[W&C Draft: (London) 25 February, 2008]
Dated February [_], 2008
MARKS AND XXXXXXX GROUP P.L.C.
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
SUPPLEMENTAL AGREEMENT No. 1
in relation to
the Deposit Agreement dated as of March 19, 2002
concerning
American Depositary Receipts
in respect of ordinary shares of
MARKS AND XXXXXXX GROUP P.L.C.
White & Case LLP
0 Xxx Xxxxx Xxxxxx
Xxxxxx XX0x 0XX
THIS SUPPLEMENTAL AGREEMENT No. 1, dated as of February [_], 2008 (this
"Agreement"), is entered into, by and among Marks and Xxxxxxx Group p.l.c., a
company incorporated and existing under the laws of England and Wales (the
"Company", which term shall include its successors)and Deutsche Bank Trust
Company Americas, a New York banking corporation and an indirect wholly owned
subsidiary of Deutsche Bank AG, in its capacity as the successor depositary (the
"Depositary").
W I T N E S S E T H T H A T:
WHEREAS, the Company and JPMorgan Chase Bank (the "Predecessor Depositary")
are party, with such Holders and Beneficial Owners, to a Deposit Agreement dated
as of March 19, 2002 (the "Deposit Agreement") which was entered into for the
purposes set forth therein;
WHEREAS, by written notice dated February 13, 2008 addressed to the
Predecessor Depositary, the Company, pursuant to Section 5.04 of the Deposit
Agreement and paragraph 19 of the form of Receipt, has given notice of its
intention to remove the Predecessor Depositary as depositary under the Deposit
Agreement and appoint Deutsche Bank Trust Company Americas as Depositary in
accordance with and subject to the conditions of the Deposit Agreement, as
amended and supplemented by this Agreement;
WHEREAS, the Company and the Predecessor Depositary have agreed that the
Predecessor Depositary, in consideration of the payment of certain fees and
expenses of the Predecessor Depositary, will be removed as depositary under the
Deposit Agreement with effect from the Effective Date (as defined in Section
6.01 hereof);
WHEREAS, the Company and the Depositary have agreed that the Predecessor
Depositary shall duly assign, transfer and deliver to the Depositary all right,
title and interest in the Deposited Securities as provided in Section 5.04 of
the Deposit Agreement;
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WHEREAS, Deutsche Bank Trust Company Americas has accepted its appointment
as Depositary, with effect from the Effective Date, in accordance with and
subject to the conditions of the Deposit Agreement, as amended and supplemented
by this Agreement;
WHEREAS, the Company desires to provide for the deposit of Shares with the
Depositary or the Custodian as agent for the Depositary and for the execution
and delivery of Receipts evidencing American Depositary Shares representing
beneficial interests in the Shares so deposited; and
WHEREAS, the Company and the Depositary desire to amend and supplement the
terms of the Deposit Agreement and form of Receipt, in accordance with Section
6.01 of the Deposit Agreement and Condition 20 of the form of Receipt, inter
alia to reflect the removal by the Company of JPMorgan Chase Bank, as the
depositary, and the appointment of Deutsche Bank Trust Company Americas, as the
successor depositary, in accordance with Section 5.04 of the Deposit Agreement
and paragraph 19 of the form of Receipt.
NOW, THEREFORE, the Company hereby confirms the appointment of the
Depositary and the Company and the Depositary hereby amend and supplement the
Receipts and the Deposit Agreement, effective as of the Effective Date, as
follows:
ARTICLE I
CONFIRMATION OF APPOINTMENT AND ACCEPTANCE OF DEPOSITARY
Section 1.01 The Company hereby confirms its appointment of the
Depositary as successor Depositary under the Deposit Agreement from the
Effective Date.
Section 1.02 The Depositary hereby accepts the appointment referred to
above and agrees to observe and be bound by the terms of the Deposit Agreement,
as amended and supplemented by this Agreement, as if the Depositary had been
originally appointed as Depositary under the Deposit Agreement but with effect
from the Effective Date.
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ARTICLE II
DEFINITIONS
Section 2.01 Definitions Generally. Unless otherwise defined in this
Agreement, terms used herein (including in the Preamble and the Recitals hereto)
and defined in the Deposit Agreement are used herein as so defined.
ARTICLE III
AMENDMENTS TO DEPOSIT AGREEMENT
Section 3.01 All references in the Deposit Agreement to "JPMorgan Chase
Bank" are hereby replaced with references to "Deutsche Bank Trust Company
Americas." All references in the Deposit Agreement to "JPMorgan Chase Bank" or
the "Depositary" shall be read and construed as references to "Deutsche Bank
Trust Company Americas."
Section 3.02 All references in the Deposit Agreement to the "Deposit
Agreement" shall hereby mean the Deposit Agreement, as amended and supplemented
by this Agreement and as further amended and supplemented from time to time.
Section 3.03 The Deposit Agreement is hereby amended and supplemented by
deleting the words "JPMorgan Chase Bank, a New York corporation" from the
Preamble to it and replacing them with the words "Deutsche Bank Trust Company
Americas, a New York banking corporation and an indirect wholly owned subsidiary
of Deutsche Bank AG."
Section 3.04 The Deposit Agreement is hereby amended and supplemented by
replacing the word "six" with the word "two" in Section 1.01.
Section 3.05 The Deposit Agreement is hereby amended and supplemented by
inserting the following parenthetical within the first sentence in Section 4.01
following the phrase "distribute the amount thus received":
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(net of the applicable fees and charges of, and expenses incurred by, the
Depositary and taxes withheld)
Section 3.06 The Deposit Agreement is hereby amended and supplemented by
replacing the last sentence of Section 4.01 with the following:
The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent. Any
such fractional amounts shall be rounded to the nearest whole cent and so
distributed to Holders entitled thereto. Holders and Beneficial Owners
understand that in converting foreign currency, amounts received on
conversion are calculated at a rate which exceeds three or four decimal
places (the number of decimal places used by the Depositary to report
distribution rates). The excess amount may be retained by the Depositary as
an additional cost of conversion, irrespective of any other fees and
expenses payable or owing hereunder and shall not be subject to
escheatment. If the Company, the Custodian or the Depositary is required to
withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, duties or other governmental charges, the amount distributed to
Holders on the American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. Such withheld amounts shall be
forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request. 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, including such reports
necessary to obtain benefits under the applicable tax treaties for the
Holders and Beneficial Owners of Receipts.
Section 3.07 The Deposit Agreement is hereby amended and supplemented by
adding the following paragraphs following the last sentence of Section 4.07:
In the event that the Depositary (i) timely receives voting
instructions from a Holder which fail to specify the manner in which the
Depositary is to vote the Deposited Securities represented by such Holder's
ADSs or (ii) if no instructions are received by the Depositary from a
Holder with respect to any of the Deposited Securities represented by the
ADSs evidenced by such Holder's ADRs on or before the ADS Record Date
established by the Depositary for such purpose, the Depositary shall
(unless otherwise specified in the notice distributed to Holders) deem such
Holder to have instructed the Depositary to give a discretionary proxy to a
person designated by the Company with respect to such Deposited Securities
and the Depositary shall give a discretionary proxy to a person designated
by the Company to vote such Deposited Securities, provided, however, that
no such instruction shall be deemed given and no such discretionary proxy
shall be given with respect to any matter as to which the Company informs
the Depositary (and the Company agrees to provide such information as
promptly as practicable in writing, if applicable) that (x) the Company
does not wish to give such proxy, (y) the Company is aware or should
reasonably be aware that substantial opposition exists from Holders against
the outcome for which the person designated by the Company would otherwise
vote or (z) the outcome for which the person designated by the Company
would otherwise vote would materially and adversely affect the rights of
holders of Shares, provided, further, that the Company will have no
liability to any Holder or Beneficial Owner resulting from such
notification.
Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting, and neither the
Depositary nor the Custodian shall vote, attempt to
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exercise the right to vote or in any way make use of for purposes of
establishing a quorum or otherwise, the Shares or other Deposited
Securities represented by American Depositary Shares except pursuant to and
in accordance with such written instructions from Holders, including the
deemed instruction to the Depositary to give a discretionary proxy to a
person designated by the Company. Shares or other Deposited Securities
represented by ADSs for which no specific voting instructions are received
by the Depositary from the Holder shall not be voted except as aforesaid.
There can be no assurance that Holders or Beneficial Owners generally
or any Holder or Beneficial Owner in particular will receive the notice
described above in sufficient time to enable the Holder to return voting
instructions to the Depositary in a timely manner.
Notwithstanding the above, and in accordance with Section 4.03, the
Depositary shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities or for the manner in
which such vote is cast or the effect of any such vote.
Section 3.08 The Deposit Agreement is hereby amended and supplemented by
replacing the words "three months", twice, with "30 days", twice, in Section
6.01.
Section 3.09 The Deposit Agreement is hereby amended and supplemented by
adding the following sentence just prior to the last sentence of Section 5.08:
The Depositary and the Company and any of their respective directors,
officers, employees or agents shall not be liable to either party for any
punitive damages except to the extent such punitive damages arise from the
negligence or willful misconduct of the party from whom indemnification is
sought.
Section 3.10 The Deposit Agreement is hereby amended and supplemented by
deleting the second sentence of Section 5.11 and replacing it with:
"Such public reports and documents are made available in accordance with
Rule 12g3-2(f) of the Securities Exchange Act of 1934."
Section 3.11 The Deposit Agreement is hereby amended and supplemented by
the substitution of the following address for notices to the Company in Section
7.05(a):
"Marks and Xxxxxxx Group p.l.c., Xxxxxxxxx Xxxxx, 00 Xxxxx Xxxxx Xxxx,
Xxxxxx X0 0XX, Attention: Xxxxxx Xxxxxx, Fax: x00 (0)000 0000 0000"
Section 3.12 The Deposit Agreement is hereby amended and supplemented by
the substitution of the following address for notices to the Depositary in
Section 7.05(b):
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"60 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ADR
Department, Fax: (000) 000-0000"
Section 3.13 The Deposit Agreement is hereby amended and supplemented by
adding the following section under Article VII:
SECTION 7.07. Conflicts with the form of Receipt. In the event of any
inconsistency between any of the provisions of the form of Receipt set
forth as Exhibit A annex hereto and any of the provisions of this Deposit
Agreement, the provisions of this Deposit Agreement shall prevail.
Section 3.14 All references in the Deposit Agreement to "deliver",
"deposit", "surrender", "transfer", or "withdraw", when used with respect to the
Shares refer, where the context requires, to an entry or entries or an
electronic transfer or transfers, including through the Direct Registration
System, as well as to the physical transfer of certificates representing the
Shares.
Section 3.15 The Deposit Agreement is hereby by amended and supplemented
by adding the following sentence following the last sentence of Section 2.05:
The Depositary will not deliver Deposited Securities except upon surrender
of ADSs in accordance with this Section 2.05.
Section 3.16 The Deposit Agreement is hereby amended and supplemented by
deleting the fourth sentence of Section 2.06 and replacing it with:
The Depositary may issue Receipts against other rights to receive Shares
("Pre-released ADRs") only if (1) Pre-released ADRs are fully
collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute Deposited Property), (ii) each recipient of
Pre-released ADRs represents and agrees in writing with the Depositary that
such recipient or its customer (A) beneficially owns such shares, (B)
assigns all beneficial right, title and interest therein to the Depositary
for the benefit of the Holders, (C) holds such Shares for the account of
the Depositary and (D) will deliver such Shares to the Custodian as soon as
practicable and promptly upon demand therefor but in no event more than
five days after demand therefor and (iii) all Pre-released ADRs evidence
not more than 30% of all ADSs (excluding those evidenced by Pre-released
ADRs).
ARTICLE IV
AMENDMENTS TO FORM OF RECEIPT
Section 4.01 The form of Receipt attached as Exhibit A to the Deposit
Agreement (the "Form of Receipt") is amended and restated in its entirety to
read as Exhibit A attached hereto, such amendments reflecting the appointment of
the Depositary and the changes otherwise made to the Deposit Agreement by this
Agreement.
Section 4.02 All references in the Form of Receipt to "deliver",
"deposit", "surrender", "transfer", or "withdraw", when used with respect to the
Shares refer, where the context requires, to any entry or entries or an
electronic transfer or transfers, including through the Direct Registration
System, as well as to the physical transfer of certificates representing the
Shares.
Section 4.03 The table included in Exhibit B to the Deposit Agreement
showing the charges of the Depositary is amended by including a third row in the
"Service", "Rate" and "By Whom Paid" columns as follows:
[Service] Distribution of cash proceeds to any Holder of ADSs
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[Rate] $0.02 per American Depositary Share or portion thereof
[By Whom Paid] Person to whom the cash proceeds are delivered
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations and Warranties. The Company and the
Depositary mutually represent and warrant to each other that this Agreement,
when executed and delivered by each of the Company and the Depositary, and the
Deposit Agreement, as amended and supplemented by this Agreement and all other
documentation executed and delivered by the Company and the Depositary in
connection therewith, will be duly and validly authorized, executed and
delivered by it and constitute the legal, valid and binding obligations of it,
enforceable against it in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Effective Date. This Agreement is dated as of the date first
set forth above and shall be effective on the date on which the U.S. Securities
and Exchange Commission declares effective the Registration Statement on Form
F-6 to be filed by the Depositary, on behalf of the legal entity created by the
Deposit Agreement, as amended and supplemented by this Agreement, in connection
with its appointment as successor depositary, the removal of the Predecessor
Depositary to be effective simultaneously therewith (the "Effective Date"). From
and after the Effective Date, all references in the Deposit Agreement and the
Form of Receipt shall be deemed to be references to the Deposit Agreement and
Form of Receipt, as amended and supplemented by this Agreement.
Section 6.02 Outstanding Receipts. Receipts issued prior to the Effective
Date hereof, which do not reflect the changes to the Receipts effected hereby,
do not need to be called in for exchange and may remain outstanding until such
time as the Holders thereof choose to surrender them for any reason under the
Deposit Agreement, as amended and supplemented by this Agreement. The
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Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing.
The Company hereby instructs the Depositary promptly (i) to send notice of
the amendment of the Deposit Agreement by this Agreement to all Holders of
Receipts outstanding under the Deposit Agreement as of the date hereof; (ii) to
inform Holders of Receipts outstanding under the Deposit Agreement as of the
date hereof that they have the opportunity, but are not required, to exchange
their Receipts for one or more Receipts issued pursuant to the Deposit
Agreement, as amended and supplemented by this Agreement; and (iii) to inform
Holders and Beneficial Owners of Receipts issued prior to the Effective Date
hereof and outstanding as of the Effective Date hereof shall, from and after the
Effective Date hereof, be deemed Holders and Beneficial Owners of Receipts
issued pursuant and subject to all of the terms and conditions of the Deposit
Agreement, as amended and supplemented by this Agreement, in all respects;
provided, however, that any amendment to the Deposit Agreement effectuated by
this Agreement that prejudices any substantial existing right of Holders or
Beneficial Owners of Receipts issued under the Deposit Agreement shall not
become effective as to Holders and Beneficial Owners until three months after
notice of the amendment and supplement effectuated by this Agreement shall have
been given to Holders of Receipts outstanding as of the Effective Date hereof.
Section 6.03 Undertaking of Depositary. The Depositary hereby undertakes
promptly to mail notice of its appointment as Depositary under the Deposit
Agreement, as amended and supplemented by this Agreement, to the Holders of
Receipts outstanding as of the Effective Date hereof.
Section 6.04 Indemnification. The parties hereto shall be entitled to the
benefits of the indemnification provisions of Section 5.08 of the Deposit
Agreement, as amended, in connection with any and all liability it or they may
incur as a result of the terms of this Agreement and the transactions
contemplated herein; provided, however, that the indemnification provision of
Section 5.08 of the Deposit Agreement shall not obligate the Company to
indemnify the Depositary for any loss, liability
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or tax resulting from the Pre-Release of ADRs. Nothing herein shall obligate
Deutsche Bank Trust Company Americas to indemnify or hold harmless the Company
or any of its directors, employees, agents and affiliates for any liability or
expense arising out of acts performed or omitted by JPMorgan Chase Bank, as
Predecessor Depositary, the Custodian or their respective directors, employees,
agents and affiliates.
Section 6.05 Governing Law. This Agreement and the rights and obligations
of the parties hereunder shall be construed in accordance with and governed by
the law of the state of New York. Except as set forth in the following paragraph
of this Section 6.05, the Company and the Depositary agree that the federal or
state courts in the City of New York shall have jurisdiction to hear and
determine any suit, action or proceeding and to settle any dispute between them
that may arise out of or in connection with this Agreement and the Deposit
Agreement and, for such purposes, each irrevocably submits to the non-exclusive
jurisdiction of such courts.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Agreement or the Deposit Agreement or (c)
against both the Company and the Depositary, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending, and for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts.
Each of the Depositary and the Company irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of venue of any actions, suits or proceedings
brought in any court as provided in this Section 6.05, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that
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any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
The provisions of this Section 6.05 shall survive any termination of this
Agreement or the Deposit Agreement, in whole or in part.
Section 6.06 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Agreement to be executed by their respective representatives thereunto duly
authorized as of the date first set forth above.
MARKS AND XXXXXXX GROUP P.L.C.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Depositary
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
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EXHIBIT A
TO DEPOSIT AGREEMENT
[FORM OF FACE OF RECEIPT]
__________________ No. of ADSs:
Number
___________________
Each ADS represents
two Shares
CUSIP: 000000000
ISIN: US5709121058
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES OF 25 XXXXX EACH
of
MARKS AND XXXXXXX GROUP P.L.C.
(Incorporated under the
laws of England and Wales)
DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation and an
indirect wholly-owned subsidiary of Deutsche Bank AG, as depositary (the
"Depositary"), hereby certifies that _______ is the registered owner (a
"Holder") of _____________ American Depositary Shares ("ADSs"), each (subject to
paragraph 13) representing two Ordinary Shares of 25 xxxxx each (including the
rights to receive Shares described in paragraph 1, "Shares" and, together with
any other securities, cash or property from time to time held by the Depositary
in respect or in lieu of deposited Shares, the "Deposited Property"), of Marks
and Xxxxxxx Group p.l.c. (the "Company"), a company organized under the laws of
England and Wales, deposited with the Custodian (the "Custodian") under the
Deposit Agreement dated as of March 19, 2002 (as amended from time to time, the
"Deposit Agreement") among the Company, the Depositary and all Holders and
Beneficial Owners from time to time of American Depositary Receipts issued
thereunder ("ADRs"), each of whom, by accepting an ADR, agrees to become a party
thereto and to be bound by all of the terms and conditions thereof and hereof.
The
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Deposit Agreement and this ADR (which includes the provisions set forth on the
reverse hereof) shall be governed by and construed in accordance with the laws
of the State of New York. The terms and conditions of the Deposit Agreement are
hereby incorporated by reference.
(1) Issuance of ADRS. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph 4, the Depositary may so issue ADRs for delivery
at the Transfer Office (defined in paragraph 3) only against deposit with the
Custodian of: (a) Shares in form satisfactory to the Custodian; (b) rights to
receive Shares from the Company or any registrar, transfer agent, clearing agent
or other entity recording Share ownership or transactions; or, (c) unless
requested in writing by the Company to cease doing so at least two business days
in advance of the proposed deposit, other rights to receive Shares (until such
Shares are actually deposited pursuant to (a) or (b) above, "Pre-released
ADRs"), only if (1) Pre-released ADRs are fully collateralized (marked to market
daily) with cash or U.S. government securities held by the Depositary for the
benefit of Holders (but such collateral shall not constitute Deposited
Property), (ii) each recipient of Pre-released ADRs represents and agrees in
writing with the Depositary that such recipient or its customer (A) beneficially
owns such shares, (B) assigns all beneficial right, title and interest therein
to the Depositary for the benefit of the Holders, (C) holds such Shares for the
account of the Depositary and (D) will deliver such Shares to the Custodian as
soon as practicable and promptly upon demand therefor but in no event more than
five days after demand therefor and (iii) all Pre-released ADRs evidence not
more than 30% of all ADSs (excluding those evidenced by Pre-released ADRs). The
Depositary may retain for its own account any earnings on collateral for
Pre-released ADRs and its charges for issuance thereof. At the request, risk and
expense of the person depositing Shares, the Depositary may accept deposits for
forwarding to the Custodian and may deliver ADRs at a place other than its
office. Every person depositing Shares under the Deposit Agreement represents
and warrants that such Shares are validly issued and outstanding, fully paid,
nonassessable and free of pre-emptive rights, that the person making such
deposit is duly authorized to do so and that such Shares (A) are not "restricted
securities" as such term is defined in Rule 144 under the Securities Act of 1933
unless at the time of deposit they may be freely transferred after giving effect
to the applicable holding period in accordance with Rule 144 and may
otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance of ADRs. The Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares required
to be registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company's compliance with such Act.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in paragraph 7 hereof and
in Section 5.09 and Exhibit A of the Deposit Agreement) and (ii) all fees, taxes
and governmental charges payable in connection with such surrender and
withdrawal, and, subject to the terms and conditions of the Deposit Agreement,
the Company's Memorandum and Articles of Association, Section 2.06 of the
Deposit Agreement, paragraph 18 of this Receipt and the provisions of or
governing the Deposited Securities and other applicable laws, the Holder of the
American Depositary Shares evidenced hereby is entitled to delivery, to him or
upon his order, of the Deposited Securities represented by the ADS so
surrendered. Such Deposited Securities may be delivered in certificated form or
by electronic delivery. ADS may be surrendered for the purpose of withdrawing
Deposited Securities by delivery of a Receipt evidencing such ADS (if held in
registered form) or by book-entry delivery of such ADS to the Depositary. The
Depositary will not deliver Deposited Securities except upon surrender of ADSs
in accordance with this
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paragraph 2.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder 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 (without
unreasonable delay) at the designated office of the Custodian (subject to the
terms and conditions of the Deposit Agreement, to the Company's Memorandum and
Articles of Association, and to the provisions of or governing the Deposited
Securities and applicable laws, now or hereafter in effect), to or upon the
written order of the person or persons designated in the order delivered to the
Depositary as provided above, the Deposited Securities represented by such ADSs,
together with any certificate or other proper documents of or relating to title
for the Deposited Securities or evidence of the electronic transfer thereof (if
available) as the case may be to or for the account of such person. The
Depositary may make delivery to such person or persons at the Principal Office
of the Depositary of any dividends or distributions with respect to the
Deposited Securities represented 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.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares representing a number of Shares other than
a whole number of Shares. In the case of surrender of a Receipt evidencing a
number of ADSs representing other than a whole number of Shares, the Depositary
shall cause ownership of the appropriate whole number of Shares to be delivered
in accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt so surrendered and remit the proceeds thereof (net of
(a) applicable fees and charges of, and expenses incurred by, the Depositary and
(b) taxes withheld) to the person surrendering the Receipt. At the request, risk
and expense of any Holder so surrendering a Receipt, and for the account of such
Holder, the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any cash or other property (other than securities) held in
respect of, and any certificate or certificates and other proper documents of or
relating to title to, the Deposited Securities represented by such Receipt to
the Depositary for delivery at the Principal Office of the Depositary, and for
further delivery to such Holder. Such direction shall be given by letter or, at
the request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, which
at all reasonable times will be open for inspection by Holders and the Company
for the purpose of communicating with Holders in the interest of the business of
the Company or a matter relating to the Deposit Agreement and (b) facilities for
the delivery and receipt of ADRs. Title to this ADR (and to the Deposited
Property represented by the ADSs evidenced hereby), when properly endorsed or
accompanied by proper instruments of transfer and duly stamped as may be
required by applicable law, is transferable by delivery with the same effect as
in the case of negotiable instruments under the laws of the State of New York;
provided that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this ADR is registered on the ADR Register as the
absolute owner hereof for all purposes. Subject to paragraphs 4 and 5, this ADR
is transferable on the ADR Register and may be split into other ADRs or combined
with other ADRs into one ADR, evidencing the same number of ADSs evidenced by
-3-
this ADR, by the Holder hereof or by duly authorized attorney upon surrender of
this ADR at the Transfer Office properly endorsed or accompanied by proper
instruments of transfer and duly stamped as may be required by applicable law;
provided that the Depositary may close the ADR Register at any time or from time
to time when deemed reasonably expedient by it or requested by the Company.
(4) Certain Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph 2, the
withdrawal of any Deposited Property, and from time to time in the case of
clause (b)(ii) of this paragraph 4, the Company, the Depositary or the Custodian
may require: (a) payment with respect thereto of (i) any stock transfer or other
tax or other governmental charge, (ii) any stock transfer or registration fees
in effect for the registration of transfers of Shares or other Deposited
Property upon any applicable register and (iii) any applicable charges as
provided in paragraph 7 of this ADR; (b) the production of proof satisfactory to
it of (i) the identity and genuineness of any signature and (ii) such other
information, including without limitation, information as to citizenship,
residence, exchange control approval, beneficial ownership of any securities,
compliance with applicable law, regulations, provisions of or governing
Deposited Property and terms of the Deposit Agreement and this ADR, as it may
deem necessary or proper, and (c) compliance with such regulations as the
Depositary may establish consistent with the Deposit Agreement. The issuance of
ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph 2, the withdrawal of Deposited Property may be suspended, generally or
in particular instances, when the ADR Register or any register for Deposited
Property is closed or when any such action is deemed advisable by the Depositary
or the Company.
(5) Taxes; Withholding. If any tax or other governmental charge shall
become payable by or on behalf of the Custodian or the Depositary with respect
to this ADR, any Deposited Property represented by the ADSs evidenced hereby or
any distribution thereon, such tax or other governmental charge shall be paid by
the Holder hereof to the Depositary. The Depositary shall, in accordance with
applicable law, use commercially reasonable efforts to assist ADR Holders in the
mitigation or reduction of any withholding tax imposed with respect to any ADR.
The Depositary may refuse to effect any registration, registration of transfer,
split-up or combination hereof or, subject to the last sentence of paragraph 2,
any withdrawal of such Deposited Property until such payment is made. The
Depositary may also deduct from any distributions on or in respect of Deposited
Property, or may sell by public or private sale for the account of the Holder
hereof any part or all of such Deposited Property (after attempting by
reasonable means to notify the Holder hereof prior to such sale), and may apply
such deduction or the proceeds of any such sale in payment of such tax or other
governmental charge, the Holder hereof remaining liable for any deficiency, and,
if appropriate, shall reduce the number of ADSs evidenced hereby to reflect any
such sales of Shares and shall distribute the net proceeds of any such sale or
the balance of any such property after deduction of such tax or other
governmental charge to the Holder hereof. In connection with any distribution to
Holders, the Company will remit to the appropriate governmental authority or
agency all amounts (if any) required to be withheld and owing to such authority
or agency by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. If the Depositary determines that any distribution in property other
than cash (including Shares or rights) on Deposited Property is subject to any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such amounts and
in such manner as the Depositary deems necessary and practicable to pay such
taxes, by public or private sale, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction of
such taxes to the Holders entitled thereto.
-4-
Every Holder and Beneficial Owner agrees to indemnify the Depositary, the
Company, the Custodian, and each of their respective agents, officers,
directors, employees and Affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
(6) Disclosure of Interests. To the extent that the provisions of or law
governing any Deposited Property may require disclosure of or impose limits on
beneficial or other ownership of Deposited Property, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary in the Depositary's compliance with any Company
instructions in respect thereof, and the Depositary will use reasonable efforts
to comply with such Company instructions.
Notwithstanding any other provision of the Deposit Agreement or this ADR,
each Holder agrees to provide such information as the Company may request in a
disclosure notice (a "Disclosure Notice") given pursuant to s.793 of the
Companies Act 2006 or any other legislation replacing or amending or
supplementing the requirements of that section or the Company's Articles of
Association within the time period specified in such Disclosure Notice. Each
Holder acknowledges that it understands that failure to comply with a Disclosure
Notice may result in the imposition of sanctions against the holder of the
Shares in respect of which the non-complying person is or was, or appears to be
or has been, interested as provided in s.795 of the said Companies Act or any
such replacement, amendment or sucessor and the Company's Articles of
Association which currently include the withdrawal of the voting rights of such
Shares. In addition, each Holder agrees to comply with the provisions of the
Disclosure Rules and Transparency Rules of the UK Financial Services Authority
(the "FSA") implementing certain provisions of the European Union Transparency
Directive (2004/109/EC) (as amended from time to time and including any
statutory modification or re-enactment thereof, the "Disclosure Rules") with
regard to the notification to the Company of interests in Shares, which
currently provide, inter alia, that any Holder who directly or indirectly
controls the exercise of "voting rights" (within the meaning of the Disclosure
Rules) in relation to 3% or more of the outstanding Shares, or is aware that
another person for whom it holds such ADRs so controls such voting rights, must
within two trading days after becoming so interested or so aware (and thereafter
in certain circumstances upon any change to the particulars previously notified)
notify the Company and the FSA as required by the Disclosure Rules.
(7) Charges of Depositary. The Depositary will charge each person to whom
Receipts are delivered against deposits of Shares, and each person surrendering
Receipts for withdrawal of Deposited Securities, U.S.$5.00 per 100 ADSs (or
portion thereof evidenced by the Receipts delivered or surrendered. The
Depositary will also charge to any Holder of ADSs, a fee not in excess of
U.S.$0.02 per ADS held for the distribution of cash proceeds, including cash
dividends or sale of rights and other entitlements, not made pursuant to a
cancellation or withdrawal. Except as agreed upon in writing by the Company and
the Depositary, the Company shall not pay or be liable for any charges of the
Depositary or any out-of-pocket expenses incurred in the ordinary course by the
Depositary in connection with it serving as Depositary under the Deposit
Agreement; provided that the Company agrees to pay out-of-pocket expenses so
incurred by the Depositary, the Custodian or either's agents for postage,
insurance of Shares or Receipts while in transit, stationary, the printing of
the Receipts and cable, telex and facsimile transmission (to the extent persons
depositing Shares or Holders withdrawing Shares are not required to pay such
cable, telex or facsimiles transmission expenses under the Deposit Agreement).
Any out-of-pocket expenses of the Depositary, the Custodian or either's agents
under the Deposit Agreement not
-5-
incurred in the ordinary course will be paid by the Company after consultation
and agreement, prior to the incurrence thereof, between the Depositary and the
Company as to the amount and nature of such expenses. Stock transfer or other
taxes and other governmental charges are payable by persons or Holders
depositing Shares. Persons depositing Shares or Holders withdrawing Shares shall
pay (i) 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 the appointed agent of the Company for transfer and registration of
Shares) and accordingly 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 hereunder and (ii) such cable, telex and facsimile
transmission expenses as are expressly provided in the Deposit Agreement to be
at the expense of the persons depositing Shares or Holders delivering Shares,
Receipts or Deposited Securities. Such expenses as are incurred by the
Depositary in the conversion of foreign currency shall be paid out of such
foreign currency. The provisions in respect of these charges may be changed in
the manner indicated on the reverse hereof.
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Property and any written communications from the Company
that are both received by the Custodian or its nominee as a holder of Deposited
Property and made generally available to the holders of Deposited Property, are
available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. At the written request of the Company, the
Depositary will mail copies of such communications (or English translations or
summaries thereof) to Holders when furnished by the Company. Marks and Xxxxxxx
Group p.l.c. furnishes 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, as amended (the "Exchange Act"). Such public reports and
documents are made available on and may be inspected and copied from the
Company's website in accordance with Rule 12g3-2(f) under the Exchange Act.
(9) Execution. This ADR shall not be valid for any purpose unless executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary.
Dated:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Depositary
By:
-----------------------
Authorized Officer
The Depositary's principal executive office is located at 00 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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[FORM OF REVERSE OF RECEIPT]
(10) Distributions on Deposited Property. Subject to paragraphs 4 and 5 and
any restrictions imposed by United Kingdom or other applicable law, regulation
or applicable permit, to the extent practicable, the Depositary will promptly
distribute by mail to each Holder entitled thereto on the record date set by the
Depositary therefor at such Holder's address shown on the ADR Register, in
proportion to the number of Deposited Property (on which the following
distributions on Deposited Property are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash. Any U.S. dollars available to
the Depositary resulting from a cash dividend or other cash distribution or the
net proceeds of sales of any other distribution or portion thereof authorized in
this paragraph 10 ("Cash"), on an averaged or other practicable basis, subject
to (i) appropriate adjustments for taxes withheld, (ii) such distribution being
impermissible or impracticable with respect to certain Holders, and (iii)
deduction of the Depositary's fees and expenses in (1) converting any foreign
currency to U.S. dollars by sale or in such other manner as the Depositary may
determine to the extent that it determines that such conversion may be made on a
reasonable basis, (2) transferring foreign currency or U.S. dollars to the
United States by such means as the Depositary may determine to the extent that
it determines that such transfer may be made on a reasonable basis, (3)
obtaining any approval or license of any governmental authority required for
such conversion or transfer, which is obtainable at a reasonable cost and within
a reasonable time and (4) making any sale by public or private means in any
commercially reasonable manner. If the Depositary determines that any foreign
currency received by it cannot be converted on a reasonable basis and
transferred to the United States, the Depositary may distribute the foreign
currency received by it or, at its sole discretion, hold such foreign currency,
uninvested and without liability for interest thereon. The Depositary shall
distribute only such amount as can be distributed without distributing to any
Holder a fraction of one cent. Any such fractional amount shall be rounded to
the nearest whole cent and so distributed to Beneficial Owners entitled thereto.
Holders understand that in converting foreign currency, amounts received on
conversion are calculated at a rate which may exceed the number of decimal
places used by the Depositary to report distribution rates. Any excess amount
may be retained by the Depositary as an additional cost of conversion,
irrespective of any other fees and expenses payable or owing hereunder and shall
not be subject to escheatment, (b) Shares. (i) Additional ADRs evidencing whole
ADSs representing any Shares available to the Depositary resulting from a
dividend or free distribution on Deposited Property consisting of Shares (a
"Share Distribution") and (ii) U.S. dollars available to it resulting from the
net proceeds of sales of Shares received in a Share Distribution, which Shares
would give rise to fractional ADSs if additional ADRs were issued therefor, as
in the case of Cash, (c) Rights. (i) Warrants or other instruments in the good
faith discretion of the Depositary representing rights to acquire additional
ADRs in respect of any rights to subscribe for additional Shares or rights of
any nature available to the Depositary as a result of a distribution on
Deposited Property ("Rights"), to the extent that the Company timely furnishes
to the Depositary evidence satisfactory to the Depositary that the Depositary
may lawfully distribute the same (the Company has no obligation to so furnish
such evidence), or (ii) to the extent the Company does not so furnish such
evidence and sales of Rights are practicable, any U.S. dollars available to the
Depositary from the net proceeds of sales of Rights as in the case of Cash, or
(iii) to the extent the Company does not so furnish such evidence and such sales
cannot practicably be accomplished by reason of the non-transferability of the
Rights, limited markets therefor, their short duration or otherwise, nothing
(and any Rights may lapse), (d) Other Distributions. (i) Securities or property
available to the Depositary resulting from any distribution on Deposited
Property other than Cash, Share Distributions and Rights ("Other
Distributions"), by any means that the Depositary may deem, after consultation
with the Company to the extent practicable, lawful, equitable and practicable,
or (ii) to the extent the Depositary deems, after consultation with the Company
to the extent
-7-
practicable, distribution of such securities or property not to be lawful,
equitable or practicable, any U.S. dollars available to the Depositary from the
net proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents. Notwithstanding anything herein to the
contrary, the Company shall have no obligation to either (i) register any ADSs,
Shares, Rights or other securities described in this paragraph 10 under the
Securities Act of 1933 or (ii) take other actions to permit the distribution of
such ADSs, Shares, Rights or other securities in accordance with applicable U.S.
securities laws.
(11) Record Dates. The Depositary shall, after consultation with the
Company if reasonably practicable, fix a record date (which shall be as near as
practicable to any corresponding record date set by the Company with respect to
the Shares) for the determination of the Holders who shall be entitled to
receive any distribution on or in respect of Deposited Property, to give
instructions for the exercise of any voting rights, to receive any notice or to
act in respect of other matters and only such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Shares are entitled to vote, or
of solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such
meeting or solicitation of such consent or proxy. The Depositary shall, if
requested by the Company in writing in a timely manner (the Depositary having no
obligation to take any further action if the request shall not have been
received by the Depositary at least 21 Business Days prior to the date of such
vote or meeting), at the Company's expense, unless otherwise agreed in writing
by the Company and the Depositary and provided no U.S. legal prohibitions exist,
mail by ordinary, regular mail delivery or by electronic transmission (if agreed
by the Company and the Depositary), unless otherwise agreed in writing by the
Company and the Depositary, to Holders as of the ADS Record Date: (a) such
notice of meeting or solicitation of consent or proxies; (b) a statement that
the Holders as of the ADS Record Date will be entitled, subject to any
applicable law, the provisions of the Deposit Agreement, the Company's
Memorandum and Articles of Association and the provisions of or law governing
the Deposited Securities (which provisions, if any, shall be summarized in
pertinent part by the Company), to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Shares or other Deposited
Securities represented by such Holder's ADSs; and (c) a brief statement as to
the manner in which such instructions may be given. Upon the timely receipt of
written instructions of a Holder of ADSs on the ADS Record Date, the Depositary
shall endeavor, insofar as practicable and permitted under applicable law and
the provisions of the Company's Memorandum and Articles of Association and the
provisions of the Deposit Agreement, to vote or cause the Custodian to vote the
Shares and/or other Deposited Securities represented by ADSs held by such Holder
in accordance with such instructions.
In the event that the Depositary (i) timely receives voting instructions
from a Holder which fail to specify the manner in which the Depositary is to
vote the Deposited Securities represented by such Holder's ADSs or (ii) if no
instructions are received by the Depositary from a Holder with respect to any of
the Deposited Securities represented by the ADSs evidenced by such Holder's ADRs
on or before the ADS Record Date established by the Depositary for such purpose,
the Depositary shall (unless otherwise specified in the notice distributed to
Holders) deem such Holder to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided,
however, that no such instruction shall be deemed given and no such
discretionary proxy shall be given with respect to any matter as to which the
Company informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing, if
-8-
applicable) that (x) the Company does not wish to give such proxy, (y) the
Company is aware or should reasonably be aware that substantial opposition
exists from Holders against the outcome for which the person designated by the
Company would otherwise vote or (z) the outcome for which the person designated
by the Company would otherwise vote would materially and adversely affect the
rights of holders of Shares, provided, further, that the Company will have no
liability to any Holder or Beneficial Owner resulting from such notification.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote or in any way make
use of for purposes of establishing a quorum or otherwise, the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with such written instructions from Holders, including the
deemed instruction to the Depositary to give a discretionary proxy to a person
designated by the Company. Shares or other Deposited Securities represented by
ADSs for which no specific voting instructions are received by the Depositary
from the Holder shall not be voted except as aforesaid.
There can be no assurance that Holders or Beneficial Owners generally or
any Holder or Beneficial Owner in particular will receive the notice described
above in sufficient time to enable the Holder to return voting instructions to
the Depositary in a timely manner.
Notwithstanding the above, and in accordance with Section 4.07 of the
Deposit Agreement, the Depositary shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities or for the manner
in which such vote is cast or the effect of any such vote.
(13) Changes Affecting Deposited Property. Subject to paragraphs 4 and 5,
the Depositary may, in its discretion, after consultation with the Company if
reasonably practicable, amend this ADR or distribute additional or amended ADRs
(with or without calling this ADR for exchange) or cash, securities or property
on the record date set by the Depositary therefor to reflect any change in par
value, split-up, consolidation, cancellation or other reclassification of
Deposited Property, any Share Distribution or Other Distribution not distributed
to Holders or any cash, securities or property available to the Depositary in
respect of Deposited Property from (and the Depositary is hereby authorized to
surrender any Deposited Property to any person and to sell by public or private
sale any property received in connection with) any recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy or
sale of all or substantially all the assets of the Company, and to the extent
the Depositary does not so amend this ADR or make a distribution to Holders to
reflect any of the foregoing, or the net proceeds thereof, whatever cash,
securities or property results from any of the foregoing shall constitute
Deposited Property and each ADS evidenced by this ADR shall automatically
represent its pro rata interest in the Deposited Property as then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, regulation, the provisions of or
governing any Deposited Property, act of God, war or other circumstance beyond
its control shall prevent, delay or subject to any civil or criminal penalty any
act which the Deposit Agreement or this ADR provides shall be done or performed
by it, or (ii) by reason of any exercise or failure to exercise any discretion
given it in the Deposit Agreement or this ADR; (b) assume no liability except to
perform its obligations (other than those directly related to the handling of
Deposited Property and Cash) to the extent they are specifically set forth in
this ADR and the Deposit Agreement without gross negligence or bad faith; (c)
assume no liability except to perform its obligations directly related to the
handling of Deposited Property and Cash to the extent they are specifically set
forth
-9-
in this ADR and the Deposit Agreement without negligence or bad faith; (d) in
the case of the Depositary and its agents hereunder, be under no obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Property or this ADR; (e) in the case of the Company and its
agents hereunder, be under no obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Property or this
ADR, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense (including fees and
disbursements of counsel) and liability be furnished as often as may be
required; or (f) not be liable for any action or inaction by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, or any other person believed by it in
good faith to be competent to give such advice or information. The Depositary,
the company and the respective agents of each of them may rely and shall be
protected in acting upon any written notice, request, direction or other
document believed by them to be genuine and to have been signed or presented by
the proper party or parties. The Depositary and its agents will not be
responsible for any failure to carry out any instructions to vote any of the
Deposited Property, for the manner in which any such vote is cast or for the
effect of any such vote. The Depositary and its agents may own and deal in any
class of securities of the Company and its affiliates and in ADRs. The Company
has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company against
losses incurred by the Company under certain circumstances. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary. The Depositary may at any time
resign as Depositary by written notice of its election to do so delivered to the
Company, or be removed as Depositary by the Company by written notice of such
removal delivered to the Depositary; such resignation or removal shall take
effect upon the appointment of and acceptance by a successor depositary. The
Depositary may, upon written request or written approval of the Company, at any
time appoint substitute or additional Custodians and the term "Custodian" refers
to each Custodian or all Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph 2, the ADRs and
the Deposit Agreement may be amended by the Company and the Depositary without
the consent of the Holders in any respect, provided that any amendment that
imposes or increases any fees or charges (other than stock transfer or other
taxes and other governmental charges, transfer or registration fees, cable,
telex or facsimile transmission costs, delivery costs or other such expenses),
or that shall otherwise prejudice any substantial existing right of Holders,
shall become effective 30 days after notice of such amendment shall have been
given to the Holders. Every Holder of an ADR at the time any amendment to the
Deposit Agreement so becomes effective shall be deemed, by continuing to hold
such ADR, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Holder of any ADR to surrender such ADR and receive the Deposited
Property represented thereby, except in order to comply with mandatory
provisions of applicable law.
(17) Termination. The Depositary may, and shall at any time at the written
direction of the Company, terminate the Deposit Agreement and this ADR by
mailing notice of such termination to the Holders at least 30 days prior to the
date fixed in such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further acts under
the Deposit Agreement and this ADR, except to advise Holders of such
termination, receive and hold (or sell) distributions on Deposited Property and
deliver Deposited Property being withdrawn. As soon as practicable after the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Property and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net
-10-
proceeds of such sales, together with any other cash then held by it under the
Deposit Agreement, without liability for interest, in trust for the pro rata
benefit of the Holders of ADRs not therefore surrendered. After making such
sale, the Depositary shall be discharged from all obligations in respect of the
Deposit Agreement and this ADR, except to account for such net proceeds and
other cash. After the date so fixed for termination, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary and its agents.
(18) Restrictions upon Ownership. So long as the Company's Articles of
Associations (i) limit the number of Shares in which any holder of Shares may be
interested or (ii) authorize the Company to take certain actions (including
disenfranchisement and withholding of dividends) in respect of Shares held by a
person who does not respond properly to a notice from the Company requiring
details of his interest in those Shares, notwithstanding any contrary provision
of the Deposit Agreement, each Holder agrees that such limitations shall be
applicable to and enforceable by the Company against such Holder and such
Holder's ADRs as if they were, to the extent practicable, the Shares represented
thereby and the Depositary agrees to use its reasonable efforts to comply with
any written instructions received from the Company requesting that the
Depositary take the reasonable actions specified therein to apply and enforce
such limitations (including disenfranchisement and disposal) against specified
Holders (other than The Depository Trust Company ("DTC") or its nominees),
provided that the Company shall indemnify the Depositary and hold it harmless
from any expense or liability incurred in complying with such instructions. The
Depositary shall not be required to take any actions with respect to DTC or its
nominees other than the providing of notice and the forwarding of information
and requests thereto.
-11-
