ROCHE HOLDING LTD AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Second Amended and Restated Deposit Agreement Dated as of December 19, 2008
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Second
Amended and Restated Deposit Agreement
Dated as
of December 19, 2008
TABLE OF
CONTENTS
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Page
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PARTIES
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1
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RECITALS
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1
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Section
1.
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Certain
Definitions
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(a)
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ADR
Register
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1
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(b)
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ADRs;
Direct Registration ADRs
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1
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(c)
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ADS
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2
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(d)
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Custodian
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2
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(e)
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Deliver,
execute, issue et al.
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2
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(f)
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Delivery
Order
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2
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(g)
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Deposited
Securities
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2
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(h)
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Direct
Registration System
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2
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(i)
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Holder
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2
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(j)
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Securities
Act of 1933
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2
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(k)
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Securities
Exchange Act of 1934
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2
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(l)
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Shares
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2
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(m)
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Transfer
Office
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3
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(n)
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Withdrawal
Order
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3
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Section
2.
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ADRs
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3
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Section
3.
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Deposit
of Shares
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3
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Section
4.
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Issue
of ADRs
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4
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Section
5.
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Distributions
on Deposited Securities
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4
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Section
6.
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Withdrawal
of Deposited Securities
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4
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Section
7.
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Substitution
of ADRs
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5
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Section
8.
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Cancellation
and Destruction of ADRs
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5
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Section
9.
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The
Custodian
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5
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Section
10.
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Co-Registrars
and Co-Transfer Agents
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5
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Section
11.
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Lists
of Holders.
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5
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Section
12.
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Depositary's
Agents
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6
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Section
13.
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Successor
Depositary
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6
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Section
14.
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Reports
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6
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Section
15.
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Additional
Shares
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7
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Section
16.
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Indemnification
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7
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Section
17.
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Notices
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8
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Section
18.
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Miscellaneous
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8
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Section
19.
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Consent
to Jurisdiction
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9
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Section
20.
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Amendment
and Restatement of Old Deposit Agreement
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10
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TESTIMONIUM
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11
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SIGNATURES
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11
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- i
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Page
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EXHIBIT A
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FORM OF FACE OF ADR
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A-1
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Introductory
Paragraph
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A-1
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(1) Issuance
of ADRs
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A-2
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(2) Withdrawal
of Deposited Securities
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A-2
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(3) Transfers
of ADRs
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A-3
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(4) Certain
Limitations
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A-3
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(5) Taxes
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A-4
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(6) Disclosure
of Interests
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A-5
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(7) Charges
of Depositary
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A-5
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(8) Available
Information
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A-6
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(9) Execution
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A-6
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Signature
of Depositary
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A-6
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Address
of Depositary's Office
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A-6
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FORM OF REVERSE OF ADR
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A-7
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(10) Distributions
on Deposited Securities
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A-7
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(11) Record
Dates
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A-7
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(12) Voting
of Deposited Securities
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A-8
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(13) Changes
Affecting Deposited Securities
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A-8
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(14) Exoneration
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A-8
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(15) Resignation
and Removal of Depositary; the Custodian
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A-9
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(16) Amendment
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A-10
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(17) Termination
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A-10
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(18) Appointment
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A-11
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- ii
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SECOND AMENDED AND RESTATED DEPOSIT
AGREEMENT dated as of December 19, 2008 (the "Deposit Agreement") among ROCHE
HOLDING LTD and its successors (the "Company"), JPMORGAN CHASE BANK, N.A., as
depositary hereunder (the "Depositary"), and all holders from time to time of
American Depositary Receipts issued hereunder ("ADRs") evidencing American
Depositary Shares ("ADSs") representing deposited Shares (defined
below). 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 Bank of
New York entered into an Amended and Restated Deposit Agreement dated as of
December 5, 2002 (the "Old Deposit Agreement") to provide for the deposit of
Shares of the Company with The Bank of New York or with the Custodian as agent
of The Bank of New York 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
Section 5.04 of the Old Deposit Agreement, the Company has removed The Bank of
New York as depositary and has appointed JPMorgan Chase Bank as successor
depositary thereunder; and
WHEREAS, the Company and JPMorgan Chase
Bank, in its capacity as successor depositary under the Old Deposit Agreement,
now wish to amend and restate the Old Deposit Agreement and the Old
Receipts;
NOW THEREFORE, in consideration of the
premises, subject to Section 20, the parties hereto hereby amend and restate the
Old Deposit Agreement and the Old Receipts in their entirety 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) Subject
to paragraph (13) of the form of ADR, each "ADS" evidenced by an
ADR represents (i) prior to January 9, 2009, the right to receive one-half of
one Share and a pro rata share in any other Deposited Securities and (ii)
commencing January 9, 2009, the right to receive one-quarter of one Share and a
pro rata share in any other Deposited Securities.
(d) "Custodian" means the
agent or agents of the Depositary (singly or collectively, as the context
requires) and any additional or substitute Custodian appointed pursuant to
Section 9.
(e)
The terms "deliver", "execute", "issue", "register", "surrender", "transfer" or "cancel", when used
with respect to Direct Registration ADRs, shall refer to an entry or entries or
an electronic transfer or transfers in the Direct Registration System, and, when
used with respect to ADRs in physical certificated form, shall refer to the
physical delivery, execution, issuance, registration, surrender, transfer or
cancellation of certificates representing the ADRs.
(f) "Delivery Order" is
defined in Section 3.
(g) "Deposited Securities"
as of any time means all Shares at such time deposited under this Deposit
Agreement and any and all other Shares, securities, property and cash at such
time held by the Depositary or the Custodian in respect or in lieu of such
deposited Shares and other Shares, securities, property and cash.
(h)
"Direct Registration
System" means the system for the uncertificated registration of ownership
of securities established by The Depository Trust Company ("DTC") and utilized
by the Depositary pursuant to which the Depositary may record the ownership of
ADRs without the issuance of a certificate, which ownership shall be evidenced
by periodic statements issued by the Depositary to the Holders entitled thereto.
For purposes hereof, the Direct Registration System shall include access to the
Profile Modification System maintained by DTC which provides for automated
transfer of ownership between DTC and the Depositary.
(i) "Holder" means the
person or persons in whose name an ADR is registered on the ADR
Register.
(j) "Securities Act of
1933" means the United States Securities Act of 1933, as from time to
time amended.
(k) "Securities Exchange Act of
1934" means the United States Securities Exchange Act of 1934, as from
time to time amended.
(l) Shares" mean
non-voting equity securities in bearer form, without nominal value, of the
Company (Genussscheine or
non-voting participation certificates), and shall include the rights to receive
Shares specified in paragraph (1)(b) of the form of ADR, that are heretofore or
hereafter validly issued and outstanding and fully paid, nonassessable and that
were not or are not issued in violation of any pre-emptive or similar rights of
the holders of outstanding Shares or interim certificates representing such
Shares; The non-voting equity securities (Genussscheine) are
not part of the share capital of the Company and convey no voting rights (except
in respect of changes to the rights of the non-voting equity securities (Genussscheine)
defined by the Company's Articles of Incorporation). Each non-voting
equity security (Genussscheine)
conveys the same rights as each share of share capital of the Company to
participate in the net profits of the Company and in any remaining proceeds from
liquidation of the Company following repayment of the share and the
participation certificate capital.
2
(m) "Transfer Office" is
defined in paragraph (3) of the form of ADR.
(n) "Withdrawal Order" is
defined in Section 6.
2. ADRs. (a) ADRs
in certificated form shall be engraved, printed or otherwise reproduced at the
discretion of the Depositary in accordance with its customary practices in its
American depositary receipt business, or at the request of the Company
typewritten and photocopied on plain or safety paper, and shall be substantially
in the form set forth in the form of ADR, with such changes as may be required
by the Depositary or the Company to comply with their obligations hereunder, any
applicable law, regulation or usage or to indicate any special limitations or
restrictions to which any particular ADRs are subject. ADRs may be
issued in denominations of any number of ADSs. ADRs in certificated
form shall be executed by the Depositary by the manual or facsimile signature of
a duly authorized officer of the Depositary. ADRs in certificated
form bearing the facsimile signature of anyone who was at the time of execution
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of such ADRs.
(b) Direct Registration
ADRs. Notwithstanding anything in this Deposit Agreement or in the form
of ADR to the contrary, ADSs shall be evidenced by Direct Registration ADRs,
unless certificated ADRs are specifically requested by the Holder.
(c) Holders shall be bound
by the terms and conditions of this Deposit Agreement and of the form of ADR,
regardless of whether their ADRs are Direct Registration ADRs or certificated
ADRs.
3. Deposit of
Shares. In connection with the deposit of Shares hereunder,
the Depositary or the Custodian may require the following in form satisfactory
to it: (a) a written order directing the Depositary to issue to, or
upon the written order of, the person or persons designated in such order a
Direct Registration ADR or ADRs evidencing the number of ADSs representing such
deposited Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer in respect of such deposited Shares; (c) instruments
assigning to the Depositary, the Custodian or a nominee of either any
distribution on or in respect of such deposited Shares or indemnity therefor;
and (d) proxies entitling the Custodian to vote such deposited
Shares. As soon as practicable after the Custodian receives Deposited
Securities pursuant to any such deposit or pursuant to paragraph (10) or (13) of
the form of ADR, the Custodian shall present such Deposited Securities for
registration of transfer into the name of the Depositary, the Custodian or a
nominee of either, to the extent such registration is practicable, at the cost
and expense of the person making such deposit (or for whose benefit such deposit
is made) and shall obtain evidence satisfactory to it of such
registration. Deposited Securities shall be held by the Custodian for
the account and to the order of the Depositary at such place or places in
Switzerland and in such manner as the Depositary shall determine. Deposited
Securities may be delivered by the Custodian to any person only under the
circumstances expressly contemplated in this Deposit Agreement. To the extent
that the provisions of or governing the Shares make delivery of certificates
therefor impracticable, Shares may be deposited hereunder by such delivery
thereof as the Depositary or the Custodian may reasonably accept, including,
without limitation, by causing them to be credited to an account maintained by
the Custodian for such purpose with the Company or an accredited intermediary,
such as a bank, acting as a registrar for the Shares, together with delivery of
the documents, payments and Delivery Order referred to herein to the Custodian
or the Depositary.
3
4. Issue of
ADRs. As promptly as practicable after any such deposit of
Shares, the Custodian shall notify the Depositary of such deposit and of the
information contained in any related Delivery Order by letter, first class
airmail postage prepaid, or, at the request, risk and expense of the person
making the deposit, by cable, telex or facsimile transmission. As
promptly as practicable after receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement, shall properly issue at the
Transfer Office, to or upon the order of any person named in such notice, an ADR
or ADRs registered as requested and evidencing the aggregate ADSs to which such
person is entitled.
5. Distributions on Deposited
Securities. To the extent that the Depositary determines in
its discretion that any distribution pursuant to paragraph (10) of the form of
ADR is not practicable with respect to any Holder, the Depositary may make such
distribution as it so deems practicable, including the distribution of foreign
currency, securities or property (or appropriate documents evidencing the right
to receive foreign currency, securities or property) or the retention thereof as
Deposited Securities with respect to such Holder's ADRs (without liability for
interest thereon or the investment thereof).
6. Withdrawal of Deposited
Securities. In connection with any surrender of an ADR for
withdrawal of the Deposited Securities represented by the ADSs evidenced
thereby, the Depositary may require proper endorsement in blank of such ADR (or
duly executed instruments of transfer thereof in blank) and the Holder's written
order directing the Depositary to cause the Deposited Securities represented by
the ADSs evidenced by such ADR to be withdrawn and delivered to, or upon the
written order of, any person designated in such order (a "Withdrawal Order").
Directions from the Depositary to the Custodian to deliver Deposited Securities
shall be given by letter, first class airmail postage prepaid, or, at the
request, risk and expense of the Holder, by cable, telex or facsimile
transmission. Delivery of Deposited Securities may be made by the
delivery of certificates (which, if required by law shall be properly endorsed
or accompanied by properly executed instruments of transfer or, if such
certificates may be registered, registered in the name of such Holder or as
ordered by such Holder in any Withdrawal Order) or by such other means as the
Depositary may deem practicable, including, without limitation, by transfer of
record ownership thereof to an account designated in the Withdrawal Order
maintained either by the Company or an accredited intermediary, such as a bank,
acting as a registrar for the Deposited Securities.
4
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, after consultation with the
Company to the extent practicable, appoint one or more agents to act
for it as Custodian hereunder. Each Custodian so appointed (other
than JPMorgan Chase Bank, N.A.) shall give written notice to the Company and the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms hereof. Any Custodian may resign from its duties hereunder by
at least 30 days written notice to the Depositary. Upon the request
of the Company after receipt of any written notice from a Custodian accepting
its appointment hereunder, the Depositary will provide the Company with a copy
of the written notice of resignation of the predecessor
Custodian. The Depositary may, after consultation with the Company to
the extent practicable, discharge any Custodian at any time upon notice to the
Custodian being discharged. Any Custodian ceasing to act hereunder as
Custodian shall deliver, upon the instruction of the Depositary, all Deposited
Securities held by it to a Custodian continuing to act.
10. Co-Registrars and
Co-Transfer Agents. The Depositary may, after consultation
with the Company to the extent practicable, 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. Any co-registrar or co-transfer
agent acting hereunder shall be an agent of, and subject to the direction of,
and shall be responsible solely to, the Depositary Each co-registrar or
co-transfer agent (other than JPMorgan Chase Bank, N.A.) shall give notice in
writing to the Company and the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit
Agreement.
11. Lists of
Holders. The Company shall have the right to inspect transfer
records of the Depositary and its agents and the ADR Register, take copies
thereof and require the Depositary and its agents to supply copies of such
portions of such records as the Company may request. The Depositary
or its agent shall furnish to the Company promptly upon the written request of
the Company, a list of the names, addresses and holdings of ADSs by all Holders
as of a date within seven days of the Depositary's receipt of such
request.
12. Depositary's
Agents. The Depositary may perform its obligations under this
Deposit Agreement through any agent appointed by it, provided that the
Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed.
5
13. Successor
Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice of its election so to do delivered to the
Company, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter
provided. The Depositary may at any time be removed by the Company by
providing no less than 90 days prior written notice of such removal to the
Depositary, such removal to take effect the later of (i) the 90th day
after such notice of removal is first provided and (ii) the appointment of a
successor depositary and its acceptance of such appointment as hereinafter
provided. Notwithstanding the foregoing, if upon the resignation or removal of
the Depositary a successor depositary is not appointed within the applicable
45-day period (in the case of resignation) or 90-day period (in the case of
removal) as specified in paragraph (17) of the form of ADR, then the Depositary
may elect to terminate this Deposit Agreement and the ADR and the provisions of
said paragraph (17) shall thereafter govern the Depositary's obligations
hereunder. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its
predecessor. The predecessor depositary, only upon payment of all
sums due to it and on the written request of the Company, shall (i) execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder (other than its rights to indemnification and fees
owing, each of which shall survive any such removal and/or resignation), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders. Any such successor depositary shall promptly mail notice of
its appointment to such Holders. Any bank or trust company into
or with which the Depositary may be merged or consolidated, or to which the
Depositary shall transfer substantially all its American depositary receipt
business, shall be the successor of the Depositary without the execution or
filing of any document or any further act.
14. Reports. On
or before the first date on which the Company makes any communication available
to holders of Deposited Securities generally or to the public through any
securities regulatory authority or stock exchange, by publication or otherwise,
the Company shall transmit to the Depositary a copy thereof in English or with
an English translation or summary. The Company has delivered to the
Depositary, the Custodian and any Transfer Office, a copy of all provisions of
or governing the Shares and any other Deposited Securities issued by the Company
or any affiliate of the Company and, promptly upon any change thereto, the
Company shall deliver to the Depositary, the Custodian and any Transfer Office,
a copy (in English or with an English translation or adequate summary) of such
provisions as so changed. The Depositary and its agents may rely upon
the Company's delivery thereof for all purposes of this Deposit
Agreement.
6
15. Additional
Shares. Neither the Company nor any company controlling,
controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933. The
Depositary will use reasonable efforts to comply with written instructions of
the Company not to accept for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company's compliance
with securities laws in the United States.
16. Indemnification. The
Company shall indemnify, defend and save harmless each of the Depositary and its
agents against any loss, liability or expense (including reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted, in
connection with the provisions of this Deposit Agreement and of the ADRs, as the
same may be amended, modified or supplemented from time to time in accordance
herewith (i) by either the Depositary or its agents or their respective
directors, employees, agents and affiliates, except, subject to the penultimate
paragraph of this Section 16, for any liability or expense directly
arising out of the negligence or bad faith of the Depositary or its agents
acting hereunder, or (ii) by the Company or any of its directors, employees,
agents or affiliates.
The indemnities set forth in the
preceding paragraph shall also apply to any liability or expense which may arise
out of any misstatement or alleged misstatement or omission or alleged omission
in any registration statement, proxy statement, prospectus (or placement
memorandum), or preliminary prospectus (or preliminary placement memorandum)
relating to the offer or sale of ADSs, except to the extent any such liability
or expense arises out of (i) information relating to the Depositary or its
agents (other than the Company), as applicable, furnished in writing by the
Depositary and not changed or altered by the Company expressly for use in any of
the foregoing documents or (ii) if such information is provided, the failure to
state a material fact necessary to make the information provided not
misleading.
Except as provided in the next
succeeding paragraph, the Depositary shall indemnify, defend and save harmless
the Company against any loss, liability or expense (including reasonable fees
and expenses of counsel) incurred by the Company in respect of this Deposit
Agreement to the extent such loss, liability or expense is due to the negligence
or bad faith of the Depositary.
Notwithstanding any other provision of
this Deposit Agreement or the ADRs to the contrary, neither the Company nor the
Depositary, nor any of their agents, shall be liable to the other for any
indirect, special, punitive or consequential damages (collectively "Special
Damages") except (i) to the extent such Special Damages arise from the gross
negligence or willful misconduct of the party from whom indemnification is
sought or (ii) to the extent Special Damages arise from or out of a claim
brought by a third party (including, without limitation, Holders) against the
Depositary or its agents, except to the extent such Special Damages arise out of
the gross negligence or willful misconduct of the party seeking indemnification
hereunder.
Any person seeking indemnification
hereunder (an "indemnified person") shall notify the person from whom it is
seeking indemnification (the "indemnifying person") of the commencement of any
indemnifiable action or claim promptly after such indemnified person becomes
aware of such commencement (provided that the failure to make such notification
shall not affect such indemnified person's rights otherwise than under this
Section 16 and shall only affect its rights hereunder to the extent such failure
is prejudicial) and shall consult in good faith with the indemnifying person as
to the conduct of the defense of such action or claim, which shall be reasonable
in the circumstances. No indemnified person shall compromise or
settle any indemnifiable action without the prior written consent of the
indemnifying person, which consent shall not be unreasonably withheld or
delayed, unless (i) there is no finding or admission of any violation of law and
no effect on any other claims that may be made against such indemnifying party
and (ii) the sole relief provided is monetary damages that are paid in full by
the indemnified party (without indemnification hereunder by the indemnifying
party) seeking such compromise or settlement.
7
The obligations set forth in this
Section 16 shall survive the termination of this Deposit Agreement and the
succession or substitution of any indemnified person.
17. Notices. Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by such
Holder. Notice to the Depositary or the Company shall be deemed given when first
received by it at the address or facsimile transmission number set forth in (a)
or (b), respectively, or at such other address or facsimile transmission number
as either may specify to the other by written notice:
|
|
(a)
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JPMorgan
Chase Bank, N.A.
|
Four Xxx
Xxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: ADR
Administration
Fax:
(000) 000-0000
Xxxxxxxxxxxxxxxxx
000
XX-0000
Xxxxx
Xxxxxxxxxxx
Attention:
Investor Relations (CFI)
Facsimile:
011-41-61-691-0014
18. Miscellaneous. This
Deposit Agreement is for the exclusive benefit of the Company, the Depositary,
the Holders, and their respective successors hereunder, and shall not give any
legal or equitable right, remedy or claim whatsoever to any other
person. The Holders and owners of ADRs from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the provisions
hereof. If any such provision is invalid, illegal or unenforceable in
any respect, the remaining provisions shall in no way be affected
thereby. This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one instrument.
19. Consent to
Jurisdiction. The Company irrevocably agrees that any legal
suit, action or proceeding against the Company brought by the Depositary or any
Holder, arising out of or based upon this Deposit Agreement or the transactions
contemplated hereby, may be instituted in any state or federal court in New
York, New York, and irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company also irrevocably agrees that any legal suit,
action or proceeding against the Depositary brought by the Company, arising out
of or based upon this Deposit Agreement or the transactions contemplated hereby,
may only be instituted in a state or federal court in New York, New York. The
Company has appointed Roche Finance USA Inc. 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxxx 00000-0000, as its authorized agent (the "Authorized Agent") upon which
process may be served in any such action arising out of or based on this Deposit
Agreement or the transactions contemplated hereby which may be instituted in any
state or federal court in New York, New York by the Depositary or any Holder,
and waives any other requirements of or objections to personal jurisdiction with
respect thereto. The Company represents and warrants that the
Authorized Agent has agreed to act as said agent for service of process, and the
Company agrees to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such appointment in
full force and effect as aforesaid. Service of process upon the Authorized Agent
and written notice of such service to the Company shall be deemed, in every
respect, effective service of process upon the Company. If, for any reason, the
Authorized Agent named above or its successor shall no longer serve as agent of
the Company to receive service of process in New York, the Company shall
promptly appoint a successor acceptable to the Depositary, so as to serve and
will promptly advise the Depositary thereof. In the event the Company
fails to continue such designation and appointment in full force and effect, the
Company hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Company at its address last specified for
notices hereunder, and service so made shall be deemed completed five (5) days
after the same shall have been so mailed. Notwithstanding the
foregoing, any action based on this Agreement may be instituted by the
Depositary or any Holder in any competent court in Switzerland.
8
To the extent that the Company or any
of its properties, assets or revenues may have or may hereafter be entitled to,
or have attributed to it, any right of immunity, on the grounds of sovereignty
or otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any respect thereof, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or other matter under or arising out of or in connection with the
Shares or Deposited Securities, the ADSs, the ADRs or this Agreement, the
Company, to the fullest extent permitted by law, hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement.
20. 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,
except that, to the extent any portion of either such amendment and restatement
would prejudice any substantial existing right of registered holders of Old
Receipts, such portion shall not become effective as to such holders until 30
days after such holders shall have received notice thereof, such notice to be
conclusively deemed given upon the mailing to such holders of notice of such
amendment and restatement which notice contains a provision whereby such holders
can receive a copy of the form of ADR.
9
IN WITNESS WHEREOF, ROCHE HOLDING LTD
and JPMORGAN CHASE BANK, N.A. have duly executed this Deposit Agreement as of
the day and year first above set forth and all holders of ADRs shall become
parties hereto upon acceptance by them of ADRs issued in accordance with the
terms hereof.
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By:
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||
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Name:
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Xx.
Xxxxx Xxxxxxxx
|
|
|
Title:
|
CFO
and Deputy Head of the Corporate Executive Committee
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|
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By:
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||
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Name:
|
Dr.
Beat Kraehenmann
|
|
|
Title:
|
||
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JPMORGAN
CHASE BANK, N.A.
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||
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By:
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||
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Name:
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||
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Title:
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Vice
President
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10
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM OF
FACE OF ADR]
|
___
|
No.
of ADSs:
|
|
Number
|
|
|
_____
|
|
|
Each
ADS represents
|
|
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[One
Quarter of] One Share
|
|
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CUSIP:
|
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
FOR
NON-VOTING EQUITY SECURITIES
(GENUSSSCHEINE)
WITHOUT
NOMINAL VALUE
OF
(Incorporated
under the laws of Switzerland)
JPMORGAN CHASE BANK, N.A., a national
banking association organized under the laws of the United States of America, as
depositary hereunder (the "Depositary"), hereby certifies that _______ is the
registered owner (a "Holder") of ____ American Depositary Shares ("ADSs"), each
(subject to paragraph (13)) representing [one quarter of] one non-voting equity
security (Genussscheine) in bearer form
(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 Roche Holding Ltd, a corporation organized under the laws of
Switzerland (the "Company"), deposited under the Second Amended and Restated
Deposit Agreement dated as of December 19, 2008 (as amended from time to time,
the "Deposit Agreement") among the Company, the Depositary and all Holders from
time to time of American Depositary Receipts issued thereunder ("ADRs"), each of
whom by accepting an ADR becomes a party thereto. The Deposit
Agreement and this ADR (which includes the provisions set forth on the reverse
hereof) shall be governed by and construed in accordance with the laws of the
State of New York.
A-1
(1) Issuance of
ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit of: (a) Shares in form satisfactory to the Custodian; (b)
rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash, government
securities or such other collateral as the Depositary deems appropriate held by
the Depositary for the benefit of Holders (but such collateral shall not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
represents and agrees in writing with the Depositary that such recipient or its
customer (a) beneficially owns such Shares, (b) assigns all beneficial right,
title and interest therein to the Depositary, (c) holds such Shares for the
account of the Depositary and (d) will deliver such Shares to the Custodian as
soon as practicable and promptly upon demand therefor and (iii) all Pre-released
ADRs evidence not more than 30% of all ADSs (excluding those evidenced by
Pre-released ADRs), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may retain for its own
account any earnings on collateral for Pre-released ADRs and its charges for
issuance thereof. At the request, risk and expense of the person
depositing Shares, the Depositary may accept deposits for forwarding to the
Custodian and may deliver ADRs at a place other than its office. Every person
depositing Shares under the Deposit Agreement represents and warrants that such
Shares are validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly authorized so to
do and that such Shares (A) are not, and ADSs representing such Shares would not
be, "restricted securities" as such term is defined in Rule 144 under the
Securities Act of 1933 ("Restricted Securities") unless at the time of deposit
the requirements of paragraphs (c), (e), (f) and (h) of Rule 144 shall not apply
and such Shares may be freely transferred and may otherwise be offered and sold
freely in the United States or (B) have been registered under the Securities Act
of 1933. To the extent the person depositing Shares is an “affiliate” of the
Company as such term is defined in Rule 144, the person also represents and
warrants that upon the sale of the ADSs, all of the provisions of Rule 144 which
enable the Shares to be freely sold (in the form of ADSs) will be fully complied
with and, as a result thereof, all of the ADSs issued in respect of such Shares
will not be on the sale thereof, Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and issuance
of ADRs. The Depositary will not knowingly accept for deposit under
the Deposit Agreement any Shares required to be registered under the Securities
Act of 1933 and not so registered; the Depositary may refuse to accept for such
deposit any Shares identified by the Company in order to facilitate the
Company's compliance with such Act.
(2) Withdrawal of Deposited
Securities. Subject to paragraphs (4) and (5), upon surrender
of (i) a certificated ADR in form satisfactory to the Depositary at the Transfer
Office or (ii) proper instructions and documentation in the case of a Direct
Registration ADR, the Holder hereof is entitled to delivery without unreasonable
delay at, or to the extent in dematerialized form from, the Custodian's office
of the Deposited Securities at the time represented by the ADSs evidenced by
this ADR. At the request, risk and expense of the Holder hereof, the
Depositary may deliver such Deposited Securities at such other place as may have
been requested by the Holder. Notwithstanding any other provision of
the Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only for the reasons set forth in General Instruction I.A.(1) of Form
F-6 (as such instructions may be amended from time to time) under the Securities
Act of 1933.
A-2
(3) Transfers of
ADRs. The Depositary or its agent will keep, at a designated
transfer office (the "Transfer Office"), (a) a register (the "ADR Register") for
the registration, registration of transfer, combination and split-up of ADRs,
and, in the case of Direct Registration ADRs, shall include the Direct
Registration System, which at all reasonable times will be open for inspection
by Holders and the Company for the purpose of communicating with Holders in the
interest of the business of the Company or a matter relating to the Deposit
Agreement and (b) facilities for the delivery and receipt of ADRs. The term ADR
Register includes the Direct Registration System. Title to this
ADR (and to the Deposited Securities represented by the ADSs evidenced hereby),
when properly endorsed (in the case of ADRs in certificated form) or
upon delivery to the Depositary of proper instruments of transfer, is
transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided that the
Depositary, notwithstanding any notice to the contrary, may treat the person in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes and neither the Depositary nor the Company will have any
obligation or be subject to any liability under the Deposit Agreement or any ADR
to any holder of an ADR except to the extent such holder is the Holder thereof
on the books of the Depositary. Subject to paragraphs (4) and (5),
this ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the aggregate number of ADSs
surrendered for split-up or combination, by the Holder hereof or by duly
authorized attorney upon surrender of this ADR at the Transfer Office properly
endorsed (in the case of ADRs in certificated form) or upon delivery
to the Depositary of proper instruments of transfer and duly stamped as may be
required by applicable law; provided that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company. At the request of
a Holder, the Depositary shall, for the purpose of substituting a certificated
ADR with a Direct Registration ADR, or vice versa, execute and deliver a
certificated ADR or a Direct Registration ADR, as the case may be, for any
authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
(4) Certain
Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Securities, and from time to time in the case of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any
stock transfer or other tax or other governmental charge, (ii) any stock
transfer or registration fees in effect for the registration of transfers of
Shares or other Deposited Securities upon any applicable register and (iii) any
applicable charges as provided in paragraph (7) of this ADR; (b) the production
of proof satisfactory to it of (i) the identity of any signatory and genuineness
of any signature and (ii) such other information, including without limitation,
information as to citizenship, residence, exchange control approval, beneficial
ownership of any securities, compliance with applicable law, regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and this ADR, as it may deem necessary or proper; 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.
A-3
(5) Taxes. If
any tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary and the Company shall have no liability therefor. The
Depositary may refuse to effect any registration, registration of transfer,
split-up or combination hereof or, subject to the last sentence of paragraph
(2), any withdrawal of such Deposited Securities until such payment is
made. The Depositary may also deduct from any distributions on or in
respect of Deposited Securities, or may sell by public or private sale for the
account of the Holder hereof any part or all of such Deposited Securities (after
attempting by reasonable means to notify the Holder hereof prior to such sale),
and may apply such deduction or the proceeds of any such sale in payment of such
tax or other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect any
such sales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. The Depositary will forward to the Company or its agent such
information from its records as the Company may reasonably request to enable the
Company or its agent to file necessary reports with governmental agencies, and
the Depositary or the Company or its agent may file any such reports necessary
to obtain benefits under the applicable tax treaties for the Owners of
Receipts. If the Depositary determines that any distribution in
property other than cash (including Shares or rights) on Deposited Securities is
subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto. Each
Holder of an ADR or an interest therein agrees to indemnify the Depositary, the
Company, the Custodian and any of their respective directors, employees, agents
and affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
(6) Disclosure of
Interests. To the extent that the provisions of or governing
any Deposited Securities or any law, rule or regulation applicable to any
Deposited Securities may require disclosure of or impose limits on beneficial or
other ownership of Deposited Securities, other Shares and other securities and
may provide for blocking transfer, voting or other rights to enforce such
disclosure or limits, Holders and all persons holding ADRs agree to comply with
all such disclosure requirements and ownership limitations and to comply with
any reasonable Company instructions in respect thereof. The Company reserves the
right to instruct Holders to deliver their ADSs for cancellation and withdrawal
of the Deposited Securities so as to permit the Company to deal directly with
the Holder thereof as a holder of Shares and Holders agree to comply with such
instructions. The Depositary agrees to cooperate with the
Company in its efforts to inform Holders of the Company's exercise of its rights
under this paragraph and agrees to consult with, and provide reasonable
assistance without risk, liability or expense on the part of the Depositary, to
the Company on the manner or manners in which it may enforce such rights with
respect to any Holder.
A-4
(7) Charges of
Depositary. The Depositary may collect from (i) each person to whom
ADSs are issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), issuances pursuant
to a stock dividend or stock split declared by the Company, or issuances
pursuant to a merger, exchange of securities or any other transaction or event
affecting the ADSs or the Deposited Securities, and (ii) each person
surrendering ADSs for withdrawal of Deposited Securities or whose ADSs are
cancelled or reduced for any other reason, U.S.$5.00 or less for each
100 ADSs (or portion thereof) issued, delivered, reduced, cancelled or
surrendered (as the case may be). The Depositary may sell (by public or private
sale) sufficient securities and property received in respect of Share
Distributions, Rights and Other Distributions prior to such deposit to pay such
charge. The following additional charges shall be incurred by the Holders, by
any party depositing or withdrawing Shares or by any party surrendering ADSs, to
whom ADSs are issued (including, without limitation, issuance pursuant to a
stock dividend or stock split declared by the Company or an exchange of stock
regarding the ADSs or the Deposited Securities or a distribution of ADSs
pursuant to paragraph (10)), whichever is applicable (i) a fee of U.S.$0.02 or
less per ADS for any Cash distribution made pursuant to the Deposit Agreement,
(ii) a fee of U.S.$1.50 per ADR or ADRs for transfers made pursuant to paragraph
(3) hereof, (iii) a fee for the distribution or sale of securities pursuant to
paragraph (10) hereof, such fee being in an amount equal to the fee for the
execution and delivery of ADSs referred to above which would have been charged
as a result of the deposit of such securities (for purposes of this paragraph
(7) treating all such securities as if they were Shares) but which securities or
the net cash proceeds from the sale thereof are instead distributed by the
Depositary to Holders entitled thereto, (iv) an aggregate fee of
U.S.$0.02 per ADS per calendar year (or portion thereof) for services performed
by the Depositary in administering the ADRs (which fee may be charged on a
periodic basis during each calendar year and shall be assessed against Holders
as of the record date or record dates set by the Depositary during each calendar
year and shall be payable at the sole discretion of the Depositary by billing
such Holders or by deducting such charge from one or more cash dividends or
other cash distributions), and (v) such fees and expenses as are incurred by the
Depositary (including without limitation expenses incurred on behalf of Holders
in connection with compliance with foreign exchange control regulations or any
law or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation. The Company will pay all
other charges and expenses of the Depositary and any agent of the Depositary
(except the Custodian) pursuant to agreements from time to time between the
Company and the Depositary, except (i) stock transfer or other taxes and other
governmental charges (which are payable by Holders or persons depositing
Shares), (ii) cable, telex and facsimile transmission and delivery charges
incurred at the request of persons depositing, or Holders delivering Shares,
ADRs or Deposited Securities (which are payable by such persons or Holders),
(iii) transfer or registration fees for the registration or transfer of
Deposited Securities on any applicable register in connection with the deposit
or withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities; there are no such fees in
respect of the Shares as of the date of the Deposit Agreement), (iv) expenses of
the Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency), and (v) any other charge
payable by any of the Depositary, any of the Depositary’s agents, including,
without limitation, the Custodian, or the agents of the Depositary’s agents in
connection with the servicing of the Shares or other Deposited Securities (which
charge shall be assessed against Holders as of the record date or dates set by
the Depositary and shall be payable at the sole discretion of the Depositary by
billing such Holders or by deducting such charge from one or more cash dividends
or other cash distributions). Such charges may at any time and from time to time
be changed by agreement between the Company and the
Depositary.
A-5
(8) Available
Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will distribute
copies of such communications (or English translations or summaries thereof) to
Holders when furnished by the Company. The Company publishes on its web site on
an ongoing basis, or otherwise furnishes the United States Securities and
Exchange Commission (the "Commission") with, certain public reports and
documents required by foreign law or otherwise under Rule 12g3-2(b) under the
Securities Exchange Act of 1934. To the extent furnished to the
Commission, such reports and documents may be inspected and copied at the public
reference facilities maintained by the Commission located at the date of the
Deposit Agreement at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
(9) Execution. This
ADR shall not be valid for any purpose unless executed by the Depositary by the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
|
JPMORGAN
CHASE BANK, N.A., as Depositary
|
|
|
By
..................................................
|
|
|
Authorized
Officer
|
The Depositary's office is located at
0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-6
[FORM OF
REVERSE OF ADR]
(10) Distributions on Deposited
Securities. Subject to paragraphs (4) and (5), to the extent
and as soon as reasonably practicable,
the Depositary will distribute to each Holder entitled thereto on the record
date set by the Depositary therefor at such Holder's address shown on the ADR
Register, in proportion to the number of Deposited Securities (on which the
following distributions on Deposited Securities are received by the Custodian)
represented by ADSs evidenced by such Holder's ADRs: (a) Cash. Any
U.S. dollars available to the Depositary resulting from a cash dividend or other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Shares. (i)
Additional ADRs evidencing whole ADSs representing any Shares available to the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights. (i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities ("Rights"), to the extent that
the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any U.S.
dollars available to the Depositary from the net proceeds of sales of Rights as
in the case of Cash, or (iii) to the extent the Company does not so furnish such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions. (i) Securities or property available to the
Depositary resulting from any distribution on Deposited Securities other than
Cash, Share Distributions and Rights ("Other Distributions"), by any
means that the Depositary may deem equitable and practicable, or (ii) to the
extent the Depositary deems distribution of such securities or property not to
be equitable and practicable, any U.S. dollars available to the Depositary from
the net proceeds of sales of Other Distributions as in the case of Cash. U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents. Fractional cents will be withheld without
liability and dealt with by the Depositary in accordance with its then current
practices.
(11) Record Dates. The
Depositary may, after consultation with the Company if practicable, fix a record
date (which, to the extent applicable, shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be responsible for the fee assessed by the Depositary for
administration of the ADR program and for any expenses provided for in paragraph
(7) hereof as well as for the determination of the Holders who shall be entitled
to receive any distribution on or in respect of Deposited Securities, to give
instructions for the exercise of any voting rights, to receive any notice or to
act in respect of other matters and only such Holders shall be so entitled or
obligated.
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(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 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 Swiss 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.
(13) Changes Affecting Deposited
Securities. Subject to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR or distribute additional or amended ADRs
(with or without calling this ADR for exchange) or cash, securities or property
on the record date set by the Depositary therefor to reflect any change in par
value, split-up, consolidation, cancellation or other reclassification of
Deposited Securities, any Share Distribution or Other Distribution not
distributed to Holders or any cash, securities or property available to the
Depositary in respect of Deposited Securities from (and the Depositary is hereby
authorized to surrender any Deposited Securities to any person and, irrespective
of whether such Deposited Securities are surrendered or otherwise cancelled by
operation of law, rule, regulation or otherwise, to sell by public or private
sale any property received in connection with) any recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy or
sale of all or substantially all the assets of the Company, and to the extent
the Depositary does not so amend this ADR or make a distribution to Holders to
reflect any of the foregoing, or the net proceeds thereof, whatever cash,
securities or property results from any of the foregoing shall constitute
Deposited Securities and each ADS evidenced by this ADR shall automatically
represent its pro rata interest in the Deposited Securities as then
constituted.
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(14) Exoneration. The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if any present or future law, rule, regulation , fiat, order or
decree of the United States, Switzerland or any other country, or of
any governmental or regulatory authority or any securities exchange or market or
automated quotation system, the provisions of or governing any Deposited
Securities, any present or future provision of the Company's charter, any act of
God, war, terrorism or other circumstance beyond its control shall prevent,
delay or subject to any civil or criminal penalty any act which the Deposit
Agreement or this ADR provides shall be done or performed by it or them
(including, without limitation, voting pursuant to paragraph (12) hereof), or
(ii) by reason of any exercise or failure to exercise any discretion given it in
the Deposit Agreement or this ADR; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to give
such advice or information. The Depositary shall not be liable for the acts or
omissions made by any securities depository, clearing agency or settlement
system in Switzerland in connection with or arising out of book-entry settlement
of Deposited Securities or otherwise. 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, for the manner in which any such vote is cast (provided
that such action or non-action was in good faith) or for the effect of any such
vote. The Depositary and its agents may own and deal in any class of
securities of the Company and its affiliates and in ADRs. Notwithstanding
anything to the contrary set forth in the Deposit Agreement or an ADR, the
Depositary and its agents may fully respond to any and all demands or requests
for information maintained by or on its behalf in connection with the Deposit
Agreement, any Holder or Holders, any ADR or ADRs or otherwise related hereto to
the extent such information is requested or required by or pursuant to any
lawful authority, including without limitation laws, rules, regulations,
administrative or judicial process, banking, securities or other
regulators. None of the Depositary, the Custodian or the
Company shall be liable for the failure by any Holder or beneficial owner to
obtain the benefits of credits on the basis of non-U.S. tax paid against such
Holder’s or beneficial owner’s income tax liability. The Depositary and the
Company shall not incur any liability for any tax consequences that may be
incurred by Holders and beneficial owners on account of their ownership of the
ADRs or ADSs. The Company has agreed to indemnify the Depositary and
its agents under certain circumstances and the Depositary has agreed to
indemnify the Company under certain circumstances. Neither the
Company nor the Depositary nor any of their respective agents shall be liable to
Holders or beneficial owners of interests in ADSs for any indirect, special,
punitive or consequential damages. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of
Depositary; the Custodian. The Depositary may resign as Depositary by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company
by no less than 90 days prior written notice of such removal, to become
effective upon the later of (i) the 90th day after delivery of the notice to the
Depositary and (ii) the appointment of a successor depositary and its acceptance
of such appointment as provided in the Deposit Agreement. The Depositary may
appoint substitute or additional Custodians and the term "Custodian" refers to
each Custodian or all Custodians as the context requires.
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(16) Amendment. Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may be
amended by the Company and the Depositary, provided that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or that shall otherwise prejudice any substantial existing right of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time
any amendment to the Deposit Agreement so becomes effective shall be deemed, by
continuing to hold such ADR, to consent and agree to such amendment and to be
bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding
the foregoing, if any governmental body or regulatory body should adopt new
laws, rules or regulations which would require amendment or supplement of the
Deposit Agreement or the form of ADR to ensure compliance therewith, the Company
and the Depositary may enter into an amendment or supplement to the Deposit
Agreement and the ADR at any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to the Deposit Agreement in
such circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17) Termination. The
Depositary may, and shall at the written direction of the Company, terminate the
Deposit Agreement and this ADR by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such
termination; provided, however, if the Depositary shall have (i) resigned as
Depositary hereunder, notice of such termination by the Depositary shall not be
provided to Holders unless a successor depositary shall not be operating
hereunder within 45 days of the date of such resignation, and (ii) been removed
as Depositary hereunder, notice of such termination by the Depositary shall not
be provided to Holders unless a successor depositary shall not be operating
hereunder on the 90th day
after the Company's notice of removal was first provided to the
Depositary. After the date so fixed for termination, the
Depositary and its agents will perform no further acts under the Deposit
Agreement and this ADR, except to receive and hold (or sell) distributions on
Deposited Securities and deliver Deposited Securities being
withdrawn. As soon as practicable after the expiration of six months
from the date so fixed for termination, the Depositary shall sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in a
segregated account the net proceeds of such sales, together with any other cash
then held by it under the Deposit Agreement, without liability for interest, in
trust for the pro rata benefit of the
Holders of ADRs not theretofore surrendered. After making such sale,
the Depositary shall be discharged from all obligations in respect of the
Deposit Agreement and this ADR, except to account for such net proceeds and
other cash. After the date so fixed for termination, the Company
shall be discharged from all obligations under the Deposit Agreement except for
its obligations to the Depositary and its agents.
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(18) Appointment. Each
Holder and each person holding an interest in ADSs, upon acceptance of any ADSs
(or any interest therein) issued in accordance with the terms and conditions of
the Deposit Agreement shall be deemed for all purposes to (a) be a party to and
bound by the terms of the Deposit Agreement and the applicable ADR(s), and (b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
the Deposit Agreement and the applicable ADR(s), the taking of such actions to
be the conclusive determinant of the necessity and appropriateness
thereof.
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