IBERDROLA, S.A. AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Dated
as
of March , 2007
TABLE
OF CONTENTS
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Page
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PARTIES
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1
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RECITALS
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1
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Section
1.
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Certain
Definitions
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(a)
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ADR
Register
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1
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(b)
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ADRs;
Direct Registration ADRs
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1
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(c)
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ADS
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1
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(d)
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Custodian
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1
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(e)
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Deliver,
execute, issue et al.
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1
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(f)
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Delivery
Order
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1
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(g)
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Deposited
Securities
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1
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(h)
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Direct
Registration System
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1
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(i)
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Holder
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1
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(j)
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Securities
Act of 1933
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1
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(k)
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Securities
Exchange Act of 1934
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1
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(l)
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Shares
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1
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(m)
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Transfer
Office
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1
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(n)
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Withdrawal
Order
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1
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Section
2.
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ADRs
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2
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Section
3.
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Deposit
of Shares
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2
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Section
4.
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Issue
of ADRs
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2
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Section
5.
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Distributions
on Deposited Securities
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3
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Section
6.
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Withdrawal
of Deposited Securities
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3
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Section
7.
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Substitution
of ADRs
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4
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Section
8.
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Cancellation
and Destruction of ADRs
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4
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Section
9.
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The
Custodian
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4
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Section
10.
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Co-Registrars
and Co-Transfer Agents
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4
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Section
11.
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Lists
of Holders.
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4
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Section
12.
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Depositary's
Agents
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5
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Section
13.
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Successor
Depositary
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5
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Section
14.
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Reports
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5
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Section
15.
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Additional
Shares
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5
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Section
16.
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Indemnification
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5
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Section
17.
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Notices
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6
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Section
18.
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Miscellaneous
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6
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Section
19.
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Consent
to Jurisdiction; Appointment of Agent for Service of
Process
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6
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TESTIMONIUM
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7
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SIGNATURES
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7
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-
i -
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Page
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EXHIBIT
A
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FORM
OF FACE OF ADR
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A-1
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Introductory
Paragraph
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A-1
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(1)
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Issuance
of ADRs
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A-2
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(2)
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Withdrawal
of Deposited Securities
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A-2
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(3)
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Transfers
of ADRs
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A-2
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(4)
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Certain
Limitations
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A-3
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(5)
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Taxes
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A-4
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(6)
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Disclosure
of Interests
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A-4
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(7)
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Charges
of Depositary
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A-4
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(8)
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Available
Information
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A-5
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(9)
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Execution
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A-6
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Signature
of Depositary
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A-6
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Address
of Depositary's Office
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A-6
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FORM
OF REVERSE OF ADR
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A-7
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(10)
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Distributions
on Deposited Securities
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A-7
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(11)
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Record
Dates
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A-8
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(12)
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Voting
of Deposited Securities
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A-8
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(13)
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Changes
Affecting Deposited Securities
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A-8
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(14)
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Exoneration
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A-8
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(15)
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Resignation
and Removal of Depositary; the Custodian
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A-9
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(16)
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Amendment
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A-9
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(17)
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Termination
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A-10
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(18)
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Appointment
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A-10
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-
ii -
DEPOSIT
AGREEMENT dated as of March , 2007 (the "Deposit Agreement") among IBERDROLA,
S.A. and its successors (the "Company"), JPMORGAN CHASE BANK, N.A., as
depositary hereunder (the "Depositary"), and all holders from time to time
of
ADRs (defined below) issued hereunder evidencing American Depositary Shares
("ADSs") representing deposited Shares (defined below). The Company hereby
appoints the Depositary as depositary for the Deposited Securities (defined
below) and hereby authorizes and directs the Depositary to act in accordance
with the terms set forth in this Deposit Agreement. All capitalized terms used
herein have the meanings ascribed to them in Section 1 or elsewhere in this
Deposit Agreement. The parties hereto agree as follows:
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, and the terms and conditions governing the Direct
Registration ADRs (as hereinafter defined), 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.
"Partial
Dividend ADRs"
means
ADRs which represent Partial Dividend Shares. References to "ADRs" shall include
certificated ADRs, Direct Registration ADRs and Partial Dividend 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 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, and, when used with respect to ADRs in physical certificated form,
shall
refer to the physical delivery, execution, issuance, registration, surrender,
transfer or cancellation of certificates representing the
ADRs.
(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.
(h) "Direct
Registration System"
means
the system for the uncertificated registration of ownership of securities
established by The Depository Trust Company ("DTC") and utilized by the
Depositary pursuant to which the Depositary may record the ownership of ADRs
without the issuance of a certificate, which ownership shall be evidenced by
periodic statements issued by the Depositary to the Holders entitled thereto.
For purposes hereof, the Direct Registration System shall include access to
the
Profile Modification System maintained by DTC which provides for automated
transfer of ownership between DTC and the Depositary.
(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
ordinary shares of the Company, and shall include the rights to receive Shares
specified in paragraph (1) of the form of ADR; "Partial
Dividend Shares"
means
any and all Shares of the Company which may be issued by the Company during
any
given year which Shares are not entitled, by reason of the date of issuance
or
otherwise, to the full amount of the cash dividend paid by the
Company.
(m) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(n) "Withdrawal
Order"
is
defined in Section 6.
2.
ADRs.
(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 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 Depositary. ADRs in certificated form bearing the 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, ADSs shall be evidenced by Direct Registration ADRs, unless
certificated ADRs are specifically requested by the Holder.
2
(c)
Partial Dividend ADRs shall bear a CUSIP number that is different from the
CUSIP
number that is assigned to the ADRs and may be endorsed with such legend as
the
Depositary and the Company may agree. Partial Dividend ADRs shall be treated
for
all other purposes as identical to ADRs and, on such date as the Partial
Dividend ADRs shall become entitled to the full amount of any cash dividend
paid
by the Company on Shares, shall be converted automatically into
ADRs.
(d) 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 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; (c) instruments assigning to the Depositary, the Custodian
or
a nominee of either any distribution on or in respect of such deposited Shares
or indemnity therefor; and (d) proxies entitling the Custodian to vote such
deposited Shares. 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 Depositary, the Custodian or
a
nominee of either, 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. To the extent that the provisions of or governing the
Shares make delivery of certificates therefor impracticable, Shares may be
deposited hereunder by such delivery thereof as the Depositary or the Custodian
may reasonably accept, including, without limitation, by causing them to be
credited to an account maintained by the Custodian for such purpose with the
Company or an accredited intermediary, such as a bank, acting as a registrar
for
the Shares, together with delivery of the documents, payments and Delivery
Order
referred to herein to the Custodian or the Depositary. The Company must inform
the Depositary if any Shares issued by it which may be deposited do not, by
reason of the date of issue or otherwise, rank pari passu in all respects with
the other deposited securities. Subject to the provisions of paragraphs (10)
and
(13) of the form of ADR, if the Depositary accepts any Shares pursuant to those
paragraphs for deposit it will arrange for the issue of temporary ADRs until
such time as the Shares which they represent become fully fungible with the
other Deposited Securities.
3
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 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, after consultation with the Company if practicable,
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").
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 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, including, without limitation, by transfer
of
record ownership thereof to an account designated in the Withdrawal Order
maintained either by the Company or an accredited intermediary, such as a bank,
acting as a registrar for the Deposited Securities.
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 certificated form so cancelled
in
accordance with its customary practices.
4
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 from time
to time appoint one or more agents to act for it as Custodian hereunder. Each
Custodian so appointed (other than JPMorgan Chase Bank, N.A.) 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 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 JPMorgan Chase
Bank, N.A.) 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.
The
Depositary may at any time resign as Depositary hereunder by written notice
of
its election so to do delivered to the Company, such resignation to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided. The Depositary may at any time be removed
by the Company by providing no less than 45 days prior written notice of such
removal to the Depositary, such removal to take effect the later of (i) the
45th
day
after such notice of removal is first provided and (ii) the appointment of
a
successor depositary and its acceptance of such appointment as hereinafter
provided. In case at any time the Depositary acting hereunder shall resign
or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with
all
the rights, powers, duties and obligations of its predecessor. The predecessor
depositary, only upon payment of all sums due to it and on the written request
of the Company, shall (i) execute and deliver an instrument transferring to
such
successor all rights and powers of such predecessor hereunder (other than its
rights to indemnification and fees owing, each of which shall survive any such
removal and/or resignation), (ii) duly assign, transfer and deliver all
right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding ADRs.
Any such successor depositary shall promptly mail notice of its appointment
to
such 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.
5
14.
Reports.
On or
promptly following 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) which may arise out of acts performed or omitted, in
connection with the provisions of this Deposit Agreement and of the ADRs, as
the
same may be amended, modified or supplemented from time to time in accordance
herewith (i) by either the Depositary or its agents or their respective
directors, employees, agents and affiliates, except, subject to the penultimate
paragraph of this Section 16, for any liability or expense directly arising
out
of the negligence or bad faith of the Depositary, or (ii) by the Company or
any
of its directors, employees, agents or affiliates.
The
indemnities set forth in the preceding paragraph shall also apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the Depositary or its agents (other than the Company), as
applicable, furnished in writing by the Depositary and not changed or altered
by
the Company expressly for use in any of the foregoing documents or (ii) if
such
information is provided, the failure to state a material fact necessary to
make
the information provided not misleading.
6
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend and save harmless the Company against any loss, liability or expense
(including reasonable fees and expenses of counsel) incurred by the Company
in
respect of this Deposit Agreement to the extent such loss, liability or expense
is due to the negligence or bad faith of the Depositary.
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR to the
contrary, neither the Company nor the Depositary, nor any of their agents,
shall
be liable to the other for any indirect, special, punitive or consequential
damages (collectively "Special Damages") except (i) to the extent such Special
Damages arise from the gross negligence or willful misconduct of the party
from
whom indemnification is sought or (ii) to the extent Special Damages arise
from
or out of a claim brought by a third party (including, without limitation,
Holders) against the Depositary or its agents, except to the extent such Special
Damages arise out of the gross negligence or willful misconduct of the party
seeking indemnification hereunder
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)
|
JPMorgan
Chase Bank, N.A.
|
Four
▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
ADR Administration
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
(b)
|
Iberdrola
▇.▇.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
Attention:
▇▇▇▇▇▇ Viudes
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.
7
19.
Consent
to Jurisdiction; Appointment of Agent for Service of Process.
The
Company irrevocably agrees that any legal suit, action or proceeding against
the
Company brought by the Depositary or any Holder, arising out of or based upon
this Deposit Agreement or the transactions contemplated hereby, may be
instituted in any state or federal court in New York, New York, and irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
also irrevocably agrees that any legal suit, action or proceeding against the
Depositary brought by the Company, arising out of or based upon this Deposit
Agreement or the transactions contemplated hereby, may only be instituted in
a
state or federal court in New York, New York or in a federal court located
in
the Kingdom of Spain. The Company has appointed CT Corporation System, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent
(the "Authorized Agent") upon which process may be served in any such action
arising out of or based on this Deposit Agreement or the transactions
contemplated hereby which may be instituted in any state or federal court in
New
York, New York by the Depositary or any Holder, and waives any other
requirements of or objections to personal jurisdiction with respect thereto.
The
Company represents and warrants that the Authorized Agent has agreed to act
as
said agent for service of process, and the Company agrees to take any and all
action, including the filing of any and all documents and instruments, that
may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to the Company shall be deemed, in every respect, effective service of process
upon the Company. If, for any reason, the Authorized Agent named above or its
successor shall no longer serve as agent of the Company to receive service
of
process in New York, the Company shall promptly appoint a successor that is
a
legal entity with offices in New York, New York, so as to serve and will
promptly advise the Depositary thereof. In the event the Company fails to
continue such designation and appointment in full force and effect, the Company
hereby waives personal service of process upon it and consents that any such
service of process may be made by certified or registered mail, return receipt
requested, directed to the Company at its address last specified for notices
hereunder, and service so made shall be deemed completed five (5) days after
the
same shall have been so mailed. Notwithstanding the foregoing, any action based
on this Agreement may be instituted by the Depositary or any Holder in any
competent court in The Kingdom of Spain.
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may hereafter be entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff
or
counterclaim, from the jurisdiction of any court, from service of process,
from
attachment upon or prior to judgment, from attachment in aid of execution or
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect
to
its obligations, liabilities or other matter under or arising out of or in
connection with the Shares or Deposited Securities, the ADSs, the ADRs or this
Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consents to such relief and enforcement.
8
IN
WITNESS WHEREOF, IBERDROLA, S.A. and JPMORGAN CHASE BANK, N.A. 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.
| IBERDROLA, S.A. | ||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
| JPMORGAN CHASE BANK, N.A. | ||
| |
|
|
| By: | ||
| Name: | ||
| Title: | Vice President | |
9
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
|
|
No.
of ADSs:
|
|
|
Number
|
||
|
Each
ADS represents
One
Share
|
||
|
CUSIP:
|
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
(Incorporated
under the laws of The Kingdom of Spain)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States of America , 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
ordinary 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 Iberdrola, S.A., a corporation organized under
the laws of The Kingdom of Spain (the "Company"), deposited under the Deposit
Agreement dated as of [DATE] , 2007 (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), 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, government securities or such other
collateral as the Depositary deems appropriate held by the Depositary for the
benefit of Holders (but such collateral shall not constitute "Deposited
Securities"), (ii) each recipient of Pre-released ADRs represents and agrees
in
writing with the Depositary that such recipient or its customer (a) beneficially
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 reasonably 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, or to the extent in dematerialized
form from, 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.
A-2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office (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 and neither the Depositary nor the Company will have
any
obligation or be subject to any liability under the Deposit Agreement to any
holder of an ADR, unless such holder is the Holder thereof. 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
aggregate number of ADSs surrendered for split-up or combination, by the Holder
hereof or by a 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
or brokerage fees applied by Spanish stock exchanges or the relevant member
of
such stock exchanges acting as a broker/dealer or any other person authorized
under Spanish law to act in a similar capacity 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 of any signatory 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; (c) delivery of
any
forms required by Spanish law or custom, and (d) 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.
A-3
(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. Each Holder of an ADR or an interest
therein agrees to indemnify the Depositary, the Company, the Custodian and
any
of their respective directors, employees, agents and affiliates against, and
hold each of them harmless from, any claims by any governmental authority with
respect to taxes, additions to tax, penalties or interest arising out of any
refund of taxes, reduced rate of withholding at source or other tax benefit
obtained.
(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 comply with any reasonable Company
instructions in respect thereof. The Company reserves the right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the Deposited
Securities so as to permit the Company to deal directly with the Holder thereof
as a holder of Shares and Holders agree to comply with such instructions. The
Depositary agrees to cooperate with the Company in its efforts to inform Holders
of the Company's exercise of its rights under this paragraph and agrees to
consult with, and provide reasonable assistance without risk, liability or
expense on the part of the Depositary, to the Company on the manner or manners
in which it may enforce such rights with respect to any Holder.
A-4
(7)
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), issuances
pursuant to a stock dividend or stock split declared by the Company, or
issuances pursuant to a merger, exchange of securities or any other
transaction or event affecting the ADSs or the Deposited Securities,
and (ii) each person surrendering ADSs for withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason, up
to
U.S.$5.00 for each 100 ADSs (or portion thereof) issued, delivered, reduced,
cancelled or surrendered (as the case may be). 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 following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADSs, to whom ADSs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company
or
an exchange of stock regarding the ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (10)), whichever is applicable (i)
for receiving and paying any cash dividends on or in respect of the Deposited
Securities, and for the administration of the ADR program, an annual fee of
U.S.$0.04 per
ADS
per calendar year (which fee may be charged in part on a periodic basis during
each calendar year or in full at one time, and shall be assessed against holders
of ADRs as of the record date or record dates set by the depositary during
each
calendar year and shall be payable at the sole discretion of the Depositary
by
billing such Holders or by deducting such charge from one or more cash dividends
or other cash distributions) and
(ii)
such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. 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 or 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), (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), and (v) any other charge payable by any of the Depositary,
any of the Depositary=s
agents,
including, without limitation, the Custodian, or the agents of the
Depositary=s
agents
in connection with the servicing of the Shares or other Deposited Securities
(which charge shall be assessed against Holders as of the record date or dates
set by the Depositary and shall be payable at the sole discretion of the
Depositary by billing such Holders or by deducting such charge from one or
more
cash dividends or other cash distributions). Such charges may at any time and
from time to time be changed by agreement between the Company and the
Depositary.
A-5
(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, as amended, at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
(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 ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
A-6
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
distribute 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, after
consultation with the Company if practicable, 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. Fractional cents will be withheld without liability and dealt with by
the
Depositary in accordance with its then current practices.
A-7
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable, fix a record
date (which, to the extent applicable, shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be responsible for the fee assessed by the Depositary for
administration of the ADR program and for any expenses provided for in paragraph
(7) hereof as well as 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
or
obligated.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt of notice in English of any meeting (Junta
General de Accionistas)
or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary will mail, to the Holders a notice containing (i)
such information as its contained in such notice of meeting, (ii) a statement
that each Holder at the close of business on a specified record date will be
entitled, subject to any applicable provisions of law and the provisions of
or
governing the Deposited Securities, to instruct the Depositary as to the
exercise of voting rights, if any, pertaining to the Deposited Securities the
right to receive which is represented by the ADSs evidenced by such Holder's
ADRs, including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company,
and (iii) a statement as to the manner in which such instructions may be given.
Upon the written request of a Holder on such record date, received on or before
the date established by the Depositary for such purpose, the Depositary will
endeavor insofar as practicable and permitted under any applicable provisions
of
law and the provisions of or governing the 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.
There is no guarantee that Holders generally or any Holder in particular will
receive the notice described above with sufficient time to enable such Holder
to
return any voting instructions to the Depositary in a timely
manner.
(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, irrespective of whether such Deposited
Securities are surrendered or otherwise cancelled by operation of law, rule,
regulation or otherwise, 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.
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(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if any present or future law, rule or regulation of the United
States, the Kingdom of Spain or any other country, or of any governmental or
regulatory authority or any securities exchange or market or automated quotation
system, the provisions of or governing any Deposited Securities, any present
or
future provision of the Company's charter, any act of God, war, terrorism 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 them (including, without
limitation, voting pursuant to paragraph (12) hereof), 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 (provided
such act or omission to act was not in bad faith), 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. Notwithstanding anything to the contrary set forth
in
the Deposit Agreement or an ADR, the Depositary and its agents may fully respond
to any and all demands or requests for information maintained by or on its
behalf in connection with the Deposit Agreement, any Holder or Holders, any
ADR
or ADRs or otherwise related hereto to the extent such information is requested
or required by or pursuant to any lawful authority, including without limitation
laws, rules, regulations, administrative or judicial process, banking,
securities or other regulators. The Company has agreed to indemnify the
Depositary and its agents under certain circumstances and the Depositary has
agreed to indemnify the Company under certain circumstances. 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. 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 so to
do
delivered to the Company, such resignation to take effect upon the
appointment of a successor depositary and its acceptance of such appointment
as
provided in the Deposit Agreement. The Depositary may at any time be
removed by the Company by no less than 45 days prior written notice of such
removal, to become effective upon the later of (i) the 45th day after delivery
of the notice to the Depositary and (ii) the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may appoint substitute or additional Custodians and
the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
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(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 or regulatory
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 laws, rules
or
regulations. 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.
(18)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance of any
ADSs
(or any interest therein) issued in accordance with the terms and conditions
of
the Deposit Agreement shall be deemed for all purposes to (a) be a party to
and
bound by the terms of the Deposit Agreement and the applicable ADR(s), and
(b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to
act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary in
its
sole discretion may deem necessary or appropriate to carry out the purposes
of
the Deposit Agreement and the applicable ADR(s), the taking of such actions
to
be the conclusive determinant of the necessity and appropriateness
thereof.
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(19)
Conversion
of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign currency, as
a
Cash dividend or Other Distribution or as the net proceeds from the sale of
securities, property or rights, which, in the judgment of the Depositary can
then be converted on a reasonable basis into U.S. dollars and transferred to
the
United States, the Depositary shall convert or cause to be converted, by sale
or
in any other manner that it may determine, such foreign currency into U.S.
dollars and shall transfer the resulting U.S. dollars (net of its charges and
expenses in effecting such conversion) to the United States. Such U.S. dollars
shall be distributed as promptly as practicable to the Holders entitled thereto
or, if the Depositary shall have distributed any warrants or other instruments
that entitle the holders thereof to such U.S. dollars, then to the holders
of
such warrants or instruments, as applicable, upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account
of
exchange restrictions or otherwise. If such conversion or distribution can
be
effected only with the approval or license of any government or agency thereof,
the Depositary may, at the expense of the Holders (such costs to be deducted
from the currency sought to be converted) file such application for approval
or
license, if any, as it shall deem practicable. If at any time the Depositary
shall determine that in its reasonable judgment any foreign currency received
by
the Depositary is not convertible on a reasonable basis into U.S. dollars
transferable to the United States, or if any approval or license of any
governmental authority or agency thereof that is required for such conversion
is
denied or in the opinion of the Depositary is not obtainable at a reasonable
cost or within a reasonable period, the Depositary may, subject to applicable
laws and regulations, either distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) to, or hold
such
foreign currency (without liability for interest thereon) for the respective
accounts of, the Holders entitled to receive the same; provided, however, that
if requested in writing by a Holder entitled thereto and permitted by applicable
law, the Depositary may, in its discretion, distribute the foreign currency,
as
promptly as practicable.
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