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METOREX LIMITED
AND
THE BANK OF NEW YORK
as Depositary
AND
OWNERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of June __, 2003
CONTENTS
Page
ARTICLE 1. DEFINITIONS..............................................5
SECTION 1.1 American Depositary Shares..........................5
SECTION 1.2 Beneficial Owner....................................6
SECTION 1.3 Business Day........................................6
SECTION 1.4 Commission..........................................6
SECTION 1.5 Company.............................................6
SECTION 1.6 Consultation........................................6
SECTION 1.7 Custodian...........................................6
SECTION 1.8 Deposit Agreement...................................7
SECTION 1.9 Depositary, Corporate Trust Office..................7
SECTION 1.10 Deposited Securities................................7
SECTION 1.11 Dollars, cents, and Rand............................7
SECTION 1.12 Foreign Registrar...................................7
SECTION 1.13 Owner...............................................7
SECTION 1.14 Receipts............................................8
SECTION 1.15 Registrar...........................................8
SECTION 1.16 Restricted Securities...............................8
SECTION 1.17 Securities Act of 1933..............................8
SECTION 1.18 Shares..............................................8
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.............9
SECTION 2.1 Form and Transferability of Receipts................9
SECTION 2.2 Deposit of Shares..................................10
SECTION 2.3 Execution and Delivery of Receipts.................11
SECTION 2.4 Transfer of Receipts; Combination and
Split-up of Receipts...............................11
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.....12
SECTION 2.6 Limitations on Execution and Delivery,
Transfer and Surrender of Receipts.................13
SECTION 2.7 Lost Receipts, etc.................................14
SECTION 2.8 Cancellation and Destruction of
Surrendered Receipts...............................14
SECTION 2.9 Pre-Release........................................14
SECTION 2.10 Maintenance of Records.............................15
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS...............15
SECTION 3.1 Filing Proofs, Certificates and Other Information..15
SECTION 3.2 Liability of Owner for Taxes.......................16
SECTION 3.3 Warranties on Deposit of Shares....................16
SECTION 3.4 Disclosure of Interests............................16
ARTICLE 4. THE DEPOSITED SECURITIES................................17
SECTION 4.1 Cash Distributions.................................17
SECTION 4.2 Distributions Other Than Cash, Shares or Rights....17
SECTION 4.3 Distributions in Shares............................18
SECTION 4.4 Rights.............................................19
SECTION 4.5 Conversion of Foreign Currency.....................20
SECTION 4.6 Fixing of Record Date..............................21
SECTION 4.7 Voting of Deposited Securities.....................22
SECTION 4.8 Changes Affecting Deposited Securities.............23
SECTION 4.9 Reports............................................23
SECTION 4.10 Lists of Owners....................................23
SECTION 4.11 Withholding........................................23
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY..........24
SECTION 5.1 Maintenance of Office and Transfer Books by
the Depositary.....................................24
SECTION 5.2 Prevention or Delay in Performance by the
Depositary or the Company..........................25
SECTION 5.3 Obligations of the Depositary, the Custodian
and the Company....................................26
SECTION 5.4 Resignation and Removal of the Depositary..........27
SECTION 5.5 The Custodians.....................................27
SECTION 5.6 Notices and Reports................................28
SECTION 5.7 Distribution of Additional Shares, Rights, etc.....28
SECTION 5.8 Indemnification....................................29
SECTION 5.9 Charges of Depositary..............................30
SECTION 5.10 Retention of Depositary Documents..................31
SECTION 5.11 Exclusivity........................................31
SECTION 5.12 List of Restricted Securities Owners...............32
ARTICLE 6. AMENDMENT AND TERMINATION...............................32
SECTION 6.1 Amendment..........................................32
SECTION 6.2 Termination........................................32
ARTICLE 7. MISCELLANEOUS...........................................34
SECTION 7.1 Counterparts.......................................34
SECTION 7.2 No Third Party Beneficiaries.......................34
SECTION 7.3 Severability.......................................34
SECTION 7.4 Beneficial Owners and Owners as Parties;
Binding Effect.....................................34
SECTION 7.5 Notices............................................34
SECTION 7.6 Submission to Jurisdiction; Appointment
of Agent for Service of Process....................35
SECTION 7.7 Governing Law......................................36
SECTION 7.8 Compliance with U.S. Securities Laws...............36
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of June __, 2003, among METOREX LIMITED, incorporated
under the laws of South Africa (the "Company"), THE BANK OF NEW YORK, a New York
banking corporation (the "Depositary"), and all Owners and holders from time to
time of American Depositary Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and between
the parties hereto as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1 American Depositary Shares
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent one
Share, until there shall occur a distribution upon Deposited Securities covered
by Section 4.3 or a change in Deposited Securities covered by Section 4.8 with
respect to which additional Receipts are not executed and delivered, and
thereafter American Depositary Shares shall evidence the number of Shares or
Deposited Securities specified in such Sections.
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SECTION 1.2 Beneficial Owner
The term "Beneficial Owner" shall mean each person owning from time to time
any beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 1.3 Business Day
The term "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not (a) a day on which banking institutions in the
Borough of Manhattan, The City of New York are authorized or obligated by law or
executive order to close and (b) a day on which the market(s) in which Receipts
are traded are closed.
SECTION 1.4 Commission
The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
SECTION 1.5 Company
The term "Company" shall mean Metorex Limited, incorporated under the laws
of South Africa, and its successors.
SECTION 1.6 Consultation
The term "consultation" shall include within its meaning the good faith
attempt by the Depositary to discuss the relevant issue in a timely manner with
a person employed by the Company reasonably believed by the Depositary to be
empowered by the Company to engage in such discussion on behalf of the Company.
SECTION 1.7 Custodian
The term "Custodian" shall mean each of the Johannesburg, South Africa
offices of ABSA Bank Limited, First Rand Bank Limited, Societe Generale South
Africa Limited, Standard Bank of South Africa, Mercantile Bank Limited, Nedcor
Limited, as agents of the Depositary for the purposes of this Deposit Agreement,
and any other firm or corporation which may hereafter be appointed by the
Depositary pursuant to the terms of Section 5.5, as substitute or additional
custodian or custodians hereunder, as the context shall require and shall also
mean all of them collectively.
6
SECTION 1.8 Deposit Agreement
The term "Deposit Agreement" shall mean this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.9 Depositary, Corporate Trust Office
The term "Depositary" shall mean The Bank of New York, a New York banking
corporation and any successor as depositary hereunder. The term "Corporate Trust
Office", when used with respect to the Depositary, shall mean the office of the
Depositary which at the date of this Agreement is 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000. If the address of the Corporate Trust Office changes after the
date of this Agreement, the Depositary will give prompt, written notice of such
change to the Company.
SECTION 1.10 Deposited Securities
The term "Deposited Securities" as of any time shall mean Shares at such
time deposited or deemed to be deposited under this Deposit Agreement and any
and all other securities, property and cash received by the Depositary or the
Custodian in respect thereof and at such time held hereunder, subject as to cash
to the provisions of Section 4.5.
SECTION 1.11 Dollars, cents, and Rand
The terms "Dollars" and "cents" shall mean United States dollars and cents,
except as used in Section 1.18, in which the term "cents" shall mean South
African cents. The term "Rand" shall mean South African rand.
SECTION 1.12 Foreign Registrar
The term "Foreign Registrar" shall mean the entity that presently carries
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.13 Owner
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
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SECTION 1.14 Receipts
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
SECTION 1.15 Registrar
The term "Registrar" shall mean any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be appointed to
register Receipts and transfers of Receipts as herein provided.
SECTION 1.16 Restricted Securities
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company or its affiliates (as defined in Rule 144 to the Securities Act of 1933)
in a transaction or chain of transactions not involving any public offering or
which are subject to resale limitations under Regulation D under that Act or
both, or which are held by an officer, director (or persons performing similar
functions) or other affiliate of the Company, or which would require
registration under the Securities Act in connection with the offer and sale
thereof in the United States, or which are subject to other restrictions on sale
or deposit under the laws of the United States or South Africa, or under a
shareholder agreement or the Articles of Association of the Company.
SECTION 1.17 Securities Act of 1933
The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.18 Shares
The term "Shares" shall mean ordinary shares in registered form of the
Company, par value ten (10) South African cents each, heretofore validly issued
and outstanding and fully paid, nonassessable and free of any pre-emptive rights
of the holders of outstanding Shares or hereafter validly issued and outstanding
and fully paid, nonassessable and free of any pre-emptive rights of the holders
of outstanding Shares or interim certificates representing such Shares,
provided, however, that if there shall occur any change in par value, a split-up
or consolidation or any other reclassification or, upon the occurrence of an
event described in Section 4.8, an exchange or conversion in respect of the
Shares, the term "Shares" shall thereafter mean the successor securities
resulting from such change in par value, split-up or consolidation or such other
reclassification or such exchange or conversion.
8
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS.
SECTION 2.1 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in Exhibit
A annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose,
unless such Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized signatory of the Depositary; provided, however,
that such signature may be a facsimile if a Registrar for the Receipts shall
have been appointed and such Receipts are countersigned by the manual signature
of a duly authorized officer of the Registrar. The Depositary shall maintain
books on which each Receipt so executed and delivered as hereinafter provided
and the transfer of each such Receipt shall be registered. Receipts bearing the
manual or facsimile signature of a duly authorized signatory of the Depositary
who was at any time a proper signatory of the Depositary shall bind the
Depositary, notwithstanding that such signatory has ceased to hold such office
prior to the execution and delivery of such Receipts by the Registrar or did not
hold such office on the date of issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or modifications not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulations thereunder or with the rules and
regulations of any securities exchange upon which American Depositary Shares may
be listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are subject
by reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of New York; provided, however, that
the Depositary, notwithstanding any notice to the contrary, may treat the Owner
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes and neither
the Depositary nor the Company will have any obligation or be subject to any
liability under this Deposit Agreement to any holder of a Receipt unless such
holder is the owner thereof.
9
SECTION 2.2 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares or
evidence of rights to receive Shares may be deposited by delivery thereof to any
Custodian hereunder, accompanied by any appropriate instrument or instruments of
transfer, or endorsement, in form satisfactory to the Custodian, together with
all such certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order, a Receipt or Receipts for the number of American Depositary Shares
representing such deposit.
No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary (which may be an opinion of counsel) that any
necessary approval has been granted by any governmental body in South Africa
which is then performing the function of the regulation of currency exchange. If
required by the Depositary, Shares presented for deposit at any time, whether or
not the transfer books of the Company or the Foreign Registrar, if applicable,
are closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents specified
above, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company or the
Foreign Registrar, if applicable, for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine.
10
SECTION 2.3 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition, if the transfer books of the Company or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Company or its
appointed agent that any Deposited Securities have been recorded upon the books
of the Company or the Foreign Registrar, if applicable, in the name of the
Depositary or its nominee or such Custodian or its nominee), together with the
other documents required as specified above, such Custodian shall notify the
Depositary of such deposit and the person or persons to whom or upon whose
written order a Receipt or Receipts are deliverable in respect thereof and the
number of American Depositary Shares to be evidenced thereby. Such notification
shall be made by letter or, at the request, risk and expense of the person
making the deposit, by cable, telex or facsimile transmission. Upon receiving
such notice from such Custodian, or upon the receipt of Shares by the
Depositary, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver at its Corporate Trust Office, to or upon
the order of the person or persons entitled thereto, a Receipt or Receipts,
registered in the name or names and evidencing any authorized number of American
Depositary Shares requested by such person or persons, but only upon payment to
the Depositary of the fees and expenses of the Depositary for the execution and
delivery of such Receipt or Receipts as provided in Section 5.9, and of all
taxes and governmental charges and fees payable in connection with such deposit
and the transfer of the Deposited Securities.
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
11
The Depositary may, appoint one or more co-transfer agents for the purpose
of effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. In carrying out its functions, a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Owners or persons entitled to Receipts
and will be entitled to protection and indemnity to the same extent as the
Depositary. Such co-transfer agent may be removed and substitutes appointed by
the Depositary or upon the request of the Company. Each co-transfer agent
appointed under this Section 2.4 or Section 5.1 (other than The Bank of New
York) shall give notice in writing to the Company and the Depositary accepting
such appointment.
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a Receipt
for the purpose of withdrawal of the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, and upon payment of the
fee of the Depositary for the surrender of Receipts as provided in Section 5.9
and payment of all taxes and governmental charges payable in connection with
such surrender and withdrawal of the Deposited Securities, and subject to the
terms and conditions of this Deposit Agreement, the Company's Articles of
Association, the Deposited Securities and applicable law, the Owner of such
Receipt shall be entitled to delivery, to him or upon his order, of the amount
of Deposited Securities at the time represented by the American Depositary
Shares evidenced by such Receipt. Delivery of such Deposited Securities may be
made by the delivery of (a) certificates in the name of such Owner or as ordered
by him or by certificates properly endorsed or accompanied by proper instruments
of transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of such
Receipts to such Owner or as ordered by him. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver 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 a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the Johannesburg, South
Africa office of such Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the
other terms and conditions of this Deposit Agreement, to or upon the written
order of the person or persons designated in the order delivered to the
Depositary as above provided, the amount of Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, except that the
Depositary may make delivery to such person or persons at the Corporate Trust
Office of the Depositary of any dividends or distributions with respect to the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt, or of any proceeds of sale of any dividends, distributions or
rights, which may at the time be held by the Depositary.
12
At the request, risk and expense of any Owner so surrendering a Receipt,
and for the account of such Owner, the Depositary shall direct the Custodian to
forward any cash or other property (other than rights) comprising, and forward a
certificate or certificates and other proper documents of title for, the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt to the Depositary for delivery at the Corporate Trust Office of the
Depositary. Such direction shall be given by letter or, at the request, risk and
expense of such Owner, by cable, telex or facsimile transmission.
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts and Withdrawal of Deposited Securities.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, Custodian or Registrar may require payment
from the depositor of Shares or the presenter of the Receipt 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 as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.6.
The delivery of Receipts against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding 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 or the Company 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 Deposit Agreement, or for any
other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in this Deposit Agreement or the
Receipts, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended 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, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement 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.
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SECTION 2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled in
accordance with procedures ordinarily followed by stock transfer agents located
in The City of New York.
SECTION 2.9 Pre-Release.
Notwithstanding Section 2.3 hereof, the Depositary may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.2 (a
"Pre-Release"). The Depositary may, pursuant to Section 2.5, deliver Shares upon
the receipt and cancellation of Receipts which have been Pre-Released, whether
or not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such Receipt has been Pre-Released. The Depositary may
receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom Receipts or Shares are to be delivered, that such person, or
its customer, owns the Shares or Receipts to be remitted, as the case may be,
(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 American
Depositary Shares which are outstanding at any time as a result of Pre-Releases
will not normally exceed thirty percent (30%) of the Shares deposited hereunder;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
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The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
SECTION 2.10 Maintenance of Records.
The Depositary agrees to maintain records of all Receipts executed and
delivered by the Depositary under Section 2.3, all Receipts surrendered and
transferred under Section 2.4, all Receipts surrendered and Deposited Securities
withdrawn under Section 2.5, substitute receipts delivered under Section 2.7,
and of cancelled and destroyed Receipts under Section 2.8, in keeping with
procedures ordinarily followed by stock transfer agents located in The City of
New York.
ARTICLE 3 CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
proof of legal or beneficial ownership of Receipts, Deposited Securities or
other securities, proof of the identity of any person legally or beneficially
interested in the Receipt and the nature of such interest, proof of compliance
with all applicable laws and regulations and provisions of or governing
Deposited Securities and the terms of the Deposited Agreement or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or distribution of rights or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made to the Depositary's satisfaction.
15
SECTION 3.2 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented by any Receipt, such tax or other governmental charge
shall be payable by the Owner or Beneficial Owner of such Receipt to the
Depositary. The Depositary may refuse to effect any transfer of such Receipt or
any withdrawal of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Owner or
Beneficial Owner thereof any part or all of the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Owner or Beneficial Owner of such
Receipt shall remain liable for any deficiency.
SECTION 3.3 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and, if applicable, each
certificate therefor are validly issued, fully paid, nonassessable and free of
any preemptive or similar rights of the holders of outstanding Shares and that
the person making such deposit is duly authorized so to do. Every such person
shall also be deemed to represent that such Shares and the Receipts evidencing
American Depositary Shares representing such Shares are not Restricted
Securities. Such representations and warranties shall survive the deposit of
Shares and issuance of Receipts.
SECTION 3.4 Disclosure of Interests.
The Company may from time to time request Owners to provide information as
to the capacity in which such Owners own or owned Receipts and regarding the
identity of any other persons then or previously having a beneficial interest in
such Receipts and the nature of such interest and various other matters. Each
Owner agrees to provide any information requested by the Company or the
Depositary pursuant to this Section 3.4. The Depositary agrees to comply with
reasonable written instructions received from time to time from the Company
requesting that the Depositary forward any such requests to the Owners and to
forward to the Company any such responses to such requests received by the
Depositary.
To the extent that provisions of or governing any Deposited Securities, the
Company's Articles of Association or applicable law may (i) require the
disclosure of beneficial or other ownership of Deposited Securities and other
securities to the Company or (ii) provide for blocking of Owners' transfer and
voting or other rights to enforce such disclosure or limit such ownership, the
Depositary shall use reasonable efforts in order to comply to the extent
practicable with Company instructions as to Receipts in respect of any such
enforcement of limitation. Owners shall comply with all such disclosure
requirements and shall cooperate with the Depositary's compliance with such
instructions and by their holding of Receipts are deemed to consent to any such
limitation or blocking of rights.
16
ARTICLE 4 THE DEPOSITED SECURITIES.
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, subject to the
provisions of Section 4.5, convert such dividend or distribution into Dollars
and shall distribute the amount thus received (net of the fees and expenses of
the Depositary as provided in Section 5.9) to the Owners entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; provided, however, that in the
event that the Company or the Depositary shall be required to withhold and does
withhold from such cash dividend or such other cash distribution an amount on
account of taxes, the amount distributed to the Owner of the Receipts evidencing
American Depositary Shares representing such Deposited Securities shall be
reduced accordingly. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Owner a fraction of one cent.
Any such fractional amounts shall be rounded to the nearest whole cent and so
distributed to Owners entitled thereto. The Company or its agent will remit to
the appropriate governmental agency in South Africa all amounts required to be
withheld and owing to such agency. The Depositary will forward to the Company or
its agent such information from its records as the Company may reasonably
request to enable the Company or its agent to file necessary reports with
governmental agencies, and the Depositary or the Company or its agent may file
any such reports necessary to obtain benefits under the applicable tax treaties
for the Owners of Receipts provided that neither the Depositary nor the Company
shall have any obligation to file such reports.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.9, whenever the Depositary
shall receive any distribution other than a distribution described in Sections
4.1, 4.3 or 4.4, the Depositary shall, after the consultation with the Company,
cause the securities or property received by it to be distributed to the Owners
entitled thereto, after deduction or upon payment of any fees and expenses of
the Depositary or any taxes or other governmental charges, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Owners or Beneficial Owners) the Depositary deems such distribution not to be
feasible, the Depositary may adopt such method as it may reasonably deem
equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees and expenses of the Depositary as provided in Section 5.9)
shall be distributed by the Depositary to the Owners entitled thereto, all in
the manner and subject to the conditions described in Section 4.1 provided,
however, that no distribution to Owners pursuant to this Section 4.2 shall be
unreasonably delayed by any action of the Depositary or any of its agents.
17
SECTION 4.3 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may distribute to the Owners
of outstanding Receipts entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the number of Shares received as such dividend or
free distribution, subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of the fees and
expenses of the Depositary as provided in Section 5.9. The Depositary may
withhold any such distribution of Receipts if it has not received satisfactory
assurances from the Company that such distribution does not require registration
under the Securities Act or is exempt from registration under the provisions of
such Act. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary shall sell the amount of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
all in the manner and subject to the conditions described in Section 4.1
provided, however, that no distribution to Owners pursuant to this Section 4.5
shall be unreasonably delayed by any action of the Depositary or any of its
agents. If additional Receipts are not so distributed, each American Depositary
Share shall thenceforth also represent the additional Shares distributed upon
the Deposited Securities represented thereby.
18
SECTION 4.4 Rights.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of any Owners and making the net
proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason, the Depositary may not either make such rights available
to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse. If at the time
of the offering of any rights the Depositary determines in its discretion that
it is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner hereunder, the Depositary will make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of this Deposit Agreement, and shall, pursuant to Section 2.3 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this section, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
19
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary as provided in
Section 5.9 and all taxes and governmental charges payable in connection with
such rights and subject to the terms and conditions of this Deposit Agreement)
for the account of such Owners otherwise entitled to such rights, warrants or
other instruments, upon an averaged or other practical basis without regard to
any distinctions among such Owners because of exchange restrictions or the date
of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided, that nothing in this
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared effective. If an
Owner of Receipts requests distribution of warrants or other instruments,
notwithstanding that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has received an opinion
from recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Owner is exempt from such
registration.
Neither the Depositary nor the Company shall be responsible for any failure
to determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
SECTION 4.5 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign currency, by
way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9.
20
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
SECTION 4.6 Fixing of Record Date.
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 the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, (a) for the determination of the Owners who shall be
(i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (iii) who shall be responsible
for any fee assessed by the Depositary pursuant to this Deposit Agreement, or
(b) on or after which each American Depositary Share will represent the changed
number of Shares. Subject to the provisions of Sections 4.1 through 4.5 and to
the other terms and conditions of this Deposit Agreement, the Owners on such
record date shall be entitled, as the case may be, to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively and to give
voting instructions and to act in respect of any other such matter.
21
SECTION 4.7 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting received
by the Depositary from the Company, (b) a statement that the Owners as of the
close of business on a specified record date will be entitled, subject to any
applicable provision of South African law and of the Articles of Association of
the Company and the Deposited Securities, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount of Shares or
other Deposited Securities represented by their respective American Depositary
Shares and (c) a statement as to the manner in which such instructions may be
given. Upon the written request of an Owner on such record date, received on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor, in so far as practicable, to vote or cause to be voted the
amount of Shares or other Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. The Depositary shall not vote or attempt to exercise
the right to vote that attaches to the Shares or other Deposited Securities,
other than in accordance with such instructions.
22
SECTION 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not apply, upon any
change in nominal value, change in par value, split-up, 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 a Custodian in exchange for or in conversion of or in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent,
in addition to the existing Deposited Securities, the right to receive the new
Deposited Securities so received in exchange or conversion, unless additional
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may execute and deliver additional Receipts as in the case of a
dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
SECTION 4.9 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are 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 Company. The
Depositary shall also send to the Owners copies of such reports when furnished
by the Company pursuant to Section 5.6.
SECTION 4.10 Lists of Owners.
Upon request by the Company, the Depositary shall, at the expense of the
Company, furnish to it a list, as of a recent date, of the names, addresses and
holdings of American Depositary Shares by all persons in whose names Receipts
are registered on the books of the Depositary.
SECTION 4.11 Withholding.
In connection with any distribution to Owners, the Company or its agent or
the Depositary or its agent, as appropriate, will remit to the appropriate
governmental authority or agency all amounts (if any) required to be withheld by
the Company or Depositary and owing to such authority or agency. The Depositary
will forward to the Company or its agent such information from its records as
the Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental authorities or agencies. Notwithstanding any
other provision of this Deposit Agreement, 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 charge which the
Depositary is obligated to withhold, the Depositary may by public or private
sale dispose of all or a portion of such property (including Shares and rights
to subscribe therefor) in such amounts and in such manner as the Depositary
deems necessary and practicable to pay any such taxes or charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto in proportion to the number
of American Depositary Shares held by them respectively and the Depositary
shall, if feasible without withholding for or on account of taxes or other
governmental charges, without registration of such Shares under the Securities
Act of 1933 and otherwise in compliance with applicable law, distribute any
unsold balance of such cash or property in accordance with the provisions of
this Deposit Agreement.
23
The Depositary will forward to the Company such information from its
records, that it may have in its capacity as Depositary, as the Company may
reasonably request to enable the Company to file necessary reports with
governmental authorities or agencies and either the Company or the Depositary
may file any such reports necessary to obtain benefits under any applicable tax
treaties for Owners.
ARTICLE 5 THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners, provided that such inspection shall
not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Company or a matter related to
this Deposit Agreement or the Receipts.
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 and shall do so at the reasonable request of the Company,
provided that, any such Closing of the transfer books shall be subject to the
provisions of Section 2.6 hereof which will limit the suspension of withdrawal
of Shares.
24
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
The Company shall have the right to inspect at reasonable times transfer
and registration records of the Depositary, the Registrar and any co-transfer
agents or co-registrars and to require such parties to supply copies of such
portions of such records as the Company may reasonably request.
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, if by reason of any provision of any
present or future law, regulation, decree, moratorium or fiat of the United
States, South Africa or any other country, or of any governmental or regulatory
authority or stock exchange, or by reason of any provision, present or future,
of the Articles of Association of the Company, or by reason of any provision of
any securities issued or distributed by the Company, or any offering or
distribution thereof, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or the Company shall be
prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the terms
of this Deposit Agreement or Deposited Securities it is provided shall be done
or performed; nor shall the Depositary or the Company or any of their respective
directors, employees, agents or affiliates incur any liability to any Owner or
Beneficial Owner of any Receipt by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement. Where, by the terms of a distribution pursuant to Sections
4.1, 4.2, or 4.3 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.4 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Owners, and the Depositary
may not dispose of such distribution or offering on behalf of such Owners and
make the net proceeds available to such Owners, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse.
25
SECTION 5.3 Obligations of the Depositary, the Custodian and the Company.
The Company assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to Owners or Beneficial Owners, except that it
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company 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 Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or any
other person believed by it in good faith to be competent to give such advice or
information.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of this Deposit Agreement.
26
SECTION 5.4 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 120 days prior
written notice of such removal, to become effective upon the later of (i) the
120th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
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.
SECTION 5.5 The Custodians.
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, appoint a substitute custodian or custodians, each of
which shall thereafter be a Custodian hereunder. Whenever the Depositary in its
reasonable discretion determines that it is in the best interest of the Owners
to do so, it may appoint a substitute or additional custodian or custodians,
each of which shall thereafter be a Custodian hereunder. Upon demand of the
Depositary any Custodian shall deliver such of the Deposited Securities held by
it as are requested of it to any other Custodian or such substitute or
additional custodian or custodians. Each such substitute or additional custodian
shall deliver to the Depositary, forthwith upon its appointment, an acceptance
of such appointment satisfactory in form and substance to the Depositary.
27
Upon the appointment of any successor depositary hereunder, each Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of each Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.6 Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the translation into English, if not already
in English, to the extent required pursuant to any regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian of such notices and any other reports and communications which are
made generally available by the Company to holders of its Shares. If requested
in writing by the Company, the Depositary will arrange for the mailing, at the
Company's expense, of copies of such notices, reports and communications to all
Owners. The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time
to time, in order for the Depositary to effect such mailings.
SECTION 5.7 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities (each a
"Distribution") the Company shall provide reasonable advance notice of such
event to the Depositary and will promptly furnish to the Depositary upon
reasonable written request by the Depositary a written opinion from U.S. counsel
for the Company, which counsel shall be satisfactory to the Depositary, stating
whether or not the Distribution requires a Registration Statement under the
Securities Act of 1933 to be in effect prior to making such Distribution
available to Owners entitled thereto. If in the opinion of such counsel a
Registration Statement is required, such counsel shall furnish to the Depositary
a written opinion as to whether or not there is a Registration Statement in
effect which will cover such Distribution.
28
Nothing in this Section 5.7 or elsewhere in this Deposit Agreement shall
create any obligation on the part of the Company to file a registration
statement with respect to a Distribution, or to endeavor to have such a
registration statement declared effective.
The Company agrees with the Depositary that neither the Company nor any
company controlled by, controlling or under common control with the Company will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Company or any such affiliate, unless (a) a Registration
Statement is in effect as to such Shares under the Securities Act of 1933 or (b)
the Company has delivered to the Depositary a written opinion of U.S. counsel to
the effect that registration under the Securities Act of 1933 would not be
required if such Shares were sold in the United States.
SECTION 5.8 Indemnification.
The Company agrees to indemnify the Depositary, its directors, employees,
agents and affiliates and any Custodian against, and hold each of them harmless
from, any liability or expense (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted,
in accordance with the provisions of this Deposit Agreement and of the Receipts,
as the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.9) of a Receipt or Receipts in accordance
with Section 2.9 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.9;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not been the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum) or preliminary
prospectus (or preliminary placement memorandum) relating to the offer of sale
of American Depositary Shares, except to the extent any such liability or
expense arises out of (i) information relating to the Depositary or any
Custodian (other than the Company), as applicable, furnished in writing and not
materially changed or altered by the Company expressly for use in any of the
foregoing documents or (ii) if such information is provided, the failure to
state a material fact necessary to make information provided not misleading.
29
The Depositary agrees to indemnify the Company, its directors, employees,
agents and affiliates and hold them harmless from any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted by the Depositary or its
Custodian or their respective directors, employees, agents and affiliates due to
their negligence or bad faith.
SECTION 5.9 Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), whichever applicable: (1) taxes and other governmental charges,
(2) such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the Share register of the
Company or Foreign Registrar and applicable to transfers of Shares to or from
the name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.5, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.3, 4.3 or 4.4 and the surrender of Receipts
pursuant to Section 2.5 or 6.2, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement including, but not limited to, Sections 4.1 through 4.4
hereof, (7) a fee for the distribution of securities pursuant to Section 4.2,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Owners, (8) a fee of $.02 or less per American
Depositary Share (or portion thereof) for depositary services, which will accrue
on the last day of each calendar year and which will be payable as provided in
clause (9) below; provided, however, that no fee will be assessed under the
clause (8) if a fee was charged pursuant to clause (6) above during that
calendar year and (9) any other charge payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the date or dates set by
the Depositary in accordance with Section 4.6 and shall be payable at the sole
discretion of the Depositary by billing such Owners for such charge or by
deducting such charge from one or more cash dividends or other cash
distributions).
30
The Depositary, subject to Section 2.9 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills and
other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Company
requests that such papers be retained for a longer period or turned over to the
Company or to a successor depositary.
SECTION 5.11 Exclusivity.
Subject to Section 5.4, the Company agrees not to appoint any other
depositary for issuance of American Depositary Receipts so long as The Bank of
New York is acting as Depositary hereunder.
31
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a list
setting forth, to the actual knowledge of the Company, those persons or entities
who beneficially own Restricted Securities and the Company shall update that
list on a regular basis. The Company agrees to advise in writing each of the
persons or entities so listed that such Restricted Securities are ineligible for
deposit hereunder. The Depositary may rely on such a list or update but shall
not be liable for any action or omission made in reliance thereon.
ARTICLE 6 AMENDMENT AND TERMINATION.
SECTION 6.1 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or Beneficial Owners of
Receipts in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners, shall, however,
not become effective as to outstanding Receipts until the expiration of thirty
days after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner 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 Deposit Agreement as amended thereby. In
no event shall any amendment impair the right of the Owner of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
SECTION 6.2 Termination.
The Depositary shall at any time at the direction of the Company terminate
this Deposit Agreement by mailing notice of such termination to the Owners of
all Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate this Deposit
Agreement by mailing notice of such termination to the Company and the Owners of
all Receipts then outstanding if at any time 90 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.4. On and after the date of
termination, the Owner of a Receipt will, upon (a) surrender of such Receipt at
the Corporate Trust Office of the Depositary, (b) payment of the fee of the
Depositary for the surrender of Receipts referred to in Section 2.5, and (c)
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 the American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, 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 Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year
from the date of termination, 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, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary under Sections
5.8 and 5.9 hereof.
32
The obligations set forth in this Section shall survive the termination of
the Deposit Agreement and the succession or substitution of any indemnified
person.
33
ARTICLE 7 MISCELLANEOUS.
SECTION 7.1 Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any holder or Owner or Beneficial Owner of a Receipt during business hours.
SECTION 7.2 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
SECTION 7.3 Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Beneficial Owners and Owners as Parties; Binding Effect.
The Owners and Beneficial Owners of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof. Each Owner agrees
that, by accepting a Receipt, such Owner shall hold such Receipt subject to, and
with the obligations of, the provisions hereof, the Articles of Association of
the Company and the Shares.
SECTION 7.5 Notices.
Any and all notices to be given to the Company shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to Metorex Limited, X.X. Xxx 0000,
Xxxxxxxxx, 0000, Xxxxx Xxxxxx, or any other place to which the Company may have
transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if in English and personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed to The Bank of
New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: American
Depositary Receipt Administration, or any other place to which the Depositary
may have transferred its Corporate Trust Office.
34
Any and all notices to be given to any Owner shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to such Owner at the address of such
Owner as it appears on the transfer books for Receipts of the Depositary, or, if
such Owner shall have filed with the Depositary a written request that notices
intended for such Owner be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile transmission
shall be deemed to be effective at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a cable, telex or
facsimile transmission) is deposited, postage prepaid, in a post-office letter
box. The Depositary or the Company may, however, act upon any cable, telex or
facsimile transmission received by it, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6 Submission to Jurisdiction; Appointment of Agent for Service of
Process.
The Company hereby (i) irrevocably designates and appoints CT Corporation,
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, as the
Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, (ii) consents and
submits to the jurisdiction of any state or federal court in the State of New
York in which any such suit or proceeding may be instituted, and (iii) agrees
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. The Company agrees to deliver, upon the execution and delivery of
this Deposit Agreement, a written acceptance by such agent of its appointment as
such agent. The Company further agrees to take any and all action, including the
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment in full force and effect for so long
as any American Depositary Shares or Receipts remain outstanding or this
Agreement remains in force. In the event the Company fails to continue such
designation and appointment in full force and effect, the Company hereby waives
personal service of process upon it and consents that any such service of
process may be made by certified or registered mail, return receipt requested,
directed to the Company at its address last specified for notices hereunder, and
service so made shall be deemed completed five (5) days after the same shall
have been so mailed.
35
SECTION 7.7 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all rights
hereunder and thereunder and provisions hereof and thereof shall be governed by
the laws of the State of New York, except with respect to its authorization and
execution by the Company, which shall be governed by the laws of the Republic of
South Africa.
SECTION 7.8 Compliance with U.S. Securities Laws.
Notwithstanding anything in the Deposit Agreement to the contrary, each of
the Company and the Depositary agrees that it will not exercise any rights it
has under the Deposit Agreement to prevent withdrawal or delivery of Deposited
Securities in a manner which would violate the U.S. securities laws, including,
but not limited to, Section I.A.(1) of the General Instructions to the Form F-6
Registration Statement, as amended from time to time, under the Securities Act
of 1933.
36
IN WITNESS WHEREOF, METOREX LIMITED and THE BANK OF NEW YORK have duly
executed this Deposit Agreement as of the day and year first set forth above and
all Owners and Beneficial Owners shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof.
METOREX LIMITED,
By: _____________________________
Name: Xxxxxxx Xxxxx Xxxxxx
Title: Executive Chairman
THE BANK OF NEW YORK,
as Depositary
By: _____________________________
Name:
Title:
37
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
38
No. _______________________________
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents one deposited Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES
PAR VALUE OF TEN SOUTH AFRICAN CENTS EACH OF
METOREX LIMITED
(INCORPORATED UNDER THE LAWS OF SOUTH AFRICA)
The Bank of New York as depositary (the "Depositary"), hereby certifies that
________________________________, or registered assigns IS THE OWNER OF
____________________________.
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares (herein called "Shares") of Metorex
Limited, incorporated under the laws of South Africa (the "Company"). At the
date hereof, each American Depositary Share represents one Share which is either
deposited or subject to deposit under the deposit agreement at the Johannesburg,
South Africa offices of ABSA Bank Limited, First National Bank, S.A., Societe
Generale South Africa Limited, Standard Bank of South Africa, Nedcor Limited and
Mercantile Bank Limited (each a "Custodian"). The Depositary's Corporate Trust
Office is located at a different address than its principal executive office.
Its Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X.
00000, and its principal executive office is located at 00 Xxxx Xxxxxx, Xxx
Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set
forth in the deposit agreement, dated as of June ____, 2003 (herein called
the "Deposit Agreement"), by and among the Company, the Depositary, and all
Owners and Beneficial Owners from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a party
thereto and become bound by all the terms and conditions thereof. The
Deposit Agreement sets forth the rights of Owners and Beneficial Owners of
the Receipts 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
Depositary's Corporate Trust Office in New York City and at the office of
the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and
subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms defined in the Deposit
Agreement and not defined herein shall have the meanings set forth in the
Deposit Agreement.
In the event of any difference between the statements made on the face or
reverse of this Receipt and the provisions of the Deposit Agreement, the
provisions of the Deposit Agreement shall be dispositive.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fees of the Depositary provided in this
Receipt, and subject to the terms and conditions of the Deposit Agreement,
the Company's Articles of Association, the Deposited Securities and
applicable law, the Owner hereof is entitled to delivery, to him or upon
his order, of the Deposited Securities at the time represented by the
American Depositary Shares for which this Receipt is issued. Delivery of
such Deposited Securities may be made by the delivery of (a) certificates
in the name of the Owner hereof or as ordered by him or by the delivery of
certificates properly endorsed or accompanied by proper instruments of
transfer and (b) any other securities, property and cash to which such
Owner is then entitled in respect of this Receipt. Such delivery will be
made at the option of the Owner hereof, either at the office of the
Custodian or at the Corporate Trust Office of the Depositary, provided that
the forwarding of certificates for Shares or other Deposited Securities for
such delivery at the Corporate Trust Office of the Depositary shall be at
the risk and expense of the Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds
sufficient to pay any applicable transfer taxes and the expenses of the
Depositary 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, evidencing the same aggregate number of American Depositary Shares
as the Receipt or Receipts surrendered. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination, or
surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary, the Custodian, or Registrar may require payment from the
depositor of the Shares or the presentor of the Receipt 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 as provided in this Receipt, may require the
production of proof satisfactory to it as to the identity and genuineness
of any signature and may also require compliance with any regulations the
Depositary may establish consistent with the provisions of the Deposit
Agreement or this Receipt, including, without limitation, this Article 3.
2
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts
in particular instances may be refused, or the registration of transfer of
outstanding 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 or the Company 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 the Deposit
Agreement or this Receipt, or for any other reason, subject to the
provisions of the following sentence. Notwithstanding anything to the
contrary in the Deposit Agreement or this Receipt, the surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be
suspended 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, and (iii)
compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under the Deposit Agreement 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.
4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or
other governmental charge shall be payable by the Owner or Beneficial Owner
hereof to the Depositary. The Depositary may refuse to effect any transfer
of this Receipt or any withdrawal of Deposited Securities represented by
American Depositary Shares evidenced by such Receipt until such payment is
made, and may withhold any dividends or other distributions, or may sell
for the account of the Owner or Beneficial Owner hereof any part or all of
the Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, and may apply such dividends or other
distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner or Beneficial Owner hereof shall
remain liable for any deficiency.
3
5. WARRANTIES ON DEPOSIT OF SHARES
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and, if applicable, each
certificate therefor are validly issued, fully paid, non assessable, and
free of any preemptive or similar rights of the holders of outstanding
Shares and that the person making such deposit is duly authorized so to do.
Every such person shall also be deemed to represent that such Shares and
the Receipts evidencing American Depositary Shares representing such Shares
are not Restricted Securities. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary
or the Custodian such proof of citizenship or residence, exchange control
approval proof of legal or beneficial ownership of Receipts, Deposited
Securities or other securities, proof of the identity of any person legally
or beneficially interested in the Receipt and the nature of such interest,
proof of compliance with all applicable laws and regulations and provisions
of or governing Deposited Securities and the terms of the Deposited
Agreement, or such information relating to the registration on the books of
the Company or the Foreign Registrar, if applicable, to execute such
certificates and to make such representations and warranties, as the
Depositary may deem necessary or proper. The Depositary may, withhold the
delivery or registration of transfer of any Receipt or the distribution of
any dividend or sale or distribution of rights or of the proceeds thereof
or the delivery of any Deposited Securities until such proof or other
information is filed or such certificates are executed or such
representations and warranties are made to the Depositary's satisfaction.
No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary (which may be an opinion of counsel) that
any necessary approval has been granted by any governmental body in South
Africa which is then performing the function of the regulation of currency
exchange.
7. CHARGES OF DEPOSITARY
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance
with agreements in writing entered into between the Depositary and the
Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company once every three months. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom
Receipts are issued (including, without limitation, issuance pursuant to a
stock dividend or stock split declared by the Company or an exchange of
stock regarding the Receipts or Deposited Securities or a distribution of
Receipts pursuant to Section 4.3 of the Deposit Agreement), whichever
applicable: (1) taxes and other governmental charges, (2) such registration
fees as may from time to time be in effect for the registration of
transfers of Shares generally on the Share register of the Company or
Foreign Registrar and applicable to transfers of Shares to the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals under the terms of the Deposit Agreement, (3) such
cable, telex and facsimile transmission expenses as are expressly provided
in the Deposit Agreement, (4) such expenses as are incurred by the
Depositary in the conversion of foreign currency pursuant to Section 4.5 of
the Deposit Agreement, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.3, 4.3 or 4.4 of the Deposit Agreement and
the surrender of Receipts pursuant to Section 2.5 or 6.2 of the Deposit
Agreement, (6) a fee of $.02 or less per American Depositary Share (or
portion thereof) for any cash distribution made pursuant to the Deposit
Agreement including, but not limited to, Sections 4.1 through 4.4 of the
Deposit Agreement, (7) a fee for the distribution of securities pursuant to
Section 4.2 of the Deposit Agreement, such fee being in an amount equal to
the fee for the execution and delivery of American Depositary Shares
referred to above which would have been charged as a result of the deposit
of such securities (for purposes of this clause 7 treating all such
securities as if they were Shares), but which securities are instead
distributed by the Depositary to Owners, (8) a fee of $.02 or less per
American Depositary Share (or portion thereof) for depositary services,
which will accrue on the last day of each calendar year and which will be
payable as provided in clause (9) below; provided, however, that no fee
will be assessed under clause (8) if a fee was charged pursuant to clause
(6) above during the calendar year and (9) any other charge payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of
Shares or other Deposited Securities (which charge shall be assessed
against Owners as of the date or dates set by the Depositary in accordance
with Section 4.6 of the Deposit Agreement and shall be collected at the
sole discretion of the Depositary by billing such Owners for such charge or
by deducting such charge from one or more cash dividends or other cash
distributions).
4
The Depositary, subject to Section 2.9 of the Deposit Agreement hereof, may
own and deal in any class of securities of the Company and its affiliates
and in Receipts.
8. PRE-RELEASE OF RECEIPTS
Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary may
execute and deliver Receipts prior to the receipt of Shares pursuant to
Section 2.02 of the Deposit Agreement (a "Pre-Release"). The Depositary
may, pursuant to Section 2.05 of the Deposit Agreement, deliver Shares upon
the receipt and cancellation of Receipts which have been Pre-Released,
whether or not such cancellation is prior to the termination of such
Pre-Release or the Depositary knows that such Receipt has been
Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts or
Shares are to be delivered that such person, or its customer, owns the
Shares or Receipts to be remitted, as the case may be, (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
American Depositary Shares which are outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited under the Deposit Agreement; provided, however, that the
Depositary reserves the right to change or disregard such limit from time
to time as it deems appropriate.
5
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS
It is a condition of this Receipt and every successive Beneficial Owner 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 instruments of transfer, is transferable by delivery
with the same effect as in the case of a negotiable instrument under the
laws of New York, provided, however, that 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 person entitled to distribution of
dividends or other distributions or to any notice provided for in the
Deposit Agreement or for all other purposes and neither the Company nor the
Depositary will have any obligation or be subject to any liability under
the Deposit Agreement to any holder of this Receipt, unless such holder is
the owner hereof.
10. VALIDITY OF RECEIPT
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt
shall have been executed by the Depositary by the manual signature of a
duly authorized signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts shall have
been appointed and such Receipts are countersigned by the manual signature
of a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and
documents required by foreign law or otherwise under Rule 12g3-2(b) under
the Securities Exchange Act of 1934. Such reports and communications will
be available for inspection and copying by Beneficial Owners and Owners at
the public reference facilities maintained by the Commission located at 000
Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any
proxy soliciting material, received from the Company which are 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 Company. The Depositary will also send to Owners of Receipts copies of
such reports when furnished by the Company pursuant to the Deposit
Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English to the extent such materials are required to be
translated into English pursuant to any regulations of the Commission.
6
The Depositary will keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable
times shall be open for inspection by the Owners of Receipts provided that
such inspection shall not be for the purpose of communicating with Owners
of Receipts in the interest of a business or object other than the business
of the Company or a matter related to the Deposit Agreement or the
Receipts.
12. DIVIDENDS AND DISTRIBUTIONS
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the
time of receipt thereof any amounts received in a foreign currency can in
the judgment of the Depositary be converted on a reasonable basis into
United States dollars transferable to the United States, and subject to the
Deposit Agreement, convert such dividend or distribution into dollars and
will distribute the amount thus received (net of the fees and expenses of
the Depositary as provided in Article 7 hereof and Section 5.9 of the
Deposit Agreement) to the Owners of Receipts entitled thereto, provided,
however, that in the event that the Company 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, the amount distributed to the Owners of the Receipts evidencing
American Depositary Shares representing such Deposited Securities shall be
reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit
Agreement, the Depositary will, after consultation with the Company, cause
the securities or property received by it to be distributed to the Owners
entitled thereto, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if
in the opinion of the Depositary such distribution cannot be made
proportionately among the Owners of Receipts entitled thereto, or if for
any other reason the Depositary deems such distribution not to be feasible,
the Depositary may adopt such method as it may deem equitable and
practicable for the purpose of effecting such distribution, including, but
not limited to, the public or private sale of the securities or property
thus received, or any part thereof, and the net proceeds of any such sale
(net of the fees and expenses of the Depositary as provided in Article 7
hereof and Section 5.9 of the Deposit Agreement) will be distributed by the
Depositary to the Owners of Receipts entitled thereto all in the manner and
subject to the conditions described in Section 4.1 of the Deposit
Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may distribute to the
Owners of outstanding Receipts entitled thereto in proportion to the number
of American Depositary Shares representing such Deposited Securities
evidenced by Receipts held by them respectively, additional Receipts
evidencing an aggregate number of American Depositary Shares representing
the amount of Shares received as such dividend or free distribution subject
to the terms and conditions of the Deposit Agreement with respect to the
deposit of Shares and the issuance of American Depositary Shares evidenced
by Receipts, including the withholding of any tax or other governmental
charge as provided in Section 4.11 of the Deposit Agreement and the payment
of the fees and expenses of the Depositary as provided in Article 7 hereof
and Section 5.9 of the Deposit Agreement. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary
will sell the amount of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to
the conditions described in Section 4.1 of the Deposit Agreement. If
additional Receipts are not so distributed, each American Depositary Share
shall thenceforth also represent the additional Shares distributed upon the
Deposited Securities represented thereby.
7
In connection with any distribution to Owners, the Company or its agent or
the Depositary or its agent, as appropriate, will remit to the appropriate
governmental authority or agency all amounts (if any) required to be
withheld by the Company or Depositary and owing to such authority or
agency. The Depositary will forward to the Company or its agent such
information from its records as the Company may reasonably request to
enable the Company or its agent to file necessary reports with governmental
authorities or agencies. Notwithstanding any other provision of the Deposit
Agreement, 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 charge which the
Depositary is obligated to withhold, the Depositary may by public or
private sale dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay any such taxes or charges
and the Depositary shall distribute the net proceeds of any such sale after
deduction of such taxes or charges to the Owners entitled thereto in
proportion to the number of American Depositary Shares held by them
respectively and the Depositary shall, if feasible without withholding for
or on account of taxes or other governmental charges, without registration
of such Shares under the Securities Act of 1933 and otherwise in compliance
with applicable law, distribute any unsold balance of such cash or property
in accordance with the provisions of the Deposit Agreement.
The Depositary will forward to the Company such information from its
records, that it may have in its capacity as Depositary, as the Company may
reasonably request to enable the Company to file necessary reports with
governmental authorities or agencies and either the Company or the
Depositary may file any such reports necessary to obtain benefits under any
applicable tax treaties for Owners.
8
13. CONVERSION OF FOREIGN CURRENCY
Whenever the Depositary or the Custodian shall receive foreign currency, by
way of dividends or other distributions or the net proceeds from the sale
of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the
Depositary be converted on a reasonable basis into Dollars and the
resulting Dollars transferred to the United States, the Depositary shall
convert or cause to be converted, by sale or in any other manner that it
may determine, such foreign currency into Dollars, and such Dollars shall
be distributed to the Owners entitled thereto or, if the Depositary shall
have distributed any warrants or other instruments which entitle the
Benefical Owners thereof to such Dollars, then to the Benefical Owners of
such warrants and/or instruments upon surrender thereof for cancellation.
Such distribution may be made upon an averaged or other practicable basis
without regard to any distinctions among Owners on account of exchange
restrictions, the date of delivery of any Receipt or otherwise and shall be
net of any expenses of conversion into Dollars incurred by the Depositary
as provided in Section 5.9 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file
such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not
convertible on a reasonable basis into Dollars transferable to the United
States, or if any approval or license of any government or agency thereof
which is required for such conversion is denied or in the opinion of the
Depositary is not obtainable, or if any such approval or license is not
obtained within a reasonable period as determined by the Depositary, the
Depositary may distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary to, or in its discretion may hold such foreign currency
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary
to, or hold such balance uninvested and without liability for interest
thereon for the respective accounts of, the Owners entitled thereto.
14. RIGHTS
In the event that the Company shall offer or cause to be offered to the
Beneficial Owners of any Deposited Securities any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary, shall,
after consultation with the Company, have discretion as to the procedure to
be followed in making such rights available to any Owners or in disposing
of such rights on behalf of any Owners and making the net proceeds
available to such Owners or, if by the terms of such rights offering or,
for any other reason, the Depositary may not either make such rights
available to any Owners or dispose of such rights and make the net proceeds
available to such Owners, then the Depositary shall allow the rights to
lapse. If at the time of the offering of any rights the Depositary
determines in its discretion that it is lawful and feasible to make such
rights available to all or certain Owners but not to other Owners, the
Depositary may distribute, to any Owner to whom it determines the
distribution to be lawful and feasible, in proportion to the number of
American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
9
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American
Depositary Shares of such Owner hereunder, the Depositary will make such
rights available to such Owner upon written notice from the Company to the
Depositary that (a) the Company has elected in its sole discretion to
permit such rights to be exercised and (b) such Owner has executed such
documents as the Company has determined in its sole discretion are
reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant
to such warrants or other instruments to the Depositary from such Owner to
exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the
Shares to be received upon the exercise of the rights, and upon payment of
the fees and expenses of the Depositary and any other charges as set forth
in such warrants or other instruments, the Depositary shall, on behalf of
such Owner, exercise the rights and purchase the Shares, and the Company
shall cause the Shares so purchased to be delivered to the Depositary on
behalf of such Owner. As agent for such Owner, the Depositary will cause
the Shares so purchased to be deposited pursuant to Section 2.2 of the
Deposit Agreement, and shall, pursuant to Section 2.3 of the Deposit
Agreement, execute and deliver Receipts to such Owner. In the case of a
distribution pursuant to the second paragraph of this Article 13 and
Section 4.4 of the Deposit Agreement, such Receipts shall be legended in
accordance with applicable U.S. laws, and shall be subject to the
appropriate restrictions on sale, deposit, cancellation, and transfer under
such laws.
If the Depositary determines in its discretion, that it is not lawful and
feasible to make such rights available to all or certain Owners, it may
sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Owners to whom it has determined
it may not lawfully or feasibly make such rights available, and allocate
the net proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Section 5.9 of the Deposit Agreement and all
taxes and governmental charges payable in connection with such rights and
subject to the terms and conditions of the Deposit Agreement) for the
account of such Owners otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to
any distinctions among such Owners because of exchange restrictions or the
date of delivery of any Receipt or otherwise.
10
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a
distribution to all Owners or are registered under the provisions of such
Act; provided, that nothing in the Deposit Agreement shall create any
obligation on the part of the Company to file a registration statement with
respect to such rights or underlying securities or to endeavor to have such
a registration statement declared effective. If an Owner of Receipts
requests the distribution of warrants or other instruments, notwithstanding
that there has been no such registration under such Act, the Depositary
shall not effect such distribution unless it has received an opinion from
recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Owner is exempt from
such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
15. 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 the Deposited Securities, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or
other Deposited Securities, or whenever for any reason the Depositary
causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall find it
necessary or convenient, the Depositary shall fix a record date, (a) for
the determination of the Owners of Receipts who shall be (i) entitled to
receive such dividend, distribution or rights or the net proceeds of the
sale thereof or (ii) entitled to give instructions for the exercise of
voting rights at any such meeting, or (iii) who shall be responsible for
any fee assessed by the Depositary pursuant to this Deposit Agreement, or
(b) on or after which each American Depositary Share will represent the
changed number of Shares, subject to the provisions of the Deposit
Agreement.
16. VOTING OF DEPOSITED SECURITIES
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the
Depositary shall, as soon as practicable thereafter, mail to the Owners of
Receipts a notice, the form of which notice shall be in the sole discretion
of the Depositary, which shall contain (a) such information as is contained
in such notice of meeting received by the Depositary from the Company, (b)
a statement that the Owners of Receipts as of the close of business on a
specified record date will be entitled, subject to any applicable provision
of law and of the Articles of Association of the Company, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to
the amount of Shares or other Deposited Securities represented by their
respective American Depositary Shares and (c) a statement as to the manner
in which such instructions may be given. Upon the written request of an
Owner of a Receipt on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall
endeavor in so far as practicable to vote or cause to be voted the amount
of Shares or other Deposited Securities represented by such American
Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or
attempt to exercise the right to vote that attaches to the Shares or other
Deposited Securities, other than in accordance with such instructions.
11
17. CHANGES AFFECTING DEPOSITED SECURITIES
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par
value, split-up, 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 a
Custodian in exchange for or in conversion of or in respect of Deposited
Securities shall be treated as new Deposited Securities under the Deposit
Agreement, and American Depositary Shares shall thenceforth represent, in
addition to the existing Deposited Securities, the right to receive the new
Deposited Securities so received in exchange or conversion, unless
additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may execute and deliver additional Receipts as
in the case of a dividend on the Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, if by reason of any provision of
any present or future law, regulation, order, decree, moratorium or fiat of
the United States or any other country, or of any other governmental or
regulatory authority, or by reason of any provision, present or future, of
the Articles of Association of the Company, or by reason of any provision
of any securities issued or distributed by the Company, or any offering or
distribution thereof, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or the Company shall be
prevented, delayed or forbidden from or be subject to any civil or criminal
penalty on account of doing or performing any act or thing which by the
terms of the Deposit Agreement or Deposited Securities it is provided shall
be done or performed; nor shall the Depositary or the Company or any of
their respective directors, officers, employees, agents or affiliates incur
any liability to any Owner or Beneficial Owner of a Receipt by reason of
any non-performance or delay, caused as aforesaid, in the performance of
any act or thing which by the terms of the Deposit Agreement it is provided
shall or may be done or performed, or by reason of any exercise of, or
failure to exercise, any discretion provided for in the Deposit Agreement
or the Company's Articles of Association. Where, by the terms of a
distribution pursuant to Sections 4.1, 4.2 or 4.3 of the Deposit Agreement,
or an offering or distribution pursuant to Section 4.4 of the Deposit
Agreement, such distribution or offering may not be made available to
Owners of Receipts, and the Depositary may not dispose of such distribution
or offering on behalf of such Owners and make the net proceeds available to
such Owners, then the Depositary shall not make such distribution or
offering, and shall allow any rights, if applicable, to lapse. Neither the
Company nor the Depositary assumes any obligation or shall be subject to
any liability under the Deposit Agreement to Owners or Beneficial Owners of
Receipts, except that they agree to perform their obligations specifically
set forth in the Deposit Agreement without negligence or bad faith. The
Depositary shall not be subject to any liability with respect to the
validity or worth of the Deposited Securities. Neither the Depositary nor
the Company 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 Receipts, which in its opinion may involve
it in expense or liability, unless indemnity satisfactory to it against all
expense and liability shall be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to
such proceedings, the responsibility of the Custodian being solely to the
Depositary. Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit,
any Owner or Beneficial Owner of a Receipt, or any other person believed by
it in good faith to be competent to give such advice or information. The
Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that
any such action or nonaction is in good faith. The Depositary shall not be
liable for any acts or omissions made by a successor depositary whether in
connection with a previous act or omission of the Depositary or in
connection with a matter arising wholly after the removal or resignation of
the Depositary, provided that in connection with the issue out of which
such potential liability arises the Depositary performed its obligations
without negligence or bad faith while it acted as Depositary. The Company
agrees to indemnify the Depositary, its directors, employees, agents and
affiliates and any Custodian against, and hold each of them harmless from,
any liability or expense (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or
omitted, in accordance with the provisions of the Deposit Agreement and of
the Receipts, as the same may be amended, modified, or supplemented from
time to time, (i) by either the Depositary or a Custodian or their
respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either
of them, or (ii) by the Company or any of its directors, employees, agents
and affiliates. No disclaimer of liability under the Securities Act of 1933
is intended by any provision of the Deposit Agreement.
12
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company, such resignation
to take effect upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may be removed by the Company by 120 days' prior written notice
of such removal, to become effective upon the later of (i) the 120th day
after delivery of the notice to the Depositary and (ii) the appointment of
a successor depositary and its acceptance of such appointment as provided
in the Deposit Agreement. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners of Receipts to do
so, it may appoint a substitute or additional custodian or custodians.
13
20. AMENDMENT
The form of the Receipts and any provisions of the Deposit Agreement may at
any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or Beneficial Owners of
Receipts in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than
taxes and other governmental charges, registration fees and cable, telex or
facsimile transmission costs, delivery costs or other such expenses), or
which shall otherwise prejudice any substantial existing right of Owners of
Receipts, shall, however, not become effective as to outstanding Receipts
until the expiration of thirty days after notice of such amendment shall
have been given to the Owners of outstanding Receipts. Every Owner of a
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 Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Owner of any Receipt to surrender
such Receipt and receive therefor the Deposited Securities represented
thereby except in order to comply with mandatory provisions of applicable
law.
21. TERMINATION OF DEPOSIT AGREEMENT
The Depositary, at any time at the direction of the Company, shall
terminate the Deposit Agreement by mailing notice of such termination to
the Owners of all Receipts then outstanding at least 90 days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement by mailing notice of such termination to
the Company and the Owners of all Receipts then outstanding if at any time
90 days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment as
provided in the Deposit Agreement. On and after the date of termination,
the Owner of a Receipt, will upon (a) surrender of such Receipt at the
Corporate Trust Office of the Depositary, (b) payment of the fee of the
Depositary for the surrender of Receipts referred to in Section 2.5 of the
Deposit Agreement, and (c) 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 the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after
the date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners 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 and other property as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, 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 Receipts surrendered to the Depositary
(after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). At any time after the expiration
of one year from the date of termination, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and may
thereafter hold uninvested the net proceeds of any such sale, together with
any other cash then held by it thereunder, unsegregated and without
liability for interest, for the pro rata benefit of the Owners of Receipts
which have not theretofore been surrendered, such Owners thereupon becoming
general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement to account for such net proceeds
and other cash (after deducting, in each case, the fee of the Depositary
for the surrender of a Receipt, any expenses for the account of the Owner
of such Receipt in accordance with the terms and conditions of the Deposit
Agreement, and any applicable taxes or governmental charges). Upon the
termination of the Deposit Agreement, the Company shall be discharged from
all obligations under the Deposit Agreement except for its obligations to
the Depositary with respect to indemnification, charges and expenses.
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22. DISCLOSURE OF INTEREST
The Company may from time to time request Owners to provide information as
to the capacity in which such Owners own or owned Receipts and regarding
the identity of any other persons then or previously having a beneficial
interest in such Receipts and the nature of such interest and various other
matters. Each Owner agrees to provide any information requested by the
Company or the Depositary pursuant to Section 3.4 of the Deposit Agreement.
The Depositary agrees to comply with reasonable written instructions
received from time to time from the Company requesting that the Depositary
forward any such requests to the Owners and to forward to the Company any
such responses to such requests received by the Depositary.
To the extent that provisions of or governing any Deposited Securities, the
Company's Articles of Association or applicable law may (i) require the
disclosure of beneficial or other ownership of Deposited Securities and
other securities to the Company or (ii) provide for blocking of Owners'
transfer and voting or other rights to enforce such disclosure or limit
such ownership, the Depositary shall use reasonable efforts in order to
comply to the extent practicable with Company instructions as to Receipts
in respect of any such enforcement of limitation. Owners shall comply with
all such disclosure requirements and shall cooperate with the Depositary's
compliance with such instructions and by their holding of Receipts are
deemed to consent to any such limitation or blocking of rights.
23. SUBMISSION TO JURISDICTION: APPOINTMENT OF AGENT FOR SERVICE OF PROCESS
The Company hereby (i) irrevocably designates and appoints CT Corporation,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, as
the Company's authorized agent upon which process may be served in any suit
or proceeding arising out of or relating to the Shares or Deposited
Securities, the American Depositary Shares, the Receipts or this Agreement,
(ii) consents and submits to the jurisdiction of any state or federal court
the State of New York in which any such suit or proceeding may be
instituted, and (iii) agrees that service of process upon said authorized
agent shall be deemed in every respect effective service of process upon
the Company in any such suit or proceeding. The Company agrees to deliver,
upon the execution and delivery of this Deposit Agreement, a written
acceptance by such agent of its appointment as such agent. The Company
further agrees to take any and all action, including the filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment in full force and effect for so long as any
American Depositary Shares or Receipts remain outstanding or this Agreement
remains in force. In the event the Company fails to continue such
designation and appointment in full force and effect, the Company hereby
waives personal service of process upon it and consents that any such
service of process may be made by certified or registered mail, return
receipt requested, directed to the Company at its address last specified
for notices hereunder, and service so made shall be deemed completed five
(5) days after the same shall have been so mailed.
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24. COMPLIANCE WITH U.S. SECURITIES LAWS
Notwithstanding anything in the Deposit Agreement to the contrary, each of
the Company and the Depositary agrees that it will not exercise any rights
it has under the Deposit Agreement to prevent withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities
laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time
to time, under the Securities Act of 1933.
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