Filed pursuant to Rule 424(b)(3)
Registration Statement on Form F-6
Reg. No. 333-150565
[FORM OF ADR]
Number _____________ CUSIP NUMBER: _______
American Depositary Shares (one (1)
American Depositary Share representing one
(1) fully paid registered share
AMERICAN DEPOSITARY RECEIPT
for
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED REGISTERED SHARES
of
NESTLE S.A.
(Incorporated under the laws of Switzerland)
CITIBANK, N.A., a national banking association organized and
existing under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that ________________________ is the owner of
______________ American Depositary Shares (hereinafter "ADS"), representing
deposited registered shares, including evidence of rights to receive such
registered shares (the "Shares"), of Nestle S.A., a corporation organized under
the laws of Switzerland (the "Company"). As of the date hereof, one (1) ADS
represents one (1) Share deposited under the Deposit Agreement with the
Custodian, which at the date of execution of the Deposit Agreement is Citibank,
N.A., Zurich (the "Custodian"). The ADS(s)-to-Share(s) ratio is subject to
amendment as provided in Articles IV and VI of the Deposit Agreement. The
Depositary's Corporate Agency Office is located at 388 Greenwich Street, New
York, New York 10013, U.S.A. The Depositary's principal executive office is
located at 399 Park Avenue, New York, New York 10022.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts (hereinafter "ADR" or "Receipt"), all
issued and to be issued upon the terms and conditions set forth in the Second
Amended and Restated Deposit Agreement, dated as of May 23, 2007 (as further
amended and supplemented from time to time, the "Deposit Agreement"), by and
among the Company, the Depositary and the Holders and Beneficial Owners from
time to time of the Receipts issued thereunder, each of whom by accepting a
Receipt becomes bound by all the terms and provisions thereof. The Deposit
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Agreement sets forth the rights and obligations of Holders and Beneficial Owners
of ADRs and the rights and duties of the Depositary in respect of the Shares
deposited thereunder and any and all other securities, property and cash from
time to time received in respect of such Shares and held thereunder (such
Shares, securities, property and cash are herein called "Deposited Securities").
Copies of the Deposit Agreement are on file at the Corporate Agency Office of
the Depositary and with the Custodian. Each Holder and each Beneficial Owner,
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 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.
The statements made on the face and reverse of this ADR are summaries of
certain provisions of the Deposit Agreement and the Articles of Association of
the Company (as in effect on the date of the signing of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
Agreement and the Articles of Association, to which reference is hereby made.
All capitalized terms used herein which are not otherwise defined herein shall
have the meanings ascribed thereto in the Deposit Agreement. The Depositary
makes no representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the ADSs
into DTC. Each Beneficial Owner of ADSs held through DTC must rely on the
procedures of DTC and the DTC Participants to exercise and be entitled to any
rights attributable to such ADSs.
(2) Withdrawal of Deposited Securities. The Holder of this ADR (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the following conditions: (i)
the Holder (or a duly-authorized attorney of the Holder) has duly Delivered to
the Depositary at its Corporate Agency Office the ADSs evidenced hereby and this
ADR for the purpose of withdrawal of the Deposited Securities represented
hereby, (ii) if so required by the Depositary, this ADR delivered to the
Depositary for such purpose has been properly endorsed in blank or is
accompanied by proper instruments of transfer in blank (including signature
guarantees in accordance with standard securities industry practice), (iii) if
so required by the Depositary, the Holder of the ADSs has executed and delivered
to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit
B to, the Deposit Agreement) have been paid, subject, however, in each case, to
the terms and conditions of this ADR evidencing the surrendered ADSs, of the
Deposit Agreement, of the Company's Articles of Association and of any
applicable laws and the rules of SIS, and to any provisions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
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Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADR(s) evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered, and (iii) shall direct the
Custodian to Deliver (without unreasonable delay) at the Custodian's designated
office the Deposited Securities represented by the ADSs so canceled together
with any certificate or other document of title for the Deposited Securities, or
evidence of the electronic transfer thereof (if available), as the case may be,
to or upon the written order of the person(s) designated in the order delivered
to the Depositary for such purpose, subject however, in each case, to the terms
and conditions of the Deposit Agreement, of this ADR, of the Articles of
Association of the Company, of any applicable laws and the rules of the SIS, and
to the terms and conditions of or governing the Deposited Securities, in each
case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in this ADR or the Deposit
Agreement, the Depositary may make delivery at the Corporate Agency Office of
the Depositary of (i) any cash dividends or cash distributions, or (ii) any
proceeds from the sale of any distributions of securities or rights, in each
case, which are at the time held by the Depositary in respect of the Deposited
Securities represented by the ADSs surrendered for cancellation and withdrawal.
At the request, risk and expense of any Holder so surrendering ADSs represented
by this ADR, and for the account of such Holder, the Depositary shall direct the
Custodian to forward (to the extent permitted by law) any cash or other property
(other than securities) held by the Custodian in respect of the Deposited
Securities represented by such ADSs to the Depositary for delivery at the
Corporate Agency Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled by the Depositary, (y) cause the Registrar
to countersign such new ADRs and (z) Deliver such new ADRs to or upon the order
of the person entitled thereto, if each of the following conditions has been
satisfied: (i) this ADR has been duly Delivered by the Holder (or by a duly
authorized attorney of the Holder) to the Depositary at its Corporate Agency
Office for the purpose of effecting a transfer hereof, (ii) this ADR has been
properly endorsed or is accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice),
(iii) this ADR has been duly stamped (if required by the laws of the State of
New York or of the United States), and (iv) all applicable fees and charges of,
and expenses incurred by, the Depositary and all applicable taxes and
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governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each case, to the terms
and conditions of this ADR, of the Deposit Agreement and of applicable law, in
each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of this ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs evidencing the same
aggregate number of ADSs as those evidenced by this ADR when canceled by the
Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver
such new ADRs to or upon the order of the Holder thereof, if each of the
following conditions has been satisfied: (i) this ADR has been duly Delivered by
the Holder (or by a duly authorized attorney of the Holder) to the Depositary at
its Corporate Agency Office for the purpose of effecting a split-up or
combination hereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement)
have been paid, subject, however, in each case, to the terms and conditions of
this ADR, of the Deposit Agreement and of applicable law, in each case as in
effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, the registration of issuance, transfer,
split-up, combination or surrender, of any ADR, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary, the
Company or the Custodian may require (i) payment from the depositor of Shares or
presenter of ADSs or of an ADR of a sum sufficient to reimburse it for any tax
or other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges of
the Depositary as provided in Section 5.9 of, and Exhibit B to, the Deposit
Agreement and in this ADR, (ii) the production of proof satisfactory to it as to
the identity and genuineness of any signature or any other matters contemplated
in the Deposit Agreement, and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of ADRs or ADSs or to the
withdrawal of Deposited Securities, (B) the provisions of the Company's Articles
of Association as in effect from time to time and applicable resolutions or
regulations of the Company's board of directors adopted pursuant to Swiss law
and such Articles of Association and (C) such reasonable regulations as the
Depositary and the Company may establish consistent with the provisions of this
ADR, the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of ADRs in particular
instances may be refused, or the registration of transfer of ADRs generally may
be suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action
is deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law, any
government or governmental body or commission or any securities exchange on
which the Shares or ADSs are listed, or under any provision of the Deposit
Agreement or this ADR, or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject in all cases to Section (24) hereof.
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Notwithstanding any provision of the Deposit Agreement or this ADR to the
contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities at any time subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance
with any U.S. or foreign laws or governmental regulations relating to the ADRs
or to the withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 under the Securities Act (as such General Instructions may be amended
from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company
pursuant to applicable Swiss law, the rules and requirements of SWX Swiss
Exchange, and of any other stock exchange on which Shares or ADSs are, or will
be, registered, traded or listed, the Articles of Association of the Company as
in effect from time to time or resolutions and regulations of the Company's
board of directors adopted pursuant to Swiss law and such Articles of
Association, which are made to provide information, inter alia, as to the
capacity in which such Holder or Beneficial Owner owns ADSs (and Shares, as the
case may be) and regarding the identity of any other person(s) interested in
such ADSs and the nature of such interest and various other matters, whether or
not they are Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this ADR or
of the Deposit Agreement, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of ADSs where
such transfer may result in the total number of Shares represented by the ADSs
owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association of the Company.
Each Holder shall be deemed, by holding an ADS or owning a beneficial
interest therein, to consent to and agree to be bound by the provisions of or
governing any Deposited Securities (including, without limitation, provisions of
Swiss law, the Company's Articles of Association as in effect from time to time
and resolutions and regulations of the Company's board of directors adopted
pursuant to provisions of Swiss law or such Articles of Association) including,
without limitation, those which require the disclosure of beneficial or other
ownership of Deposited Securities, other Shares and other securities and the
address and nationality of each Holder to the Company or impose limitations on
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the voting thereof and on the inscription thereof on the register of Shares with
voting rights and to agree that the Company may provide for blocking voting or
other rights to enforce such disclosure or enforce compliance with such
limitations. The Depositary shall use its reasonable efforts to comply with the
Company's instructions as to Receipts in respect of any such enforcement and
Holders and all persons taking and holding Receipts thereby shall comply with
all such disclosure requirements and such limitations and shall cooperate with
the Depositary's compliance with such Company instructions. The right of Holders
to direct the voting of Deposited Securities shall be conditioned on the
disclosure to the Company of the information referred to in this Section (6).
Subject to certain exceptions provided by the Swiss Code of Obligations,
the Company's Articles of Association or as may be permitted by the board of
directors of the Company, no shareholder of the Company may for the aggregate
number of Shares held or represented by such holder, directly or indirectly,
exercise voting rights in respect of more than 5% of the total share capital of
the Company. In addition, subject to certain exceptions as set forth above, no
person may be registered as a shareholder of the Company with a right to vote
for Shares which it holds, directly or indirectly, in excess of 5% of the share
capital of the Company. Legal entities that are linked to one another through
shareholding, voting rights, management or in any other manner, as well as
natural persons or legal entities acting in concert with a view to circumventing
such limit, are counted as one shareholder or person for these purposes.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable with respect to any ADR or any Deposited Securities
or ADSs shall be payable by the Holders and Beneficial Owners to the Depositary.
The Company, the Custodian and/or the Depositary may withhold or deduct from any
distributions made in respect of Deposited Securities and may sell for the
account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, the Holder and
the Beneficial Owner remaining liable for any deficiency. The Custodian may
refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to
deliver ADRs, to register the transfer of ADSs, to register the split-up or
combination of ADRs and (subject to Section (24) hereof) to process requests for
the withdrawal of Deposited Securities until it receives payment in full of such
tax, charge, penalty or interest. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian, and any of their agents,
officers, employees and Affiliates for, and hold each of them harmless from, any
claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
(8) Representations and Warranties on Deposit of Shares. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued and outstanding, fully paid, non-assessable and
legally obtained by such person, (ii) all preemptive (and similar) rights, if
any, with respect to such Shares have been validly waived or exercised, (iii)
the person making such deposit is duly authorized so to do, (iv) the Shares
presented for deposit are free and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim, (v) the Shares presented for
deposit are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities (except as contemplated in Section 2.13 of the Deposit Agreement),
and (vi) the Shares presented for deposit have not been stripped of any rights
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or entitlements. Such representations and warranties shall survive the deposit
and withdrawal of Shares, the issuance and cancellation of ADSs in respect
thereof and the transfer of such ADSs. If any such representations or warranties
are false in any way, the Company and the Depositary shall be authorized, at the
cost and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner, may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations and
warranties, and to provide such other information and documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration of Shares on the books of the Company or of the
Share Registrar) as the Depositary or the Custodian may deem necessary or proper
or as the Company may reasonably require by written request to the Depositary
consistent with its obligations under the Deposit Agreement and the applicable
ADR(s). The Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any ADR or ADS or the
distribution or sale of any dividend or other distribution of rights or of the
proceeds thereof or, to the extent not limited by Section (24) hereof, the
delivery of any Deposited Securities until such proof or other information is
filed or such certifications are executed, or such representations are made, or
such other documentation or information is provided, in each case to the
Depositary's, the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
fees:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares (excluding issuances
pursuant to paragraph (iv) below), a fee not in excess of U.S.
$5.00 per 100 ADSs (or portion thereof) so issued under the
terms of the Deposit Agreement;
(ii) Cancellation/Delivery Fee: to any person surrendering ADSs for
cancellation and withdrawal of Deposited Securities or any
person to whom Deposited Securities are delivered, a fee not
in excess of U.S. $5.00 per 100 ADSs (or portion thereof) so
surrendered;
(iii) Cash Distribution Fee: to any Holder of ADSs, a fee not in
excess of U.S. $2.00 per 100 ADSs (or portion thereof) held
for the distribution of cash dividends or other cash
distributions (i.e., upon the sale of rights and other
entitlements) under the terms of the Deposit Agreement;
(iv) Stock Distribution /Rights Exercise Fee: to any Holder of
ADSs, a fee not in excess of U.S. $5.00 per 100 ADSs (or
portion thereof) issued pursuant to stock dividends or other
free stock distributions or upon the exercise of rights to
purchase additional ADSs;
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(iv) Other Distribution Fee: to any Holder of ADSs receiving a
distribution of securities other than ADSs or rights to
purchase additional ADSs, a fee not in excess of U.S. $5.00
per unit of 100 securities (or fraction thereof) distributed;
(vi) Annual Depositary Services Fee: to any Holder of ADSs, a fee
not in excess of U.S. $2.00 per 100 ADSs (or portion thereof)
held on the last day of each calendar year, except to the
extent of any cash dividend fee(s) charged under paragraph
(iii) above during that calendar year; and
(vii) ADR Transfer Fee: to any person presenting an ADR for
transfer, a fee not in excess of U.S. $1.50 per ADR so
presented for transfer.
In addition, Holders, Beneficial Owners, persons depositing Shares
and persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary, the
Custodian or any nominee in connection with the delivery or
servicing of Deposited Securities.
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Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Section (22) of this ADR. The Depositary will provide, without
charge, a copy of its latest fee schedule to anyone upon request. The charges
and expenses of the Custodian are for the sole account of the Depositary.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each ADS evidenced hereby) shall be transferable upon
the same terms as a certificated security under the laws of the State of New
York; provided, that the ADR has been properly endorsed or is accompanied by
proper instruments of transfer. Notwithstanding any notice to the contrary, the
Depositary and the Company may deem and treat the Holder of this ADR (that is,
the person in whose name this ADR is registered on the books of the Depositary)
as the absolute owner thereof for all purposes. Neither the Depositary nor the
Company shall have any obligation nor be subject to any liability under the
Deposit Agreement or this ADR to any holder of this ADR or any beneficial owner
unless such holder is the Holder of this ADR registered on the books of the
Depositary or, in the case of a beneficial owner, such Beneficial Owner or the
Beneficial Owner's representative is the Holder registered on the books of the
Depositary.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this ADR has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly-authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly-authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of ADRs. ADRs bearing the facsimile
signature of a duly-authorized signatory of the Depositary or the Registrar, who
at the time of signature was a duly authorized signatory of the Depositary or
the Registrar, as the case may be, shall bind the Depositary, notwithstanding
the fact that such signatory has ceased to be so authorized prior to the
delivery of such ADR by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company furnishes the Commission with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Exchange
Act. These reports and documents can be inspected and copied at the public
reference facilities maintained by the Commission located at 100 F Street, N.E.,
Washington, D.C. 20549 and at the Corporate Agency Office of the Depositary. The
Depositary shall make available for inspection by Holders at its Corporate
Agency Office any reports and communications, including any proxy soliciting
materials, received from the Company which are both (a) received by the
Depositary, the Custodian, or the nominee of either of them as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of ADRs which at all reasonable times shall be open for inspection by
the Company and by the Holders of such ADRs, provided that such inspection shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such ADRs in the interest of a business or object other than the
business of the Company or other than a matter related to the Deposit Agreement
or the ADRs.
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The Registrar may close the transfer books with respect to the ADRs, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section (24)
hereof.
Dated:
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: _______________________________ By: _______________________________
Authorized Signatory Authorized Signatory
The address of the Corporate Agency Office of the Depositary is 388
Greenwich Street, New York, New York 10013, U.S.A. The principal executive
office of the Depositary is located at 399 Park Avenue, New York, New York
10022.
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[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of the receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or any other entitlements
held in respect of Deposited Securities under the terms of the Deposit
Agreement, the Depositary will (i) if at the time of receipt thereof any amounts
received in a Foreign Currency can, in the judgment of the Depositary (pursuant
to Section 4.8 of the Deposit Agreement), be converted on a practicable basis
into Dollars transferable to the United States, promptly convert or cause to be
converted such cash dividend, distribution or proceeds into Dollars (on the
terms described in Section 4.8 of the Deposit Agreement), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9 of the
Deposit Agreement, and (iii) distribute promptly the amount thus received (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the Holders entitled thereto as of the ADS Record
Date in proportion to the number of ADSs held as of the ADS Record Date. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of ADSs outstanding at the time of the
next distribution. If the Company, the Custodian or the Depositary is required
to withhold and does withhold from any cash dividend or other cash distribution
in respect of any Deposited Securities an amount on account of taxes, duties or
other governmental charges, the amount distributed to Holders on the ADSs
representing such Deposited Securities shall be reduced accordingly. Such
withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares to be
deposited with the Custodian and registered, as the case may be, in the name of
the Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
and either (i) the Depositary shall, subject to Section 5.9 of the Deposit
Agreement, distribute to the Holders as of the ADS Record Date in proportion to
the number of ADSs held as of the ADS Record Date, additional ADSs, which
represent in the aggregate the number of Shares received as such dividend, or
free distribution, subject to the other terms of the Deposit Agreement
(including, without limitation, (a) the applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), or (ii) if additional ADSs
are not so distributed, each ADS issued and outstanding after the ADS Record
Date shall, to the extent permissible by law, thenceforth also represent rights
and interests in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary, and (b) taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares or
ADSs, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms set forth in the Deposit Agreement.
11
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company in the
fulfillment of its obligations under the Deposit Agreement has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable and the Depositary shall
distribute the net proceeds of any such sale (after deduction of (a) taxes and
(b) fees and charges of, and the expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders of ADSs upon the terms
described in the Deposit Agreement, the Company and the Depositary shall, upon
consultation with the Company, determine whether such distribution is lawful and
reasonably practicable. If so, subject to the terms and conditions of the
Deposit Agreement, the Depositary shall establish an ADS Record Date (on the
terms described in Section (16)) and establish procedures to enable Holders to
elect the receipt of the proposed distribution in cash or in additional ADSs. If
a Holder elects to receive the proposed distribution in cash, the distribution
shall be made as in the case of a distribution in cash upon the terms described
in the Deposit Agreement. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be made as in the case
of a distribution in Shares upon the terms described in the Deposit Agreement.
If such elective distribution is not reasonably practicable or if the Depositary
did not receive satisfactory documentation set forth in the Deposit Agreement,
the Depositary shall, to the extent permitted by law, distribute to Holders, on
the basis of the same determination as is made in Switzerland in respect of the
Shares for which no election is made, either (x) cash or (y) additional ADSs
representing such additional Shares, in each case, upon the terms described in
the Deposit Agreement. Nothing herein or in the Deposit Agreement shall obligate
the Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary, upon consultation with the Company, shall
determine whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If any of the conditions are not satisfied or if the Company
requests that the rights not be made available to Holders of ADSs, the
Depositary shall sell the rights as described below. In the event all conditions
12
set forth above are satisfied, the Depositary shall establish an ADS Record Date
(upon the terms described in Section 4.9 of the Deposit Agreement) and establish
procedures (x) to distribute rights to purchase additional ADSs (by means of
warrants or otherwise), (y) to enable the Holders to exercise such rights (upon
payment of the subscription price and of the applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs
upon the valid exercise of such rights. Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise rights to subscribe for Shares (rather than ADSs). If (i) the
Company does not timely request the Depositary to make the rights available to
Holders or if the Company requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive satisfactory documentation
required by the Deposit Agreement or determines it is not reasonably practicable
to make the rights available to Holders, or (iii) any rights made available are
not exercised and appear to be about to lapse, the Depositary shall determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity, at such place and upon such terms (including public
or private sale) as it may deem practicable. The Depositary shall, upon such
sale, convert and distribute proceeds of such sale (net of applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes) upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to make
any rights available to Holders or to arrange for the sale of the rights upon
the terms described above, the Depositary shall allow such rights to lapse. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or practicable to make such rights available to Holders in general or
any Holders in particular, (ii) any foreign exchange exposure or loss incurred
in connection with such sale or exercise, or (iii) the content of any materials
forwarded to the Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case reasonably satisfactory to the Depositary, to the effect that the
offering and sale of such securities to Holders and Beneficial Owners are exempt
from, or do not require registration under, the provisions of the Securities Act
or any other applicable laws. In the event that the Company, the Depositary or
the Custodian shall be required to withhold and does withhold from any
distribution of property (including rights) an amount on account of taxes or
other governmental charges, the amount distributed to the Holders of ADSs
representing such Deposited Securities shall be reduced accordingly. In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
13
rights. Nothing herein or in the Deposit Agreement shall obligate the Company to
file any registration statement in respect of any rights or Shares or other
securities to be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary, upon consultation with the Company, shall determine
whether such distribution to Holders is lawful and reasonably practicable. The
Depositary shall not make such distribution unless (i) the Company shall have
requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received satisfactory documentation within the terms of
the Deposit Agreement, and (iii) the Depositary shall have determined that such
distribution is reasonably practicable. Upon satisfaction of such conditions,
the Depositary shall distribute the property so received to the Holders of
record, as of the ADS Record Date, in proportion to the number of ADSs held by
them respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution. If any of the
conditions above are not satisfied, the Depositary shall sell or cause such
property to be sold in a public or private sale, at such place or places and
upon such terms as it may deem practicable and shall (i) cause the proceeds of
such sale, if any, to be converted into Dollars and (ii) distribute the proceeds
of such conversion received by the Depositary (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) to the
Holders as of the ADS Record Date upon the terms hereof and of the Deposit
Agreement. If the Depositary is unable to sell such property, the Depositary may
dispose of such property for the account of the Holders in any way it deems
reasonably practicable under the circumstances.
(15) Redemption. Upon timely receipt of (i) notice from the Company
that it intends to exercise its right of redemption in respect of any of the
Deposited Securities, and (ii) satisfactory opinions of counsel and upon
determining, in consultation with the Company, that such proposed redemption is
practicable, the Depositary shall (to the extent practicable) provide to each
Holder a notice setting forth the Company's intention to exercise the redemption
rights and any other particulars set forth in the Company's notice to the
Depositary. Upon receipt of confirmation that the redemption has taken place and
that funds representing the redemption price have been received, the Depositary
shall convert, transfer, and distribute the proceeds (net of applicable (a) fees
and charges of, and expenses incurred by, the Depositary, and (b) taxes), retire
ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by Holders
thereof and upon the terms of the Deposit Agreement. If less than all
outstanding Deposited Securities are redeemed, the ADSs to be retired will be
selected by lot or on a pro rata basis, as may be determined by the Depositary.
The redemption price per ADS shall be the Dollar equivalent of the per share
amount received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s)
ratio) upon the redemption of the Deposited Securities represented by ADSs
(subject to the terms of the Deposit Agreement and the applicable fees and
charges of, and expenses incurred by, the Depositary, and taxes) multiplied by
the number of Deposited Securities represented by each ADS redeemed.
14
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall fix a record date ("ADS Record Date") for the
determination of the Holders of ADSs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. Subject
to applicable law and the terms and conditions of this ADR and the Deposit
Agreement, only the Holders of ADSs at the close of business in New York on such
ADS Record Date shall be entitled to receive such distributions, to give such
voting instructions, to receive such notice or solicitation, or otherwise take
action.
(17) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy in accordance with Section 4.9
of the Deposit Agreement. The Depositary shall, if requested by the Company in
writing in a timely manner (the Depositary having no obligation to take any
further action if the request shall not have been timely received by the
Depositary), at the Company's expense and provided no U.S. legal prohibitions
exist, distribute to Holders as of the ADS Record Date: (a) such notice of
meeting or solicitation of consent or proxy, (b) a statement that the Holders at
the close of business on the ADS Record Date will be entitled, subject to any
applicable law, the provisions of the Deposit Agreement, the Articles of
Association of the Company and the provisions of or governing the Deposited
Securities (which provisions, if any, shall be summarized in pertinent part by
the Company), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Deposited Securities represented by such
Holder's ADSs, and (c) a brief statement as to the manner in which such voting
instructions may be given, including an indication that Holders for which the
Depositary has not timely received specific voting instructions will be deemed,
and the Depositary shall deem such Holders, to have given a proxy to a person
designated by the Company to vote the Deposited Securities represented by such
Holders' ADSs (unless the Company informs the Depositary otherwise) in favor of
the motions and recommendations of the Board of Directors of the Company.
Notwithstanding anything contained in the Deposit Agreement or this ADR,
the Depositary may, to the extent not prohibited by law, regulations or
applicable stock exchange requirements, in lieu of distribution of the materials
provided to the Depositary in connection with any meeting of, or solicitation of
consents or proxies from, holders of Deposited Securities, distribute to the
Holder of ADSs a notice that provides such Holder with a means to retrieve such
materials or receive such materials upon request (i.e., by reference to a
website containing the materials for retrieval or a contact for requesting
copies of the materials).
15
Voting instructions may be given only in respect of a number of ADSs
representing an integral number of Deposited Securities. Upon the timely receipt
from a Holder of ADSs as of the ADS Record Date of voting instructions in the
manner specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the provisions of the Deposit
Agreement, the Articles of Association of the Company and the provisions of the
Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities (in person or by proxy) represented by such Holder's ADSs in
accordance with such voting instructions.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of the Deposited Securities represented by ADSs except pursuant to and in
accordance with the voting instructions timely received from Holders or as
otherwise contemplated herein. Deposited Securities represented by ADSs, for
which no specific voting instructions are timely received by the Depositary from
the Holder shall be voted in favor of all motions or recommendations of the
Board of Directors of the Company; provided, that no such Deposited Securities
represented by ADSs shall be so voted or deemed to be represented at the meeting
with respect to any matter as to which the Company informs the Depositary (and
the Company agrees to provide such information promptly in writing) that the
Company does not wish such Deposited Securities represented by ADSs voted. On
the business day following the date fixed by the Depositary as the last date for
delivery of voting instructions, the Depositary shall give notice to the Company
of (a) the voting instructions received by the Depositary from the Holders and
(b) the ADSs (and the Deposited Securities represented thereby) with respect to
which no specific voting instructions from Holders have been timely received, in
each case, as of the close of business as of such fixed date.
Notwithstanding anything else contained in the Deposit Agreement or any
Receipt, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Deposited Securities if the taking of such action would violate U.S. laws. The
Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so requested by the Depositary.
There can be no assurance that Holders generally or any Holder in particular
will receive the notice described above with sufficient time to enable the
Holder to return voting instructions to the Depositary in a timely manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the ADRs shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. The
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement (and, if reasonably
requested by the Depositary after consultation with the Company, receipt of an
opinion of counsel to the Company reasonably satisfactory to the Depositary that
16
such distributions are not in violation of any applicable laws or regulations),
execute and deliver additional ADRs as in the case of a stock dividend on the
Shares, or call for the surrender of outstanding ADRs to be exchanged for new
ADRs, in either case, as well as in the event of newly deposited Shares, with
necessary modifications to the form of ADR contained in Exhibit A to the Deposit
Agreement, specifically describing such new Deposited Securities or corporate
change. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of ADRs. Notwithstanding the foregoing, in the event
that any security so received may not be lawfully distributed to some or all
Holders, the Depositary may, with the Company's approval, and shall if the
Company requests, subject, if reasonably requested by the Depositary after
consultation with the Company, to receipt of an opinion of Company's counsel
reasonably satisfactory to the Depositary that such action is not in violation
of any applicable laws or regulations, sell such securities at public or private
sale, at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1 of the Deposit
Agreement. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such securities available to
Holders in general or any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this ADR, by
reason of any provision of any present or future law or regulation of the United
States, Switzerland or any other country, or of any other governmental authority
or regulatory authority or stock exchange, or on account of possible criminal or
civil penalties or restraint, or by reason of any provision, present or future,
of the Articles of Association of the Company or any provision of or governing
any Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Articles of
Association of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADSs or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
17
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement or this ADR.
(20) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
ADR to any Holder(s) or Beneficial Owner(s), except that the Company and the
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without gross negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the Company,
nor any of their respective controlling persons, or agents, shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the ADSs,
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 (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary). The Depositary and its agents shall not be liable for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any vote is cast or the effect of any vote; provided, that
any such action or omission is in good faith and in accordance with the terms of
the Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of Section 4.4(c) of the Deposit Agreement or
for the failure or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective upon the earlier of (i) the 90th day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii)
the appointment by the Company 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 written notice of such removal, which removal
shall be effective on the later of (i) the 90th day after delivery thereof to
the Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 of the Deposit Agreement), or (ii) the appointment
by the Company of a successor depositary and its acceptance of such appointment
as provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its reasonable 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 be required by the Company to 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 (except as required by applicable law), shall become fully
18
vested with all the rights, powers, duties and obligations of its predecessor
(other than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement).
The predecessor depositary, upon payment of all sums due 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 as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADRs and such other information relating to ADRs and
Holders thereof as the successor may reasonably request. Any such successor
depositary shall promptly provide notice of its appointment to such Holders. Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
(22) Amendment/Supplement. Subject to the terms and conditions of this
Section 22, the Deposit Agreement and applicable law, the ADRs outstanding at
any time, the form of ADR attached to the Deposit Agreement and the provisions
of the Deposit Agreement may at any time and from time to time be amended or
supplemented by written agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable without the prior written
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than the charges in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. The parties
hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
settled 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 materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADSs, to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and this ADR, as amended or supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such ADSs and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require an amendment of, or supplement to, the
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and this ADR at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement and this ADR 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 with such
laws, rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all ADRs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after (i) the Depositary shall have delivered to
19
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by providing
notice of such termination to the Holders of all ADRs then outstanding at least
thirty (30) days prior to the date fixed for such termination. On and after the
date of termination of the Deposit Agreement, the Holder of an ADR will, upon
surrender of such ADR at the Corporate Agency Office of the Depositary, upon the
payment of the charges of the Depositary for the surrender of ADSs referred to
in Section (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to Delivery, to him or upon his order, of the
amount of Deposited Securities represented by such ADR. If any ADRs shall remain
outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of ADRs,
and the Depositary shall suspend the distribution of dividends to the Holders
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for ADSs represented by such ADR
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case the charges of the Depositary for the surrender of an ADS, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose ADRs have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement with respect to the ADRs, the ADSs and
the Deposited Securities, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case, the charges of
the Depositary for the surrender of an ADS evidenced by such ADR, any expenses
for the account of the Holder in accordance with the terms and conditions of the
Deposit Agreement and any applicable taxes or governmental charges or
assessments). Upon the termination of the Deposit Agreement, the Company shall
be discharged from all obligations under the Deposit Agreement except as set
forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provision
in this ADR or the Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this Section (25), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
20
of the Company and its Affiliates and in ADSs. The Depositary may issue ADSs
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs
pursuant to Section 2.5 of the Deposit Agreement prior to the deposit of Shares
pursuant to Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior
to the receipt of ADSs for withdrawal of Deposited Securities pursuant to
Section 2.7 of the Deposit Agreement, including ADSs which were issued under (i)
above but for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Shares are to be delivered
(w) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such Shares or ADSs are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs and (z) agrees
to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days' notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of ADSs and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding
under (i) above), 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 also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions with any one person on a case by case basis
as it deems appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the foregoing. Collateral
provided pursuant to (b) above, but not the earnings thereon, shall be held for
the benefit of the Holders (other than the Applicant).
21
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto __________________________ whose taxpayer identification number
is _________________ and whose address including postal zip code is
________________, the within ADR and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADR on the books of the Depositary with full power of substitution
in the premises.
Dated: Name: ______________________________________
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an
attorney, executor, administrator, trustee
or guardian, the person executing the
endorsement must give his/her full title in
such capacity and proper evidence of
authority to act in such capacity, if not on
file with the Depositary, must be forwarded
with this ADR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of ADSs must
be guaranteed by a member of a Medallion
Signature Program approved by the Securities
Transfer Association, Inc.
Legends
[The ADSs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences ADSs
representing `partial entitlement' registered shares of Nestle S.A. and as such
do not entitle the holders thereof to the same per-share entitlement as other
registered shares (which are `full entitlement' registered shares) issued and
outstanding at such time. The ADSs represented by this ADR shall entitle holders
to distributions and entitlements identical to other ADSs when the registered
shares represented by such ADSs become `full entitlement' registered shares."]
22
NOTICE OF CHANGE OF RATIO FOR NESTLE S.A.
AMERICAN DEPOSITARY SHARES
TO THE HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES ("ADSs")
OF NESTLE S.A.
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COMPANY: NESTLE S.A., a company incorporated under the laws of
Switzerland.
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DEPOSITARY: CITIBANK, N.A.
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DEPOSITED SECURITIES: Registered Shares of the Company (the "Shares").
--------------------------------------------------------------------------------
DEPOSIT AGREEMENT: Second Amended and Restated Deposit Agreement, dated
as of May 23, 2007 (the "Deposit Agreement"), by and
among the Company, the Depositary and all Holders and
Beneficial Owners of ADSs issued thereunder. Unless
otherwise defined herein, all capitalized terms used
herein shall have the meaning given to such terms in
the Deposit Agreement.
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ADS CUSIP NO: 641069406
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The Company is effecting a 10-to-1 split of its Shares in the local
market. The record date for the forward split of Shares in the local market is
June 27, 2008. As a result of the forward split, each ADS will represent 2.5
Shares. In connection with the Share split, the Company and the Depositary have
agreed to further change the ADS to Share ratio ("New Ratio") as follows:
Existing Ratio: 4 ADSs to 1 Share
Forward Split Ratio: 1 ADS to 2.5 Shares
New Ratio (with ADS distribution): 1 ADS to 1 Share
The Effective Date for the new ratio is July 3, 2008. In connection with
the Share split and the ADS to Share ratio change, existing holders of ADSs will
receive 1.5 new ADSs for each ADS held. The Depositary will not issue fractional
ADSs. Existing holders of ADSs will receive whole ADSs only. Any entitlement for
fractional ADSs will be sold and the net proceeds from such sale will be
remitted by the Depositary to the applicable ADS holders.
The new ADSs will be issued as "uncertificated ADSs" and will be credited
to an account in the name of the ADS holders on the books of the Depositary. A
statement reflecting the new ADSs issued to the existing ADS holders will be
mailed to ADS holders promptly.
Please note that the American Depositary Receipts ("ADRs") issued prior to
the date hereof, which do not reflect the new ADS to Share ratio, do not need to
be exchanged for new ADRs and may remain outstanding until such time the Holder
chooses to surrender them for any reason under the Deposit Agreement. If you
wish to exchange your ADR(s) for "uncertificated ADSs" please follow the
instructions included with the account statement that the Depositary will mail
to you.
The Company has informed the Depositary that, as a result of a change in
the Company's Articles of Association approved by the Annual General Meeting of
Shareholders on April 10, 2008, the maximum percentage of voting rights a
shareholder can exercise was changed from 3% to 5%.
If you have any questions regarding the above, please contact Citibank,
N.A. at 1-877-248-4237.
CITIBANK, N.A.,
as Depositary
June 16, 2008