As filed
with the Securities and Exchange Commission on October 22,
2014 |
Registration
No. [___]-[___] |
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM F-6
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 FOR DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
ARYZTA AG
(Exact name of issuer of deposited securities as specified in its
charter)
N/A
(Translation of issuer’s name in English)
Switzerland
(Jurisdiction of incorporation or organization of issuer)
ConvergEx Depositary,
Inc.
(Exact name of depositary as specified in its charter)
1633 Broadway, 48th Floor
New York, New York 10019
(212) 259-5543
(Address, including zip code, and telephone number, including area
code, of depositary’s principal executive offices)
ConvergEx Depositary,
Inc. — DEPOSITARY RECEIPTS DEPARTMENT
1633 Broadway, 48th Floor
New York, New York 10019
(212) 259-5543
(Name, address, including zip code, and telephone number, including
area code of agent for service)
Copies to:
Richard M. Kosnik,
Esq. |
Mildred
Quinones-Holmes, Esq. |
Jones Day |
Thompson Hine LLP |
222 East 41st Street |
335 Madison Avenue |
New York, New York
10017 |
New York, New York
10017 |
It is proposed that
this filing become effective under Rule 466: |
x immediately upon filing. |
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¨ on [Date] at [time]. |
If
a separate registration statement has been filed to register the
deposited shares, check the following box: ¨
CALCULATION OF REGISTRATION
FEE
Title of Each Class
of
Securities to be
Registered |
Amount to
be
Registered |
Proposed
Maximum
Offering Price
Per
Unit* |
Proposed
Maximum
Aggregate
Offering
Price** |
Amount of
Registration
Fee |
American Depositary Shares (“ADSs”), each
ADS representing the right to receive one-half (1/2) of one share
of common stock of Aryzta AG
|
5,000,000
ADSs
|
$0.05
|
$250,000
|
$29.05
|
|
* |
Each unit represents one ADS. |
|
** |
Estimated solely for the purpose of calculating the
registration fee. Pursuant to Rule 457(k), such estimate is
computed on the basis of the maximum aggregate fees or charges to
be imposed in connection with the issuance of ADSs. |
PART I
INFORMATION REQUIRED IN PROSPECTUS
Cross Reference Sheet
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
Item Number and
Caption |
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Location
in Form of American Depositary Receipt
(“Receipt”)
Filed
herewith as Prospectus |
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1. |
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Name
of Depositary and address of its principal executive office
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Face of Receipt —
Introductory Article |
2. |
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Title of Receipts and identity of deposited securities
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Face of
Receipt — Top center |
Terms of
Deposit: |
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(i) |
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The
amount of deposited securities represented by one American
Depositary Share (“ADS”)
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Face of Receipt — Upper right
corner |
(ii) |
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The
procedure for voting, if any, the deposited securities
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Reverse of Receipt — Paragraphs 12, 14 and
17 |
(iii) |
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The
procedure for collecting and distributing dividends
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Face of Receipt — Paragraphs 4 and 8
Reverse of Receipt — Paragraphs 13, 14 and 19 |
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(iv) |
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The
procedure for transmitting notices, reports and proxy soliciting
material
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Reverse of Receipt — Paragraphs 11, 12 and
16 |
(v) |
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The
sale or exercise of rights
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Reverse of Receipt — Paragraphs 13 and
14 |
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(vi) |
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The
deposit or sale of securities resulting from dividends, splits or
plans of reorganization
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Face of Receipt — Paragraphs 4 and 8
Reverse of Receipt — Paragraphs 13, 14, 16 and
17 |
(vii) |
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Amendment, extension or termination of the deposit arrangements
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Reverse of Receipt — Paragraphs 18 and 19
(no provision for extension) |
(viii) |
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The
rights that holders of Receipts have to inspect the transfer books
of the Depositary and the list of Receipt holders
|
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Face of Receipt — Paragraph 3 |
(ix) |
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Any
restrictions on the right to transfer or withdraw the underlying
securities
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Face of Receipt —
Paragraphs 1, 2, 4, 5 and 6
Reverse of Receipt — Paragraphs 15, 16 and 17
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(x) |
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Any
limitation on the Depositary's liability
|
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Face of Receipt — Paragraphs 1, 2, 4, 6 and 8;
Reverse of Receipt — Paragraphs 12, 13, 15, 16 and 17
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3. |
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Fees and
charges that may be imposed directly or indirectly upon a holder of
Receipts |
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Reverse of Receipt — Paragraph
20 |
Item 2. AVAILABLE
INFORMATION |
Reverse of Receipt — Paragraph
11 |
Based on the reasonable, good faith belief of the Depositary after
exercising reasonable diligence, the registrant represents that, as
of the date hereof, Aryzta AG (the “Company”)
publishes information in English required to maintain the exemption
from registration under Rule 12g3-2(b) under the Securities
Exchange Act of 1934, as amended, on its internet website or
through an electronic information delivery system generally
available to the public in the Company’s primary trading market.
The address of the Company’s internet website, as of the date
hereof, is http://www.aryzta.com/investor-centre.aspx.
PROSPECTUS
IN ACCORDANCE WITH GENERAL INSTRUCTIONS III. B OF FORM F-6, THIS
PAGE AND THE FORM OF AMERICAN DEPOSITARY RECEIPT ATTACHED AS AN
EXHIBIT TO THIS F-6 REGISTRATION STATEMENT CONSTITUTE THE
PROSPECTUS RELATING TO THE AMERICAN DEPOSITARY SHARES TO BE ISSUED
PURSUANT TO THIS F-6 REGISTRATION STATEMENT.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
(a) The
agreement between ConvergEx Depositary, Inc., as depositary (the
“Depositary”), and all holders and beneficial owners from
time to time of American Depositary Shares registered hereunder is
contained in the form of American Depositary Receipt itself,
constituting the Prospectus filed as a part of this Registration
Statement. — Filed herewith.
(b) Any
other agreement to which the Depositary is a party relating to the
issuance of the American Depositary Shares registered hereunder or
the custody of the deposited securities. — None.
(c) Every
material contract relating to the deposited securities between the
Depositary and the issuer of the deposited securities in effect at
any time within the last three years. — None.
(d) Opinion
of Thompson Hine LLP, counsel for the Depositary, as to the
legality of the securities to be registered. — Filed herewith.
(e) Certification
under Rule 466. — Filed herewith.
Item 4. UNDERTAKINGS
(a) The
Depositary hereby undertakes to make available at the principal
office of the Depositary in the United States, for inspection by
holders of the Receipts, any reports and communications received
from the issuer of the deposited securities which are both (1)
received by the Depositary as the holder of the deposited
securities, and (2) made generally available to the holders of the
underlying securities by the issuer.
(b) The
Depositary undertakes to prepare a separate document stating the
amount of any fee charged and describing the service for which it
is charged and to deliver promptly a copy of such fee schedule
without charge to anyone upon request. The Depositary undertakes to
notify each registered holder of a Receipt thirty days before any
change in the fee schedule.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that
all the requirements for filing on Form F-6 are met and has duly
caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on the 22nd day of October, 2014.
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Legal entity created by the agreement for the
issuance of American Depositary Receipts evidencing American
Depositary Shares for shares of
AryztaAG
ConvergEx Depositary,
Inc., as Depositary
By:
/S/ ANDREW P. LEVINE
Name: Andrew P. Levine
Title: CEO
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Index of Exhibits
Exhibit |
Document |
Sequentially
Numbered Page |
(a) |
Form of ADR |
9 |
(d) |
Opinion of Counsel to the
Depositary |
21 |
(e) |
Rule 466 Undertaking |
23 |
Exhibit (a)
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CUSIP #
XXXXXX XX X |
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Each
American |
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Depositary Share represents |
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one-half (1/2) of one Share
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ConvergEx Depositary, Inc.
American Depositary Receipt
Evidencing
American Depositary Shares
For Common Stock of
Aryzta AG
(Incorporated under the laws of Switzerland [hereinafter the
“Company”])
ConvergEx Depositary, Inc., as Depositary (the “Depositary”),
hereby certifies that (i) at the date hereof there have been
deposited with the Depositary or its agent, nominee, custodian or
correspondent the Shares described above or evidence of the right
to receive such Shares; (ii) at the date hereof each American
Depositary Share (“ADS”) evidenced by this Receipt represents the
amount of such securities shown above and deposited or deemed to be
deposited hereunder as provided in clause (i) above or Article 7 of
this Receipt, as the case may be, (iii) from time to time
hereafter, each ADS evidenced by this Receipt shall represent such
number of Shares and any and all other shares, stock, securities,
cash and/or other property held by the Depositary in place thereof
or in addition thereto (collectively, the "Deposited Securities")
as provided herein and (iv) ___________ or registered assigns IS
THE HOLDER OF ______ AMERICAN DEPOSITARY SHARES evidenced by
this Receipt and, except as otherwise herein expressly provided, is
entitled, upon surrender at the office of the Depositary (the
“Depositary’s Office”), of this Receipt duly endorsed for transfer,
upon payment of the fees and charges as provided on the reverse of
this Receipt and in compliance with applicable laws and
governmental regulations, at the Holder’s option (1) to delivery at
the office of the agent, nominee, custodian or correspondent of the
Depositary, to a person specified by the Holder, of the amount of
Deposited Securities represented hereby or evidence of the right to
receive the same, or (2) to have such Deposited Securities
forwarded at such Holder’s cost and risk to him at the Depositary’s
Office.
As used herein, the term “Beneficial Owner” means any person who
has a beneficial interest in any ADS evidenced by this Receipt. The
term “Holder” means the person or persons in whose name this
Receipt is registered upon the books of the Depositary from time to
time. As used herein, the term “Securities Act of 1933” means the
Securities Act of 1933, as amended from time to time. As used
herein, the term “Shares” means shares of the common stock of
the Company identified above heretofore validly issued and
outstanding and fully paid, non-assessable and free of any
pre-emptive rights of the holders of outstanding Shares or
hereafter validly issued and outstanding and
fully paid, non-assessable and free of any pre-emptive rights of
the holders of outstanding Shares or interim certificates
representing such Shares.
1. Receipts.
This American Depositary Receipt (this “Receipt”) is one of a
continuing issue of American Depositary Receipts (collectively, the
“Receipts”), all evidencing rights of like tenor with respect to
the Deposited Securities, and all issued or to be issued upon the
terms and conditions provided herein, which shall govern the
continuing arrangement by the Depositary with respect to initial
deposits as well as the rights of Holders and Beneficial Owners of
Receipts subsequent to such deposits. The Depositary will not
knowingly accept for deposit any Shares required to be registered
under the provisions of the Securities Act of 1933 unless a
registration statement is in effect as to such Shares. The
Depositary assumes no liability with respect to the validity,
worth, susceptibility to assessments or freedom from preemptive
rights of the Deposited Securities.
2. Withdrawal
of Deposited Securities. The surrender of outstanding Receipts
and the withdrawal of Deposited Securities may only be suspended
for (i) temporary delays caused by closing the transfer books of
the Depositary or the issuer of the Deposited Securities or the
deposit of Shares in connection with voting at a shareholders’
meeting or other corporate action, (ii) the payment of fees, taxes
and similar charges, (iii) compliance with any U.S. or foreign laws
or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities, or (iv) any other reason
that may at any time be specified in paragraph I(A)(1) of the
General Instructions to Form F-6, as from time to time in effect,
or any successor provision thereto.
3. Transfer
of Receipts; Combination and Split-up of Receipts. Until the
surrender of this Receipt in accordance with the terms hereof, the
Depositary will maintain at a designated office in the Borough of
Manhattan, The City of New York, a register for the registration
and transfers of Receipts and where the Holders of Receipts may,
during regular business hours upon reasonable prior notice, inspect
the transfer books or the list of Holders of Receipts as maintained
by the Depositary. The transfer of this Receipt is registrable on
the transfer books of the Depositary at the Depositary’s Office in
the City of New York by the Holder hereof in person or by duly
authorized attorney, upon surrender of this Receipt properly
endorsed for transfer or accompanied by proper instruments of
transfer and payment of funds sufficient to pay the fees and
expenses of the Depositary and any applicable taxes and other
governmental charges and upon compliance with such regulations, if
any, as the Depositary may establish for such purpose. This Receipt
may be split into other such Receipts, or may be combined with
other such Receipts into one Receipt, representing the same
aggregate number of Deposited Securities as were represented by the
ADSs evidenced by the Receipt or Receipts surrendered. Upon such
split or combination not involving a transfer, a charge may be made
as provided herein. The Depositary may close the transfer books at
any time or from time to time when deemed expedient by it in
connection with the performance of its duties hereunder, subject to
the provisions of Article 2 hereof.
4. Proof of
Citizenship or Residence. The Depositary may require any Holder
or Beneficial Owner of Receipts, or any person presenting
securities for deposit against the issuance of Receipts, from time
to time, to file such proof of citizenship or residence and to
furnish such other information, by affidavit or otherwise, and to
execute such certificates and other instruments as may be necessary
or proper to comply with any laws or regulations relating to the
issuance or transfer of Receipts, the receipt or distribution of
dividends or other property, or the taxation thereof or of Receipts
or Deposited Securities, and the Depositary may withhold the
issuance or registration of transfer of any Receipt or
payment of such dividends or delivery of such property from any
Holder, Beneficial Owner or other person, as the case may be, who
shall fail to file such proofs, certificates or other
instruments.
5. Transferability
and Record Ownership. It is a condition of this Receipt, and
every successive Holder and Beneficial Owner of this Receipt by
accepting or holding the same consents and agrees, that title to
this Receipt, when properly endorsed or accompanied by proper
instrument of transfer, is transferable by delivery with the same
effect as in the case of a negotiable instrument; provided that
prior to the due presentation of this Receipt for registration of
transfer as provided in Article 3 hereof, and subject to the
provisions of Article 14 hereof, the Depositary, notwithstanding
any notice to the contrary, may treat the person in whose name this
Receipt is registered on the books of the Depositary as the
absolute owner hereof for the purpose of determining the persons
entitled to dividends or other distributions or to any notice
pursuant to the terms hereof and for all other purposes.
6. Limitations
on Execution and Delivery, Transfer and Surrender of Receipts.
Subject to the provisions of Article 2 hereof, the delivery of
Receipts against deposits of Shares generally or against deposits
of particular Shares may be suspended, or the registration of
transfer of Receipts in particular instances may be refused, or
registration of transfer of outstanding Receipts or the combination
or split-up of Receipts generally may be suspended, during any
period when the transfer books of the Depositary are closed, or if
any such action is deemed necessary or advisable by the Depositary
at any time or from time to time because of any requirement of law
or of any government or governmental body or commission, or under
any provision of this Receipt, or for any other reason.
7. Pre-Release
of Receipts. Notwithstanding any other provision of this
Receipt, the Depositary may execute and deliver ADSs prior to the
receipt of Shares (each such transaction, a “Pre-Release”). The
Depositary may deliver Deposited Securities upon the receipt and
cancellation of ADSs that have been pre-released, whether or not
such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such ADS has been pre-released. The
Depositary may receive ADSs issued by the Depositary in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be
(a) preceded or accompanied by a written agreement whereby the
person to whom the ADSs are to be delivered (i) represents that
such person, or its customer, owns the Shares or ADSs to be
delivered in satisfaction of a Pre-Release, as the case may be, and
(ii) agrees to indicate that 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 its custodian, (b) at all times fully collateralized
with cash 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 number of ADSs which is outstanding at any time as
a result of Pre-Releases will not normally exceed thirty percent
(30%) of the Shares deposited in accordance with the terms of
Receipts; provided 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-Releases with any one person on a
case-by-case basis, as it deems appropriate. The Depositary may
retain for its own account any compensation earned or received by
it in connection with the foregoing. Collateral provided pursuant
to subpart (b) above, but not earnings thereon, shall be held for
the benefit of the Holders.
8. Liability
of Holder for Taxes. The Depositary shall not be liable for
any
governmental taxes, assessments or charges or corporate assessments
or charges which may become payable in respect of the Deposited
Securities or Receipts, but a ratable part of any and all of the
same, whether such tax, assessment or charge becomes payable by
reason of any present or future tax, statute, charter provision,
by-law, regulation or otherwise, shall be payable by the Holder of
this Receipt to the Depositary at any time upon request. Upon the
failure of the Holder of this Receipt to pay any such amount, the
Depositary may withhold dividends or other distributions, or may
sell for the account of such Holder all or any part of the
Deposited Securities represented by the ADSs evidenced by this
Receipt, which sale may be subject to withholding taxes, and may
apply such dividends or other distributions or the proceeds of any
such sale in payment of such tax, assessment or charge, and the
Holder hereof shall remain liable for any deficiency. If the
Depositary determines that any distribution in property other than
cash on deposited shares 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.
9 Representations
and Warranties. Every person presenting Shares for deposit
shall be deemed thereby to represent and warrant that such Shares
and, if applicable, each certificate therefor, (a) are validly
issued, fully paid, non-assessable and free of any pre-emptive
rights and that the person making such deposit is duly authorized
so to do, (b) would not be required to be registered under the
Securities Act of 1933 in connection with the offer or sale thereof
in the United States, (c) are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim,
and (d) have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit of such
securities and the issuance of Receipts. If any such
representations or warranties are false in any way, 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, including, without limitation, to cancel
the applicable ADSs.
10. Further
Conditions. This Receipt is issued, and all rights of the
Holder and Beneficial Owner hereof are expressly, subject to the
terms and conditions set forth on both sides of this Receipt, all
of which form a part of the agreement evidenced in this Receipt and
to all of which the Holder and Beneficial Owner hereof by accepting
this Receipt consent and agree.
Countersigned: |
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ConvergEx Depositary,
Inc. |
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As
Depositary |
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Authorized
Officer |
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Title: |
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Dated:
_____________________ |
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The Depositary's Office is currently located at 1633 Broadway, New
York, New York 10019.
(REVERSE OF RECEIPT)
11.
Available
Information. As of the date of the establishment of the program
for issuance of Receipts by the Depositary, the Depositary had a
good faith belief (after reasonable investigation), that the issuer
of the Deposited Securities (the “Issuer”) published information in
English on its internet website
http://www.aryzta.com/investor-centre.aspx or through an electronic
information delivery system generally available to the public in
its primary trading market, in either case in compliance with Rule
12g3-2(b) under the Securities Exchange Act of 1934, as amended
(the “Securities Exchange Act of 1934”). The information so
published by the Issuer cannot be retrieved from the Commission’s
internet website and cannot be inspected or copied at the public
reference facilities maintained by the Commission. Should such
Issuer become subject to the periodic reporting or other
informational requirements under the Securities Exchange Act of
1934, it will be required in accordance therewith to file reports
and other information with the U.S. Securities and Exchange
Commission. The Depositary does not assume any duty to determine if
the Issuer is complying with the requirements of Rule 12g3-2(b)
under the Securities Exchange Act of 1934 or to take any action if
the Issuer is not complying with those requirements.
12.
Notices;
Voting Rights. The Depositary shall be under no obligation to
give notice to the Holder or any Beneficial Owner of this Receipt
of any meeting of shareholders or of any report of or communication
from the Issuer or of any other matter concerning the affairs of
such Issuer, except as herein expressly provided. The Depositary
undertakes to make available for inspection by Holders of the
Receipts at the Depositary’s Office any reports and communications
received by the Depositary or any agent, nominee, custodian or
correspondent of the Depositary from the Issuer which were both (a)
received by the Depositary as the holder of the Deposited
Securities and (b) made generally available to the holders of such
Deposited Securities by the Issuer. Such reports and communications
will be available in the language in which they were received by
the Depositary from the Issuer, except to the extent, if any, that
the Depositary in its sole discretion elects to both (i) translate
into English any of such reports or communications that were not in
English when received by the Depositary and (ii) make any such
translation available for such inspection by Holders of the
Receipts. The Depositary has no obligation of any kind to translate
any of such reports or communications or to make any such
translation available for inspection. The Depositary shall not
incur any liability to any Holder or Beneficial Owner by reason of
any such translation provided by the Depositary, whether or not
such translation was prepared by the Depositary.
The Depositary may, in its discretion, exercise, in any manner, or
not exercise, any and all voting rights that may exist in respect
of the Deposited Securities. The Depositary may, but assumes no
obligation to, notify Holders of an upcoming meeting of Holders or
solicit instructions from Holders as to the exercise of any voting
rights with respect to the Deposited Securities. Upon the written
request of the Holder of this Receipt and payment to it of any
expenses, fees and expenses involved, the Depositary may, in its
sole discretion, but assumes no obligation to, exercise any voting
rights with respect to the amount of the Deposited Securities
represented by the ADSs evidenced by this Receipt in accordance
with that request.
13. Distributions.Until
the termination of the agreement evidenced in this Receipt in
accordance with the terms hereof, the Depositary shall distribute
or otherwise make available to the Holder hereof, at a time and in
such manner as it shall determine,
any cash dividend, other cash distribution, distribution of shares,
subscription or other rights, or any other distribution with
respect to the amount of Deposited Securities represented by the
ADSs evidenced hereby, after deduction, or upon payment of the fees
and expenses of the Depositary described in Article 20 below, and
the withholding of any taxes in respect thereof; provided that the
Depositary shall not make any distribution which in the opinion of
counsel may violate the Securities Act of 1933 or any other
applicable law or for which it shall not have received adequate
assurances with respect to compliance with such law or laws. In
such cases, the Depositary may sell such shares, subscription or
other rights, securities or other property. In the event that the
Depositary elects not to make any such distribution, the Depositary
need only notify Holders of the disposition thereof and the
proceeds, if any, of any such sales. Any dividend or other
distribution received by the Depositary in cash in a currency other
than U.S. dollars shall, subject to the provisions of the following
paragraph, be converted into U.S. dollars and distributed as herein
provided in U.S. dollars. In lieu of distributing fractional
shares, the Depositary may, in its discretion, sell the amount of
securities or property equal to the aggregate of any fractional
shares. The Depositary shall have discretion as to the procedure to
be followed in making subscription or other rights available to any
Holder or in disposing of such rights on behalf of any Holder and
making the net proceeds available to such Holder, provided that if
by the terms of such rights offering or for any other reason it
would be unlawful for the Depositary either to make such rights
available to any Holder or dispose of such rights and make the net
proceeds from the sale of such rights available to such Holder,
then the Depositary may allow such rights to lapse. Sales of
subscription or other rights, securities or other property by the
Depositary may be made at such time and in such manner as the
Depositary may deem advisable, and in such case, the Depositary
shall distribute to the Holder hereof the net proceeds after
deduction of the fees and expenses of the Depositary described in
Article 20 below and any applicable withholding taxes or other
governmental charges in respect thereof.
If the Depositary shall determine in its sole judgment that any
cash distribution is not convertible in its entirety or with
respect to the Holders of a portion of the Receipts on a reasonable
basis into U.S. dollars available to it in the City of New York, or
if any required approval or license of any government or agency for
such conversion is denied or is not obtainable within a reasonable
period, the Depositary may in its discretion make such conversion
and distribution in U.S. dollars to the extent possible to the
Holders entitled thereto, at such time and rates of conversion as
the Depositary shall deem appropriate, and shall with respect to
any such currency not converted or convertible either (a)
distribute such currency to the Holders entitled thereto or (b)
hold such currency for the respective accounts of such Holders
uninvested and without liability for interest thereon, in which
case the Depositary may distribute appropriate warrants or other
instruments evidencing rights to receive such foreign currency.
As an
accommodation to the Holder hereof, the Depositary may use
commercially reasonable efforts to (i) attempt to determine whether
the Holder hereof is entitled to distributions relating to
withholding taxes or other governmental charges, and (ii)
distribute or otherwise make available to the Holder hereof, at a
time and in such manner as the Depositary shall determine in its
sole discretion, any such additional sums. In connection with the
foregoing, the Depositary shall not be liable for any
determination, action or inaction that does not constitute willful
misconduct or gross negligence.
14. Record
Dates. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be
made, or whenever rights shall be issued, with respect to Deposited
Securities, or whenever the Depositary shall receive notice of any
meeting of holders of Shares or other Deposited Securities, or
whenever it is necessary in the judgment of the Depositary to
determine the Holders of Receipts, the Depositary will fix a record
date for the determination of the Holders generally or the Holders
of Receipts who shall be entitled to receive such dividend,
distribution or rights, or the net proceeds of the sale thereof, or
responsible for any other purposes for which the record was set.
Surrender of this Receipt for registration of transfer subsequent
to any such record date and prior to the date of payment,
distribution or meeting shall not affect the right of the Holder
hereof on such record date to receive such payment or distribution
or, subject to Article 12 hereof, to direct the manner of voting
the Deposited Securities represented hereby.
15. Forwarding
and Delivery of Deposited Securities. At any time the
Depositary may, in its sole discretion, cause any or all Deposited
Securities to be forwarded at the cost and risk of the Holders of
the Receipts to the Depositary’s Office or to any agent, nominee,
custodian or correspondent of the Depositary, to be held by the
Depositary, or such agent, nominee, custodian or correspondent, in
which case the Holder hereof shall have, in lieu of the option set
forth in clauses (1) and (2) of the first paragraph on the face
hereof, the right (a) to receive at no additional cost at the
Depositary’s Office or the office of such agent, nominee, custodian
or correspondent, as the case may be, or (b) to have forwarded, at
the cost and risk of such Holder, to or upon the order of such
Holder at the address designated by such Holder to the Depositary
in writing, such amount of Deposited Securities as are represented
hereby upon the surrender of this Receipt properly endorsed or
accompanied by proper instruments of transfer and upon payment of
the applicable fees, taxes and charges. The Depositary shall not
incur any liability to any Holder or Beneficial Owner of this
Receipt by reason of any such forwarding or failure to forward any
or all Deposited Securities.
16. Changes
Affecting Deposited Securities. Upon (a) any change in nominal
or par value, or any split-up, combination or any other
reclassification, of any Deposited Securities, or (b) any
recapitalization, reorganization, sale of assets substantially as
an entity, liquidation, receivership, bankruptcy, merger or
consolidation affecting the Issuer or to which it is a party, or
(c) the redemption by an issuer of Deposited Securities at any time
of any or all of such Deposited Securities (provided the same are
subject to redemption), then and in any such case the Depositary
shall have the right to exchange or surrender such Deposited
Securities and accept and hold hereunder in lieu thereof other
shares, securities, cash or property to be issued or delivered in
lieu of or in exchange for, or distributed or paid with respect to,
such Deposited Securities. Upon any such exchange or surrender, the
Depositary shall have the right, in its discretion, to call for
surrender of this Receipt in exchange (upon payment of fees and
expenses of the Depositary and any applicable taxes and
governmental or other charges) for one or more new Receipts of the
same form and tenor as this Receipt, specifically describing such
new shares, securities, cash or other property. In any such case
the Depositary shall have the right to fix a date after which this
Receipt shall only entitle the Holder to receive such new Receipt
or Receipts.
If any of the Deposited Securities are redeemable, the Depositary
shall have the rights set forth in the preceding paragraph. The
Depositary shall mail notice of any redemption of Deposited
Securities to the Holders of Receipts, provided that in the case of
any redemption of less than all of the Deposited Securities, the
Depositary shall draw in such manner as it shall determine an
equivalent number of ADSs and shall mail notice of redemption only
to the Holders of Receipts evidencing the ADSs so drawn for
redemption, in whole or in part. The sole right of the Holders of
Receipts evidencing ADSs designated for redemption after the
mailing of any such notice of redemption shall be to receive the
cash, rights and/or other property applicable to the same, upon
surrender
to the Depositary (and upon payment of the fees and expenses of the
Depositary and any applicable taxes and governmental or other
charges) of the Receipts evidencing such ADSs.
17. Liability
of the Depositary. The Depositary assumes no obligation and
shall not incur any liability to any Holder or Beneficial Owner of
this Receipt (including, without limitation, liability with respect
to the validity or worth of the Deposited Securities and with
respect to the time and rates for conversion of any foreign
currency into U.S. dollars) except that it agrees to perform its
obligations specifically set forth in this Receipt without gross
negligence or willful misconduct. In addition, the Depositary
assumes no obligation and shall not incur any liability to any
Holder or Beneficial Owner of this Receipt, (a) if, by reason of
any provisions of any present or future law, rule or regulation of
the United States of America, or of any state thereof, or of any
foreign country, or political subdivision thereof or of any
governmental entity or regulatory authority or stock exchange, or
by reason of any provision, present or future, of the charter or
certificate of incorporation, memorandum or articles of
association, statutes, code of regulations, by-laws or resolutions
of the Issuer, the Depositary shall be prevented, delayed or
forbidden from or subjected to any civil or criminal penalty or
extraordinary expenses on account of doing or performing any act or
thing which by the terms hereof shall be done or performed; (b) by
reason of any non-performance or delay, caused as specified in
clause (a) above, in the performance of any act or thing which by
the terms of this Receipt it is provided, (c) by reason of any
exercise of, or failure to exercise, any discretion provided for
herein, (d) for the inability of any Holder or Beneficial Owner
hereof to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities
but is not made available to Holders or Beneficial Owner, (e) by
reason of the performance or non-performance of any third party
(including, without limitation, affiliates of the Depositary), (f)
for any indirect, special, consequential (including, without
limitation, lost profits) or punitive damages of any form incurred
by any person or entity, whether or not foreseeable and regardless
of the type of action in which such claim may be brought, or (g)
arising out of any act of God, terrorism or war or any other
circumstances beyond its control.
The Depositary shall not be responsible for any failure to carry
out any requests to vote or for the manner or effect of any vote
made either with or without request, or for not exercising any
right to vote. The Depositary shall be under no obligation to
appear in, prosecute or defend any action, suit or other proceeding
in respect of any of the Deposited Securities or in respect of the
Receipts that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expenses
and liability be furnished as often as may be required. The
Depositary shall not incur any liability to any Holder or
Beneficial Owner of a Receipt 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 Beneficial Owner or any other person believed by it to be
competent to give such advice or information. The Depositary and
any of its affiliates may each become the owner of, and deal in,
securities of any class of the Issuer and in Receipts.
The issuer of the Receipts is deemed to be the legal entity
resulting from the agreement evidenced in this Receipt.
18. Amendment
of Receipts. The form of the Receipts may at any time and from
time to time be amended by the Depositary in any respect which it
may deem necessary or desirable. Any amendment which shall
prejudice any substantial existing right of Holders shall not
become effective as to outstanding Receipts until the
expiration
of thirty (30) days after notice of such amendment shall have been
given to the Holders of outstanding Receipts; provided that such
thirty (30) days’ notice shall in no event be required with respect
to any amendment which shall impose or increase any taxes or other
governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses. Every
Holder and Beneficial Owner of ADSs evidenced by this Receipt at
the time any amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the agreement evidenced in this
Receipt as amended thereby. In no event shall any amendment impair
the right of the Holder of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented by the
ADSs evidenced thereby, except in order to comply with mandatory
provisions of applicable law.
19. Termination
of Agreement and Surrender of this Receipt. The Depositary may
at any time terminate the agreement evidenced in this Receipt and
all other Receipts by mailing notice of such termination to the
Holders of all the Receipts then outstanding at their addresses
appearing upon the books of the Depositary, at least thirty (30)
days prior to the date fixed in such notice of termination. On and
after such date of termination the Holder hereof, upon surrender of
this Receipt at the Depositary’s Office, will be entitled to
delivery of the amount of the Deposited Securities represented by
the ADSs evidenced hereby at such date of termination upon the same
terms and conditions, upon payment of a fee at the rates provided
herein with respect to the surrender of this Receipt for Deposited
Securities and upon payment of any applicable taxes and
governmental or other charges. The Depositary may convert any
dividends received by it in cash after the termination date into
U.S. dollars as herein provided, and after deducting therefrom the
fees and expenses of the Depositary and taxes and other
governmental charges referred to herein, hold the balance of said
dividends for the pro rata benefit of the Holders of the
respective Receipts. As to any Receipts not so surrendered within
thirty (30) days after such date of termination, the Depositary
shall thereafter have no obligation with respect to the collection
or disbursement of any subsequent dividends or any subscriptions or
other rights accruing on the Deposited Securities. After the
expiration of three months from such date of termination the
Depositary may sell any remaining Deposited Securities in such
manner as it may determine appropriate, and may thereafter hold
uninvested the net proceeds of any such sale or sales, together
with any dividends received prior to such sale or the U.S. dollars
received on conversion thereof, unsegregated and without liability
for interest thereon, for the pro rata benefit of the
Holders of the Receipts which have not theretofore been surrendered
for cancellation, such Holders thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making
such sale, or if no such sale can be made after the expiration of
one year from such date of termination, the Depositary shall be
discharged from all obligations whatsoever to the Holders and
Beneficial Owners of the Receipts except to make distributions of
the net proceeds of sale and of such dividends (after deducting all
fees, charges and expenses of the Depositary) or of the Deposited
Securities in case no sale can be made upon surrender of the
Receipts.
20. Certain
Fees and Charges of the Depositary. The Depositary may charge
any party depositing or withdrawing Shares, any party transferring
or surrendering Receipts, any party to whom Receipts are issued
(including issuance pursuant to a stock dividend or stock split or
an exchange of stock or distribution or a change in the number of
Shares represented by each ADS) or Holders, as applicable, (a) fees
for the delivery or surrender of Receipts and deposit or withdrawal
of Shares, (b) fees for distributing cash, Shares or other property
received in respect of Deposited Securities, (c) taxes and other
governmental charges, (d) registration or custodial fees or charges
relating to the Shares, (e) cable, telex and facsimile transmission
expenses, (f) foreign currency conversion expenses and fees, (g)
depositary servicing fees, and (h) any other fees or charges
incurred by the Depositary or its agents in connection with the
Receipt program. The Depositary’s fees and charges may differ from
those of other depositaries. The Depositary reserves the right to
modify, reduce or increase its fees upon thirty (30) days’ notice
to the Holder hereof. The Depositary will provide, without charge,
a copy of its latest schedule of fees and charges to any party
requesting it.
21. Rebates
to Brokers. From time to time the Depositary may pay rebates to
brokers (including, without limitation, brokers that are affiliates
of the Depositary) that deposit shares with the Depositary for the
issuance of depositary receipts. The Depositary assumes no
obligation or responsibility, and expressly disclaims any liability
arising out of, or relating to, such rebates, including without
limitation whether such rebates or any portion thereof are passed
on to the beneficial holders by such brokers.
22. Affiliates
of Depositary. Each Holder or Beneficial Owner of this
Receipthereby acknowledges
that affiliates of the Depositary may provide services in
connection with this Receipt or otherwise earn commissions or fees
in connection with transactions related hereto.
23. Governing
Law. This Receipt shall be interpreted in accordance with, and
all rights and obligations hereunder and provisions hereof shall be
governed by, the laws of the State of New York applicable to
contracts made in and to be performed in that state.
All actions and proceedings brought by any Holder or beneficial
holder of this Receipt against the Depositary arising out of or
relating to the Shares or other Deposited Securities, the ADSs or
the Receipts, or any transaction contemplated herein, shall be
litigated only in courts located within the State of New York.
EACH HOLDER AND BENEFICIAL HOLDER HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE
DEPOSITARY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE AMERICAN DEPOSITARY
SHARES OR THE RECEIPTS, OR ANY TRANSACTION CONTEMPLATED HEREIN, OR
THE BREACH HEREOF, INCLUDING WITHOUT LIMITATION, ANY QUESTION
REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY).
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please print or typewrite name
and address of assignee)
__________________________________ the within American Depositary
Receipt and all rights and interests represented thereby, and
hereby irrevocably constitutes and appoints
________________________ attorney, to transfer the same on the
books of the within named Depositary, with full power of
substitution in the premises.
Dated: ____________ Signature:
_____________________________
NOTE: The signature to any endorsement hereon must correspond with
the name as written upon the face of this Receipt 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 Receipt.
All endorsements or assignments of Receipts must be guaranteed by
an “eligible institution” as such term is defined in Rule 17Ad-15
under the Securities Exchange Act of 1934, having an office or
correspondent in The City of New York.
Exhibit (d)
LETTERHEAD OF THOMPSON HINE LLP
October 22, 2014
ConvergEx Depositary, Inc.—ADR Department
1633
Broadway, 48th Floor
New York, New York 10019
Re:
Unsponsored American Depositary Receipts for Shares of Common
Stock of Aryzta
AG
Ladies and Gentlemen:
We refer to the Registration Statement on Form F-6 (the
“Registration Statement”) that is to be filed with the
Securities and Exchange Commission (the “SEC”) by the legal
entity created by the American Depositary Receipts (“ADR(s)”)
evidencing American Depositary Shares (“ADS(s)”), each ADS
representing the right to receive, subject to the terms of the ADR
representing such ADS, one-half (1/2) of one share of common stock
(the “Shares”) of Aryzta AG, a company organized
under the laws of Switzerland. The Registration Statement is being
filed for the purpose of registering Five Million (5,000,000) ADSs
under the Securities Act of 1933, as amended (the “Securities
Act”).
Assuming that, at the time of their issuance, the Registration
Statement will be effective, and the Shares will have been legally
issued, we are of the opinion that the ADSs, when issued in
accordance with the terms of the ADRs and the Registration
Statement, will be legally issued and will entitle the registered
holders of the ADSs to the rights specified in the applicable
ADRs.
[Remainder of page left intentionally blank.]
ConvergEx Depositary, Inc.—ADR Department
October 22, 2014
Page
2 of 2
This opinion is limited to the laws of the State of New York and
the Federal laws of the United States. Without admitting that we
are within the category of persons whose consent is required under
Section 7 of the Securities Act, we hereby consent to the use of
this opinion as Exhibit (d) to the Registration Statement.
Very truly yours,
/S/
THOMPSON HINE LLP
Exhibit (e)
Rule 466 Certification
The
depositary, ConvergEx Depositary, Inc., represents and certifies
the following:
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1. |
That
it previously had filed a registration statement on Form F-6
(Registration No. 333 – 197668), which the U.S. Securities and
Exchange Commission declared effective, with terms of deposit
identical to the terms of deposit of this Form F-6 Registration
Statement except for the shares represented by the American
Depositary Shares and the name of the issuer of such shares;
and |
|
2. |
That its ability to designate the date and time
of effectiveness under Rule 466 has not been suspended. |
|
ConvergEx Depositary,
Inc., as Depositary
By: /S/ ANDREW P. LEVINE
Name: Andrew P. Levine
Title: CEO
|