Exhibit
4.04
THE RIGHT OF HOLDERS HEREOF TO DIRECT
THE VOTING OF SHARES MAY BE RESTRICTED AS DESCRIBED IN PARAGRAPHS (6) AND
(12) BELOW.
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No.
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Number
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Each
ADS represents
Three
(3) Shares
CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
SHIRE
LIMITED
(Incorporated
under the laws of the Bailiwick of Jersey)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of the
United States, as depositary hereunder (the "Depositary"), hereby certifies
that is
the registered owner (a "Holder")
of
American Depositary Shares ("ADSs"), each (subject to paragraph (13))
representing three ordinary shares (including the rights to receive Shares
described in paragraph (1), "Shares" and, together with any other securities,
cash or property from time to time held by the Depositary in respect or in lieu
of deposited Shares, the "Deposited Securities"), of Shire Limited, a
corporation organized under the laws of the Bailiwick of Jersey (the "Company"),
deposited with the Custodian appointed under the Deposit Agreement (subject to
paragraph (15), the "Custodian"), under the Deposit Agreement dated as of
November 21, 2005 (as amended and/or novated from time to time, the "Deposit
Agreement") among the Company, the Depositary and all Holders from time to time
of American Depositary Receipts issued thereunder ("ADRs"), each of whom by
accepting an ADR becomes a party thereto. The Deposit Agreement and
this ADR (which includes the provisions set forth on the reverse hereof) shall
be governed by and construed in accordance with the laws of the State of New
York.
(1) Issuance of
ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the
Custodian; (b) rights to receive Shares from the Company or any
registrar,
transfer agent, clearing agent or other entity recording Share ownership or
transactions; or, (c) unless requested in writing by the Company to cease doing
so at least two business days in advance of the proposed deposit, 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
in its capacity as such, (c) holds such Shares for the account of the
Depositary, (d) will deliver such Shares to the Custodian as soon as practicable
and promptly upon demand therefor and (e) will not take any action with respect
to the Pre-released ADS and Shares that is inconsistent with the transfer of the
Depositary's beneficial ownership thereof, and (iii) all Pre-released ADRs
evidence not more than 20% of all ADSs (excluding those evidenced by
Pre-released ADRs), except to the extent that the Depositary (in its sole
discretion) determines that unusual market conditions require the issuance of
Pre-released ADRs in addition to 20% of all such ADSs. 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 free and clear of any lien,
encumbrance, security interest, charge, mortgage, pledge or restriction on
transfer, 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 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 this ADR in form satisfactory to the Depositary at the Transfer Office, the
Holder hereof is entitled to delivery at the Custodian's office of the Deposited
Securities at the time represented by the ADSs evidenced by this
ADR. At the request, risk and expense of the Holder hereof, the
Depositary may deliver such Deposited Securities at such other place as may have
been requested by the Holder. Notwithstanding any other provision of
the Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only for the reasons set forth in General Instruction I.A.(1) of Form
F-6 (as such instructions may be amended from time to time) under the Securities
Act of 1933.
(3) Transfers of
ADRs. The Depositary or its agent will keep, at a designated
transfer office in the Borough of Manhattan, The City of New York (the "Transfer
Office"), (a) a register (the "ADR Register") for the registration, registration
of transfer, combination and split-up of ADRs, 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. Title to this ADR (and to the Deposited Securities
represented by the ADSs evidenced hereby), when properly endorsed or accompanied
by 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 or accompanied by 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.
(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
stamp duty, stamp duty reserve tax or other transfer duty or 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 and neither the Company nor the Depositary shall have any liability
therefore. 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 Deposited
Securities. 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.
(6) Disclosure of
Interests. To the
extent that the provisions of or governing any Deposited Securities or to which
such Deposited Securities are otherwise subject 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 and co-operate with the Depositary in the Depositary's compliance with
any 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.
Notwithstanding
any provision of the Deposit Agreement or of this ADR and without limiting the
foregoing, by being a Holder of an ADR, each such Holder agrees to provide such
information to the Company as the Company may request in a disclosure notice (a
“Disclosure Notice”) given pursuant to the Articles of Association of the
Company. In addition, by accepting or holding this ADR, each Holder acknowledges
that it understands that failure to comply with a Disclosure Notice may result
in the imposition of sanctions against the holder of the Shares in respect of
which the non-complying person is or was, or appears to be or has been,
interested as provided in the Articles of Association which may include, the
withdrawal of the voting rights of such Shares and the imposition of
restrictions on the rights to receive dividends on and to transfer such Shares.
In addition, by accepting or holding this ADR each Holder agrees to
comply with the applicable provisions with regard to the notification to the
Company of interests in Shares. Holders are advised that the failure by a Holder
to comply with the requirements of this paragraph (6) which leads to the
imposition of sanctions with respect to the Shares held by or on behalf of the
Depositary may result in voting by all Holders being restricted until such time
as the Holder has complied with the requirements hereof. The
Depositary shall not be liable or otherwise responsible for compliance by
Holders with the requirements 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 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
if and 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 100 F Street, N.E., Washington, D.C.
20549.
(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:
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JPMORGAN
CHASE BANK, N.A., as Depositary
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By
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Authorized
Officer
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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
and, in each case, without unreasonable delay:
(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. If the
Depositary determines in its reasonable judgment that such foreign currency is
not convertible, in whole or in part, on a reasonable basis into U.S. dollars
transferable to the United States, or if any approval or license which is
required for such conversion is denied or in the opinion of the Depositary, is
not obtainable or is not obtained within a reasonable period or at a reasonable
cost, the Depositary may distribute all or part of the foreign currency (or an
appropriate document evidencing the right to receive such foreign currency) to,
or in its discretion may hold such foreign currency uninvested and without
liability for interest thereon for the respective accounts of, the Holders
entitled thereto. All expenses of any such conversion shall be
deducted from the proceeds thereof.
On the
date in which the Company shall pay any cash dividend to its holders of Shares
or other Deposited Securities, the Company may convert or cause to be converted,
in a commercially reasonable manner, such foreign currency into U.S. dollars and
distribute the same to the Depositary for distribution to Holders. No
deductions shall be made by the Company from the proceeds of such conversion;
provided that actual and customary commissions paid by the Company on account of
such conversion shall not be considered a deduction by the
Company. If such conversion or distribution generally or with regard
to any particular Holder can be effected only with the approval or license of
any government or agency thereof, the Company shall have discretion and
authority to file such application for approval or license, if any, as it may
deem desirable.
(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, whether by their terms, pursuant to applicable
law or otherwise, 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. Before effecting any such sale of a Share Distribution, Rights
or Other Distribution, the Depositary will provide notice to the Company of its
intended action. 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 dealt with by
the Depositary in accordance with its then current practices).
(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 fix a
record date in accordance with paragraph (11) hereof and, unless otherwise
requested in writing by the Company in order to comply with applicable law, 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 subject to any
applicable provisions of the laws of the Bailiwick of Jersey and the Memorandum
and Articles of Association of the Company and the provisions of or governing
Deposited Securities. Upon receipt of instructions of a Holder on
such record date in the manner and on or before the date established by the
Depositary
for such purpose, the Depositary shall endeavor insofar as practicable and
permitted under the provisions of or governing Deposited Securities to vote or
cause to be voted (or to grant a discretionary proxy to a person designated by
the Company to vote) the Deposited Securities represented by the ADSs evidenced
by such Holder's ADRs in accordance with such instructions. The
Depositary will not itself exercise any voting discretion in respect of any
Deposited Security. Subject to the provisions of the next succeeding
paragraph, to the extent such instructions are not so received by the Depositary
from any Holder, the Holder shall be deemed to have instructed the Depositary to
give a discretionary proxy to a person designated by the Company to vote the
Deposited Securities represented by ADSs as to which the Depositary has not
received instructions from the Holders, provided that no such
instruction shall be deemed to be given and no discretionary proxy shall be
given with respect to which the Company informs the Depositary (and the Company
agrees to provide such information promptly in writing) that the Company does
not wish such proxy given.
Notwithstanding
anything to the contrary contained in the preceding paragraph, the Depositary
shall not be obligated to give any such discretionary proxy and the Holders
shall not have been deemed to have so instructed the Depositary unless and until
the Depositary has been provided with an opinion of counsel to the Company,
which may be given at the time of entering into the Deposit Agreement,
satisfactory to the Depositary (which may be internal counsel), in form and
substance satisfactory to the Depositary, substantially to the effect that (i)
the granting of such discretionary proxy does not subject the Depositary to any
additional disclosure obligations related to interests in shares under the
Companies Act or the listing rules of the London Stock Exchange except for any
required notification to the Company pursuant to Part VI of the Companies Act,
(ii) the granting of such proxy does not result in a breach of the Companies Act
or the listing rules of the London Stock Exchange and (iii) the Depositary or
the Custodian, or the nominee of any of them, whichever is the registered holder
entitled to attend and vote at meetings of the Company in respect of such
Shares, has the right to appoint the proxy to attend and vote instead of
him. The Company undertakes to inform the Depositary of any
substantial change in law which would subject the Depositary to disclosure
obligations under the Companies Act or listing rules of the London Stock
Exchange (other than said Part VI of the Companies Act) to which the Depositary,
the Custodian or the nominee of any of them would not otherwise be subject but
for the grant of such discretionary proxy.
(13) Changes Affecting Deposited
Securities. Subject to paragraphs (4) and (5), the Depositary
may, in its discretion, and after consultation with the Company if practicable,
amend this ADR or distribute additional or amended ADRs (with or without calling
this ADR for exchange) or cash, securities or property on the record date set by
the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation or other reclassification of Deposited Securities,
any Share Distribution or Other Distribution not distributed to Holders or
any cash, securities or property available to the Depositary in respect of
Deposited Securities from (and the Depositary is hereby authorized to surrender
any Deposited Securities to any person and to sell by public or private sale any
property received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of all or
substantially all the assets of the Company, and to the extent the Depositary
does not so amend this ADR or make a distribution to Holders to reflect any of
the foregoing, or the net proceeds thereof, whatever cash, securities or
property results from any of the foregoing shall constitute Deposited Securities
and each ADS evidenced by this ADR
shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
(14) Exoneration. Without
limiting Section 16 of the Deposit Agreement as between the Company and the
Depositary, the Depositary, the Company, their respective officers, directors,
employees and agents and each of them shall: (a) incur no liability (i) if any
present or future 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 obligation nor shall any of them be
subject to any liability to any Holders or beneficial owners of ADSs or any
other person 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; or (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 and
the Company, their respective agents and their respective directors, officers
and employees acting hereunder 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 under certain circumstances. 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 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 for the registration of transfer of Deposited Securities on any applicable
register in connection with the deposit or withdrawal of Deposited Securities,
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. The parties hereto agree that 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. In no event shall any amendment or
supplement impair the right of the Holder to surrender such ADR and receive
therefor the Deposited Securities represented thereby except in order to comply
with mandatory provisions of applicable law. 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 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. The Depositary may terminate the Deposit Agreement by
giving the notice set forth in the preceding sentence of this paragraph (17) at
any time after 60 days has elapsed after the Depositary shall have resigned
hereunder, provided that no successor depositary shall have been appointed and
accepted its appointment hereunder before the end of such 60
days. 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 advise Holders of such termination, 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.
