EXHIBIT 4.3
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ADECCO SA
AND
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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Amended and Restated Deposit Agreement
Dated as of December 8, 1999
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TABLE OF CONTENTS
Page
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PARTIES......................................................................................................... 1
RECITALS........................................................................................................ 1
Section 1. Certain Definitions
(a) ADR Register..........................................................................1
(b) ADRs; Direct Registration ADRs....................................................... 1
(c) ADS...................................................................................1
(d) Custodian.............................................................................1
(e) Deliver, execute, issue et al.........................................................2
(f) Delivery Order........................................................................2
(g) Deposited Securities................................................................. 2
(h) Direct Registration System............................................................2
(i) Holder................................................................................2
(j) Securities Act of 1933................................................................2
(k) Securities Exchange Act of 1934.......................................................2
(l) Shares................................................................................2
(m) Transfer Office...................................................................... 2
(n) Withdrawal Order..................................................................... 2
Section 2. ADR Certificates...............................................................................2
Section 3. Deposit of Shares..............................................................................3
Section 4. Issue of ADRs..................................................................................3
Section 5. Distributions on Deposited Securities..........................................................4
Section 6. Withdrawal of Deposited Securities.............................................................4
Section 7. Substitution of ADRs.......................................................................... 4
Section 8. Cancellation and Destruction of ADRs...........................................................4
Section 9. The Custodian................................................................................. 5
Section 10. Co-Registrars and Co-Transfer Agents.......................................................... 5
Section 11. Lists of Holders. ............................................................................ 5
Section 12. Depositary's Agents........................................................................... 5
Section 13. Successor Depositary.......................................................................... 5
Section 14. Reports....................................................................................... 6
Section 15. Additional Shares..............................................................................6
Section 16. Indemnification............................................................................... 6
Section 17. Notices....................................................................................... 7
Section 18. Miscellaneous................................................................................. 7
Section 19. Amendment and Restatement of Old Deposit
Agreement..................................................................................... 8
TESTIMONIUM..................................................................................................... 9
SIGNATURES...................................................................................................... 9
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EXHIBIT A
FORM OF FACE OF ADR............................................................................................ A-1
Introductory Paragraph................................................................................ A-1
(1) Issuance of ADRs........................................................................... A-2
(2) Withdrawal of Deposited Securities......................................................... A-2
(3) Transfers of ADRs.......................................................................... A-3
(4) Certain Limitations........................................................................ A-3
(5) Taxes...................................................................................... A-4
(6) Disclosure of Interests.................................................................... A-5
(7) Charges of Depositary...................................................................... A-5
(8) Available Information...................................................................... A-5
(9) Execution.................................................................................. A-6
Signature of Depositary............................................................................... A-6
Address of Depositary's Office ....................................................................... A-6
FORM OF REVERSE OF ADR......................................................................................... A-7
(10) Distributions on Deposited Securities...................................................... A-7
(11) Record Dates............................................................................... A-8
(12) Voting of Deposited Securities............................................................. A-8
(13) Changes Affecting Deposited Securities..................................................... A-8
(14) Exoneration................................................................................ A-9
(15) Resignation and Removal of Depositary; the
Custodian.................................................................................. A-9
(16) Amendment................................................................................. A-10
(17) Termination............................................................................... A-10
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AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of December 8, 1999
(the "Deposit Agreement") among ADECCO SA, a societe anonyme organized under the
laws of Switzerland, and its successors (the "Company"), ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as depositary hereunder (the "Depositary"), and all holders
from time to time of American Depositary Receipts issued hereunder ("ADRs")
evidencing American Depositary Shares ("ADSs") representing deposited Shares
(defined below).
WITNESSETH:
WHEREAS, the Company desires to amend and restate the
Deposit Agreement dated as of November 30, 1994 (the "Original Deposit
Agreement"), among the Company, the Depositary and all holders from time to time
of American depositary receipts issued thereunder, which provides for the
deposit of Shares of the Company from time to time with the Depositary or the
Custodian and for the execution and delivery of American depositary receipts
evidencing the American depositary shares representing the Shares so deposited;
and
WHEREAS, the ADRs issued in certificated form are to be
substantially in the form of Exhibit A annexed hereto;
NOW, THEREFORE, in consideration of the premises, it is
agreed by and among the parties hereto that the Original Deposit Agreement is
hereby amended and restated in its entirety to read as follows effective as of
the date first above written:
1. CERTAIN DEFINITIONS.
(a) "ADR REGISTER" is defined in paragraph (3) of the form of ADR.
(b) "ADRS" mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct
Registration ADRs. ADRs in physical certificated form shall be substantially in
the form of Exhibit A annexed hereto (the "FORM OF ADR"). The term "DIRECT
REGISTRATION ADR" means an ADR, the ownership of which is recorded on the Direct
Registration System. References to "ADRs" shall include certificated ADRs and
Direct Registration ADRs, unless the context otherwise requires. The form of ADR
is hereby incorporated herein and made a part hereof; the provisions of the form
of ADR shall be binding upon the parties hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced
by an ADR represents the right to receive one-eighth of one Share and a pro rata
share in any other Deposited Securities.
(d) "CUSTODIAN" means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
(e) The terms "DELIVER", "EXECUTE", "ISSUE", "REGISTER", "SURRENDER",
"TRANSFER" or "CANCEL", when used with respect to Direct Registration ADRs,
shall refer to an entry or entries or an electronic transfer or transfers in the
Direct Registration System.
(f) "DELIVERY ORDER" is defined in Section 3.
(g) "DEPOSITED SECURITIES" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(8) "DIRECT REGISTRATION SYSTEM" means the direct registration system
maintained by the Depositary, pursuant to which the Depositary may record the
ownership of uncertificated ADRs, which ownership shall be evidenced by periodic
statements issued by the Depositary to the Holders entitled thereto.
(i) "HOLDER" means the person or persons in whose name an ADR is
registered on the ADR Register.
(j) "SECURITIES ACT OF 1933" means the United States Securities Act of
1933, as from time to time amended.
(k) "SECURITIES EXCHANGE ACT OF 1934" means the United States
Securities Exchange Act of 1934, as from time to time amended.
(l) "SHARES" mean the common shares, nominal value CHF 10.00 per share,
of the Company, represented by registered shares and shall include the rights to
receive Shares specified in paragraph (1) of the form of ADR.
(m) "TRANSFER OFFICE" is defined in paragraph (3) of the form of ADR.
(n) "WITHDRAWAL ORDER" is defined in Section 6.
2. ADR CERTIFICATES. (a) ADRs in certificated form shall be engraved,
printed or otherwise reproduced at the discretion of the Depositary in
accordance with its customary practices in its American depositary receipt
business or as may be required by any national securities exchange on which the
ADSs are listed or proposed to be listed, or at the request of the Company
typewritten and photocopied on plain or safety paper, and shall be substantially
in the form set forth in the form of ADR, with such changes as may be required
by the Depositary or the Company to comply with their obligations hereunder, any
applicable law, regulation or usage or to indicate any special limitations or
restrictions to which any particular ADRs are subject. ADRs may be issued in
denominations of any number of ADSs. ADRs in certificated form shall be executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the
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Depositary. ADRs in certificated form bearing the manual or facsimile signature
of anyone who was at the time of execution a duly authorized officer of the
Depositary shall bind the Depositary, notwithstanding that such officer has
ceased to hold such office prior to the delivery of such ADRs.
(b) DIRECT REGISTRATION ADRS. Notwithstanding anything in this Deposit
Agreement or in the form of ADR to the contrary, to the extent permitted under
the Rules of The Depository Trust Company, ADSs shall be evidenced by Direct
Registration ADRs, unless certificated ADRs are specifically requested by the
Holder.
(c) Holders shall be bound by the terms and conditions of this
Deposit Agreement and of the form of ADR, regardless of
whether their ADRs are Direct Registration ADRs or
certificated ADRs.
3. DEPOSIT OF SHARES. In connection with the deposit of a whole number
of Shares hereunder, the Depositary or the Custodian may require the following
in form satisfactory to it: (a) a written order directing the Depositary to
issue to, or upon the written order of, the person or persons designated in such
order a Direct Registration ADR or ADRs evidencing the number of ADSs
representing such deposited Shares (a "Delivery Order"); (b) proper endorsements
or duly executed instruments of transfer in respect of such deposited Shares
together with, and in the case of bearer shares, along with, any other documents
and payments required hereunder; (c) instruments assigning to the Custodian or
its nominee any distribution on or in respect of such deposited Shares or
indemnity therefor; and (d) proxies entitling the Custodian to vote such
deposited Shares. If applicable, as soon as practicable after the Custodian
receives Deposited Securities pursuant to any such deposit or pursuant to
paragraph (10) or (13) of the form of ADR, the Custodian shall present such
Deposited Securities for registration of transfer into the name of the Custodian
or its nominee, to the extent such registration is practicable, at the cost and
expense of the person making such deposit (or for whose benefit such deposit is
made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities shall be held by the Custodian for the account and to the
order of the Depositary at such place or places and in such manner as the
Depositary shall determine. Deposited Securities may be delivered by the
Custodian to any person only under the circumstances expressly contemplated in
this Deposit Agreement.
4. ISSUE OF ADRS. After any such deposit of Shares, the Custodian shall
notify the Depositary of such deposit and of the information contained in any
related Delivery Order by letter, first class airmail postage prepaid, or, at
the request, risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. After receiving such notice from the
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Custodian, the Depositary, subject to this Deposit Agreement, shall properly
issue at the Transfer Office, to or upon the order of any person named in such
notice, an ADR or ADRs registered as requested and evidencing the aggregate ADSs
to which such person is entitled.
5. DISTRIBUTIONS ON DEPOSITED SECURITIES. To the extent that the
Depositary determines in its discretion that any distribution pursuant to
paragraph (10) of the form of ADR is not practicable with respect to any Holder,
the Depositary may make such distribution as it so deems practicable, including
the distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
6. WITHDRAWAL OF DEPOSITED SECURITIES. In connection with any surrender
of an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the Depositary may require proper endorsement in blank of
such ADR (or duly executed instruments of transfer thereof in blank) and the
Holder's written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered to, or upon the written order of, any person designated in such order
(a "Withdrawal Order"). Deposited Securities may only be withdrawn hereunder in
whole Share increments. Directions from the Depositary to the Custodian to
deliver Deposited Securities shall be given by letter, first class airmail
postage prepaid, or, at the request, risk and expense of the Holder, by cable,
telex or facsimile transmission. Delivery of Deposited Securities may be made by
the delivery of certificates (which, if applicable and required by law shall be
properly endorsed or accompanied by properly executed instruments of transfer
or, if such certificates may be registered, registered in the name of such
Holder or as ordered by such Holder in any Withdrawal Order) or by such other
means as the Depositary may deem practicable.
7. SUBSTITUTION OF ADRS. The Depositary shall execute and deliver a new
Direct Registration ADR in exchange and substitution for any mutilated
certificated ADR upon cancellation thereof or in lieu of and in substitution for
such destroyed, lost or stolen certificated ADR, unless the Depositary has
notice that such ADR has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary a request for such execution and delivery and
a sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary.
8. CANCELLATION AND DESTRUCTION OF ADRS. All ADRs surrendered to the
Depositary shall be cancelled by the Depositary. The Depositary is authorized to
destroy ADRs in
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certificated form so cancelled in accordance with its customary practices.
9. THE CUSTODIAN. Any Custodian in acting hereunder shall be subject to
the directions of the Depositary and shall be responsible solely to it. The
Depositary may, after consultation with the Company if practicable, from time to
time appoint one or more agents to act for it as Custodian hereunder. Each
Custodian so appointed (other than ▇▇▇▇▇▇ Guaranty Trust Company of New York)
shall give written notice to the Company and the Depositary accepting such
appointment and agreeing to be bound by the applicable terms hereof. Any
Custodian may resign from its duties hereunder by at least 30 days written
notice to the Depositary. The Depositary may, after consultation with the
Company if practicable, discharge any Custodian at any time upon notice to the
Custodian being discharged. Any Custodian ceasing to act hereunder as Custodian
shall deliver, upon the instruction of the Depositary, all Deposited Securities
held by it to a Custodian continuing to act.
10. CO-REGISTRARS AND CO-TRANSFER AGENTS. The Depositary may appoint
and remove (i) co-registrars to register ADRs and transfers, combinations and
split-ups of ADRs and to countersign ADRs in accordance with the terms of any
such appointment and (ii) co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices in
addition to the Transfer Office on behalf of the Depositary. Each co-registrar
or co-transfer agent (other than ▇▇▇▇▇▇ Guaranty Trust Company of New York)
shall give notice in writing to the Company and the Depositary accepting such
appointment and agreeing to be bound by the applicable terms of this Deposit
Agreement.
11. LISTS OF HOLDERS. The Company shall have the right to inspect
transfer records of the Depositary and its agents and the ADR Register, take
copies thereof and require the Depositary and its agents to supply copies of
such portions of such records as the Company may request. The Depositary or its
agent shall furnish to the Company promptly upon the written request of the
Company, a list of the names, addresses and holdings of ADSs by all Holders as
of a date within seven days of the Depositary's receipt of such request.
12. DEPOSITARY'S AGENTS. The Depositary may perform its obligations
under this Deposit Agreement through any agent appointed by it, provided that
the Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed.
13. SUCCESSOR DEPOSITARY. If the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a bank
or trust company having an office in the Borough of Manhattan, The City of New
York, as successor depositary hereunder. Every successor depositary shall
execute and deliver to its predecessor and to the Company written
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acceptance of its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become Depositary hereunder;
but such predecessor, upon payment of all sums due it and on the written request
of the Company, shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder and assigning all
interest in the Deposited Securities to such successor, and shall deliver to
such successor a list of the Holders. Any bank or trust company into or with
which the Depositary may be merged or consolidated, or to which the Depositary
shall transfer substantially all its American depositary receipt business, shall
be the successor of the Depositary without the execution or filing of any
document or any further act. Upon the appointment of any successor depositary
hereunder, any agent of the Depositary then acting hereunder shall forthwith
become such agent hereunder of such successor depositary and such successor
depositary shall, on the written request of any such agent, execute and deliver
to such agent any instruments necessary to give such agent authority as such
agent hereunder of such successor depositary.
14. REPORTS. On or before the first date on which the Company makes any
communication available to holders of Deposited Securities or any securities
regulatory authority or stock exchange, by publication or otherwise, the Company
shall transmit to the Depositary a copy thereof in English or with an English
translation or summary. The Company has delivered to the Depositary, the
Custodian and any Transfer Office, a copy of all provisions of or governing the
Shares and any other Deposited Securities issued by the Company or any affiliate
of the Company and, promptly upon any change thereto, the Company shall deliver
to the Depositary, the Custodian and any Transfer Office, a copy (in English or
with an English translation) of such provisions as so changed. The Depositary
and its agents may rely upon the Company's delivery thereof for all purposes of
this Deposit Agreement.
15. ADDITIONAL SHARES. Neither the Company nor any company controlling,
controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933. The Depositary will
use reasonable efforts to comply with written instructions of the Company not to
accept for deposit hereunder any Shares identified in such instructions at such
times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with securities
laws in the United States.
16. INDEMNIFICATION. The Company shall indemnify, defend and save
harmless each of the Depositary and its agents against any loss, liability or
expense (including reasonable fees and expenses of counsel) that may arise out
of (a) its acceptance and
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performance of its powers and duties in respect of this Deposit Agreement,
except to the extent such loss, liability or expense is due to its negligence or
bad faith, or (b) any offer or sale of ADRs, ADSs, Shares or other Deposited
Securities or any registration statement under the Securities Act of 1933 in
respect thereof, except to the extent such loss, liability or expense arises out
of information (or omissions from such information) relating to it furnished in
writing to the Company by it expressly for use in any such registration
statement. Each of the Depositary and its agents hereunder shall indemnify,
defend and save harmless the Company against any loss, liability or expense
incurred by the Company in respect of this Deposit Agreement to the extent such
loss, liability or expense is due to its negligence or bad faith. The
obligations set forth in this Section 16 shall survive the termination of this
Deposit Agreement and the succession or substitution of any indemnified person.
17. NOTICES. Notice to any Holder shall be deemed given when first
mailed, first class postage prepaid, to the address of such Holder on the ADR
Register or received by such Holder. Notice to the Depositary or the Company
shall be deemed given when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, or at such other
address or facsimile transmission number as either may specify to the other by
written notice:
(a) ▇▇▇▇▇▇ Guaranty Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇)
New York, New York 10260
Attention: ADR Administration
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Adecco ▇▇
▇▇▇▇ Cheserex
Switzerland
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇
18. MISCELLANEOUS. This Deposit Agreement is for the exclusive benefit
of the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and owners of ADRs from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable in
any respect, the remaining provisions shall in no way be affected thereby. This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one instrument.
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19. AMENDMENT AND RESTATEMENT OF ORIGINAL DEPOSIT AGREEMENT. The
Deposit Agreement amends and restates the Original Deposit Agreement in its
entirety to consist exclusively of the Deposit Agreement, and each ADR issued
under the Original Deposit Agreement ("Original ADRs") is hereby deemed amended
and restated to substantially conform to the form of ADR set forth in Exhibit A
annexed hereto, except that, to the extent any portion of either such amendment
and restatement would prejudice any substantial existing right of owners of such
Original ADRs, such portion shall not become effective as to such owners until
30 days after such owners shall have received notice thereof, such notice to be
conclusively deemed given upon the mailing to such owners of notice of such
amendment and restatement which notice contains a provision whereby such owners
can receive a copy of the form of ADR.
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IN WITNESS WHEREOF, ADECCO SA and ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK have duly executed this Deposit Agreement as of the day and
year first above set forth and all holders of ADRs shall become parties hereto
upon acceptance by them of ADRs issued in accordance with the terms hereof or
the Original Deposit Agreement.
ADECCO SA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
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[FORM OF FACE OF ADR]
______________ No. of ADSs
Number
______________________
Eight ADSs represents
One Registered Share
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
REGISTERED, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ PER SHARE
of
ADECCO SA
(Organized under the
laws of Switzerland)
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, a New York corporation, as
depositary hereunder (the "Depositary"), hereby certifies that
is the registered owner (a "Holder") of American Depositary
Shares ("ADSs"), each (subject to paragraph (13)) representing one-eighth of
one registered share, nominal value 10 CHF per share (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
ADECCO SA, a societe anonyme organized under the laws of Switzerland (the
"Company"), deposited under the Amended and Restated Deposit Agreement dated
as of November , 1999 (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.
A-1
(1) ISSUANCE OF ADRS. This ADR is one of the ADRs issued under the
Deposit Agreement. Subject to paragraph (4) hereof, the Depositary may so issue
ADRs for delivery at the Transfer Office (defined in paragraph (3) hereof) only
against deposit with the Custodian (as defined in the Deposit Agreement) of: (a)
a whole number of Shares in form satisfactory to the Custodian; (b) rights to
receive Shares from the Company or any registrar, transfer agent, clearing agent
or other entity recording Share ownership or transactions; or, (c) other rights
to receive Shares (until such Shares are actually deposited pursuant to (a) or
(b) above, "Pre-released ADRs") only if (i) Pre-released ADRs are fully
collateralized (marked to market daily) with cash or U.S. government securities
held by the Depositary for the benefit of Holders (but such collateral shall not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
agrees in writing with the Depositary that such recipient (a) owns such Shares,
(b) assigns all beneficial right, title and interest therein to the Depositary,
(c) holds such Shares for the account of the Depositary and (d) will deliver
such Shares to the Custodian as soon as practicable and promptly upon demand
therefor and (iii) all Pre-released ADRs evidence not more than 30% of all ADSs
(excluding those evidenced by Pre-released ADRs), PROVIDED, HOWEVER, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may retain for its own account any
earnings on collateral for Pre-released ADRs and its charges for issuance
thereof. At the request, risk and expense of the person depositing Shares, the
Depositary may accept deposits 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 whole number of Deposited Securities
at the time represented by the ADSs evidenced by this ADR. At the request, risk
and expense of the
A-2
Holder hereof, the Depositary may deliver such Deposited Securities at such
other place as may have been requested by the Holder. The Depositary will not
accept for surrender an ADR evidencing a number of ADSs which represent rights
attributable to less than a whole Share. 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
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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
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obligated to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto.
(6) DISCLOSURE OF INTERESTS. To the extent that the provisions of or
governing any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or limits on voting or
registration 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. Failure of the Holder to cooperate with all such disclosure
requirements may result in the loss of the voting rights connected with such
Holder's Shares, as described more fully in Paragraph (12) hereof.
(7) CHARGES OF DEPOSITARY. The Depositary may charge each person to
whom ADRs are issued against deposits of Shares, including deposits in respect
of Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph (10)), and each person surrendering ADRs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
evidenced by the ADRs delivered or surrendered. The Depositary may sell (by
public or private sale) sufficient securities and property received in respect
of Share Distributions, Rights and Other Distributions prior to such deposit to
pay such charge. The Company will pay all other 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
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communications from the Company, which are both received by the Custodian or its
nominee as a holder of Deposited Securities and made generally available to the
holders of Deposited Securities, are available for inspection by Holders at the
offices of the Depositary and the Custodian and at the Transfer Office. The
Depositary will mail copies of such communications (or English translations or
summaries thereof) to Holders when furnished by the Company. The Company is
subject to the periodic reporting requirements of the Securities Exchange Act of
1934 and accordingly files certain reports with the United States Securities and
Exchange Commission (the "Commission"). Such reports and other information may
be inspected and copied at public reference facilities maintained by the
Commission located at the date hereof at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
(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:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Depositary
By .........................
The Depositary's office is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
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[FORM OF REVERSE OF ADR]
(10) DISTRIBUTIONS ON DEPOSITED SECURITIES. Subject to paragraphs (4)
and (5), to the extent practicable, the Depositary will distribute by mail to
each Holder entitled thereto on the record date set by the Depositary therefor
at such Holder's address shown on the ADR Register, in proportion to the number
of Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) CASH. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of
any other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible or
impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that
it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means
as the Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) SHARES. (i) Additional ADRs evidencing whole ADSs representing any
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) RIGHTS. (i) Warrants or other instruments in the discretion of
the Depositary representing rights to acquire additional ADRs in respect of any
rights to subscribe for additional Shares or rights of any nature available to
the Depositary as a result of a distribution on Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute the
same (the Company has no obligation 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
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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 for interest and
added to future Cash distributions).
(11) RECORD DATES. The Depositary may, after consultation with the
Company if practicable, fix a record date (which shall be as near as practicable
to any corresponding record date set by the Company) for the determination of
the Holders who shall be entitled to receive any distribution on or in respect
of Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled.
(12) VOTING OF DEPOSITED SECURITIES. As soon as practicable after
receipt from the Company of notice of any meeting or solicitation of consents or
proxies of holders of Shares or other Deposited Securities, the Depositary shall
mail to Holders a notice stating (a) such information as is contained in such
notice and any solicitation materials, (b) that each Holder on the record date
set by the Depositary therefor will be entitled to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs and (c) the
manner in which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted 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,
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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 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.
(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
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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,
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without liability for interest, in trust for the PRO RATA benefit of the Holders
of ADRs not theretofore surrendered. After making such sale, the Depositary
shall be discharged from all obligations in respect of the Deposit Agreement and
this ADR, except to account for such net proceeds and other cash. After the date
so fixed for termination, the Company shall be discharged from all obligations
under the Deposit Agreement except for its obligations to the Depositary and its
agents.
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