Eni S.p.A. AND JPMorgan Chase Bank, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Amended and Restated Deposit Agreement Dated as of December 21, 2005
Eni
S.p.A.
AND
JPMorgan
Chase Bank, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Amended
and Restated Deposit Agreement
Dated
as
of December 21, 2005
TABLE
OF CONTENTS
|
Page
|
||||
| PARTIES | 1 | |||
| RECITALS | 1 | |||
| Section 1. | Certain Definitions | |||
|
(a)
|
ADR
Register
|
1 | ||
|
(b)
|
ADRs;
Direct Registration ADRs
|
1 | ||
|
(c)
|
|
ADS | 2 | |
|
(d)
|
Beneficial
Owner
|
2 | ||
|
(e)
|
Custodian
|
2 | ||
|
(f)
|
Deliver,
execute, issue et al.
|
2 | ||
|
(g)
|
Delivery
Order
|
2 | ||
|
(h)
|
Deposited
Securities
|
2 | ||
|
(i)
|
Direct
Registration System
|
2 | ||
|
(j)
|
Dollars
|
2 | ||
|
(k)
|
|
DTC
|
2 | |
|
(l)
|
Holder
|
3 | ||
|
(m)
|
Initial
Deposit
|
3 | ||
|
(n)
|
Italian
Business Day; New York Business Day
|
3 | ||
|
(o)
|
Monte
Titoli
|
3 | ||
|
(p)
|
Securities
Act of 1933
|
3 | ||
|
(q)
|
Shares
|
3 | ||
|
(r)
|
Transfer
Office
|
3 | ||
|
(s)
|
Treasury
|
3 | ||
|
(t)
|
Withdrawal
Order
|
3 | ||
| Section 2. |
ADRs
|
3 | ||
| Section 3. | Deposit of Shares | 4 | ||
| Section 4. | Issue of ADRs | 5 | ||
| Section 5. | Distributions on Deposited Securities | 5 | ||
| Section 6. | Withdrawal of Deposited Securities | 5 | ||
| Section 7. | Substitution of ADRs | 6 | ||
| Section 8. | Cancellation and Destruction of ADRs | 6 | ||
| Section 9. | The Custodian | 6 | ||
| Section 10. | Co-Registrars and Co-Transfer Agents | 6 | ||
| Section 11. | Lists of Holders | 6 | ||
| Section 12. | Depositary's Agents | 7 | ||
| Section 13. | Successor Depositary | 7 | ||
| Section 14. | Reports | 7 | ||
| Section 15. | Additional Shares | 7 | ||
| Section 16. | Indemnification | 8 | ||
| Section 17. | Notices | 8 | ||
| Section 18. | Miscellaneous | 9 | ||
|
Section
19.
|
Amendment
and Restatement of Old Deposit Agreement
|
9 | ||
| TESTIMONIUM | 10 | |||
| SIGNATURES | 10 | |||
i
| Page | ||||
|
EXHIBIT
A
|
||||
| FORM OF FACE OF ADR | A-1 | |||
| Introductory Paragraph | A-1 | |||
| (1) | Issuance of ADRs | A-2 | ||
| (2) | Withdrawal of Deposited Securities | A-2 | ||
| (3) | Transfers of ADRs | A-2 | ||
| (4) | Certain Limitations | A-3 | ||
| (5) | Taxes | A-4 | ||
| (6) | Disclosure of Interests | A-5 | ||
| (7) | Charges of Depositary | A-9 | ||
| (8) | Available Information | A-10 | ||
| (9) | Execution | A-10 | ||
| Signature of Depositary | A-10 | |||
| Address of Depositary's Office | A-10 | |||
| FORM OF REVERSE OF ADR | A-11 | |||
| (10) | Distributions on Deposited Securities | A-11 | ||
| (11) |
Conversion
of Foreign Currency
|
A-12 | ||
| (12) |
Record
Dates
|
A-13 | ||
| (13) |
Voting
of Deposited Securities
|
A-13 | ||
| (14) |
Changes
Affecting Deposited Securities
|
A-13 | ||
| (15) |
Exoneration
|
A-14 | ||
| (16) |
Resignation
and Removal of Depositary; the Custodian
|
A-15 | ||
| (17) |
Amendment
|
A-15 | ||
|
(18)
|
Termination
|
A-15
|
||
ii
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of December 21, 2005 (the "Deposit
Agreement") among Eni S.p.A. and its successors (the "Company"), JPMorgan
Chase
Bank, N.A., as depositary hereunder (the "Depositary"), and all Holders and
Beneficial Owners from time to time of American Depositary Receipts issued
hereunder ("ADRs") evidencing American Depositary Shares ("ADSs") representing
deposited Shares (defined below). The Company hereby appoints the Depositary
as
depositary for the Deposited Securities 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.
W
I T N E
S S E T H
WHEREAS,
the Company and the Depositary entered into a Deposit Agreement dated as
of
December 5, 1995, as amended (the "Old Deposit Agreement") to provide for
the
deposit of Shares of the Company with the Depositary or with the Custodian
as
agent of Depositary for the purposes set forth in such Old Deposit Agreement,
for the creation of American depositary shares representing the Shares so
deposited and for the execution and delivery of American depositary receipts
("Old Receipts") evidencing the American depositary shares;
WHEREAS,
pursuant to the terms of paragraph (16) of the Old Receipt, the Company and
the
Depositary now wish to amend and restate the Old Deposit Agreement and the
Old
Receipts, such amendment to become effective on January 10, 2006;
NOW
THEREFORE, in consideration of the premises, effective January 10, 2006,
the
parties hereto hereby amend and restate the Old Deposit Agreement and the
Old
Receipts in their entireties 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.
References to "ADRs" shall include certificated ADRs and Direct Registration
ADRs, unless the context otherwise requires. The form of ADR is hereby
incorporated herein and made a part hereof; the provisions of the form of
ADR
shall be binding upon the parties hereto.
(c) "ADS"
means
the securities representing the interests in the Deposited Securities and
evidenced by the ADRs issued hereunder. Each ADS evidenced by an ADR represents
the right to receive two (2) Shares and a pro
rata
share in
any other Deposited Securities.
(d) "Beneficial
Owner"
means
any person owning any beneficial interest in the ADSs represented by the
ADR
issued hereunder regardless of whether such person is the Holder of such
ADR.
(e) "Custodian"
means
the agent or agents of the Depositary (singly or collectively, as the context
requires) named as Custodian in the form of ADR and any additional or substitute
Custodian appointed pursuant to Section 9.
(f) 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. "Deliver,"
"deposit,"
"surrender,"
"transfer"
or
"withdraw",
each
means, when used with respect to Shares where the context requires, the entry
or
entries or electronic transfer or transfers in an account or accounts maintained
by institutions authorized under applicable law to effect transfers of
securities (which may include Monte Titoli) or otherwise the physical transfer
of certificates representing the Shares.
(g) "Delivery
Order"
is
defined in Section 3.
(h) "Deposited
Securities"
as of
any time means all Shares at such time deposited or deemed 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.
(i) "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.
(j) "Dollars"
means
United States dollars.
(k) "DTC"
means
The Depositary Trust Company and any successor thereto.
2
(l) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(m) "Initial
Deposit"
means
the deposit of Shares by or on behalf of the Ministry of Economy and Finance
of
the Republic of Italy to the account of the Depositary maintained by the
Custodian on behalf of the Holders in connection with an offering of ADSs
pursuant to an offering circular dated December 5, 1995.
(n) "Italian
Business Day"
means
any day other than a Saturday or a Sunday and on which commercial banking
institutions in Italy are open for business. "New
York Business Day"
means
any day other than a Saturday or a Sunday and on which commercial banking
institutions are required to be open for business.
(o) "Monte
Titoli"
means
Monte Titoli S.p.A., the Italian securities depositary institution, and any
successor which performs substantially identical functions in
Italy.
(p) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time to time
amended.
(q) "Shares"
mean
the Ordinary Shares in registered form nominal value Euro 1 each, of the
Company
heretofore validly issued and outstanding and fully paid, non-assessable
and as
of the time of deposit, free of any preemptive rights of the holders of
outstanding Shares or hereafter validly issued and outstanding and fully
paid,
non-assessable and free of any preemptive rights of the holders of outstanding
Shares or interim certificates representing such Shares and shall include
the
rights to receive Shares specified in paragraph (1) of the form of
ADR.
(r) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(s)
"Treasury"
means
the Italian Ministry of Economy and Finance.
(t) "Withdrawal
Order"
is
defined in Section 6.
2. ADRs
Generally.
(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 the requirements of any securities
exchange or market upon which the ADSs primarily may be listed or traded
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.
3
(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.
(c)
Holders and Beneficial Owners 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.
(d)
The
form of ADR is hereby incorporated herein and made a part hereof and the
provisions of the form of ADR shall be binding upon the parties
hereto.
3. Deposit
of Shares.
The
Initial Deposit shall be made by deposit of Shares by or on behalf of the
Treasury to the account of the Depositary maintained by the Custodian on
behalf
of the Holders for such purpose. The Treasury, in agreement with the Italian
Ministry of Economy and Finance, in consideration of the fact that the
Depositary will be the record holder and not the Beneficial Owner of Shares,
which will be represented by ADSs and evidenced by ADRs, has undertaken to
approve the acquisition of 3% or more of the voting share capital of the
Company
by the Depositary, DTC and Cede & Co. as nominee for DTC. In connection with
any subsequent deposit of Shares hereunder, the Depositary or the Custodian
may
require the following in form reasonably satisfactory to it: (a) a written
order
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons designated in such order an ADR or ADRs evidencing
the
number of ADS 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 Custodian or its nominee
any
distribution on or in respect of such deposited Shares or right to subscribe
for
additional Shares or indemnity therefore; and, (d) proxies entitling the
Custodian to vote such deposited Shares until registered in its name. At
the
request, risk and expense of any holder of Shares, and for the account of
such
holder, the Depositary may receive certificates for Shares to be deposited,
together with any other documents and payments required under this Deposit
Agreement, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder. As soon as practicable after the Custodian
receives Deposited Securities pursuant to any such deposit or pursuant to
paragraphs (10) or (14) of the form of ADR, the Custodian shall present such
Deposited Securities for registration of transfer into the name of the Custodian
or its nominee, to the extent such registration is practicable, at the cost
and
expense of the person making such deposit (or for whose benefit such deposit
is
made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities shall be held by the Custodian for the account and to
the
order of the Depositary at such place or places and in such manner as the
Depositary shall determine. The Depositary agrees to instruct the Custodian
to
place all Shares accepted for deposit under this Deposit Agreement into a
segregated account separate from any Shares of the Company that may be held
by
such Custodian under any other depositary receipt facility relating to the
Shares. Deposited Securities may be delivered by the Custodian to any person
only under the circumstances expressly contemplated in this Deposit Agreement.
Neither the Depositary nor the Custodian shall lend the Deposited Securities.
To
the extent that Deposited Securities cannot be practicably registered for
transfer into the name of the Custodian or its nominee, the Depositary shall
return such Deposited Securities to the person depositing the same or distribute
them, as the case may be, to the Holder or Holders entitled thereto. At the
request of a Holder, the Depositary shall, for the purpose of substituting
a
certificated ADR with an uncertificated ADR, or vice versa, execute and deliver
a certificated ADR or a uncertificated 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 uncertificated ADR, as
the
case may be, substituted.
4
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, Swift 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 reasonable discretion that any
distribution pursuant to paragraph (10) of the form of ADR is prohibited
by
applicable law or is not practicable with respect to any Holder, the Depositary,
after consultation with the Company, may make such distribution as it deems
reasonably practicable, including the distribution of foreign currency,
securities or property (or appropriate documents evidencing the right to
receive
foreign currency, securities or property) or, if the Depositary deems necessary,
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, Swift 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 delivery of any securities, property or cash to which such Holder is
then
entitled in respect of ADRs. Such delivery shall not be unreasonably delayed
as
a result of actions by the Depositary or its agents.
5
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.
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, and after consultation with the Company, if practicable, appoint
one or
more agents to act for it as Custodian hereunder in addition to or in lieu
of
the Custodian named in the form of ADR. 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, after consultation
with
the Company, if practicable, 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. The Depositary shall
give Holders written notice of any change of Custodian hereunder as promptly
as
practicable after such change.
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. The Depositary shall give Holders written notice
of any
change of co-registrar or co-transfer agent hereunder as promptly as practicable
after such change.
11. List
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 three New York Business
Days
of the Depositary's receipt of such request.
6
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 promptly 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.
Subject
to paragraph (18) of the form of ADR, if the Depositary acting hereunder
shall
resign or be removed, the Company shall use its best efforts to appoint a
bank
or trust company having an office in the Borough of Manhattan, The City of
New
York, as successor depositary hereunder. Every successor depositary shall
execute and deliver to its predecessor and to the Company written acceptance
of
its appointment hereunder, and thereupon such successor depositary, without
any
further act or deed, shall become Depositary hereunder; but such predecessor,
upon payment of all sums due to the predecessor and on the written request
of
the Company, shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder and assigning
all
right, title and interest in the Deposited Securities to such successor,
and
shall deliver to such successor a list of the Holders. Any bank or trust
company
into or with which the Depositary may be merged or consolidated, or to which
the
Depositary shall transfer substantially all its American depositary receipt
business, shall be the successor of the Depositary without the execution
or
filing of any document or any further act. Upon the appointment of any successor
depositary hereunder, any agent of the Depositary then acting hereunder shall
forthwith become such agent hereunder of such successor depositary and such
successor depositary shall, on the written request of any such agent, execute
and deliver to such agent any instruments necessary to give such agent authority
as such agent hereunder of such successor depositary.
14. Reports.
On or
before the first date on which the Company makes any communication available
to
holders of Deposited Securities or any material non-confidential communication
available to a 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. In connection with any
registration statement under the Securities Act of 1933 relating to the ADRs
or
with any undertaking contained therein, the Company and the Depositary shall
each furnish to the other and to the United States Securities and Exchange
Commission or any successor governmental agency such information as shall
be
required to make such filings or comply with such undertakings. The Company
has
delivered to the Depositary, the Custodian and any Transfer Office, a copy
(in
English or with an English translation) of its by-laws (Statuto)
which
the Company warrants represent together with Italian law all the provisions
of
or governing the Shares (other than provisions of Italian law) and any other
Deposited Securities issued by 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 (other than provisions of Italian law) as so changed. The Depositary
and its agents may rely upon the Company's delivery thereof for all purposes
of
this Deposit Agreement.
7
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 and the rules and regulations promulgated thereunder.
The
Depositary will comply, as promptly as practicable, 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.
Notwithstanding anything to the contrary in paragraph (15(b)) of the form
of
ADR, the Company shall indemnify, defend and save harmless each of the
Depositary and its agents against any loss, liability or expense (including
reasonable fees and expenses of counsel) that may arise out of (a) its
acceptance and performance of its powers and duties in accordance with this
Deposit Agreement, except to the extent such loss, liability or expense is
due
to its negligence or bad faith or (b) any offer or sale of ADRs, ADSs, Shares
or
other Deposited Securities or any registration statement under the Securities
Act of 1933 in respect thereof, except to the extent such loss, liability
or
expense arises out of information (or omissions from such information) relating
to it furnished in writing to the Company by it expressly for use in any
such
registration statement. Each of the Depositary and its agents 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 such persons. 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 (with all facsimile transmissions to be confirmed by
letter), 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.
▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
ADR Administration
Fax:
+ 1-(212).▇▇▇-▇▇▇▇
|
|
(b)
|
Eni
S.p.A.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇
Attention:
Secretary's Office
Fax:
+
39-06-5982.2449
|
8
The
Depositary or the Company may act upon any cable, Swift or facsimile
transmission received by it from the other or from any Holder, notwithstanding
that such cable, Swift or facsimile transmission shall not subsequently be
confirmed as aforesaid.
18. Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the Depositary,
the Holders, the Beneficial Owners, 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 Beneficial 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.
This Deposit Agreement shall be governed by and construed in accordance with
the
laws of the State of New York.
19.
Amendment
and Restatement of Old Deposit Agreement.
The
Deposit Agreement amends and restates the Old Deposit Agreement in its entirety
to consist exclusively of the Deposit Agreement, and each Old Receipt is
hereby
deemed amended and restated to substantially conform to the form of ADR set
forth in Exhibit A annexed hereto.
9
IN
WITNESS WHEREOF, Eni S.p.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 and Beneficial Owners of ADRs shall become parties hereto upon
acceptance by them of ADRs issued in accordance with the terms
hereof.
|
|
||
| |
Eni
S.p.A. |
|
| By: | ||
|
Name:
Title:
|
|
|
|
|
||
| |
JPMORGAN
CHASE BANK, N.A.. |
|
| By: | ||
|
Name:
Title:
|
|
|
10
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
AS
PROVIDED IN THE BY-LAWS (STATUTO) AND THE DEPOSIT AGREEMENT, THIS AMERICAN
DEPOSITARY RECEIPT IS SUBJECT TO CERTAIN RESTRICTIONS CONCERNING THE OWNERSHIP
OF AND OTHER ENTITLEMENTS TO SHARES OR AMERICAN DEPOSITARY SHARES REPRESENTING
THREE PERCENT OR MORE OF THE SHARE CAPITAL OF ENI S.P.A. THE HOLDER OF THIS
AMERICAN DEPOSITARY RECEIPT WILL NOT BE ENTITLED TO VOTE THE UNDERLYING
DEPOSITED ORDINARY SHARES REPRESENTING THREE PERCENT OR MORE OF THE SHARE
CAPITAL OF ENI S.P.A. UNLESS CERTAIN CONDITIONS ARE MET. SEE PARAGRAPH (6)
OF
THE FACE OF THIS AMERICAN DEPOSITARY RECEIPT.
| ______ |
No.
of ADSs:
|
||
| Number | _________________ | ||
|
Each
ADS represents
Two
(2) shares
CUSIP
|
|||
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES EACH OF ONE EURO NOMINAL VALUE
of
Eni
S.p.A.
(Incorporated
under the
laws
of
the Republic of Italy)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws
of the
United States 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 (14)) representing
two
(2) ordinary shares each of One Euro nominal value (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 lieu of deposited Shares, the "Deposited Securities"), of Eni S.p.A.,
a
corporation organized under the laws of the Republic of Italy (the "Company"),
deposited at office of the Custodian (subject to paragraph (16), the
"Custodian"), under the Amended and Restated Deposit Agreement dated as of
December 21, 2005 (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 effective date of the Amended and Restated Deposit
Agreement is January 10, 2006. 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 or (b) rights to receive Shares
from the Company or any registrar, transfer agent, clearing agent or other
entity recording Share ownership or transactions. 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 to do so and that such Shares are not "restricted
securities" as such term is defined in Rule 144 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 the Deposit Agreement and 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. The Holder may provide
the Depositary with a written order directing the Depositary to cause the
Deposited Securities to be delivered to, or upon the order of, any person
designated in such order (a “Withdrawal Order”). Such delivery shall be made
without unreasonable delay. 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 under the Securities Act of 1933.
A-2
(3)
Transfers,
Split-Ups and Combinations of ADRs; Maintenance of Office and Transfer Books
by
the Depositary.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a
register (the "ADR Register") for the registration, registration of transfer,
combination and split-up of ADRs, and in the case of Direct Registration
ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company
or a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed (in the case of ADRs in certificated
form) or upon delivery of proper instruments of transfer, is transferable
by
delivery with the same effect as in the case of negotiable instruments under
the
laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes. Subject to paragraphs (4) and (5), this ADR is
transferable on the ADR Register and may be split into other ADRs or combined
with other ADRs into one ADR, evidencing the same number of ADSs evidenced
by
this ADR, by the Holder hereof or by duly authorized attorney upon surrender
of
this ADR at the Transfer Office properly endorsed 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. At the request of a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR
with an
uncertificated ADR, or vice versa, execute and deliver a certificated ADR
or an
uncertificated 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 uncertificated ADR, as the case may be,
substituted.
The
Depositary, subject to the above terms and conditions, shall upon surrender
of
certificated ADR or ADRs for purposes of transferring the same or effecting
a
split-up or combination of the same, execute a new certificated ADR or ADRs
and
deliver the same to or upon the order of the person entitled thereto without
unreasonable delay.
At
the
expense of the Company, the Company shall have the right, upon reasonable
request, to inspect transfer and registration records of the Depositary relating
to the ADRs and to take copies thereof, and to require the Depositary and
any
co-registrars to supply copies of such portions of such records as the Company
may reasonably request.
(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
paragraph (2), the withdrawal of any Deposited Securities, and from time
to time
in the case of clause (b)(ii) of this paragraph (4), the Company, the Depositary
or the Custodian may require: (a) payment with respect thereto of (i) any
stock
transfer or other tax or other governmental charge, (ii) any stock transfer
or
registration fees in effect for the registration of transfers of Shares or
other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and
(ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of
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 reasonable
regulations as the Depositary may establish consistent with the Deposit
Agreement. The Depositary shall provide to the Company, promptly upon its
written request, copies of any such proofs of citizenship or residence or
other
information referred to in (b) above so requested. The issuance of ADRs,
the
acceptance of deposits of Shares, the registration, registration of transfer,
split-up or combination of ADRs or, subject to 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 necessary or advisable by the Depositary or the
Company.
A-3
(5)
Taxes.
(a) 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 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.
(b)
The
Depositary and the Custodian agree to use reasonable efforts to make and
maintain arrangements (in addition to or in substitution of the arrangements
described in this paragraph) to enable persons that are considered United
States
residents for purposes of applicable law to receive any tax rebates (pursuant
to
an applicable treaty or otherwise) or other tax related benefits relating
to
distributions on the ADSs to which such persons are entitled. The Depositary
agrees to establish procedures to enable Holders to take advantage of any
such
tax rebates (pursuant to treaty or otherwise) relating to distributions on
the
ADSs to which such Holders are entitled. The Depositary agrees to provide
at
least annually a written notice to the Holders of the necessary actions to
be
undertaken by such Holders. In connection with the foregoing, the Depositary
agrees to provide the Company, for their review and comment, with a copy
of the
proposed notice to Holders at least 3 Italian Business Days in advance of
the
publication of such notice in order to allow the Company to provide the
Depositary with any comments they might have with respect to such notice.
To the
extent that the Depositary does not receive any written comments within such
period, the Company shall be deemed to have had no comments with respect
to said
notice to Holders.
A-4
(c)
Notwithstanding any other terms of the Deposit Agreement or the ADR, absent
the
gross negligence or bad faith of, respectively, the Depositary and the Company,
the Depositary and the Company assume no obligation, and shall not be subject
to
any liability, for the failure of any Holder or Beneficial Owner, or its
agent
or agents, to receive any tax benefit under applicable law or tax treaties.
The
Depositary shall not be liable for any acts or omissions of any other party
in
connection with any attempts to obtain any such benefit, and Holders and
Beneficial Owners hereby agree that each of them shall be conclusively bound
by
any deadline established by the Depositary in connection therewith.
(6)
Disclosure
of and Restrictions on Interests.
To the
extent that provisions of applicable Italian securities laws or the Company’s
by-laws (Statuto)
may
require the disclosure of or limit the beneficial or other ownership of
Deposited Securities, other Shares and other securities of the Company and
may
provide for blocking transfer and voting or other rights to enforce such
disclosure or limit such ownership, the Depositary shall comply with the
Company’s reasonable instructions as to ADRs in respect of any such enforcement
or limitation, and Holders and Beneficial Owners shall be subject to and
shall
comply with such requirements and limitations and shall cooperate with the
Depositary’s compliance with such instructions. Holders and Beneficial Owners
shall be required to comply with requests by the Company for information
as to
the capacity in which such persons own ADRs or Shares, the identity of any
other
person interested in such ADRs or Shares and the nature of such
interest.
In
particular, any Beneficial Owner of ADRs, acting alone or in concert, directly
or through an intermediary, who holds more than 2.0% of the Company’s voting
share capital, may no longer hold any ADRs through a nominee and must request
that the Depositary register the ADRs in the name of such person as the Holder
on the books of the Depositary maintained for such purpose. The Depositary
agrees to furnish to the Company, as promptly as practicable, the request
to the
extent that the Depositary has been provided with such information. The
Depositary agrees to furnish to the Company upon the Company’s request a list of
the names, addresses and ADS holdings of all persons in whose names ADRs
are
registered on the books of the Depositary maintained for such purpose.
Furthermore, under Consob (Commissione Nazionale per le Societa’ e la Borsa)
Regulations, any direct or indirect equity ownership in excess of 2%, 5%,
7.5%,
10% and subsequent multiples of 5% in the voting shares of a listed company
must
be notified to such company and to Consob, within five open market days from
the
effectiveness of the transaction triggering such obligation to notify. The
obligation to notify Consob also applies to any direct or indirect equity
ownership held through ADSs, but it does not apply to the Depositary holding
shares in its capacity as such. For listed companies, whose by-laws impose
a
maximum limit on the number of shares that may be held by any shareholder,
Consob is entitled to establish different relevant thresholds by decree.
Further, any subsequent reduction of the foregoing interest below any such
threshold must be notified within the same terms. Any shares held in excess
of
any such threshold cannot be voted in the event the above notices have not
been
provided. If the
A-5
above
notices have not been provided, any resolution passed by such company can
be
voided if challenged in court by shareholders or Consob if such resolution
was
not adopted without the consent of the shares held in excess of such relevant
threshold. The relevant thresholds noted above shall be calculated including
(i)
shares registered in the name of the relevant reporting person whose underlying
voting rights are attributed to third parties, and vice versa; and (ii) shares
held through third parties and shares whose voting rights are attributable
to
such third parties, excluding shares registered in the name of, or endorsed
to,
fiduciaries as well as shares whose voting rights are attributed intermediaries
for purposes of the management of mutual or individual savings. Furthermore,
the
calculation of 5%, 10%, 25%, 50% and 75% thresholds shall also take into
account
shares outstanding which the relevant reporting person is entitled to purchase
or to sell directly or through third parties. Shares to be purchased through
the
exercise of conversion rights or warrants shall be calculated only in the
event
the acquisition can take place within a sixty day period. In the event the
same
relevant interest is directly or indirectly held by two or more entities,
then
the obligation to notify may be satisfied by one such entity, provided that
such
entity guarantees the completeness of information. Any interest that exceeds
10%
of the voting capital of an unlisted company, including any foreign company,
owned by a listed company must be notified to such non-listed company within
seven days of reaching such threshold. Similarly, the non-listed company
must be
notified about any subsequent reduction of such interest below the 10%
threshold. Listed companies are also required to notify Consob of any interest
that exceeds 10% of the voting capital of non-listed companies at the end
of the
first six months of the year and at the end of the full year. Such notification
is due within 30 days from the date of approval of the Annual Report and
the
Report of the First Six Months, respectively. In the event the same relevant
participation is directly or indirectly held by two or more entities, then
the
obligation to notify may be satisfied by one of such entities, provided that
completeness of information is guaranteed. The 10% threshold shall be calculated
including (i) shares registered in the name of the relevant listed company,
even
if voting rights are attributable to third parties; (ii) shares whose voting
rights are attributable to the relevant listed company, in the event such
voting
rights entitle such party to exercise a dominant or material influence at
the
ordinary shareholders’ meeting; and (iii) shares registered in the name of third
parties and shares whose voting rights are attributable to third parties.
In
addition to the rules of article 2359 bis of the Italian Civil Code, governing
the acquisition of shares of the parent company by a controlled subsidiary,
Decree No. 58/1998 regulates additional cross-ownership matters as follows.
Cross-ownership between listed and non-listed companies may not exceed 2%
of the
shares of the listed company or 10% of the shares of the non-listed company.
In
calculating these ownership thresholds, the rules for calculation of interests
in listed and non-listed companies, as determined above, apply. The company
ultimately exceeding the 2% or 10% interest in a listed or unlisted company
respectively may not exercise the voting rights on the shares held in excess
of
such thresholds; such shares must be sold within 12 months. If anyone holds
an
interest exceeding 2% of the share capital of a listed company, such listed
company or any entity controlling such listed company may not acquire an
interest exceeding 2% of the share capital of a listed company controlled
by
said holder. If the foregoing limit is exceeded, the holder who last exceeded
the foregoing limit or both the holders, if it is not possible to ascertain
which holder exceeded such limit last, may not exercise the voting rights
related to the shares exceeding the foregoing limit. Such limits are not
applicable in case of a tender offer to acquire at least 60% of the ordinary
shares of a listed company. Under Decree No. 58, any agreement, in whatever
form, intended to regulate the exercise of voting rights in a listed company
or
in the companies controlling a listed company, together with any subsequent
amendments, renewal or termination of such agreement, must be (i) notified
to
Consob, within 5 days of its execution; (ii) disclosed to the public through
the
publication, in summary form, in one Italian newspaper having general
circulation, within ten days from its execution; and (iii) deposited in the
Companies’ Register of the place where such listed company has its registered
office within 15 days from its execution. The same requirements also apply
to
agreements, in whatever form, that (a) impose an obligation of prior
consultation for the exercise of voting rights in a listed company and in
its
controlling companies; (b) contain undertakings limiting the transferability
of
shares and other securities granting rights for the acquisition or subscription
of shares; (c) provide for the acquisition of the shares and securities;
and (d)
contemplate or cause the exercise, also in concert with any other party,
of
dominant influence over the listed company that issued the shares and its
controlled entities. In the event the obligations set out above are not
completely satisfied, then the agreement is ineffective and the voting rights
connected to the relevant shares may not be exercised. In case of violation
of
such limitation imposed on the voting rights, a resolution can be challenged
if
such resolution would have not been approved without the vote of such shares.
If
the parties have agreed upon the duration of the agreement, such duration
cannot
exceed three years. In absence of agreement, each party to the agreement
can
withdraw from such an agreement by giving a six months notice.
A-6
Pursuant
to the Company's by-laws no one, in any capacity, may own company shares
that
entail a holding of more than 2% of voting share capital. Such maximum
shareholding limit is calculated by taking into account the aggregate
shareholding held by the controlling entity, either a physical or legal person
or company; its directly or indirectly controlled entities, as well as entities
controlled by the same controlling entity; affiliated entities as well as
people
related to the second degree by blood or marriage, also in the case of a
legally
separated spouse. Control exists, with reference also to entities other than
companies, in the cases envisaged by the Italian Civil Code. Affiliation
exists
in the case set forth by the Italian Civil Code as well as between entities
that
directly or indirectly, by way of subsidiaries, other than those managing
investment funds, are bound, even with third parties, in agreements regarding
the exercise of voting rights or the transfer of shares or portions of third
companies or, in any event, in agreements or pacts as per Article 122 of
Legislative Decree No. 58 of February 24, 1998 regarding third party companies
if said agreements or pacts concern at least 10% of the voting capital, if
they
are listed companies, or 20% if they are unlisted companies. The aforementioned
shareholding limit (2%) is calculated by taking into account shares held
by any
fiduciary nominee or intermediary. Any voting rights attributable to voting
capital held or controlled in excess of the maximum limit indicated in the
foregoing cannot be exercised and the voting rights of each entity to whom
such
limit on shareholding applies are reduced in proportion, unless otherwise
jointly provided in advance by the parties involved. In the event such shares
exceeding this limit are voted, any Shareholders’ resolution adopted pursuant to
such a vote may be challenged pursuant to Article 2377 of the Civil Code,
if the
required majority had not been reached without the votes exceeding the
aforementioned maximum limit. Shares not entitled to vote
A-7
are
included in the determination of the quorum at shareholders’ meetings. Pursuant
to the Company's by-laws, the Minister of Economy and Finance retains the
following special powers to be exercised in agreement with the Minister of
Productive Activities (the “Ministries”) regarding: (a) opposition with respect
to the acquisition of material shareholdings by entities affected by the
above-mentioned shareholder limit, by which are meant those representing
at
least 3% of share capital with the right to vote at the ordinary shareholders’
meeting. The opposition is expressed within ten days of the day of the notice
to
be filed by the Board of Directors at the time request is made for registration
in the Shareholders’ Register if the Ministries consider that such an
acquisition may prejudice the vital interests of the Italian State. Until
the
ten-day term is not lapsed, the voting rights and the non-asset linked rights
connected with the shares representing a material shareholding may not be
exercised. If the opposition power is exercised, through a duly motivated
act in
connection with the prejudice that may be caused by the operation to the
vital
interests of the Italian State, the transferee may not exercise the voting
rights and the other non-asset linked rights connected with the shares
representing a material shareholding and must sell said shares within one
year.
If such transferee fails to comply, the law court, upon request of the Minister
of Economy and Finance, will order the sale of the shares representing a
material shareholding according to the procedures set forth in the Italian
Civil
Code. The act through which the opposition power is exercised may be challenged
by the transferee before the Regional Administrative Court of Latium within
sixty days as of its issue; (b) opposition with respect to the subscription
of
Shareholders’ pacts or agreements as per Legislative Decree No. 58 of February
24, 1998, involving at least 3% of the share capital with the right to vote
at
ordinary shareholders’ meeting. In order to allow the exercise of the above
mentioned opposition power, Consob notifies the Minister of Economy and Finance
if the relevant pacts or agreements communicated to it pursuant to the
aforementioned Legislative Decree. The Ministry of Economy and Finance may
exercise such opposition powers within ten days as of the date of the notice
by
Consob. Until the expiration of that ten-day period, the voting rights and
the
other non-asset linked rights connected with the shares held by the shareholders
who have subscribed to the above mentioned pacts or agreements may not be
exercised. If the opposition power is exercised through the issue of an act
motivated by consideration of the prejudice that may be caused by said pacts
or
agreements to the vital interests of the Italian State, the shareholders
pacts
or agreements shall be null and void. If in the shareholders’ meetings the
shareholders who have signed shareholders’ pacts or agreements behave as if
those pacts or agreements disciplined by said Legislative Decree were still
in
effect, the resolution approved with their vote, if determining for the
approval, may be challenged. The act through which the opposition power is
exercised may be challenged by the shareholders who joined the above mentioned
pacts or agreements before the Regional Administrative Court of Latium within
sixty days as of its issue.
A-8
The
Ministries, in consideration of the fact that the Depositary will be the
record
holder and not the Beneficial Owner of Shares, which will be represented
by ADSs
and evidenced by ADRs, has undertaken to approve the acquisition of 3% or
more
of the voting share capital of the Company by the Depositary, DTC and Cede
&
Co. as nominee for DTC. The Company shall promptly notify the Depositary
of its
voting share capital, and of any changes thereto. The Depositary shall notify
the Company as promptly as practicable after any Holder or Beneficial Owner
(except DTC and Cede & Co. as nominee for DTC) registers an acquisition of
3% or more of the voting share capital of the Company on the books of the
Depositary.
(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 (i) U.S. $5.00 for
each
100 ADSs (or portion thereof) evidenced by the ADRs delivered or surrendered,
(ii) stock transfer or other taxes and other governmental charges, (iii)
cable,
telex and facsimile transmission and delivery charges incurred at the request
of
persons depositing, or Holders delivering Shares, ADRs or Deposited Securities,
(iv) 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 (there are no such fees in respect of
the
Shares as of the date of the Deposited Securities) and (v) 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 (17). All other charges and
expenses of the Depositary and any agents of the Depositary (except the
Custodian) will be paid pursuant to agreements from time to time between
the
Company and the Depositary.
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company (including any proxy soliciting
material) which are both received by the Custodian or its nominee as a holder
of
Deposited Securities and made generally available to the holders of Deposited
Securities, are available for inspection by Holders at the offices of the
Depositary and the Custodian and at the Transfer Office. The Depositary will
mail copies of such communications (or English translations or summaries
thereof) to Holders when furnished by the Company. The Company is subject
to the
periodic reporting requirements of the Securities Exchange Act of 1934 and
accordingly files certain reports with the Securities and Exchange Commission.
Such reports and other information may be inspected and copied at the public
reference facilities maintained by the Commission located at the date of
the
Deposit Agreement at Judiciary Plaza, ▇▇▇ ▇. ▇▇▇▇▇▇, ▇. ▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary
by the
manual or facsimile signature of a duly authorized officer of the
Depositary.
A-9
Dated:
| JPMORGAN CHASE BANK, ▇.▇.▇▇ Depositary | ||
| |
|
|
| By: | ||
|
Authorized Officer |
||
The
Depositary's office is located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
A-10
[FORM
OF
REVERSE OF RECEIPT]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary will distribute as promptly as
practicable, by mail to each Holder entitled thereto on the record date set
by
the Depositary therefor at such Holder's address shown on the ADR Register,
in
proportion to the number of Deposited Securities (on which the following
distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash:
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution
or
portion thereof authorized in this paragraph (10) ("Cash"), on a pro
rata,
if
possible, or other reasonable basis, subject to appropriate adjustments for
(i)
taxes withheld, (ii) such distribution being prohibited by applicable law
with
respect to certain Holders, and (iii) deduction of the Depositary's expenses
in
(1) converting, as promptly as practicable, 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, to the extent 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 same (the Company has no obligation
to so
furnish such evidence), or (ii) to the extent the Company does not so furnish
such evidence, any U.S. dollars available to the Depositary from the net
proceeds of any sale by public or private means in a commercially reasonable
manner 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 be accomplished by reason
of
the non-transferability 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"), on a pro
rata
basis by
any means that the Depositary may deem equitable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be
equitable, any U.S. dollars available to the Depositary from the net proceeds
of
any sale by public or private means in a commercially reasonable manner of
Other
Distributions as in the case of Cash. U.S. dollars distributed hereunder
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
handled by the Depositary in accordance with its then current practices).
Notwithstanding the foregoing, no distribution to Holders pursuant to this
paragraph (10) shall be unreasonably delayed by any action of the Depositary
or
its agents.
A-11
To
the
extent that the Depositary determines in its reasonable discretion that any
distribution pursuant to this paragraph (10) is prohibited by applicable
law or
is not practicable with respect to any Holder, the Depositary, after
consultation with the Company, may make such distribution as it deems reasonably
practicable, including the distribution of foreign currency, securities or
property (or appropriate documents evidencing the right to receive foreign
currency, securities or property) or, if the Depositary deems necessary,
the
retention thereof as Deposited Securities with respect to such Holder’s ADRs
(without liability for interest thereon or the investment thereof).
(11)
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 which can, at the
time
of the receipt thereof, be transferred to the United States, the Depositary
shall, as promptly as practicable, convert or cause to be converted, by sale
or
in any other manner that it may reasonably 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 or distribution including obtaining
the approval or license of any government or agency thereof) 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
a
pro rata 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 shall file such application for approval
or
license, as promptly as practicable. The Company shall file such applications
for approval or license only where required to be filed by the Company (and
in
each such case as promptly as practicable), and shall not be obliged to make
any
such filing on behalf of the Depositary. If at any time the Depositary shall
determine that in its 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, the Depositary shall
distribute the foreign currency (or an appropriate document evidencing the
right
to receive such foreign currency) to such Holder (after deducting the
Depositary’s expenses), as promptly as practicable.
A-12
(12)
Record
Dates.
The
Depositary shall, 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 at the
close
of business on such record date shall be so entitled.
(13)
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 distribute 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,
subject
to any applicable provisions of Italian law, be entitled to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to
the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs
and
(c) the manner in which such instructions may be given, including instructions
to give a discretionary proxy to a person designated by the Company. Upon
receipt of instructions of a Holder on such record date in the manner and
on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor insofar as practicable and permitted under the provisions
of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities. 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. Beneficial Owners wishing
to
provide voting instructions must do so through the Holder of the ADRs held
for
their benefit. Beneficial Owners wishing to attend and vote at any meetings
must
become Holders in order to be able to exercise the rights of a Holder hereunder.
(14)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its reasonable discretion,
upon consultation with the Company, 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.
A-13
(15)
Exoneration.
The
Depositary, the Company, their respective directors, employees, officers,
agents
and affiliates and each of them shall: (a) incur no liability (i) if any
present
or future law, regulation, order, decree, moratorium, or fiat of the United
States, the Republic of Italy 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 Security, the by-laws
(Statuto)
of the
Company, 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
(ii) by reason of any exercise or failure to exercise any discretion given
it in
the Deposit Agreement this ADR or the by-laws (Statuto)
of the
Company; (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 negligence
or bad faith; (c) 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) 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 in good
faith
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 in good faith
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
action or omission is in good 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 of Italy or the United States, including
without limitation laws, rules, regulations, administrative or judicial process,
banking, securities or other regulators. 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. The Company has agreed to indemnify the Depositary and its agents
under
certain circumstances and the Depositary has agreed to indemnify the Company
against losses incurred by the Company to the extent such losses are due
to the
negligence or bad faith of such persons. No disclaimer of liability under
the
Securities Act of 1933 is intended by any provision hereof.
A-14
(16)
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, upon consultation with the Company, if practicable,
may appoint substitute or additional Custodians and the term "Custodian"
refers
to each Custodian or all Custodians as the context requires, then acting
as
such.
(17)
Amendment.
Subject
to 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, cable, Swift and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities, 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 and expenses of the Depositary in connection with the
conversion of foreign currency into U.S. dollars), 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 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 and the ADRs 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 or should the Company amend its by-laws in a way 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, regulations or By-laws. 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.
A-15
(18)
Termination.
The
Company may at any time terminate the Deposit Agreement and this ADR by mailing
notice of such termination to the Depositary which shall notify the Holders
at
least 30 days prior to the date fixed in such notice for such termination.
The
Depositary may likewise terminate the Deposit Agreement if 90 days shall
have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have
been
appointed and accepted its appointment within such 90 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 for any indemnification obligations to the
Company and to account for such net proceeds and other cash. Notwithstanding
any
other provision of the Deposit Agreement or this ADR, after the date so fixed
for termination, the Company shall be discharged from all obligations under
the
Deposit Agreement and this ADR, except for its obligations to the Depositary
and
its agents, including but not limited to those set forth in Section 16 of
the
Deposit Agreement.
A-16