("Other Distributions"), by any means that the Depositary may deem
equitable and
practicable,
or (ii) to the extent the Depositary deems distribution of such securities
or
property not to be equitable and practicable, any U.S. dollars available to
the
Depositary from the net proceeds of sales of Other Distributions as in the
case
of Cash. Such U.S. dollars available will be distributed by checks drawn on
a
bank in the United States for whole dollars and cents (any fractional cents
being withheld without liability and dealt with by the Depositary in accordance
with its then current procedures).
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable, fix a record
date (which shall be as near as practicable to any corresponding record date
set
by the Company) for the determination of the Holders who shall be entitled
to
receive any distribution on or in respect of Deposited Securities, to give
instructions for the exercise of any voting rights, to receive any notice or
to
act in respect of other matters and only such Holders shall be so
entitled.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall mail to Holders a notice stating (a) such
information as is contained in such notice and any solicitation materials,
(b)
that each Holder on the record date set by the Depositary therefor will be
entitled to instruct the Depositary as to the exercise of the voting rights,
subject to applicable provisions of Italian law and to the Company's by-laws,
pertaining to the Deposited Securities represented by the ADSs evidenced by
such
Holder's ADRs and (c) the manner in which such instructions may be given,
including instructions to give a discretionary proxy to a person designated
by
the Company. Upon receipt of instructions of a Holder on such record date in
the
manner and on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to vote or cause to be voted
(or
to grant a discretionary proxy to a person designated by the Company to vote)
the Deposited Securities represented by the ADSs evidenced by such Holder's
ADRs
in accordance with such instructions. The Depositary will not itself exercise
any voting discretion in respect of any Deposited Securities.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its discretion, amend this
ADR
or distribute additional or amended ADRs (with or without calling this ADR
for
exchange) or cash, securities or property on the record date set by the
Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Share
Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and to sell by public or private sale any
property received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of all
or
substantially all the assets of the Company, and to the extent the Depositary
does not so amend this ADR or make a distribution to Holders to reflect any
of
the foregoing, or the net proceeds thereof, whatever cash, securities or
property results from any of the foregoing shall constitute Deposited Securities
and each ADS evidenced by this ADR shall automatically represent its pro rata
interest in the Deposited Securities as then constituted.
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if law, regulation, the provisions of or governing any Deposited
Securities, act of God, war or other circumstance beyond its control shall
prevent, delay or subject to any civil or criminal penalty any act which the
Deposit Agreement or this ADR provides shall be done or performed by it, or
(ii)
by reason of any exercise or failure to exercise any discretion given it in
the
Deposit Agreement or this ADR; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of
the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which
in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not
be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to
give
such advice or information. The Depositary, its agents and the Company may
rely
and shall be protected in acting upon any written notice, request, direction
or
other document believed by them to be genuine and to have been signed or
presented by the proper party or parties. The Depositary and its agents will
not
be responsible for any failure to carry out any instructions to vote any of
the
Deposited Securities, for the manner in which any such vote is cast or for
the
effect of any such vote. The Depositary and its agents may own and deal in
any
class of securities of the Company and its affiliates and in ADRs. The Company
has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company against
losses incurred by the Company to the extent such losses are due to the
negligence or bad faith of the Depositary. No disclaimer of liability under
the
Securities Act of 1933 is intended by any provision hereof. Neither the Company
nor the Depositary nor any of their respective agents shall be liable to Holders
or beneficial owners of interests in ADSs for any indirect, special, punitive
or
consequential damages.
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by written notice of its election to do
so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary; such resignation or removal
shall take effect upon the appointment of and acceptance by a successor
depositary. The Depositary may appoint substitute or additional Custodians
and
the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary, provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other
such
expenses), or that shall otherwise prejudice any substantial existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time any amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold such ADR, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order
for
(a) the ADSs to be registered on Form F-6 under the Securities Act of 1933
or
(b) the ADSs or Shares to be traded solely in electronic book-entry form and
(ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to prejudice any substantial rights of
Holders. Notwithstanding the foregoing, if any governmental body should adopt
new laws, rules or regulations which would require amendment or supplement
of
the Deposit Agreement or the form of ADR to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and
the
ADR at any time in accordance with such changed rules. Such amendment or
supplement to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance.
(17)
Termination.
The
Depositary may and shall at the written direction of the Company, terminate
the
Deposit Agreement and this ADR by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary and its
agents will perform no further acts under the Deposit Agreement and this ADR,
except to receive and hold (or sell) distributions on Deposited Securities
and
deliver Deposited Securities being withdrawn. As soon as practicable after
the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such sales,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash.
After the date so fixed for termination, the Company shall be discharged from
all obligations under the Deposit Agreement except for its obligations to the
Depositary and its agents.
