WPP 2005 PLC
CITIBANK, N.A.,
As Depositary,
and
HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of October __, 2005
Table of Contents
Page
PARTIES........................................................................1
RECITALS.......................................................................1
ARTICLE I DEFINITIONS................................................2
Section 1.01. Affiliate..................................................2
Section 1.02. American Depositary Receipt(s), ADR(s) and Receipt(s)......2
Section 1.03. American Depositary Share(s) and ADS(s)....................2
Section 1.04. Applicant..................................................3
Section 1.05. Beneficial Owner...........................................3
Section 1.06. Certificated ADS(s)........................................3
Section 1.07. Commission.................................................3
Section 1.08. Company....................................................3
Section 1.09. CREST......................................................3
Section 1.10. Custodian; Custodians......................................3
Section 1.11. Deliver; Delivery..........................................3
Section 1.12. Deposit Agreement..........................................3
Section 1.13. Depositary.................................................3
Section 1.14. Deposited Securities.......................................3
Section 1.15. Dollars; $; Pounds; (pound); ▇▇▇▇▇; p......................4
Section 1.16. DTC........................................................4
Section 1.17. DTC Participant............................................4
Section 1.18. Exchange Act...............................................4
Section 1.19. Foreign Currency...........................................4
Section 1.20. Full Entitlement ADR(s), Full Entitlement ADS(s) and
Full Entitlement Share(s)..................................4
Section 1.21. Holder.....................................................4
Section 1.22. Old WPP....................................................4
Section 1.23. Old WPP ADRs...............................................4
Section 1.24. Old WPP ADSs...............................................4
Section 1.25. Old WPP Deposit Agreement..................................4
Section 1.26. Old WPP Depositary.........................................4
Section 1.27. Partial Entitlement ADR(s), Partial Entitlement
ADS(s) and Partial Entitlement Share(s)....................5
Section 1.28. Pre-Release Transaction. The term "Pre-Release
Transaction" shall have the meaning set forth in
Section 5.10...............................................5
Section 1.29. Principal Office...........................................5
Section 1.30. Registrar..................................................5
Section 1.31. Restricted Securities......................................5
Section 1.32. Restricted ADR(s); Restricted ADS(s); Restricted
Shares.....................................................5
Section 1.33. Scheme of Arrangement......................................5
Section 1.34. Securities Act.............................................5
Section 1.35. Share Registrar............................................5
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Section 1.36. Shares.....................................................6
Section 1.37. Uncertificated ADS(s)......................................6
Section 1.38. United States..............................................6
Section 1.39. Voting Record Date.........................................6
ARTICLE II FORM OF AMERICAN DEPOSITARY RECEIPTS; DEPOSIT OF
SHARES; EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF AMERICAN DEPOSITARY RECEIPTS..................6
Section 2.01. Form and Transferability of ADSs...........................6
Section 2.02. Deposit with Custodian.....................................8
Section 2.03. Issuance of ADSs; Execution of Certificated ADSs...........9
Section 2.04. Transfer, Combination and Split-up of ADRs................10
Section 2.05. Surrender of ADSs and Withdrawal of Deposited
Securities................................................11
Section 2.06. Limitations on Execution and Delivery, Transfer, etc.
of ADRs; Suspension of Delivery, Transfer, etc............12
Section 2.07. Lost ADRs, etc............................................13
Section 2.08. Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records....................................13
Section 2.09. Partial Entitlement ADSs..................................14
Section 2.10. Certificated/Uncertificated ADSs..........................14
Section 2.11. Restricted ADSs...........................................15
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS and beneficial owners......17
Section 3.01. Filing Proofs, Certificates and Other Information.........17
Section 3.02. Liability of Holder for Taxes and Other Charges...........17
Section 3.03. Representations and Warranties on Deposit of Shares.......18
Section 3.04. Disclosure of Beneficial Ownership........................18
Section 3.05. Ownership Restrictions....................................19
ARTICLE IV THE DEPOSITED SECURITIES..................................19
Section 4.01. Power of Attorney.........................................19
Section 4.02. Cash Distributions........................................19
Section 4.03. Distribution in Shares....................................20
Section 4.04. Rights....................................................20
Section 4.05. Elective Distributions in Cash or Shares..................21
Section 4.06. Distributions Other Than Cash, Shares or Rights...........22
Section 4.07. Conversion of Foreign Currency............................23
Section 4.08. Fixing of Record Date.....................................23
Section 4.09. Voting of Deposited Securities............................24
Section 4.10. Changes Affecting Deposited Securities....................25
Section 4.11. Available Information.....................................26
Section 4.12. Reports...................................................26
Section 4.13. List of Holders...........................................26
Section 4.14. Taxation..................................................26
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.............27
Section 5.01. Maintenance of Office and Transfer Books by the
Registrar.................................................27
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Section 5.02. Prevention or Delay in Performance........................27
Section 5.03. Obligations of the Depositary, the Custodian and the
Company...................................................28
Section 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary.......................29
Section 5.05. The Custodian.............................................29
Section 5.06. Notices and Reports.......................................30
Section 5.07. Issuance of Additional Shares, etc........................31
Section 5.08. Indemnification...........................................32
Section 5.09. Charges of Depositary.....................................32
Section 5.10. Certain Rights of the Depositary; Limitations.............33
Section 5.11. List of Restricted Securities Owners......................34
ARTICLE VI AMENDMENT AND TERMINATION.................................34
Section 6.01. Amendment.................................................34
Section 6.02. Termination...............................................35
ARTICLE VII MISCELLANEOUS.............................................36
Section 7.01. Counterparts..............................................36
Section 7.02. No Third-Party Beneficiaries..............................36
Section 7.03. Severability..............................................36
Section 7.04. Holders and Beneficial Owners as Parties; Binding
Effect....................................................36
Section 7.05. Notices...................................................36
Section 7.06. Governing Law and Jurisdiction............................37
Section 7.07. Assignment................................................39
Section 7.08. Compliance with U.S. Securities Laws......................39
Section 7.09. United Kingdom Law References.............................39
Section 7.10. Titles and References.....................................39
Section 7.11. Exchange Procedures for Old WPP ADSs......................39
TESTIMONIUM.............................................................40
SIGNATURES..............................................................40
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EXHIBIT A
(FORM OF FACE OF RECEIPT)
(1) The Deposit Agreement................................................. A-1
(2) Surrender of Receipts and Withdrawals of Deposited Securities......... A-2
(3) Transfers, Split-Ups and Combinations of Receipts..................... A-3
(4) Pre-Conditions to Registration, Transfer, Etc......................... A-4
(5) Disclosure of Beneficial Ownership.................................... A-5
(6) Ownership Restrictions................................................ A-6
(7) Liability of Holder for Taxes, Duties and Other Charges............... A-6
(8) Representations and Warranties of Depositors.......................... A-6
(9) Filing Proofs, Certificates and Other Information..................... A-6
(10) Charges of Depositary................................................. A-7
(11) Title to Receipts..................................................... A-8
(12) Validity of Receipt................................................... A-9
(Form of Reverse of Receipt)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Reports; Inspection of Transfer Books.................................A-10
(14) Dividends and Distributions in Cash, Shares, etc......................A-10
(15) Fixing of Record Date.................................................A-14
(16) Voting of Deposited Securities........................................A-14
(17) Changes Affecting Deposited Securities................................A-15
(18) Liability of the Company and the Depositary...........................A-16
(19) Resignation and Removal of the Depositary; Appointment
of Successor Depositary...............................................A-17
(20) Amendment.............................................................A-18
(21) Termination...........................................................A-19
(22) Compliance with U.S. Securities Laws..................................A-20
(23) Certain Rights of the Depositary; Limitations.........................A-20
EXHIBIT B
Depositary Fees............................................................. B-1
Charges of the Depositary................................................... B-2
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of October __, 2005, by and among WPP 2005 plc, a
company incorporated under the laws of the United Kingdom and its successors
(the "Company"), CITIBANK, N.A., a national banking association organized under
the laws of the United States of America (the "Depositary"), and all Holders and
Beneficial Owners, of American Depositary Shares by American Depositary Receipts
issued hereunder (all such terms as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide inter alia for the deposit of the Shares (as hereinafter
defined) and the issuance of American Depositary Shares representing the Shares
so deposited; and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, any American Depositary Receipts issued pursuant to the terms of
this Deposit Agreement are to be substantially in the form of Exhibit A attached
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement; and
WHEREAS, the Shares are admitted to the Official List and are listed for
trading on the London Stock Exchange and American Depositary Shares to be issued
pursuant to the terms of this Deposit Agreement are to be listed for trading on
The NASDAQ National Market, Inc.;
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement (as hereinafter defined), the execution and
delivery of this Deposit Agreement on behalf of the Company, and the actions of
the Company and the transactions contemplated herein;
WHEREAS, WPP Group plc, a company organized and existing under the laws of
the United Kingdom ("Old WPP"), Citibank, N.A., as depositary (Citibank, N.A. in
such capacity, the "Old WPP Depositary") entered into a deposit agreement, dated
as of January 30, 1987 as amended as of March 31, 1992 and July 1994, as amended
and restated as of October 24, 1995, as amended as of November 9, 1999, October
3, 2000 and May 17, 2002, and as supplemented by Letter Agreement by and between
Old WPP and the Old WPP Depositary as of March 7, 2005 (the "Old WPP Deposit
Agreement"), pursuant to which American depositary shares ("Old WPP ADSs") are
outstanding that are evidenced by American depositary receipts ("Old WPP ADRs");
WHEREAS, pursuant to a scheme of arrangement (the "Scheme of
Arrangement"), which has been (i) approved by the holders of Old WPP securities,
including holders of Old WPP ADSs, at (a) a scheme court hearing held on
September 26, 2005, and (b) an extraordinary general meeting of Old WPP
shareholders held on September 26, 2005, and (ii) sanctioned by the High Court
of Justice in The United Kingdom and Wales on October __, 2005, holders of Old
WPP securities will receive securities of the Company upon exchange of their Old
WPP securities; and
WHEREAS, as a result of the foregoing Scheme of Arrangement it is
contemplated that holders of Old WPP ADSs will receive American Depositary
Shares upon exchange of their Old WPP ADSs pursuant to the procedures described
in Section 7.11 hereof.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01 Affiliate. The term "Affiliate" shall have the meaning
assigned to it under Regulation C of the Securities Act as hereinafter defined.
SECTION 1.02. American Depositary Receipt(s), ADR(s) and Receipt(s). The
term "American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)" shall mean the
certificate(s) issued by the Depositary to evidence the American Depositary
Shares issued under the terms of the Deposit Agreement in the form of
Certificated ADS(s) (as hereinafter defined), as such ADRs may be amended from
time to time in accordance with the provisions of the Deposit Agreement. An ADR
may evidence any number of ADSs and may, in the case of ADSs held through a
central depository such as DTC, be in the form of a "Balance Certificate."
SECTION 1.03. American Depositary Share(s) and ADS(s). The term "American
Depositary Share(s)" and "ADS(s)"shall mean the rights and interests in the
Deposited Securities granted to the Holders and Beneficial Owners pursuant to
the terms and conditions of this Deposit Agreement and, if applicable, the
ADR(s) issued to evidence such ADS(s). ADS(s) may be issued under the terms of
the Deposit Agreement in the form of (a) Certificated ADS(s) (as hereinafter
defined), in which case the ADS(s) are evidenced by ADR(s), or (b)
Uncertificated ADS(s) (as hereinafter defined), in which case the ADS(s) are not
evidenced by ADR(s) but are reflected on the direct registration system
maintained by the Depositary for such purposes under the terms of Section 2.10
hereof. Unless otherwise specified in this Deposit Agreement or in any ADR, or
unless the context otherwise requires, any reference in the Deposit Agreement or
any ADR to ADS(s) shall include Certificated ADS(s) and Uncertificated ADS(s),
individually or collectively, as the context may require. Each ADS shall
represent five (5) Share(s) until there shall occur a distribution upon
Deposited Securities referred to in Section 4.03 or a change in Deposited
Securities referred to in Section 4.09 with respect to which additional ADSs are
not issued, and thereafter each ADS shall represent the Deposited Securities
determined in accordance with the terms of such Sections.
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SECTION 1.04. Applicant. The term "Applicant" shall have the meaning given
to such term in Section 5.10.
SECTION 1.05. Beneficial Owner. The term "Beneficial Owner" shall mean, as
to any ADS, any person or entity having a beneficial interest deriving from the
ownership of such ADS. A Beneficial Owner of ADSs may or may not be the Holder
of the ADSs. A Beneficial Owner shall be able to exercise any right or receive
any benefit hereunder solely through the person who is the Holder of the ADSs
owned by such Beneficial Owner.
SECTION 1.06. Certificated ADS(s). The term "Certificated ADS(s)" shall
have the meaning given to such term in Section 2.10.
SECTION 1.07. 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 1.08. Company. The term "Company" shall mean WPP 2005 plc, a
company incorporated and existing under the laws of United Kingdom, having its
registered office at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ,
and its successors.
SECTION 1.09. CREST. The term "CREST" shall mean CREST Co., which provides
the book-entry settlement system for equity securities in The United Kingdom, or
any successor entity thereto.
SECTION 1.10. Custodian; Custodians. The term "Custodian" shall mean, as
of the date hereof, Citibank, N.A., London Branch, having its principal office
at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, as Custodian and agent of the
Depositary for the purposes of this Deposit Agreement, and any other firm or
corporation which may be appointed by the Depositary pursuant to the terms of
Section 5.05 as a successor or an additional custodian or custodians hereunder,
as the context shall require, and the term "Custodians" shall mean all of them,
collectively.
SECTION 1.11. Deliver; Delivery. The terms "deliver" and "delivery" shall
mean, when used in respect of American Depositary Shares, Receipts, Deposited
Securities and Shares, the physical delivery of the certificate representing
such security, or the electronic delivery of such security by means of
book-entry transfer, if available.
SECTION 1.12. Deposit Agreement. The term "Deposit Agreement" shall mean
this Deposit Agreement as it may from time to time be amended in accordance with
the terms hereof and all instruments supplemental hereto.
SECTION 1.13. Depositary. The term "Depositary" shall mean Citibank, N.A.,
a national banking association incorporated under the laws of the United States
of America, and any successor as depositary hereunder.
SECTION 1.14. Deposited Securities. The term "Deposited Securities" as of
any time shall mean Shares at such time 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 in
the case of cash to the provisions of Section 4.06.
3
SECTION 1.15. Dollars; $; Pounds; ▇▇▇▇▇; p. The terms "dollars" or
"Dollars", and the symbol "$" shall refer to the lawful currency of the United
States. The terms "Pounds" and "▇▇▇▇▇", and the symbols "(pound)" and "p" shall
refer to the lawful currency of The United Kingdom.
SECTION 1.16. DTC. The term "DTC" shall mean The Depository Trust Company,
a national clearinghouse and the central book-entry settlement system for
securities traded in the United States and, as such, the custodian for the
securities of DTC Participants (as hereinafter defined) maintained in DTC, and
any successor thereto.
SECTION 1.17. DTC Participant. The term "DTC Participant" shall mean any
financial institution (or any nominee of such institution) having one or more
participant accounts with DTC for receiving, holding and delivering the
securities and cash held in DTC.
SECTION 1.18. Exchange Act. The term "Exchange Act" shall mean the United
States Securities Exchange Act of 1934, as from time to time amended.
SECTION 1.19. Foreign Currency. The term "Foreign Currency" shall mean any
currency other than Dollars.
SECTION 1.20. Full Entitlement ADR(s), Full Entitlement ADS(s) and Full
Entitlement Share(s). The terms "Full Entitlement ADR(s)," "Full Entitlement
ADS(s)" and "Full Entitlement Share(s)" shall have the respective meanings set
forth in Section 2.09.
SECTION 1.21. Holder. The term "Holder" shall mean the person in whose
name the ADS Receipt is registered on the books of the Depositary or the
Registrar, if any, maintained for such purpose. If a Holder is not the
Beneficial Owner of the ADS(s) registered in its name, such person shall be
deemed to have all requisite authority to act on behalf of the Beneficial Owners
of the ADSs.
SECTION 1.22. Old WPP. The term "Old WPP" shall have the meaning given to
such term in the preambles to the Deposit Agreement.
SECTION 1.23. Old WPP ADRs. The term "Old WPP ADRs" shall have the meaning
given to such term in the preambles to the Deposit Agreement.
SECTION 1.24. Old WPP ADSs. The term "Old WPP ADSs" shall have the meaning
given to such term in the preambles to the Deposit Agreement.
SECTION 1.25. Old WPP Deposit Agreement. The term "Old WPP Deposit
Agreement" shall have the meaning given to such term in the preambles to the
Deposit Agreement.
SECTION 1.26. Old WPP Depositary. The term "Old WPP Depositary" shall have
the meaning given to such term in the preambles to the Deposit Agreement.
4
SECTION 1.27. Partial Entitlement ADR(s), Partial Entitlement ADS(s) and
Partial Entitlement Share(s). The terms "Partial Entitlement ADR(s)," "Partial
Entitlement ADS(s)" and "Partial Entitlement Share(s)" shall have the respective
meanings set forth in Section 2.09.
SECTION 1.28. Pre-Release Transaction. The term "Pre-Release Transaction"
shall have the meaning set forth in Section 5.10.
SECTION 1.29. Principal Office. The term "Principal Office", when used
with respect to the Depositary, shall mean the principal office of the
Depositary at which at any particular time its depositary receipt business shall
be administered, which, at the date of this Deposit Agreement, is located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
SECTION 1.30. Registrar. The term "Registrar" shall mean the Depositary
or, upon the request or with the approval of the Company, any bank or trust
company having an office in the Borough of Manhattan, the City of New York,
which shall be appointed by the Depositary to register ADRs and transfers of
ADRs as herein provided, and shall include any co-registrar appointed by the
Depositary, upon the request or with the approval of the Company, for such
purposes. Registrars (other than the Depositary) may be removed and substitutes
appointed by the Depositary upon the request or with the approval of the
Company. Each Registrar (other than the Depositary) appointed pursuant to this
Deposit Agreement shall give notice in writing to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
SECTION 1.31. Restricted Securities. The term "Restricted Securities"
shall mean Shares, or ADSs representing such Shares, which are acquired directly
or indirectly from the Company or its Affiliates in a transaction or chain of
transactions not involving any public offering or which are subject to resale
limitations under the Securities Act, as defined below, or which are held by an
executive officer, a director (or persons performing similar functions) or other
Affiliate of the Company, or which are subject to other restrictions on sale or
deposit under the laws of the United States, The United Kingdom, or under an
agreement with or the Memorandum and Articles of Association of, the Company or
under the regulations of an applicable securities exchange.
SECTION 1.32. Restricted ADR(s); Restricted ADS(s); Restricted Shares. The
terms "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted Shares" shall
have the meanings set forth in Section 2.11.
SECTION 1.33. Scheme of Arrangement. The term "Scheme of Arrangement"
shall have the meaning given to such term in the preambles to this Deposit
Agreement.
SECTION 1.34. Securities Act. The term "Securities Act" shall mean the
United States Securities Act of 1933, as from time to time amended.
SECTION 1.35. Share Registrar. The term "Share Registrar" shall mean
Computershare Investor Services PLC, a depository which carries out the duties
of registrar for the Shares or any successor as Share Registrar for such Shares
appointed by the Company.
5
SECTION 1.36. Shares. The term "Shares" shall mean the Company's ordinary
shares, par value 475 ▇▇▇▇▇ per share, validly issued and outstanding and may,
if the Depositary so agrees after consultation with the Company, include
evidence of the right to receive Shares; provided that in no event shall Shares
include evidence of the right to receive Shares with respect to which the full
purchase price has not been paid or Shares as to which preemptive rights have
theretofore not been validly waived or exercised; provided further, however,
that, if there shall occur any change in par value, split-up or consolidation or
any other reclassification or, upon the occurrence of an event described in
Section 4.10, or an exchange or conversion in respect of the Shares of the
Company, the term "Shares" shall thereafter represent the successor securities
resulting from such change in par value, split-up or consolidation or such other
reclassification or such exchange or conversion.
SECTION 1.37. Uncertificated ADS(s). The term "Uncertificated ADS(s)"
shall have the meaning given to such term in Section 2.10.
▇▇▇▇▇▇▇ ▇.▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇. The term "United States" shall have the
meaning assigned to it in Regulation S under the Securities Act.
SECTION 1.39. Voting Record Date. The term "Voting Record Date" shall have
the meaning given to such term in Section 4.09.
ARTICLE II
FORM OF AMERICAN DEPOSITARY RECEIPTS; DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF
AMERICAN DEPOSITARY RECEIPTS
SECTION 2.01. Form and Transferability of ADSs. (a) Form. Certificated
ADSs shall be evidenced by definitive ADRs which shall be engraved, printed,
lithographed or produced in such other manner as may be agreed upon by the
Company and the Depositary. ADRs may be issued under the Deposit Agreement in
denominations of any whole number of ADSs. The ADRs shall be substantially in
the form set forth in Exhibit A to the Deposit Agreement, with any appropriate
insertions, modifications and omissions, in each case as otherwise contemplated
in the Deposit Agreement or required by law. ADRs shall be (i) dated, (ii)
signed by the manual or facsimile signature of a duly authorized signatory of
the Depositary, (iii) countersigned by the manual or facsimile signature of a
duly authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
ADRs. No ADR and no Certificated ADS evidenced thereby shall be entitled to any
benefits under the Deposit Agreement or be valid or enforceable for any purpose
against the Depositary or the Company, unless such ADR shall have been so dated,
signed, countersigned and registered. ADRs bearing the facsimile signature of a
duly-authorized signatory of the Depositary or the Registrar, who at the time of
signature was a duly-authorized signatory of the Depositary or the Registrar, as
the case may be, shall bind the Depositary, notwithstanding the fact that such
signatory has ceased to be so authorized prior to the delivery of such ADR by
the Depositary. The ADSs shall be assigned a CUSIP number that is different from
any CUSIP number that was, is or may be assigned to any depositary shares
previously or subsequently issued pursuant to any other arrangement between the
Depositary (or any other depositary) and the Company and which are not ADSs
issued hereunder.
6
(b) Legends. The ADRs may be endorsed with, or have incorporated in the
text thereof, such legends or recitals not inconsistent with the
provisions of the Deposit Agreement as may be (i) necessary to
enable the Depositary and the Company to perform their respective
obligations hereunder, (ii) required to comply with any applicable
laws or regulations, or with the rules and regulations of any
securities exchange or market upon which ADSs may be traded, listed
or quoted, or to conform with any usage with respect thereto, (iii)
necessary to indicate any special limitations or restrictions to
which any particular ADRs or ADSs are subject by reason of the date
of issuance of the Deposited Securities or otherwise, or (iv)
required by any book-entry system in which the ADSs are held.
Holders and Beneficial Owners shall be deemed, for all purposes, to
have notice of, and to be bound by, the terms and conditions of the
legends set forth on, in the case of Holders, the ADR registered in
the name of the applicable Holders or, in the case of Beneficial
Owners, on the ADR representing the ADSs owned by such Beneficial
Owners.
(c) Title. Subject to the limitations contained herein and in the ADR,
title to an ADR (and to each Certificated ADS evidenced thereby)
shall be transferable upon the same terms as a certificated security
under the laws of the State of New York, provided that such ADR has
been properly endorsed or is accompanied by proper instruments of
transfer. Notwithstanding any notice to the contrary, the Depositary
and the Company may deem and treat the Holder of an ADS (that is,
the person in whose name an ADS is registered on the books of the
Depositary) as the absolute owner thereof for all purposes. Neither
the Depositary nor the Company shall have any obligation nor be
subject to any liability under this Deposit Agreement or any ADR to
any holder or any Beneficial Owner unless such holder is the Holder
registered on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner, or the Beneficial Owner's
representative, is the Holder registered on the books of the
Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for the
acceptance of the ADSs into DTC. A single ADR in the form of a
"Balance Certificate" will evidence all ADSs held through DTC and
will be registered in the name of the nominee for DTC (currently
"Cede & Co.") and will provide that it represents the aggregate
number of ADSs from time to time indicated in the records of the
Depositary as being issued through DTC hereunder and that the
aggregate number of ADSs represented thereby may from time to time
be increased or decreased by making adjustments on such records of
the Depositary and of DTC or its nominee as hereinafter provided. As
such, the nominee for DTC will be the only "Holder" of the ADR
evidencing all ADSs held through DTC. Citibank, N.A. (or such other
entity as is appointed by DTC or its nominee) may hold the "Balance
Certificate" as custodian for DTC. Each Beneficial Owner of ADSs
held through DTC must rely upon the procedures of DTC and the DTC
Participants to exercise or be entitled to any rights attributable
7
to such ADSs. The DTC Participants shall for all purposes be deemed
to have all requisite power and authority to act on behalf of the
Beneficial Owners of the ADSs held in the DTC Participants'
respective accounts in DTC and the Depositary shall for all purposes
be authorized to rely upon any instructions and information given to
it by DTC Participants on behalf of Beneficial Owners of ADSs. So
long as ADSs are held through DTC or unless otherwise required by
law, ownership of beneficial interests in the ADR registered in the
name of the nominee for DTC will be shown on, and transfers of such
ownership will be effected only through, records maintained by (i)
DTC or its nominee (with respect to the interests of DTC
Participants), or (ii) DTC Participants or their nominees (with
respect to the interests of clients of DTC Participants).
SECTION 2.02. Deposit with Custodian. Subject to the terms and conditions
of this Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares (other than Restricted Securities) may be deposited by any person
(in the case of the Company, or any Affiliate, subject to Section 5.07 hereof)
including the Depositary in its individual capacity by delivery thereof to the
Custodian, accompanied by the following: (a) in the case of Shares represented
by certificates issued in registered form, appropriate instruments of transfer
or endorsement, in a form satisfactory to the Custodian, (b) in the case of
Shares represented by certificates in bearer form, the requisite coupons and
talons pertaining thereto, and (c) in the case of Shares delivered by book-entry
transfer, confirmation of such book-entry transfer to the Custodian or that
irrevocable instructions have been given to cause such Shares to be so
transferred, together with (i) all such certifications and payments (including,
without limitation, those referred to in Exhibit B hereto, and amounts in
respect of any applicable stamp, transfer or other applicable taxes) or evidence
of such payments (including, without limitation, stamping or otherwise marking
such Shares by way of receipt) as may be required by the Depositary or such
Custodian in accordance with the provisions of this Deposit Agreement and (ii)
if the Depositary so requires, a written order directing the Depositary to issue
and deliver to, or upon the written order of, the person or persons stated in
such order the number of American Depositary Shares representing the Shares so
deposited.
If required by the Depositary, Shares presented for deposit shall also be
accompanied by (1) 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 any such deposited Shares,
or in lieu thereof, such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary and (2) if the Shares are registered in the name
of the person on whose behalf they are presented for deposit, a proxy or proxies
entitling the Custodian to vote such deposited Shares for any and all purposes
until the Shares so deposited are registered in the name of the Depositary or
its nominee or the Custodian or its nominee.
At the request, risk and expense of any holder of Shares, and for the
account of such holder, the Depositary may receive Shares to be deposited,
evidence that Shares have been electronically transferred or that irrevocable
instructions have been given to cause the transfer of such Shares to the account
of the Custodian, together with the other orders, instruments and evidence
herein specified, for the purpose of forwarding such Shares to the Custodian for
deposit hereunder.
8
The Depositary has instructed, or shall instruct, the Custodian to advise
the Depositary of any deposit of shares (or other Deposited Securities), upon
each delivery to a Custodian of Shares to be deposited hereunder (or other
Deposited Securities pursuant to Section 4.03, 4.04, 4.05 or 4.09), together
with the other documents above specified, and to present, as soon as transfer
and recordation can be accomplished, such certificate or certificates, together
with the appropriate instrument or instruments of transfer or endorsement, duly
stamped to the Company (or the Share Registrar) for transfer and recordation of
the Deposited Securities being deposited in the name of the Depositary or its
nominee or such Custodian or its nominee.
Without limiting any other provision of this Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities (except as
contemplated by Section 2.11 hereof) nor (b) any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act
unless a registration statement is in effect as to such Shares or other
Deposited Securities or such Shares or other Deposited Securities will be issued
pursuant to an exemption from registration under the Securities Act, or any
Shares or other Deposited Securities the deposit of which would violate any
provisions of the Articles of Association of the Company nor (c) any fractional
Shares or fractional Deposited Securities nor (d) a number of Shares or
Deposited Securities which upon application of the ADS to Shares ratio would
give rise to fractional ADSs. No Share shall be accepted for deposit unless
accompanied by (a) payment in respect of any applicable taxes or duties and (b)
evidence, if any is required by the Depositary, that is reasonably satisfactory
to the Depositary or the Custodian that (i) all conditions to such deposit have
been satisfied by the person depositing such Shares under the laws and
regulations of The United Kingdom (which evidence may be an opinion of counsel)
and (ii) any necessary approval has been granted by any applicable governmental
body in The United Kingdom, if any. The Depositary may issue ADSs against
evidence of rights to receive Shares from the Company, any agent of the Company
or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
ownership of Shares furnished by the Company or any such custodian, registrar,
transfer agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary, the Custodian or any of their
nominees (on behalf of Holders and Beneficial Owners) at such other place or
places as the Depositary shall determine.
SECTION 2.03. Issuance of ADSs; Execution of Certificated ADSs. The
Depositary has made arrangements with the Custodian to confirm to the Depositary
(i) that a deposit of Shares has been made pursuant to Section 2.02 hereof, (ii)
that such Deposited Securities have been recorded in the name of the Depositary,
the Custodian or a nominee of either on the shareholders' register maintained by
or on behalf of the Company by the Share Registrar if registered Shares have
been deposited or, if deposit is made by book-entry transfer, confirmation of
such transfer in the books of CREST, (iii) that all required documents have been
received, and (iv) the person(s) to whom or upon whose order ADSs are
deliverable in respect thereof and the number of ADSs to be so delivered. Such
notification may be made by letter, cable, telex, SWIFT message or, at the risk
and expense of the person making the deposit, by facsimile or other means of
electronic transmission. Upon receiving such notice from the Custodian, the
Depositary shall, subject to the terms and conditions of this Deposit Agreement
9
and applicable law, issue the ADSs representing the Shares so deposited to or
upon the order of the person(s) named in the notice delivered to the Depositary
and shall, if the ADSs are to be issued in the form of Certificated ADSs,
execute and deliver at its Principal Office ADR(s) registered in the name(s)
requested by such person(s) and evidencing the aggregate number of ADSs to which
such person(s) are entitled, but only upon payment to the Depositary of the
charges of the Depositary for issuing such ADSs (as set forth in Section 5.09
and Exhibit B hereto) and all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Shares and the issuance of
the ADSs. The Depositary shall only issue ADSs in whole numbers and deliver
ADR(s) evidencing whole numbers of ADSs. Nothing herein shall prohibit any
Pre-Release Transaction upon the terms set forth in this Deposit Agreement.
SECTION 2.04. Transfer, Combination and Split-up of ADRs. (a) Transfer.
The Registrar shall register the transfer of ADRs (and of the ADSs represented
thereby) on the books maintained for such purpose and the Depositary shall (x)
cancel such ADRs and execute new ADRs evidencing the same aggregate number of
ADSs as those evidenced by the ADRs canceled by the Depositary, (y) cause the
Registrar to countersign such new ADRs and (z) Deliver such new ADRs to or upon
the order of the person entitled thereto, if each of the following conditions
has been satisfied: (i) the ADRs have been duly Delivered by the Holder (or by a
duly authorized attorney of the Holder) to the Depositary at its Principal
Office for the purpose of effecting a transfer thereof, (ii) the surrendered
ADRs have been properly endorsed or are accompanied by proper instruments of
transfer (including signature guarantees in accordance with standard securities
industry practice), (iii) the surrendered ADRs have been duly stamped (if
required by the laws of the State of New York or of the United States), and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in Section 5.09
and Exhibit B hereto) have been paid, subject, however, in each case, to the
terms and conditions of the applicable ADRs, of the Deposit Agreement and of
applicable law, in each case as in effect at the time thereof.
(b) Combination & Split Up. The Registrar shall register the split-up or
combination of ADRs (and of the ADSs represented thereby) on the
books maintained for such purpose and the Depositary shall (x)
cancel such ADRs and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs
evidenced by the ADRs cancelled by the Depositary, (y) cause the
Registrar to countersign such new ADRs and (z) Deliver such new ADRs
to or upon the order of the Holder thereof, if each of the following
conditions has been satisfied: (i) the ADRs have been duly Delivered
by the Holder (or by a duly authorized attorney of the Holder) to
the Depositary at its Principal Office for the purpose of effecting
a split-up or combination thereof, and (ii) all applicable fees and
charges of, and expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in
Section 5.09 and Exhibit B hereof) have been paid, subject, however,
in each case, to the terms and conditions of the applicable ADRs, of
the Deposit Agreement and of applicable law, in each case as in
effect at the time thereof.
10
(c) Co-Transfer Agents. The Depositary may appoint one or more
co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of ADRs at designated transfer offices on
behalf of the Depositary and shall, whenever reasonably practicable,
consult the Company in respect of such appointment. In carrying out
its functions, a co-transfer agent may require evidence of authority
and compliance with applicable laws and other requirements by
Holders or persons entitled to such ADRs and will be entitled to
protection and indemnity to the same extent as the Depositary. Such
co-transfer agents may be removed and substitutes appointed by the
Depositary. Each co-transfer agent appointed under this Section 2.04
(other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by
the applicable terms of this Deposit Agreement.
SECTION 2.05. Surrender of ADSs and Withdrawal of Deposited Securities.
Upon surrender at the Principal Office of the Depositary of ADSs 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 ADSs (as set forth at Section 5.09 and Exhibit B hereof) and
(ii) all fees, taxes and governmental charges payable in connection with such
surrender and withdrawal, and subject to the terms and conditions of this
Deposit Agreement, the Company's Memorandum and Articles of Association,
applicable rules and regulations of CREST, the provisions of or governing the
Deposited Securities and other applicable laws, the Holder of such ADSs shall be
entitled to Delivery, to him or upon his order, of the Deposited Securities at
the time represented by such ADSs. Subject to the last paragraph of this Section
2.05, such Deposited Securities may be delivered in registered form or by
electronic Delivery. Such Deposited Securities may be Delivered by the Delivery
of (a) certificates in the name of such Holder or as ordered by him or by
certificates properly endorsed or accompanied by proper instruments of transfer
to such Holder or as ordered by him and (b) any other securities, property and
cash to which such Holder is then entitled in respect of such Receipts to such
Holder or as ordered by him. Delivery shall be made without unreasonable delay
at the principal office of the Custodian or, subject to the last paragraph of
this Section 2.05, at the Principal Office of the Depositary.
Any ADR evidencing an ADS 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, including signature guarantees in
accordance with standard securities industry practice, 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.
The Depositary shall direct the Custodian to deliver at the designated
office of the Custodian, subject to Sections 2.06, 3.01, 3.02, 5.09 and to the
other terms and conditions of this Deposit Agreement, to the Memorandum and
Articles of Association of the Company, applicable rules and regulations of
CREST and to the provisions of or governing the Deposited Securities and other
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 if so
required by the Depositary as provided above, the Deposited Securities
represented by any ADSs properly surrendered, together with any certificate or
other proper documents of or relating to title for the Deposited Securities, or
11
evidence of the electronic transfer thereof (if available), as the case may be,
to or for the account of such person, except that 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 ADSs, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
The Depositary shall not accept for surrender an ADS representing less
than one Share. In the case of surrender of 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 recorded in the name of the Holder
surrendering such ADSs, and shall, at the discretion of the Depositary, either
(i) return to the person surrendering such ADSs the number of ADSs representing
any remaining fractional Share, or (ii) sell or cause to be sold the fractional
Share represented by the ADSs so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering an ADSs, 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 the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
SECTION 2.06. Limitations on Execution and Delivery, Transfer, etc. of
ADRs; Suspension of Delivery, Transfer, etc. As a condition precedent to the
execution and delivery, registration, registration of transfer, split-up,
combination or surrender of any ADS, the delivery of any distribution thereon or
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require (a) payment from the depositor of Shares or presenter of ADSs or of any
ADR of a sum sufficient to reimburse it for any tax or other governmental charge
and any stock transfer or registration fee with respect thereto (including any
such tax or charge and fee with respect to Shares being deposited or withdrawn)
and payment of any applicable charges as provided in Section 5.09, and in
Exhibit B hereof, (b) the production of proof satisfactory to it as to the
identity and genuineness of any signature or any other matter contemplated by
Section 3.01 hereof and (c) compliance with (i) any laws or governmental
regulations relating to the execution and delivery of ADRs or ADSs or to the
withdrawal of Deposited Securities and (ii) such reasonable regulations, if any,
as the Depositary and the Company may establish consistent with the provisions
of this Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of ADSs in particular instances may be refused, or the registration of
transfers of ADSs generally may be suspended, during any period when the
transfer books of the Company, the Depositary or the Share Registrar are closed
or if any such action is deemed necessary or advisable by the Depositary or the
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange on which the ADSs or Shares are listed, or under any
provision of this Deposit Agreement or provisions of or governing Deposited
Securities, or any meeting of shareholders of the Company or for any other
reason, subject in all cases, to Section 7.08 hereof. Notwithstanding any
12
provision of this Deposit Agreement or any ADR to the contrary, Holders are
entitled to surrender outstanding ADSs and to withdraw the Deposited Securities
at any time subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders' meeting or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the ADRs or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 (as such General Instructions may be amended from time to time). The
Depositary shall comply with written instructions of the Company that the
Depositary shall not accept hereunder any Shares identified in such instructions
at such times and under such circumstances as may reasonably be specified in
such instructions in order to facilitate the Company's compliance with the
securities laws of the United States. Without limitation of the foregoing and
except as set forth in Section 2.11, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act
unless a registration statement is in effect as to such Shares or other
Deposited Securities or the Depositary receives satisfactory documentation that
such share or other Deposited Securities will be issued pursuant to an exemption
from registration under the Securities Act, or any Shares or Deposited
Securities the deposit of which would violate any provisions of the Memorandum
and Articles of Association of the Company.
SECTION 2.07. Lost ADRs, etc. In case any ADR shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new ADR
of like tenor at the expense of the Holder (a) in the case of a mutilated ADR,
in exchange and substitution for such mutilated Receipt upon cancellation
thereof, or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and
in substitution for such destroyed, lost, or stolen ADR, after the Holder
thereof (i) has filed with the Depositary a written request for such exchange
and delivery before the Depositary has notice that the ADR has been acquired by
a bona fide purchaser, (ii) has provided such security or indemnity (including
an indemnity bond) satisfactory to the Depositary as may be required by the
Depositary to save it and any of its agents harmless, and (iii) has satisfied
any other reasonable requirements imposed by the Depositary, including, without
limitation, evidence satisfactory to the Depositary of such destruction, loss or
theft of such ADR, the authenticity thereof and the Holder's ownership thereof.
SECTION 2.08. Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records. All ADRs surrendered to the Depositary shall be canceled
by the Depositary. Canceled ADRs shall not be entitled to any benefits under
this Deposit Agreement or be valid or enforceable against the Depositary for any
purpose. The Depositary is authorized to destroy ADRs so canceled, provided the
Depositary maintains a record of all destroyed ADRs. Any ADSs held in book-entry
form (i.e., through accounts at DTC) shall be deemed canceled when the
Depositary causes the number of ADSs evidenced by the Balance Certificate to be
reduced by the number of ADSs surrendered (without the need to physically
destroy the Balance Certificate).
13
SECTION 2.09. Partial Entitlement ADSs. In the event any Shares are
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Deposit
Agreement, issue ADSs and deliver ADRs representing Partial Entitlement Shares
which are separate and distinct from the ADSs and ADRs representing Full
Entitlement Shares, by means of separate CUSIP numbering and legending (if
necessary) ("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to
exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the
Custodian to transfer the Partial Entitlement Shares into the account of the
Full Entitlement Shares, and (c) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and
Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the
entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of
Full Entitlement ADSs shall be entitled only to the entitlements of Full
Entitlement Shares. All provisions and conditions of this Deposit Agreement
shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full
Entitlement ADRs and ADSs, except as contemplated by this Section 2.09. The
Depositary is authorized to take any and all other actions as may be necessary
(including, without limitation, making the necessary notations on ADRs) to give
effect to the terms of this Section 2.09. The Company agrees to give timely
written notice to the Depositary if any Shares issued or to be issued are
Partial Entitlement Shares and shall assist the Depositary with the
establishment of procedures enabling the identification of Partial Entitlement
Shares upon Delivery to the Custodian.
SECTION 2.10. Certificated/Uncertificated ADSs. Notwithstanding any other
provision of the Deposit Agreement, the Depositary may, at any time and from
time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
"Uncertificated ADS(s)" and the ADS(s) evidenced by ADR(s), the "Certificated
ADS(s)"). Uncertificated ADSs shall not be represented by any instruments and
shall be evidenced only by registration as "uncertificated securities" on the
books and records of the Depositary maintained for such purpose. Any reference
to Holders of ADR(s) or ADS(s) in the Deposit Agreement shall, in the context of
the Uncertificated ADSs, refer to the person(s) shown on the books and records
of the Depositary as the holder of the Uncertificated ADS(s). Holders of
Uncertificated ADSs that are not subject to any registered pledges, liens,
restrictions or adverse claims of which the Depositary has notice at such time,
shall at all times have the right to exchange the Uncertificated ADS(s) for
Certificated ADS(s) of the same type and class, subject in each case to
applicable laws and any rules and regulations the Depositary may establish in
respect of the Uncertificated ADSs. Holders of Certificated ADSs shall, if the
Depositary maintains a direct registration system for the ADSs, have the right
to exchange the Certificated ADSs for Uncertificated ADSs upon (i) the due
surrender of the Certificated ADS(s) to the Depositary for such purpose and (ii)
the presentation of a written request to that effect to the Depositary, subject
in each case to (a) all liens and restrictions noted on the ADR evidencing the
14
Certificated ADS(s) and all adverse claims of which the Depositary then has
notice, (b) the terms of the Deposit Agreement and the rules and regulations
that the Depositary may establish for such purposes hereunder, (c) applicable
law, and (d) payment of the Depositary fees and expenses applicable to such
exchange of Certificated ADS(s) for Uncertificated ADS(s). Uncertificated ADSs
shall in all material respects be identical to Certificated ADS(s) of the same
type and class, except that (i) no ADR(s) shall be, nor shall need to be, issued
to evidence Uncertificated ADS(s), (ii) Uncertificated ADS(s) shall, subject to
the terms of the Deposit Agreement, be transferable upon the same terms and
conditions as uncertificated securities under New York law, (iii) the ownership
of Uncertificated ADS(s) shall be recorded on the books and records of the
Depositary maintained for such purpose and evidence of such ownership shall be
reflected in periodic statements provided by the Depositary to the Holder(s) in
accordance with applicable law, (iv) the Depositary may from time to time, upon
notice to the Holders of Uncertificated ADSs affected thereby, establish rules
and regulations, and amend or supplement existing rules and regulations, as may
be deemed reasonably necessary to maintain Uncertificated ADS(s) on behalf of
Holders, provided that such rules and regulations do not conflict with the terms
of the Deposit Agreement and applicable law, (v) the Uncertificated ADS(s) shall
not be entitled to any benefits under this Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company unless such
Uncertificated ADS(s) is/are registered on the books and records of the
Depositary maintained for such purpose, (vi) the Depositary may, in connection
with any deposit of Shares resulting in the issuance of Uncertificated ADSs and
with any transfer, pledge, release and cancellation of Uncertificated ADSs,
require the prior receipt of such documentation as the Depositary may deem
reasonably appropriate, and (vii) upon termination of the Deposit Agreement, the
Depositary shall not require Holders of Uncertificated ADSs to affirmatively
instruct the Depositary before remitting proceeds from the sale of the Deposited
Securities represented by such Holders' Uncertificated ADSs under the terms of
Section 6.2 of the Deposit Agreement. When issuing ADSs under the terms of the
Deposit Agreement, including, without limitation, issuances pursuant to Sections
2.03, 4.03, 4.04, 4.05, 4.10 and 7.11 hereof, the Depositary may in its
discretion determine to issue Uncertificated ADSs rather than Certificated ADSs,
unless otherwise specifically instructed by the applicable Holder to issue
Certificated ADSs. All provisions and conditions of the Deposit Agreement shall
apply to Uncertificated ADSs to the same extent as to Certificated ADSs, except
as contemplated by this Section 2.10. The Depositary is authorized and directed
to take any and all actions and establish any and all procedures, deemed
reasonably necessary to give effect to the terms of this Section 2.10. Except as
set forth in this Section 2.10 and except as required by applicable law, the
Uncertificated ADSs shall be treated as ADSs issued and outstanding under the
terms of the Deposit Agreement. In the event that, in determining the rights and
obligations of parties to the Deposit Agreement with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit
Agreement (other than this Section 2.10) and (b) the terms of this Section 2.10,
the terms and conditions set forth in this Section 2.10 shall be controlling and
shall govern the rights and obligations of the parties to the Deposit Agreement
pertaining to the Uncertificated ADSs.
SECTION 2.11. Restricted ADSs. The Depositary shall, at the request and
expense of the Company, establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Shares to hold ownership interests in such Restricted Shares in the form of ADSs
issued under the terms hereof (such Shares, "Restricted Shares"). Upon receipt
of a written request from the Company to accept Restricted Shares for deposit
hereunder, the Depositary agrees to establish procedures permitting the deposit
of such Restricted Shares and the issuance of ADSs representing such deposited
Restricted Shares (such ADSs, the "Restricted ADSs," and, if requested, ADRs
evidencing such Restricted ADSs, the "Restricted ADRs"). The Company shall
15
assist the Depositary in the establishment of such procedures and agrees that it
shall take all reasonable steps requested by the Depositary to insure that the
establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such Restricted
Shares and the holders of the Restricted ADSs may be required prior to the
deposit of such Restricted Shares, the transfer of the Restricted ADRs and the
Restricted ADSs evidenced thereby or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs or in the case of Restricted ADSs issued only in uncertificated
form, the transfer restriction applicable to such Restricted ADSs, which legends
or transfer restrictions shall be in a form reasonably satisfactory to the
Depositary. The Restricted ADSs issued upon the deposit of Restricted Shares
shall be separately identified on the books of the Depositary and the Restricted
Shares so deposited shall be held separate and distinct from the other Deposited
Securities held hereunder. The Restricted Shares and the Restricted ADSs shall
not be eligible for Pre-Release Transactions. The Restricted ADSs shall not be
eligible for inclusion in any book-entry settlement system, including, without
limitation, DTC, and shall not in any way be fungible with the ADSs issued under
the terms hereof that are not Restricted ADSs. The Restricted ADRs and the
Restricted ADSs evidenced thereby shall be transferable only by the Holder
thereof upon delivery to the Depositary of (i) all documentation otherwise
contemplated by this Deposit Agreement and (ii) unless waived by the Depositary
or otherwise agreed by the Company and the Depositary, an opinion of counsel
reasonably satisfactory to the Depositary setting forth, inter alia, the
conditions upon which the Restricted ADR presented is, and the Restricted ADSs
evidenced thereby are, transferable by the Holder thereof under applicable
securities laws and the transfer restrictions contained in the legend set forth
on the Restricted ADR presented for transfer. Except as set forth in this
Section 2.11 and except as required by applicable law, the Restricted ADRs and
the Restricted ADSs evidenced thereby shall be treated as ADRs and ADSs issued
and outstanding under the terms of the Deposit Agreement. In the event that, in
determining the rights and obligations of parties hereto with respect to any
Restricted ADSs, any conflict arises between (a) the terms of this Deposit
Agreement (other than this Section 2.11) and (b) the terms of (i) this Section
2.11 or (ii) the applicable Restricted ADR, the terms and conditions set forth
in this Section 2.11 and of the Restricted ADR shall be controlling and shall
govern the rights and obligations of the parties to this Deposit Agreement
pertaining to the deposited Restricted Shares, the Restricted ADSs and
Restricted ADRs.
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares are
no longer Restricted Securities, the Depositary, upon receipt of (x) an opinion
of counsel reasonably satisfactory to the Depositary, unless waived by the
Depositary, setting forth, inter alia, that the Restricted ADRs, the Restricted
ADSs and the Restricted Shares are not as of such time Restricted Securities,
and (y) instructions from the Company to remove the restrictions applicable to
the Restricted ADRs, the Restricted ADSs and the Restricted Shares, shall (i)
eliminate the distinctions and separations between the applicable Restricted
Shares held on deposit under this Section 2.11 and the other Shares held on
deposit under the terms of the Deposit Agreement that are not Restricted Shares,
16
(ii) treat the newly unrestricted ADRs and ADSs on the same terms as, and fully
fungible with, the other ADRs and ADSs issued and outstanding under the terms of
the Deposit Agreement that are not Restricted ADRs or Restricted ADSs, (iii)
take all actions necessary to remove any distinctions, limitations and
restrictions previously existing under this Section 2.11 between the applicable
Restricted ADRs and Restricted ADSs, respectively, on the one hand, and the
other ADRs and ADSs that are not Restricted ADRs or Restricted ADSs,
respectively, on the other hand, including, without limitation, by making the
newly-unrestricted ADSs eligible for Pre-Release Transactions and for inclusion
in the applicable book-entry settlement systems.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Shares for deposit or any Holder or Beneficial Owner may be
required from time to time to file such proof of citizenship or residence,
taxpayer status, payment of all applicable taxes or other governmental charges,
exchange control approval, compliance with applicable laws and the terms of this
Deposit Agreement or other information (or, in the case of Shares in registered
form presented for deposit, such information relating to the registration on the
books of the Company or of the appointed agent of the Company for the
registration and transfer of Shares), to execute such certificates and to make
such representations and warranties, as the Depositary may deem necessary or
proper or as the Company may reasonably require by written request to the
Depositary consistent with its obligations hereunder. The Depositary and the
Registrar, as applicable, may withhold the execution or delivery or registration
of transfer of any ADS or the distribution or sale of any dividend 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 to the Depositary, the Registrar and the Company's
satisfaction. The Depositary shall provide the Company, in a timely manner, with
copies or originals if necessary and appropriate of (i) any such proofs of
citizenship or residence, taxpayer status, or exchange control approval which it
receives, and (ii) any other information or documents which the Company may
reasonably request and which the Depositary shall request and receive from the
Holder or any person presenting Shares for deposit.
SECTION 3.02. Liability of Holder for Taxes and Other Charges. If any tax
or other governmental charge shall become payable with respect to any ADS or any
Deposited Securities represented by ADSs, such tax or other governmental charge
shall be payable by the Holder or Beneficial Owner of such ADS to the
Depositary. The Depositary may refuse to effect any registration of transfer of
all or part of such ADS or refuse to issue any new ADSs or ADR evidencing ADSs
or to permit any deposit or withdrawal of Deposited Securities represented by
the ADSs until such payment is made, and the Company and the Depositary may
withhold or deduct from any dividends or other distributions, or may sell for
the account of the Holder thereof any part or all of the Deposited Securities
represented by the ADSs, and may apply such dividends or other distributions or
the proceeds of any such sale in payment of such tax or other governmental
charge, the Holder and Beneficial Owner of such ADS remaining liable for any
deficiency.
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SECTION 3.03. Representations and Warranties on Deposit of Shares. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares and the certificates therefor are validly
issued, fully paid and non-assessable, that all preemptive rights, if any, with
respect to such Shares have been validly waived or exercised and that each such
person making such deposit is duly authorized so to do. Each such person shall
be deemed to acknowledge complete responsibility for the report of any false
information relating to foreign exchange transactions to the Depositary, the
Custodian or any governmental authority in the United Kingdom in connection with
the issuance of ADSs and the deposit, transfer, surrender or withdrawal of
Shares or ADSs. Each such person shall also be deemed to represent that the
Shares presented for deposit are not, and the ADSs issuable upon such deposit
will not be, Restricted Securities, unless such Shares are being deposited in
accordance with Section 2.11 hereof and such procedures as may be established by
the Depositary thereunder. Such representations and warranties shall survive the
deposit and withdrawal of Shares and the issuance and cancellation of Receipts
in respect thereof.
SECTION 3.04. Disclosure of Beneficial Ownership. Notwithstanding any other
provision of this Deposit Agreement, each Holder and Beneficial Owner agrees to
comply with requests from the Company pursuant to the laws of The United
Kingdom, the rules of the London Stock Exchange and any other stock exchange on
which the Shares are, or will be, registered, traded or listed or the Memorandum
and Articles of Association of the Company, which are made to provide
information, inter alia, as to the capacity in which such Holder and Beneficial
Owner owns ADSs (and Shares as the case may be) and regarding the identity of
any other person interested in such ADSs and the nature of such interest,
whether or not they are Holders at the time of such request. The Depositary
agrees to use its reasonable efforts to comply, at the Company's expense, with
written instructions received from the Company requesting that the Depositary
forward any such request from the Company to the Holder and to forward to the
Company any such responses to such requests received by the Depositary.
Each Holder or Beneficial Owner agrees that such Holder or Beneficial Owner, (i)
is bound by and subject to the Articles of Association of the Company as if such
Holder were a registered holder of Shares and (ii) will provide such information
within the prescribed period as the Company may request in a disclosure notice
("Disclosure Notice") given pursuant to any applicable provision of United
Kingdom law or the Articles of Association of the Company. Each Holder and
Beneficial Owner further acknowledges that failure by such Holder or Beneficial
Owner to provide on a timely basis the information required in any Disclosure
Notice may result in the withholding of certain rights in respect of such
Holder's or Beneficial Owner's American Depositary Shares including, without
limitation, voting rights, the right to receive dividends or other payments and
rights of free transferability in respect of the Shares represented by such
American Depositary Shares. Each Holder and Beneficial Owner agrees to comply
with all applicable provisions of United Kingdom law and the Articles of
Association of the Company with regard to notification to the Company of such
Holder's or Beneficial Owner's interest in Shares, including any provision
requiring such Holder to disclose within a prescribed period an interest in
Shares equal to or in excess of three percent (3%) of such Shares outstanding or
such other percentage as may be required from time to time pursuant to any
provision of United Kingdom law or the Articles of Association of the Company.
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SECTION 3.05. Ownership Restrictions. The Company may restrict transfers
of the Shares where such transfer might result in ownership of Shares exceeding
limits imposed by applicable law or the Memorandum and Articles of Association
of the Company. The Company may also restrict, in such manner as it deems
appropriate, transfers of the American Depositary Shares where such transfer may
result in the total number of Shares represented by the American Depositary
Shares owned by a single Holder or Beneficial Owner to exceed any such limits.
The Company may, in its sole discretion, instruct the Depositary to take action
with respect to the ownership interest of any Holder or Beneficial Owner in
excess of the limitation set forth in the preceding sentence, including but not
limited to a mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the American Depositary Shares held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Memorandum and Articles
of Association of the Company.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.01. Power of Attorney. Each Holder and Beneficial Owner, upon
acceptance of American Depositary Share (s) issued in accordance with the terms
hereof, hereby appoints the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all steps or action provided
for or contemplated herein with respect to the Deposited Securities, to adopt
any and all procedures necessary to comply with applicable law, including, but
not limited to, those set forth in this Article IV, and to take such further
steps or action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement.
SECTION 4.02. Cash 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, pursuant to Section 4.07
hereof, be converted on a reasonable basis into Dollars transferable to the
United States, and subject to the Deposit Agreement, promptly convert or cause
to be converted such dividend or distribution into Dollars and will distribute
promptly the amount thus received (net of fees of, and expenses incurred by, the
Depositary) to the Holders entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively. The Depositary shall distribute only such amount, however, as can
be distributed without attributing to any Holder a fraction of one Cent, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of ADSs then outstanding.
If 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, 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 to the relevant governmental authority.
19
SECTION 4.03. Distribution in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Company shall cause such Shares to be deposited with and registered in the
name of the Custodian and thereupon the Depositary may, subject to Section 5.07
hereof, either (i) distribute to the Holders entitled thereto, as of the record
date fixed pursuant to Section 4.08 hereof, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively, additional ADSs, which represent in aggregate the number of Shares
received as such dividend, or free distribution, subject to the terms of this
Deposit Agreement, including, without limitation, Sections 2.02, 2.03, 4.04,
4.05, 5.07 and 5.09 hereof; in lieu of issuing ADSs fractional American
Depositary Shares in any such case, the Depositary shall sell the number 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
4.02 or (ii) if additional ADSs are not so distributed, each American Depositary
Share shall thenceforth also represent the additional Shares distributed upon
the Deposited Securities represented thereby. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, or, if after the Company, in the
fulfillment of its obligation under Section 5.07 hereof, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges, or effect the distribution of unregistered
Shares, and the Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to Holders entitled thereto in
proportion to the number of American Depositary Shares held by them respectively
and the Depositary shall distribute any unsold balance of such property in
accordance with the provisions of this Deposit Agreement.
SECTION 4.04. 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 may,
after consultation with the Company, and, if requested in writing by the
Company, shall, take action, subject to the terms of this Deposit Agreement, as
follows:
(a) if at the time of the offering of any rights, the Depositary
determines in its discretion, after obtaining, at the Company's
expense, opinion(s) of United States and United Kingdom counsel, as
applicable, reasonably satisfactory to the Depositary, that it is
lawful and feasible to make such rights available to all or certain
Holders or Beneficial Owners but not to others, by means of warrants
or otherwise, the Depositary may distribute warrants or other
instruments therefor in such form as it may determine, to the
Holders entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by
them respectively, or employ such other method as it may deem
feasible after obtaining, at the Company's expense, opinion(s) of
United States and United Kingdom counsel, as applicable, reasonably
satisfactory to the Depositary in order to facilitate the exercise,
sale or transfer of rights or the securities obtainable upon
exercise of such rights, by such Holders or Beneficial Owners; or
20
(b) if at the time of the offering of any rights, Depositary determines
in its discretion, after obtaining, at the Company's expense,
opinion(s) of United States and United Kingdom counsel, as
applicable, reasonably satisfactory to the Depositary, that it is
not lawful or not feasible to make such rights available to certain
Holders or Beneficial Owners by means of warrants or otherwise, or
if the rights represented by such warrants or such other instruments
are not exercised and appear to be about to lapse, the Depositary,
in its discretion may sell such rights or such warrants or other
instruments at public or private sale, in a riskless principal
capacity, at such place or places and upon such terms as it may deem
proper, and allocate the proceeds of such sales for the account of
the Holders otherwise entitled to such rights, warrants or other
instruments upon an averaged or other practicable basis without
regard to any distinctions among such Holders because of exchange
restrictions or the date of delivery of any ADR or ADRs, or
otherwise, and distribute such net proceeds so allocated to the
extent practicable as in the case of a distribution of cash pursuant
to Section 4.02 hereof. The Depositary shall not be responsible for
(i) any failure to determine that it may be lawful or feasible to
make such rights available to Holders in general or any Holder or
Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or (iii) any liability to the
purchaser of such rights, warrants or other instruments.
If the Depositary does not receive such written request from the Company,
the Depositary shall, after consultation with the Company, and after obtaining
opinion(s) of United States and United Kingdom counsel, as applicable,
reasonably satisfactory to the Depositary, have discretion as to the procedure
to be followed (i) in making such rights available to the Holders, or (ii) in
disposing of such rights on behalf of such Holders and distributing the net
proceeds available in dollars to such Holders as in the case of a distribution
of cash pursuant to Section 4.02 hereof, or (iii) in allowing such rights to
lapse in the event such rights may not be made available to Holders or be
disposed of and the net proceeds thereof made available to Holders.
Notwithstanding anything to the contrary in this Section 4.04, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not offer such rights
to the Holders (i) unless and until a registration statement under the
Securities Act covering such offering is in effect, or (ii) unless the Company
furnishes the Depositary opinion(s) of counsel for the Company in the United
States and counsel to the Company in any other applicable country in which
rights would be distributed, satisfactory to the Depositary or other evidence
satisfactory to the Depositary to the effect that the offering and sale of such
securities to the Holders of such Receipts are exempt from or do not require
registration under the provisions of the Securities Act or any other applicable
laws.
References in this Section 4.04 to "Holders" are to Holders as of the
record date fixed pursuant to Section 4.08.
SECTION 4.05. Elective Distributions in Cash or Shares. Whenever the
Company intends to make a distribution payable at the election of the holders of
Shares in cash or in additional Shares, the Company shall give notice thereof to
the Depositary at least sixty (60) days prior to the proposed distribution
stating whether or not it wishes such elective distribution to be made available
to Holders of ADSs. Upon timely receipt of notice indicating that the Company
wishes such elective distribution to be made available to Holders of ADSs, the
21
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such elective distribution available to the Holders of ADSs.
The Depositary shall make such elective distribution available to Holders only
if (i) the Company shall have timely requested that the elective distribution be
made available to Holders, (ii) the Depositary shall have determined that such
distribution is reasonably practicable and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.07. If the
above conditions are not satisfied, the Depositary shall, to the extent
permitted by law, distribute to the Holders, on the basis of the same
determination as is made in The United Kingdom in respect of the Shares for
which no election is made, either (X) cash upon the terms described in Section
4.02 or (Y) additional ADSs representing such additional Shares upon the terms
described in Section 4.03. If the above conditions are satisfied, the Depositary
shall establish an ADS Record Date (on the terms described in Section 4.08) and
establish procedures to enable Holders to elect the receipt of the proposed
distribution in cash or in additional ADSs. The Company shall assist the
Depositary in establishing such procedures to the extent necessary. If a Holder
elects to receive the proposed distribution (X) in cash, the distribution shall
be made upon the terms described in Section 4.02, or (Y) in ADSs, the
distribution shall be made upon the terms described in Section 4.03. Nothing
herein shall obligate the Depositary to make available to Holders a method to
receive the elective distribution in Shares (rather than ADSs). There can be no
assurance that Holders generally, or any Holder in particular, will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Shares.
SECTION 4.06. Distributions Other Than Cash, Shares or Rights. Whenever
the Custodian shall receive any distribution other than cash, Shares or rights
upon any Deposited Securities, the Depositary shall, after consultation with the
Company or if requested in writing by the Company and obtaining, at the
Company's expense, opinion(s) of United States and United Kingdom counsel, as
applicable, satisfactory to the Depositary that the proposed distribution does
not violate any applicable laws or regulations, cause the securities or property
so received to be distributed to the Holders entitled thereto, as of a record
date fixed pursuant to Section 4.08 hereof, 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, net of expenses of the
Depositary; provided, however, that, if in the opinion of the Depositary or its
counsel, it cannot cause such securities or property to be distributed or such
distribution cannot be made proportionately among the Holders entitled thereto,
or if for any other reason (including without limitation any requirement (i)
that the Company, the Depositary or the Custodian withhold an amount on account
of taxes or other governmental charges or (ii) that under applicable securities
or exchange control regulations or law such securities must be registered under
the Securities Act or other law in order to be distributed to Holders), the
Depositary deems such distribution not to be feasible, the Depositary may, in
its sole discretion, determine an equitable and practicable method of effecting
such distribution, which method may include, but not be limited to, the sale (at
public or private sale) of the securities or property thus received, or any part
thereof, and the distribution of the net proceeds of any such sale (net of
taxes, fees and expenses of the Depositary set forth in Section 5.09 or Exhibit
B hereof) by the Depositary to the Holders entitled thereto as in the case of a
distribution received in cash.
22
SECTION 4.07. 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, which in the judgment of the Depositary can at such time be converted on
a reasonable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into dollars distributable to the Holders
entitled thereto and transferable 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 shall transfer such dollars
(net of any of its reasonable and customary expenses incurred in such conversion
and any expenses incurred on behalf of the Holder in complying with currency
exchange control or other governmental requirements) to the Holders entitled
thereto or, if the Depositary shall have distributed any warrants or other
instruments that entitle the holders thereof to such dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest. Such distribution
may be made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of any application of exchange
restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have discretion and authority
to file such application for approval or license, if any, as it may deem
desirable. In no event, however, shall the Depositary be obligated to make such
a filing.
If at any time the Depositary shall determine that in its, judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into dollars distributable to the Holders entitled thereto and
transferable to the United States, or if any approval or license of any
government or authority or agency thereof that is required for such conversion
and/or transfer is denied or in the opinion of the Depositary is not obtainable
at a reasonable cost or 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) to,
or in its discretion may hold such foreign currency (without liability for
interest thereon) for the respective accounts of, the Holders entitled to
receive the same.
If any such conversion of foreign currency, in whole or in part, is not
practicable for distribution to certain Holders entitled thereto, the Depositary
may in its discretion make such conversion and distribution in dollars to the
extent practicable to the Holders entitled thereto and may distribute the
balance of the foreign currency received by the Depositary to, or hold such
balance (without liability for interest thereon) for the account of, the Holders
for whom such conversion and distribution is not practicable.
SECTION 4.08. Fixing of Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any cash dividend or other
cash distribution or any distribution other than cash, or any rights to be
issued with respect to the 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 receive notice of
any meeting of holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation of any consent or any other matter, the Depositary
shall fix a record date for the determination of the Holders who shall be
23
entitled to receive such dividend, distribution rights or the net proceeds of
the sale thereof, to vote or to give instructions for the exercise of voting
rights at any such meeting, or to give or withhold such consent, or to receive
such notice or solicitation or to otherwise take action, or to exercise the
rights of Holders with respect to such changed number of Shares represented by
each American Depositary Share. Subject to the provisions of Sections 4.02
through 4.07 of the Deposit Agreement and to the other terms and conditions of
this Deposit Agreement, the Holders at the close of business on such record date
shall be entitled to receive the amount distributable by the Depositary with
respect to such dividend or other distribution of such rights or the net
proceeds of sale thereof in proportion to the number of American Depositary
Shares held by them respectively, or to vote or to give such voting
instructions, to receive such notice or solicitation, or otherwise take action.
SECTION 4.09. Voting of Deposited Securities. The Depositary or, if the
Deposited Securities are registered in the name of or held by its nominee,
subject to and in accordance with the Articles of Association of the Company
hereby irrevocably appoints each Registered Holder (as defined below) for the
time being on the record date (the "Voting Record Date") fixed by the Depositary
in accordance with Section 4.08 in respect of any meeting (including any
adjourned meeting) at which holders of Deposited Securities are entitled to vote
as its proxy to attend, vote and speak at the relevant meeting (or any
adjournment thereof) in respect of the Deposited Securities represented by the
ADSs held by such Registered Holder on the Voting Record Date. In respect of any
such meeting each such Registered Holder may appoint either a person nominated
by the Depositary or any other person as its substitute proxy to attend, vote
and speak on behalf of the Registered Holder subject to and in accordance with
the provisions of this Section 4.09 and the Articles of Association of the
Company. As soon as practicable after receipt of notice of any meeting at which
the holders of Deposited Securities are entitled to vote, or of solicitation of
consents or proxies from holders of Deposited Securities, the Depositary shall,
in accordance with Section 4.08, fix the Voting Record Date in respect of such
meeting or solicitation. The Depositary or, if the Company so determines, the
Company shall distribute to Registered Holders on such Voting Record Date: (a)
such information as is contained in such notice of meeting or in the
solicitation materials, (b) a voting card in a form prepared by the Depositary,
after consultation with the Company, (c) a statement that each Registered Holder
at the close of business on the Voting Record Date will be entitled, subject to
any applicable law, the Company's Articles of Association and the provisions of
or governing the Deposited Securities, either (i) to use such voting card in
order to attend, vote and speak at such meeting as the proxy of the Depositary
or its nominee solely with respect to the Deposited Securities represented by
such Registered Holder's ADSs or (ii) to appoint any other person as the
substitute proxy of such Registered Holder, solely with respect to the Deposited
Securities represented by such Registered Holder's ADSs (iii) to appoint the
person nominated by the Depositary as the substitute proxy of such Registered
Holder and to instruct such person nominated by the Depositary as to the
exercise of the voting rights pertaining to the Deposited Securities represented
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by such Registered Holder's ADSs and (d) if the person nominated by the
Depositary is to be appointed by such Registered Holder as its substitute proxy,
a brief statement as to the manner in which voting instructions may be given to
the person nominated by the Depositary. Upon the written request of a Registered
Holder on the Voting Record Date received on or before the date established by
the Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the provisions of the Company's
Articles of Association and the provisions of the Deposited Securities, to cause
to be voted the Deposited Securities in accordance with the instructions set
forth in such request.
Neither the Depositary nor the Custodian nor the nominee of either of them
shall exercise any discretion as to voting and neither the Depositary nor the
Custodian nor the nominee of either of them shall vote or attempt to exercise
the right to vote the Deposited Securities represented by American Depositary
Shares except pursuant to and in accordance with such written instructions from
Registered Holders given in accordance with this Section 4.09. Deposited
Securities represented by American Depositary Shares for which no specific
voting instructions are received by the Depositary from the Registered Holder
shall not be voted by the Depositary or its nominee but may be directly voted by
Registered Holders in attendance at meetings of shareholders as proxy for the
Depositary, subject to, and in accordance with, the provisions of this Section
4.09 and the Company's Articles of Association.
For purposes of this Section 4.09, "Registered Holder" shall mean the
person in whose name an ADS is registered on the books of the Depositary or the
Registrar.
SECTION 4.10. Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement or
otherwise in respect of, such Deposited Securities shall be treated as new
Deposited Securities under this Deposit Agreement and any ADRs shall, subject to
the provisions of this Deposit Agreement and applicable law, evidence American
Depositary Shares representing the right to receive such additional securities.
Alternatively, the Depositary may, with the Company's approval, and shall, if
the Company shall so request, subject to the terms of the Deposit Agreement and
receipt of an opinion of the counsel to the Company satisfactory to the
Depositary that such distributions are not in violation of any applicable laws
or regulations, execute and deliver additional ADSs as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding ADRs to be
exchanged for new ADRs, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to the form of ADR contained in
Exhibit A hereto, specifically describe such new Deposited Securities or
corporate change. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of ADR. Notwithstanding the foregoing, in the event
that any security so received may not be lawfully distributed to some or all
Holders or Beneficial Owners, the Depositary may, and with the Company's
approval, shall if the Company requests, subject to receipt of an opinion of
Company's counsel satisfactory to the Depositary that such action is not in
violation of any applicable laws or regulations, sell such securities at public
or private sale, at such place or places and upon such terms as it may deem
proper and may allocate the net proceeds of such sales for the account of the
Holders and Beneficial Owners otherwise entitled to such securities upon an
averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.02. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such securities available to
Holders in general or any Holder or Holders in particular, or (ii) any foreign
exchange exposure or loss incurred in connection with such sale, or (iii) any
liability to the purchaser of such securities
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SECTION 4.11. Available Information. The Company is subject to the
periodic reporting requirements of the Securities Exchange Act of 1934 and
accordingly files certain reports with the Commission. Such reports and other
information may be inspected and copied at public reference facilities
maintained by the Commission located at the date hereof at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ and may also be available on the Commission's website at
▇▇▇.▇▇▇.▇▇▇..
SECTION 4.12. Reports. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company, which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
send to Holders copies of such reports when furnished by the Company to the
Custodian pursuant to Section 5.06.
SECTION 4.13. List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders.
SECTION 4.14. Taxation. The Depositary or the Custodian will forward to
the Company or its agents 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, and the Depositary, the Custodian or
the Company or its agents may file such reports as are necessary to reduce or
eliminate applicable taxes on distributions in respect of Deposited Securities
on dividends and other benefits under applicable tax treaties for the Holders.
In accordance with instructions from the Company and to the extent practicable,
the Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties with respect to dividends and other
distributions on the Deposited Securities. Holders and Beneficial Owners of
American Depositary Shares representing Deposited Securities may be required
from time to time to file such proof of taxpayer status or residence, to execute
such certificates and to make such representations and warranties, or to provide
any other information or documents as the Depositary may deem necessary or
proper to fulfill the Depositary's obligations under applicable law. Holders and
Beneficial Owners shall provide the Depositary, in a timely manner, with copies,
or originals if necessary and appropriate, of any such proofs of residence,
taxpayer status, beneficial ownership and any other information or documents
which the Depositary may reasonably request. The Holders and Beneficial Owners
shall indemnify the Depositary, the Company, the Custodian and any of their
respective directors, employees, agents and Affiliates against, and hold each of
them harmless from, any claims by any governmental authority with respect to
taxes, additions to tax, penalties or interest arising out of any refund of
taxes, reduced rate of withholding at source or other tax benefit obtained for
such Holders and Beneficial Owners pursuant to this Section 4.14.
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ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of ADRs, the surrender of ADSs and the
delivery and withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of ADSs and transfers
of ADSs which at all reasonable times shall be open for inspection by the
Company and by the Holders of such ADSs, provided that such inspection shall not
be, to the Registrar's knowledge, for the purpose of communicating with Holders
of such ADSs 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 ADSs.
The Registrar may close the transfer books with respect to the ADRs, at
any time or from time to time, when deemed expedient by it in connection with
the performance of its duties hereunder, subject, in all cases, to Section 7.08
hereof.
If any ADSs are listed on one or more stock exchanges or automated
quotation systems in the United States, the Depositary shall act as Registrar
or, with the written approval of the Company, appoint a Registrar or one or more
co-registrars for registration of ADRs and transfers, combinations and
split-ups, and to countersign such ADRs in accordance with any requirements of
such exchange or systems. Such Registrar or co-registrars may be removed and a
substitute or substitutes appointed by the Depositary upon the written request
or with the written approval of the Company.
SECTION 5.02. Prevention or Delay in Performance. Neither the Depositary
nor the Company nor any of their respective controlling persons, directors,
employees, agents or affiliates shall incur any liability to any Holder or
Beneficial Owner or any other person, if, by reason of any provision of any
present or future law or regulation of the United States, the United Kingdom or
any other country, or of any other governmental authority or regulatory
authority or stock exchange, or by reason of any provision, present or future,
of the Memorandum and Articles of Association of the Company or governing any
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, revolutions, rebellions, explosions and
computer failure), the Depositary, its controlling persons or its agents or the
Company or its agents shall be prevented or forbidden from or subjected to any
civil or criminal penalty or restraint on account of, or delayed in, doing or
performing any act or thing which by the terms of this Deposit Agreement it is
provided shall be done or performed; nor shall the Depositary, its controlling
persons or its agents or the Company, its controlling person or its agents incur
any liability to any Holder or other person by reason of any non-performance or
delay, caused as aforesaid, in 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 or in the Memorandum and
Articles of Association of the Company or provisions of or governing Deposited
Securities. Where, by the terms of a distribution pursuant to Sections 4.02,
4.03, 4.04, or 4.05 of this Deposit Agreement, or an offering or distribution
pursuant to Sections 4.06, 4.10 or 5.07 of this Deposit Agreement or in the
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Memorandum and Articles of Association of the Company, or for any other reason,
such distribution or offering may not be made available to Holders, or some of
them, and the Depositary may not dispose of such distribution or offering on
behalf of such Holders and make the net proceeds available to such Holders, then
the Depositary shall not make such distribution or offering, and shall allow any
such rights, if applicable, to lapse. The Depositary and the Company shall be
entitled to rely upon any written notice, request or other document it believes
to be genuine and to have been signed or presented by the proper party or
parties without liability under this Deposit Agreement. Neither the Depositary
nor the Company shall have any obligation to perform any act inconsistent with
the terms of this Deposit Agreement and the Depositary and the Company disclaim
liability for any consequential or punitive damages for any breach of the terms
of this Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company. Each of the Company and its agents assumes no obligation and shall be
subject to no liability under this Deposit Agreement or any ADRs to Holders or
other persons, except that each of the Company and its agents agrees to perform
its obligations specifically set forth in this Deposit Agreement without
negligence or bad faith and using its reasonable judgment.
Each of the Depositary and its agents assumes no obligation and shall be
subject to no liability under this Deposit Agreement or any ADRs to Holders or
other persons (including, without limitation, liability with respect to the
validity or worth of the Deposited Securities), except that each of the
Depositary and its agents agrees to perform its obligations specifically set
forth in this Deposit Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, its
controlling persons, nor any of its agents, nor the Company, its controlling
persons nor any of its agents shall be (a) under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the ADSs, which in its opinion may involve
it in expense or liability, unless indemnity satisfactory to it against all
expense (including fees and disbursements of counsel) and liability be furnished
as often as may be required (and no Custodian shall be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary), or (b) 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, its controlling persons, its agents, any Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any vote is cast or the effect of any vote, provided that any such
action or omission is in good faith and in accordance with the terms of this
Deposit Agreement.
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No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of its election to do so delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment by the Company 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 written notice
of such removal, which notice shall be effective on the earlier of (i) the 60th
day after delivery thereof to the Depositary, or (ii) upon the appointment by
the Company 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, (i) execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder, (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.05. The Custodian. The Depositary, after consultation with the
Company, may from time to time appoint one or more agents to act for it as
custodian hereunder. The Depositary has initially appointed Citibank, N.A.,
London Branch as Custodian and agent of the Depositary for the purpose of this
Deposit Agreement. The Custodian or its successors in acting hereunder shall be
subject at all times and in all respects to the direction of the Depositary for
the Shares and the ADSs and ADRs with respect to which the Custodian acts as
custodian and shall be responsible solely to it. Any Custodian may resign and be
discharged from its duties hereunder with respect to any Deposited Securities 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 the
effectiveness of such resignation, there should be no custodian acting
hereunder, the Depositary shall, promptly after receiving such notice, appoint a
substitute custodian that is organized under the laws of the United Kingdom with
respect to the Deposited Securities with respect to which the Custodian has so
resigned which shall thereafter be the Custodian hereunder. Whenever the
Depositary determines, in its discretion, that it is in the best interest of the
Holders to do so, it may appoint an additional custodian with respect to any
Deposited Securities, or discharge the Custodian with respect to any Deposited
Securities and appoint a substitute custodian, which shall thereafter be
29
Custodian hereunder with respect to the Deposited Securities. Forthwith upon its
appointment, each such substitute or additional custodian shall deliver to the
Depositary and the Company an acceptance of such appointment and agreement to be
bound by the terms hereof satisfactory in form and substance to the Depositary
and the Company. Upon demand of the Depositary, any Custodian shall deliver such
of the Deposited Securities held by it together with all records maintained by
it as Custodian with respect to such Deposited Securities as are requested of it
to any other Custodian or such substitute or additional custodian or custodians,
and each such substitute or additional custodian shall deliver to the Depositary
and the Company forthwith upon its appointment, an acceptance of such
appointment and agreement to be bound by the terms hereof, satisfactory in form
and substance to the Depositary and the Company. Immediately upon any such
change, the Depositary shall give notice thereof in writing to all Holders of
ADRs with respect to which such appointment has been made, each other Custodian
and the Company.
Upon the appointment of any successor depositary with respect to any
Deposited Securities and the corresponding Shares, ADSs and ADRs hereunder, any
Custodian then acting hereunder with respect to such Deposited Securities 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 5.06. 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 by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Memorandum and Articles of Association of the
Company that may be relevant or pertain to such notice of meeting or be the
subject of a vote thereat.
The Company agrees to promptly deliver to the Depositary a sufficient
number of copies to mail or make generally available to holders of ADSs on the
same basis as holders of Shares or other Deposited Securities, or on such other
basis as the Company advises the Depositary may be additionally required by any
applicable law, regulation or stock exchange requirement, any notices, reports
or other communications mailed or otherwise made generally available by or at
the request of the Company to holders of Shares or other Deposited Securities.
To the extent that the Company delivers copies of any such notice, report or
other communication to the Depositary, (x) the Depositary will arrange for the
distribution to Holders of ADSs, at the Company's expense, of copies of any such
notice, report or other communication distribution by or at the request of the
Company to holders of Shares or other Deposited Securities; or, (y) if any such
30
notice, report or other communication is made generally available to holders of
Shares or other Deposited Securities other than by mailing, the Depositary will
arrange, at the Company's expense, to make copies thereof available to holders
or ADSs on a similar basis or on such other basis as the Company advises the
Depositary may be additionally required by any applicable law, regulation or
stock exchange requirement. The Company has delivered to the Depositary and the
Custodian a copy of the Company's Memorandum and Articles of Association of or
governing the Shares and any other Deposited Securities issued by the Company or
any Affiliate of the Company in connection with such Shares, and promptly upon
any amendment thereto or change therein, the Company shall deliver to the
Depositary and the Custodian a copy of such amendment thereto or change therein.
The Depositary may rely upon such copy for all purposes of this Deposit
Agreement.
The Depositary will, at the expense of the Company, make such copy,
summary and any other notices, reports and other communications issued by the
Company in connection therewith available for inspection by the Holders of the
ADSs evidencing the Shares governed by such provisions at the Depositary's
Principal Office, at the office of the Custodian and at any other designated
transfer office.
SECTION 5.07. Issuance of Additional Shares, etc. The Company agrees that
it will obtain legal advice as to whether future (a) issuances for cash by the
Company or any Affiliate of (1) additional Shares, (2) rights to subscribe for
Shares or other Deposited Securities, (3) securities convertible into or
exchangeable for Shares, or (4) rights to subscribe for securities convertible
into or exchangeable for Shares, or (b) actions by the Company or any Affiliate
including (1) elective dividends of cash or Shares, (2) redemptions of Deposited
Securities, (3) meetings of holders of Deposited Securities, or solicitations of
consents or proxies, relating to any reclassification of securities, merger,
consolidation or transfer of assets, or (4) reclassifications,
recapitalizations, reorganizations, mergers, consolidations or sales of assets
which affect the Deposited Securities, require a registration statement under
the U.S. securities laws covering such transaction to be in effect. If, being so
advised by counsel, the Company determines that the transaction is required to
be registered under the U.S. securities laws, the Company will register such
transaction to the extent necessary, alter the terms of the transaction to avoid
the registration requirements of the U.S. securities laws or direct the
Depositary to take specific measures with respect to the transaction to prevent
a violation of the U.S. securities laws.
The Company agrees with the Depositary that neither the Company nor any
Affiliate will at any time (i) deposit any Shares or other Deposited Securities,
either upon original issuance or upon a sale of Shares or other Deposited
Securities previously issued and reacquired by the Company or by any such
Affiliate, (ii) issue additional Shares, rights to subscribe for such Shares,
securities convertible into or exchangeable for shares or rights to subscribe
for such securities, or elective dividends of cash or Shares, or (iii) redeem
any Shares or other Deposited Securities, announce any meeting of holders of
Deposited Securities, or solicitation of consents or proxies, relating to any
reclassification of securities, merger consolidation or transfer of assets, or
any reclassification, recapitalization, reorganization, merger, consolidation or
sale of assets which affects the Deposited Securities, unless such transaction
is registered under the U.S. securities laws, or is exempt from registration
thereunder as confirmed (unless waived by the Depositary) by a written opinion
from counsel for the Company in the United States, which counsel shall be
reasonably satisfactory to the Depositary, except under circumstances complying
in all respects with the U.S. securities laws.
31
SECTION 5.08. Indemnification. The Company agrees to indemnify the
Depositary, the Custodian and any of their respective directors, employees,
agents and Affiliates against, and hold each of them harmless from, any loss,
liability, tax, charge or expense of any kind whatsoever (including, but not
limited to, the reasonable fees and expenses of counsel) that may arise (a) out
of or in connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of ADSs, ADRs, Shares, or other Deposited Securities, as the case may
be, or any offering documents in respect thereof or (b) out of acts performed or
omitted, including but not limited to any delivery by the Depositary on behalf
of the Company of information regarding the Company, in connection with this
Deposit Agreement, the ADRs, the ADSs, the Shares, or any Deposited Securities,
as the same may be amended, modified or supplemented from time to time, in any
such case (i) by the Depositary, the Custodian or any of their respective
directors, employees, agents and affiliates, except to the extent such loss,
liability, tax, charge or expense is due to negligence or bad faith of any of
them, or (ii) by the Company or any of its directors, employees, agents and
affiliates.
The Depositary agrees to indemnify the Company and its directors,
employees, agents and Affiliates and hold them harmless from any liability or
expense (including, without limitation, reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted by the Depositary due to the
negligence or bad faith of the Depositary.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this Section 5.08) and shall
consult in good faith with the indemnifying person as to the conduct of the
defense of such action or claim, which defense shall be reasonable in the
circumstances. No indemnified person shall compromise or settle any action or
claim without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
SECTION 5.09. Charges of Depositary. The Company agrees to pay the
expenses, fees or charges of the Depositary and the Registrar, co-transfer agent
and co-registrar, and any other agent of the Depositary appointed under this
Deposit Agreement, as indicated in this Section 5.09 and Exhibit B hereto to be
paid by the Company, or in accordance with the written agreements between the
Company and the Depositary from time to time, in each case other than the
following items which are payable by Holders: (1) the charges of the Depositary
for the execution and delivery of ADSs pursuant to Section 2.03, and the
surrender of ADSs pursuant to Section 2.05, and for the making of distributions
pursuant to Section 4.02 through 4.05 hereof, (2) taxes and other governmental
charges, (3) such registration fees as may from time to time be in effect for
the registration of transfers, if any, of Shares generally on the share register
of the Company (or any appointed agent of the Company for transfer and
registration of Shares which may be the Share Registrar), and accordingly
applicable to transfers of Shares to the name of the Depositary, a Custodian or
their nominees or the person who makes a withdrawal of Shares, on the making of
32
deposits or withdrawal pursuant to Sections 2.02 or 2.05, (4) such cable, telex,
facsimile transmission and delivery expenses as are expressly provided in this
Deposit Agreement to be at the expense of persons depositing Shares or Holders,
(5) such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.07 (including, without limitation, expenses
incurred on behalf of Holders in connection with compliance with foreign
exchange control restrictions), and (6) such fees and expenses as are incurred
by the Depositary (including without limitation expenses incurred on behalf of
Holders in connection with compliance with foreign exchange control regulations)
in delivery of Deposited Securities. Any other charges and expenses of the
Depositary hereunder will be paid by the Company after consultation and
agreement in writing between the Depositary and the Company as to the amount and
nature of such charges and expenses. Responsibility for payment of such charges
may at any time and from time to time be changed by agreement between the
Company and the Depositary. Unless otherwise agreed, the Depositary shall
present its statement for such expenses and fees or charges to the Company once
every three months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement and, as to any Depositary, the resignation or removal of such
Depositary as described in Section 5.04 for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal.
SECTION 5.10. Certain Rights of the Depositary; Limitations. Subject to
the further terms and provisions of this Section 5.10, the Depositary and its
agents, on their own behalf, may own and deal in any class of securities of the
Company and its affiliates and in ADSs. The Depositary may issue ADSs against
evidence of rights from the Company to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares furnished on behalf of the holder
thereof. In its capacity as Depositary, the Depositary shall not lend Shares or
ADSs; provided, however, that the Depositary may (i) issue ADSs prior to the
receipt of Shares pursuant to Section 2.02 and (ii) deliver Shares prior to the
receipt and cancellation of ADSs pursuant to Section 2.05, including ADSs which
were issued under (i) above but for which Shares may not have been received
(each such transaction a "Pre-Release Transaction"). The Depositary may receive
ADSs in lieu of Shares under (i) above and receive Shares in lieu of ADSs under
(ii) above. Each such Pre-Release Transaction will be (a) accompanied by or
subject to a written agreement whereby the person or entity (the "Applicant") to
whom ADSs or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(x) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (y)
33
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States government securities or such other
collateral as the Depositary deems appropriate, (c) terminable by the Depositary
on not more than five (5) business days notice and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate. The Depositary may also
set limits with respect to the number of ADSs and Shares involved in Pre-Release
Transactions with any one person on a case by case basis as it deems
appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holder.
SECTION 5.11. List of Restricted Securities Owners. Upon each issuance by
the Company of any securities that are Restricted Securities, the Company shall
provide the Depositary a list setting forth, to the actual knowledge of the
Company, those persons or entities who beneficially acquired Restricted
Securities. The Company agrees to advise in writing each of the persons or
entities so listed that such Restricted Securities are ineligible for deposit
hereunder, except as provided in Section 2.11. The Depositary may rely on any
such list and shall not be liable for any action or omission made in reliance
thereon.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the ADRs in respect of ADSs
representing the Shares and any provisions of this Deposit Agreement may at any
time and from time to time be amended by written agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of the Holders. Any amendment which shall impose or increase
any fees or charges (other than the charges of the Depositary for deposits,
custody, transfer and registration fees, fees in connection with foreign
exchange control regulations, and taxes and other governmental charges), or
which shall otherwise prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADSs
until the expiration of 60 days after notice of such amendment shall have been
given to the Holders of outstanding ADSs. The parties hereto agree that any
amendments which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the American Depositary Shares to be registered on
Form F-6 under the Securities Act or (b) the American Depositary Shares or
Shares to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by Holders,
shall be deemed not to prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment so becomes
effective shall be deemed, by continuing to hold such ADSs, to consent and agree
to such amendment and to be bound by the Deposit Agreement and the ADR, if
applicable, as amended thereby. In no event shall any amendment impair the right
of the Holder to surrender such ADSs and receive therefor the Deposited
34
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Notwithstanding the foregoing, if any governmental
body should adopt new laws, rules or regulations which would require amendment
of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend the Deposit Agreement and any ADR at any time in accordance
with such changed rules. Amendment to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment is given to
Holders or within any other period of time as required for compliance.
SECTION 6.02. Termination. The Depositary shall, at any time at the
written direction of the Company, terminate this Deposit Agreement by mailing
notice of such termination to the Holders of all ADSs then outstanding at least
30 days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.04, the Depositary may
terminate this Deposit Agreement by mailing notice of such termination to the
Holders of all ADSs then outstanding at least 30 days prior to the date fixed
for such termination. On and after the date of termination of this Depositary
Agreement, the Holder will, upon surrender of such ADSs at the Principal Office
of the Depositary, upon the payment of the charges of the Depositary for the
surrender of ADSs referred to in Section 2.05 and subject to the conditions and
restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by such ADS. If any ADSs shall remain
outstanding after the date of termination of this Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of ADRs,
and the Depositary shall suspend the distribution of dividends to the Holders
thereof, and shall not give any further notices or perform any further acts
under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in this Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.05, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for ADSs surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of an ADS, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of this Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated escrow
account, without liability for interest for the pro rata benefit of the Holders
of ADSs whose ADRs have not theretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations under this Deposit
Agreement with respect to the ADSs and the Shares, Deposited Securities and
ADRs, except to account for such net proceeds and other cash (after deducting,
or charging, as the case may be, in each case the charges of the Depositary for
the surrender of an ADS, any expenses for the account of the Holder in
accordance with the terms and conditions of this Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
of this Deposit Agreement as to ADSs, the Company shall be discharged from all
obligations under this Deposit Agreement as to the ADSs and the Shares,
Deposited Securities and American Depositary Shares except for its obligations
to the Depositary under Sections 5.08 and 5.09 hereof.
35
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. 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 each Custodian and
shall be open to inspection by any Holder during business hours.
SECTION 7.02. 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 7.03. 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 7.04. Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and Beneficial Owners from time to time shall be parties to the
Deposit Agreement and shall be bound by all of the terms and conditions thereof
and of any Receipt by acceptance thereof or any beneficial interest therein.
Each Holder and each Beneficial Owner, upon acceptance of any Receipt or
any beneficial interest therein, thereby appoints the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all steps or action provided for or contemplated herein with respect to
the Deposited Securities and to take such further steps or action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement.
SECTION 7.05. 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,
air courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention: Company Secretary, or to
any other address which the Company may specify in writing to the Depositary. In
addition, a courtesy copy of such notices to the Company should be sent to ▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq.; provided, however, that failure to provide such courtesy copy
shall not affect the validity of any notice provided to the Company pursuant to
the preceding sentence.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier; or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank,
N.A., 388 Greenwich Street, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Attention: ADR Department, or to any other address which the Depositary may
specify in writing to the Company.
36
Any and all notices to be given to the Custodian shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or to any other address which the Custodian may
specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if (a) personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address specified in such request or (b) if a Holder shall have
designated such means of notification as an acceptable means of notification
under the terms of the Deposit Agreement, by means of electronic messaging
addressed for delivery to the e-mail address designated by the Holder for such
purpose. Notice to Holders shall be deemed to be notice to Beneficial Owners for
all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier 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 or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex or facsimile transmission
received by it from the other or from any Holder, notwithstanding that such
cable, telex or facsimile transmission shall not subsequently be confirmed by
letter as aforesaid.
Delivery of a notice by means of electronic messaging shall be deemed to
be effective at the time of the initiation of the transmission by the sender (as
shown on the sender's records), notwithstanding that the intended recipient
retrieves the message at a later date, fails to retrieve such message, or fails
to receive such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address or for any
other reason unless the sender is advised by electronic or other means that the
notice failed to reach the recipient.
SECTION 7.06. Governing Law and Jurisdiction. This Deposit Agreement and
the ADRs shall be interpreted in accordance with, and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, the laws of
the State of New York applicable to agreements made and to be performed in such
state. Notwithstanding anything contained in this Deposit Agreement, any ADR or
any present or future provisions of the laws of the State of New York, the
rights and obligations attaching to the Shares and other Deposited Securities
shall be governed by the laws of The United Kingdom (or, if applicable, such
other laws as may govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.06, 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 Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers CT Corporation System located at
37
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent
(the "Agent") to receive and accept for and on its behalf, and on behalf of its
properties, assets and revenues, service by mail of any and all legal process,
summons, notices and documents that may be served in any suit, action or
proceeding brought against the Company in any federal or state court as
described in the preceding sentence or in the next paragraph of this Section
7.06. If for any reason the Agent shall cease to be available to act as such,
the Company agrees to designate a new agent in New York on the terms and for the
purposes of this Section 7.06 reasonably satisfactory to the Depositary. The
Company further hereby irrevocably consents and agrees to the service of any and
all legal process, summons, notices and documents in any suit, action or
proceeding against the Company, by service by mail of a copy thereof upon the
Agent (whether or not the appointment of such Agent shall for any reason prove
to be ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air mail,
postage prepaid, to its address provided in Section 7.05 hereof. The Company
agrees that the failure of the Agent to give any notice of such service to it
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon.
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 Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, 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. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company and the Depositary each irrevocably and unconditionally waive,
to the fullest extent permitted by law, any objection that either of them 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 7.06, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, and agrees not to plead or claim, any right of immunity from
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any ADR or the Deposited Securities.
38
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.06 shall
survive any termination of this Deposit Agreement, in whole or in part.
SECTION 7.07. Assignment. Subject to the provisions of Section 5.04 and
Article IV hereof, this Deposit Agreement may not be assigned by either the
Company or the Depositary.
SECTION 7.08. Compliance with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the Company and the
Depositary each agrees that it will not exercise any rights it has under this
Deposit Agreement to prevent the withdrawal or delivery of Deposited Securities
in a manner which would violate the United States securities laws, including,
but not limited to, Instruction I.A.(1) of the General Instructions to Form F-6
Registration Statement, as amended from time to time, under the Securities Act.
SECTION 7.09. United Kingdom Law References. Any summary of United Kingdom
laws and regulations and of the terms of the Company's Articles of Association
set forth in this Deposit Agreement have been provided by the Company solely for
the convenience of Holders, Beneficial Owners and the Depositary. While such
summaries are believed by the Company to be accurate as of the date of this
Deposit Agreement, (i) they are summaries and as such may not include all
aspects of the materials summarized applicable to a Holder or Beneficial Owner,
and (ii) these laws and regulations and the Company's Articles of Association
may change after the date of this Deposit Agreement. Neither the Depositary nor
the Company has any obligation under the terms of this Deposit Agreement to
update any such summaries.
SECTION 7.10. Titles and References. All references in this Deposit
Agreement to exhibits, articles, sections, subsections, and other subdivisions
refer to the exhibits, articles, sections, subsections and other subdivisions of
this Deposit Agreement unless expressly provided otherwise. The words "this
Deposit Agreement", "herein", "hereof", "hereby", "hereunder", and words of
similar import refer to the Deposit Agreement as a whole as in effect between
the Company, the Depositary and the Holders and Beneficial Owners of ADSs and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless the context otherwise requires. Titles to sections of this
Deposit Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement. References to
"applicable laws and regulations" shall refer to laws and regulations applicable
to ADRs, ADSs or Deposited Securities as in effect at the relevant time of
determination, unless otherwise required by law or regulation.
SECTION 7.11. Exchange Procedures for Old WPP ADSs. The Company hereby
instructs the Depositary, and the Depositary agrees, at the expense of the
Company, to establish procedures to facilitate the exchange of Old WPP ADSs for
ADSs. The Company shall assist the Depositary with the establishment of such
procedures and has taken all steps necessary to ensure that the establishment of
such procedures and the exchange of Old WPP ADSs for ADSs contemplated herein do
not violate the U.S. securities laws and any other laws applicable to the
Company or Old WPP. The procedures so established shall include, inter alia, the
following: (i) the establishment and maintenance of a securities account for the
39
purpose of safekeeping ADSs to be delivered to holders of Old WPP ADSs who
surrender their Old WPP ADSs in exchange for ADSs, (ii) the mailing of notices
and instruction forms to holders of Old WPP ADRs that describe the manner in
which holders of Old WPP ADRs may surrender their Old WPP ADSs to the Depositary
in order to receive the corresponding ADSs, (iii) the acceptance of all Old WPP
ADSs held by DTC in exchange for ADSs and the delivery of the corresponding ADSs
to DTC for the benefit of the applicable DTC participants and their clients,
(iv) the cancellation of Old WPP ADSs received from surrendering holders of Old
WPP ADRs and (x) the issuance of the corresponding Uncertificated ADSs (in
accordance with the terms of Section 2.10 hereof) or (y) if so requested by the
surrendering holder(s) of Old WPP ADRs, the issuance of the corresponding
Certificated ADSs and the delivery of the requisite ADRs to the person(s)
designated by the surrendering holder(s), (v) the maintenance of records with
respect to the holders who have and have not exchanged their Old WPP ADSs and
the delivery of reports in respect thereof to the Company and its advisors (as
may be directed by the Company), (vi) the submission to the U.S. tax authorities
of the requisite reports relating to the exchange of Old WPP ADSs for ADSs,
(vii) the escheatment, in accordance with applicable U.S. laws, of any ADSs held
by the Depositary in respect of Old WPP ADSs not surrendered prior to the
applicable escheatment deadline, (viii) procedures for holders of Old WPP ADSs
to exchange the Old WPP ADSs evidenced by Old WPP ADRs that have been lost,
stolen or destroyed, (ix) procedures for the sale of fractional entitlements to
ADSs that are to be delivered in exchange for Old WPP ADSs and the remitting of
net proceeds from such sale to surrendering holders of Old WPP ADSs, and (x)
such other procedures as the Company and Depositary may agree from time to time.
IN WITNESS WHEREOF, WPP GROUP PLC and CITIBANK, N.A. have duly executed
this Deposit Agreement as of the day and year first above set forth and all
Holders shall become parties hereto upon acceptance by them of American
Depositary Shares evidenced by Receipts issued in accordance with the terms
hereof.
WPP GROUP PLC
By:
-------------------------------
Name:
Title:
CITIBANK, N.A.
By:
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
40
EXHIBIT A
[FORM OF FACE OF ADR]
Number ___________ CUSIP NUMBER: _______
American Depositary Shares
(each American Depositary
Share representing five (5)
fully paid ordinary shares,
par value 475 ▇▇▇▇▇ per Share)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
WPP 2005 PLC
(Incorporated under the laws of the United Kingdom)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (herein called the
"Depositary"), hereby certifies that ______________________________ is the owner
of _______________ American Depositary Shares ("ADS"), representing deposited
ordinary shares, par value of 475 ▇▇▇▇▇ per share, including evidence of rights
to receive such ordinary shares (the "Shares") of WPP 2005 plc, a corporation
incorporated under the laws of the United Kingdom (the "Company"). As of the
date of the Deposit Agreement (hereinafter referred to), each ADS represents
five (5) Shares deposited under the Deposit Agreement with the Custodian which
at the date of execution of the Deposit Agreement is Citibank, N.A., London
Branch (the "Custodian"). The ratio of Depositary Shares to shares of stock is
subject to subsequent amendment as provided in Article IV of the Deposit
Agreement. The Depositary's principal executive office is located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("ADRs"), executed and delivered pursuant
to the Deposit Agreement, dated as of October __, 2005 (as amended from time to
time, the "Deposit Agreement"), by and among the Company, the Depositary, and
all registered Holders and Beneficial Owners of ADSs from time to time issued
thereunder, each of whom by accepting an ADS agrees to become a party thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights and obligations of Holders and Beneficial Owners 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, collectively, "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Principal Office of the Depositary and the
principal office of the Custodian.
The statements made on the face and reverse of this ADR 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. All capitalized terms used herein which are not otherwise defined herein
shall have the meanings ascribed thereto in the Deposit Agreement. The
Depositary makes no representation or warranty as to the validity or worth of
the Deposited Securities.
(2) Surrender of ADSs and Withdrawal of Deposited Securities. Upon
surrender at the Principal Office of the Depositary of this ADR 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 ADSs (as set forth in Article (10) hereof and Section 5.09 and
Exhibit B 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, applicable rules and regulations of CREST, Article (22)
of this ADR and the provisions of or governing the Deposited Securities and
other applicable laws, the Holder of such ADSs shall be entitled to Delivery, to
him or upon his order, of the Deposited Securities at the time represented by
the ADSs evidenced by this ADR. Subject to the last paragraph of Section 2.05 of
the Deposit Agreement, such Deposited Securities may be delivered in registered
form or by electronic Delivery. Such Deposited Securities may be Delivered by
the Delivery of (a) certificates in the name of such Holder or as ordered by him
or by certificates properly endorsed or accompanied by proper instruments of
transfer to such Holder or as ordered by him and (b) any other securities,
property and cash to which such Holder is then entitled in respect of this
Receipt to such Holder or as ordered by him. Delivery shall be made without
unreasonable delay at the principal office of the Custodian or, subject to the
last paragraph of Section 2.05 of the Deposit Agreement, at the Principal Office
of the Depositary.
Any ADR evidencing an ADS 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, including signature guarantees in
accordance with standard securities industry practice, 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. The Depositary shall direct the Custodian to deliver
at the designated office of the Custodian, subject to Sections 2.06, 3.01, 3.02,
5.09 and to the other terms and conditions of the Deposit Agreement, to the
Memorandum and Articles of Association of the Company, applicable rules and
regulations of CREST and to the provisions of or governing the Deposited
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Securities and other 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 if so required by the Depositary as provided above, the Deposited
Securities represented by any ADSs properly surrendered, 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, except that 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 ADSs, or of any proceeds of sale of any
dividends, distributions or rights, which may at the time be held by the
Depositary.
The Depositary shall not accept for surrender an ADS representing less
than one Share. In the case of surrender of 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 recorded in the name of the Holder
surrendering such ADSs, and shall, at the discretion of the Depositary, either
(i) return to the person surrendering such ADSs the number of ADSs representing
any remaining fractional Share, or (ii) sell or cause to be sold the fractional
Share represented by the ADSs so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any ADR or the Deposit
Agreement, the Depositary may make Delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering an ADSs, 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 the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
(3) Transfers, Split-Ups and Combinations of ADRs. The Registrar shall
register the transfer of ADRs (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall (x) cancel such ADRs and
execute new ADRs evidencing the same aggregate number of ADSs as those evidenced
by the ADRs canceled by the Depositary, (y) cause the Registrar to countersign
such new ADRs and (z) Deliver such new ADRs to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
the ADRs have been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a transfer thereof, (ii) the surrendered ADRs have been
properly endorsed or are accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) the surrendered ADRs have been duly stamped (if required by the
laws of the State of New York or of the United States), and (iv) all applicable
fees and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.09 and Exhibit B
of the Deposit Agreement) have been paid, subject, however, in each case, to the
terms and conditions of the applicable ADRs, of the Deposit Agreement and of
applicable law, in each case as in effect at the time thereof.
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The Registrar shall register the split-up or combination of ADRs (and of
the ADSs represented thereby) on the books maintained for such purpose and the
Depositary shall (x) cancel such ADRs and execute new ADRs for the number of
ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced
by the ADRs cancelled by the Depositary, (y) cause the Registrar to countersign
such new ADRs and (z) Deliver such new ADRs to or upon the order of the Holder
thereof, if each of the following conditions has been satisfied: (i) the ADRs
have been duly Delivered by the Holder (or by a duly authorized attorney of the
Holder) to the Depositary at its Principal Office for the purpose of effecting a
split-up or combination thereof, and (ii) all applicable fees and charges of,
and expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.09 and Exhibit B of the
Deposit Agreement) have been paid, subject, however, in each case, to the terms
and conditions of the applicable ADRs, of the Deposit Agreement and of
applicable law, in each case as in effect at the time thereof.
The Depositary may appoint one or more co-transfer agents for the purpose
of effecting transfers, combinations and split-ups of ADRs 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 Holders or persons entitled to such
ADRs and will be entitled to protection and indemnity to the same extent as the
Depositary. Such co-transfer agents may be removed and substitutes appointed by
the Depositary. Each co-transfer agent appointed under Section 2.04 of the
Deposit Agreement (other than the Depositary) shall give notice in writing to
the Depositary accepting such appointment and agreeing to be bound by the
applicable terms of the Deposit Agreement.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration, registration of transfer,
split-up, combination or surrender of any ADS, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (a) payment from the depositor of Shares or presenter of
ADSs or of any ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable charges as provided in
Section 5.09 of the Deposit Agreement and in Exhibit B thereof, (b) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matter contemplated by Section 3.01 of the Deposit
Agreement and (c) compliance with (i) any laws or governmental regulations
relating to the execution and delivery of ADRs or ADSs or to the withdrawal of
Deposited Securities and (ii) such reasonable regulations, if any, as the
Depositary and the Company may establish consistent with the provisions of the
Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of ADSs in particular instances may be refused, or the registration of
transfers of ADSs generally may be suspended, during any period when the
transfer books of the Company, the Depositary or the Share Registrar are closed
or if any such action is deemed necessary or advisable by the Depositary or the
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange on which the ADSs or Shares are listed, or under any
provision of the Deposit Agreement or provisions of or governing Deposited
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Securities, or any meeting of shareholders of the Company or for any other
reason, subject in all cases, to Section 7.08 of the Deposit Agreement.
Notwithstanding any provision of the Deposit Agreement or this ADR to the
contrary, Holders are entitled to surrender outstanding ADSs and to withdraw the
Deposited Securities at any time subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the ADRs or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Instruction I.A.(1) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time).
(5) Disclosure of Beneficial Ownership. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
agrees to comply with requests from the Company pursuant to the laws of The
United Kingdom, the rules of the London Stock Exchange and any other stock
exchange on which the Shares are, or will be, registered, traded or listed or
the Memorandum and Articles of Association of the Company, which are made to
provide information, inter alia, as to the capacity in which such Holder and
Beneficial Owner owns ADSs (and Shares as the case may be) and regarding the
identity of any other person interested in such ADSs and the nature of such
interest, whether or not they are Holders at the time of such request. The
Depositary agrees to use its reasonable efforts to comply, at the Company's
expense, with written instructions received from the Company requesting that the
Depositary forward any such request from the Company to the Holder and to
forward to the Company any such responses to such requests received by the
Depositary.
Each Holder or Beneficial Owner agrees that such Holder or Beneficial
Owner, (i) is bound by and subject to the Articles of Association of the Company
as if such Holder were a registered holder of Shares and (ii) will provide such
information within the prescribed period as the Company may request in a
disclosure notice ("Disclosure Notice") given pursuant to any applicable
provision of United Kingdom law or the Articles of Association of the Company.
Each Holder and Beneficial Owner further acknowledges that failure by such
Holder or Beneficial Owner to provide on a timely basis the information required
in any Disclosure Notice may result in the withholding of certain rights in
respect of such Holder's or Beneficial Owner's American Depositary Shares
including, without limitation, voting rights, the right to receive dividends or
other payments and rights of free transferability in respect of the Shares
represented by such American Depositary Shares. Each Holder and Beneficial Owner
agrees to comply with all applicable provisions of United Kingdom law and the
Articles of Association of the Company with regard to notification to the
Company of such Holder's or Beneficial Owner's interest in Shares, including any
provision requiring such Holder to disclose within a prescribed period an
interest in Shares equal to or in excess of three percent (3%) of such Shares
outstanding or such other percentage as may be required from time to time
pursuant to any provision of United Kingdom law or the Articles of Association
of the Company.
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(6) Ownership Restrictions. The Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
imposed by applicable law or the Memorandum and Articles of Association of the
Company. The Company may also restrict, in such manner as it deems appropriate,
transfers of the American Depositary Shares where such transfer may result in
the total number of shares represented by the ADSs owned by a single Holder or
Beneficial Owner to exceed any such limits. The Company may, in its sole
discretion, instruct the Depositary to take action with respect to the ownership
interest of any Holder or Beneficial Owner in excess of the limitation set forth
in the preceding sentence, including but not limited to a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the American Depositary Shares held by such Holder or Beneficial Owner in
excess of such limitations, if and to the extent such disposition is permitted
by applicable law and the Memorandum and Articles of Association of the Company.
(7) Liability of Holder for Taxes and Other Charges. If any tax or other
governmental charge shall become payable with respect to any ADS or any
Deposited Securities represented by the ADSs evidenced by this ADR, such tax or
other governmental charge shall be payable by the Holder or Beneficial Owner of
such ADR to the Depositary. The Depositary may refuse to effect any registration
of transfer of all or part of such ADR or refuse to issue any new ADSs or ADRs
evidencing ADSs or to permit any deposit or withdrawal of Deposited Securities
represented by the ADSs evidenced by such ADR until such payment is made, and
the Company and the Depositary may withhold or deduct from any dividends or
other distributions, or may sell for the account of the Holder thereof any part
or all of the Deposited Securities represented by the ADSs evidenced by such
ADR, and may apply such dividends or other distributions or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder and
Beneficial Owner of such ADSs remaining liable for any deficiency.
(8) Representations and Warranties of Depositor's. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that such Shares and the certificates therefor are validly issued, fully
paid and non-assessable, that all preemptive rights, if any, with respect to
such Shares have been validly waived or exercised and that each such person
making such deposit is duly authorized to do so. Each such person shall be
deemed to acknowledge complete responsibility for the report of any false
information relating to foreign exchange transactions to the Depositary, the
Custodian or any governmental authority in the United Kingdom in connection with
the issuance of ADSs and the deposit, transfer, surrender or withdrawal of
Shares or ADSs. Every such person shall also be deemed to represent that the
Shares presented for deposit are not, and the ADSs issuable upon such deposit
will not be, Restricted Securities, unless such Shares are being deposited in
accordance with Section 2.11 of the Deposit Agreement and such procedures as may
be established by the Depositary thereunder. Such representations and warranties
shall survive the deposit and withdrawal of Shares and the issuance and
cancellation of ADSs and ADRs in respect thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit or any Holder or Beneficial Owner may be required
from time to time to file such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, compliance with applicable laws and the terms of the Deposit
Agreement or other information (or, in the case of Shares in registered form
presented for deposit, such information relating to the registration on the
books of the Company or of the appointed agent of the Company for the
registration and transfer of Shares), to execute such certificates and to make
such representations and warranties, as the Depositary may deem necessary or
proper or as the Company may reasonably require by written request to the
Depositary consistent with its obligations hereunder. The Depositary and the
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Registrar, as applicable, may withhold the execution or delivery or registration
of transfer of any ADS or the distribution or sale of any dividend 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 to the Depositary, the Registrar and the Company's
satisfaction. The Depositary shall provide the Company, in a timely manner, with
copies or originals if necessary and appropriate of (i) any such proofs of
citizenship or residence, taxpayer status, or exchange control approval which it
receives, and (ii) any other information or documents which the Company may
reasonably request and which the Depositary shall request and receive from the
Holder or any person presenting Shares for deposit.
(10) Charges of Depositary. The Depositary shall charge the following
fees:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares, a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) so issued under
the terms of the Deposit Agreement (excluding issuances as a
result of distributions in paragraph (iv) below);
(ii) Cancellation Fee: to any person surrendering ADSs for
cancellation and withdrawal of Deposited Securities, a fee not
in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) so
surrendered;
(iii) Cash Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $2.00 per 100 ADSs (or fraction thereof) held
for the distribution of cash dividends or other cash
distributions (i.e., upon the sale of rights and other
entitlements) under the terms of the Deposit Agreement, unless
prohibited by the exchange upon which the ADSs are listed; and
(iv) Stock Distribution/Rights Exercise Fee: to any Holder of
ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or
fraction thereof) issued pursuant to (i) stock dividends or
other free stock distributions, or (ii) exercise of rights to
purchase additional ADSs unless prohibited by the exchange
upon which the ADSs are listed;
(v) Other Distribution Fee: to any Holder of ADS(s) receiving a
distribution of securities other than ADSs or rights to
purchase additional ADSs (i.e., spin-off shares), a fee not in
excess of U.S. $5.00 per unit of 100 securities (or fraction
thereof) distributed;
(vi) Annual Depositary Services Fee: to any Holder of ADS(s), a fee
not in excess of U.S. $2.00 per 100 ADSs (or fraction thereof)
held as of the last day of each calendar year, except to the
extent of any cash dividend fee(s) charged under paragraph
(iii) above during the applicable calendar year; and
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(vii) ADR Transfer Fee: to any person presenting an ADR for
transfer, a fee not in excess of U.S. $1.50 per ADR so
presented for transfer.
Holders, Beneficial Owners, persons depositing Shares for deposit and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Securities shall be responsible for the following charges:
(viii) taxes (including applicable interest and penalties) and other
governmental charges;
(ix) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares
or other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(x) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement
to be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(xi) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(xii) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(xiii) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by paragraph (22) of this ADR and as contemplated in the Deposit
Agreement. The Depositary will provide, without charge, a copy of its latest fee
schedule to anyone upon request. The charges and expenses of the Custodian are
for the sole account of the Depositary.
(11) Title to Receipts. It is a condition of this ADR, and every
successive Holder of this ADR by accepting or holding the same consents and
agrees, that title to this ADR (and to each ADS evidenced hereby), when such ADR
is properly endorsed or accompanied by a proper instrument or instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument under the laws of the State of New York; provided,
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however, that the Company and 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 any distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes, and neither the Depositary nor the Company shall have the
obligations or be subject to any liability hereunder or under the Deposit
Agreement to any holder of an ADR unless such holder is a Holder thereof.
(12) Validity of Receipt. This ADR shall not be entitled to any benefits
under the Deposit Agreement or be valid or obligatory for any purpose, unless
this ADR has 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 has been appointed and this Receipt has been
countersigned by the manual signature of a duly authorized officer of the
Registrar.
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: By:
------------------------------ ------------------------------
Authorized Officer Vice President
The address of the Principal Office of the Depositary is 388 Greenwich
Street, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Reports; Inspection of Transfer Books. The Company is subject
to the periodic reporting requirements of the Securities Exchange Act of 1934
and accordingly files certain reports with the Commission. Such reports and
other information may be inspected and copied at public reference facilities
maintained by the Commission located at the date hereof at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ and may also be available on the Commission's website at
▇▇▇.▇▇▇.▇▇▇.
The Registrar will make available for inspection by Holders at its
Principal Office any reports and communications, including any proxy soliciting
material, received from the Company, which are both (a) received by the
Depositary, the Custodian, or the nominee of either of them as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary will also send to Holders
copies of such reports when furnished by the Company pursuant to Section 5.06 of
the Deposit Agreement.
The Registrar will keep books for the registration of ADSs and transfers
of ADSs which at all reasonable times shall be open for inspection by the
Company and by the Holders of such ADSs, provided that such inspection shall not
be, to the Registrar's knowledge, for the purpose of communicating with Holders
of such ADSs 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 ADSs.
Subject to Article (22) hereof, the Registrar may close the transfer books
with respect to the ADRs, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder.
(14) Dividends and Distributions in Cash, Shares, etc.
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, pursuant to Section 4.07 of the Deposit Agreement, be converted on a
reasonable basis into Dollars transferable to the United States, and subject to
the Deposit Agreement, promptly convert or cause to be converted such dividend
or distribution into Dollars and will distribute promptly the amount thus
received (net of fees of, and expenses incurred by, the Depositary) to the
Holders entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one Cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of Receipts then outstanding. Pursuant to
Articles (4) and (7) hereof, if 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, duties or
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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 to the
relevant governmental authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares to be
deposited with and registered in the name of the Custodian and thereupon the
Depositary may, subject to Section 5.07 of the Deposit Agreement, either (i)
distribute to the Holders entitled thereto, as of the record date fixed pursuant
to Section 4.08 of the Deposit Agreement, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively, additional ADRs for ADSs, which represents in aggregate the number
of Shares received as such dividend, or free distribution, subject to the terms
of the Deposit Agreement, including, without limitation, Sections 2.02, 2.03,
4.04, 5.07 and 5.09 of the Deposit Agreement; in lieu of issuing ADRs for
fractional ADSs in any such case, the Depositary shall sell the number 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 4.02 of the
Deposit Agreement, or (ii) if additional ADRs are not so distributed, each ADS
shall thenceforth also represent the additional Shares distributed upon the
Deposited Securities represented thereby. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, or, if after the Company, in the
fulfillment of its obligations under Section 5.07 hereof, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges, or effect the distribution of unregistered
Shares, and the Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to Holders entitled thereto in
proportion to the number of ADSs held by them respectively and the Depositary
shall distribute any unsold balance of such property in accordance with the
provisions of the Deposit Agreement.
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 may, after consultation
with the Company, and, if requested in writing by the Company, shall, take
action, subject to the terms of the Deposit Agreement, as follows:
(a) if at the time of the offering of any rights, the Depositary
determines in its discretion, after obtaining, at the
Company's expense, opinion(s) of United States and United
Kingdom counsel, as applicable, reasonably satisfactory to the
Depositary, that it is lawful and feasible to make such rights
available to all or certain Holders or Beneficial Owners but
not to others, by means of warrants or otherwise, the
Depositary may distribute warrants or other instruments
therefor in such form as it may determine, to the Holders
entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held
by them respectively, or employ such other method as it may
deem feasible after obtaining, at the Company's expense,
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opinion(s) of United States and United Kingdom counsel, as
applicable, reasonably satisfactory to the Depositary in order
to facilitate the exercise, sale or transfer of rights or the
securities obtainable upon the exercise of such rights, by
such Holders or Beneficial Owners; or
(b) if at the time of the offering of any rights, the Depositary
determines in its discretion, after obtaining, at the
Company's expense, opinion(s) of United States and United
Kingdom counsel, as applicable, reasonably satisfactory to the
Depositary, that it is not lawful or not feasible to make such
rights available to certain Holders or Beneficial Owners by
means of warrants or otherwise, or if the rights represented
by such warrants or such other instruments are not exercised
and appear to be about to lapse, the Depositary, in its
discretion may sell such rights or such warrants or other
instruments at public or private sale, in a riskless principal
capacity, at such place or places and upon such terms as it
may deem proper, and allocate the proceeds of such sales for
the account of the Holders otherwise entitled to such rights,
warrants or other instruments upon an averaged or other
practicable basis without regard to any distinctions among
such Holders because of exchange restrictions or the date of
delivery of any ADR or ADRs, or otherwise, and distribute such
net proceeds so allocated to the extent practicable as in the
case of a distribution of cash pursuant to Section 4.02 of the
Deposit Agreement. The Depositary shall not be responsible for
(i) any failure to determine that it may be lawful or feasible
to make such rights available to Holders in general or any
Holder or Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such rights, warrants
or other instruments.
If the Depositary does not receive such written request from the Company,
the Depositary shall, after consultation with the Company, and after obtaining
opinion(s) of United States and United Kingdom counsel, as applicable,
reasonably satisfactory to the Depositary, have discretion as to the procedure
to be followed (i) in making such rights available to the Holders, or (ii) in
disposing of such rights on behalf of such Holders and distributing the net
proceeds available in dollars to such Holders as in the case of a distribution
of cash pursuant to Section 4.02 of the Deposit Agreement, or (iii) in allowing
such rights to lapse in the event such rights may not be made available to
Holders or be disposed of and the net proceeds thereof made available to
Holders.
Notwithstanding anything to the contrary in this Article (14), if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not offer such rights
to the Holders (i) unless and until a registration statement under the
Securities Act covering such offering is in effect, or (ii) unless the Company
furnishes the Depositary opinion(s) of counsel for the Company in the United
States and counsel to the Company in any other applicable country in which
rights would be distributed, satisfactory to the Depositary or other evidence
satisfactory to the Depositary to the effect that the offering and sale of such
securities to the Holders of such Receipts are exempt from or do not require
registration under the provisions of the Securities Act or any other applicable
laws.
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Upon timely receipt of a notice indicating that the Company wishes such
elective distribution to be made available to Holders of ADSs, the Company and
the Depositary shall determine whether such distribution is lawful and
reasonably practicable to make such elective distribution available to the
Holders of ADSs. If so, the Depositary shall, subject to the terms and
conditions of the Deposit Agreement, establish a record date according to
paragraph (15) and establish procedures to enable the Holder hereof to elect the
receipt of the proposed distribution in cash or in additional ADSs. If a Holder
elects to receive the distribution in cash, the distribution shall be made as in
the case of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be made as in the case
of a distribution in Shares upon the terms described in the Deposit Agreement.
If such elective distribution is not reasonably practicable or if the Depositary
did not receive satisfactory documentation set forth in the Deposit Agreement,
the Depositary shall, to the extent permitted by law, distribute to Holders, on
the basis of the same determination as is made in the United Kingdom in respect
of the Shares for which no election is made, either (x) cash or (y) additional
ADSs representing such additional Shares, in each case, upon the terms described
in the Deposit Agreement. Nothing herein or in the Deposit Agreement shall
obligate the Depositary to make available to the Holder hereof a method to
receive the elective distribution in Shares (rather than ADSs). There can be no
assurance that the Holder hereof will be given the opportunity to receive
elective distributions on the same terms and conditions as the holders of
Shares.
Whenever the Custodian shall receive any distribution other than cash,
Shares or rights upon any Deposited Securities, the Depositary shall, after
consultation with the Company or if requested in writing by the Company and
obtaining, at the Company's expense, opinion(s) of United States and United
Kingdom counsel, as applicable, satisfactory to the Depositary that the proposed
distribution does not violate any applicable laws or regulations, cause the
securities or property so received to be distributed to the Holders entitled
thereto, as of a record date fixed pursuant to Section 4.08 of the Deposit
Agreement, 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, net of expenses of the Depositary; provided, however, that, if in
the opinion of the Depositary or its counsel, it cannot cause such securities or
property to be distributed or such distribution cannot be made proportionately
among the Holders entitled thereto, or if for any other reason (including
without limitation any requirement (i) that the Company, the Depositary or the
Custodian withhold an amount on account of taxes or other governmental charges
or (ii) that under applicable securities or exchange control regulations or law
such securities must be registered under the Securities Act or other law in
order to be distributed to Holders), the Depositary deems such distribution not
to be feasible, the Depositary may, in its sole discretion, determine an
equitable and practicable method of effecting such distribution, which method
may include, but not be limited to, the sale (at public or private sale) of the
securities or property thus received, or any part thereof, and the distribution
of the net proceeds of any such sale (net of taxes, fees and expenses of the
Depositary set forth in Section 5.09 or in Exhibit B of the Deposit Agreement)
by the Depositary to the Holders entitled thereto as in the case of a
distribution received in cash.
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Pursuant to Section 3.02 of the Deposit Agreement, if the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax, duty or other governmental charges
which the Depositary is obligated to withhold, the Depositary may dispose of all
or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable to pay any such taxes,
duties or governmental charges, and the Depositary shall distribute the net
proceeds of any such sale after deduction of such taxes, duties or governmental
charges to Holders entitled thereto in proportion to the number of ADSs held by
them respectively and shall distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement.
(15) Fixing of Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any cash dividend or other
cash distribution or any distribution other than cash, or any rights to be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of holders
of Shares or other Deposited Securities, or whenever the Depositary shall find
it necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date for the determination of the Holders who shall be entitled to
receive such dividend, distribution rights or the net proceeds of the sale
thereof, to vote or to give instructions for the exercise of voting rights at
any such meeting, or to give or withhold such consent, or to receive such notice
or solicitation or to otherwise take action, or to exercise the rights of
Holders with respect to such changed number of Shares represented by each
American Depositary Share. Subject to the provisions of Sections 4.02 through
4.07 of the Deposit Agreement and to the other terms and conditions of this ADR
and the Deposit Agreement, the Holders at the close of business on such record
date shall be entitled to receive the amount distributable by the Depositary
with respect to such dividend or other distribution of such rights or the net
proceeds of sale thereof in proportion to the number of American Depositary
Shares held by them respectively, or to vote or to give such voting
instructions, to receive such notice or solicitation, or otherwise take action.
(16) Voting of Deposited Securities. The Depositary or, if the
Deposited Securities are registered in the name of or held by its nominee,
subject to and in accordance with the Articles of Association of the Company
hereby irrevocably appoints each Registered Holder (as defined below) for the
time being on the record date (the "Voting Record Date") fixed by the Depositary
in accordance with Section 4.08 of the Deposit Agreement in respect of any
meeting (including any adjourned meeting) at which holders of Deposited
Securities are entitled to vote as its proxy to attend, vote and speak at the
relevant meeting (or any adjournment thereof) in respect of the Deposited
Securities represented by the ADSs held by such Registered Holder on the Voting
Record Date. In respect of any such meeting each such Registered Holder may
appoint either a person nominated by the Depositary or any other person as its
substitute proxy to attend, vote and speak on behalf of the Registered Holder
subject to and in accordance with the provisions of Section 4.09 of the Deposit
Agreement and the Articles of Association of the Company. As soon as practicable
after receipt of notice of any meeting at which the holders of Deposited
Securities are entitled to vote, or of solicitation of consents or proxies from
holders of Deposited Securities, the Depositary shall, in accordance with
Section 4.08 of the Deposit Agreement, fix the Voting Record Date in respect of
such meeting or solicitation. The Depositary or, if the Company so determines,
the Company shall distribute to Registered Holders on such Voting Record Date:
(a) such information as is contained in such notice of meeting or in the
A-14
solicitation materials, (b) a voting card in a form prepared by the Depositary,
after consultation with the Company, (c) a statement that each Registered Holder
at the close of business on the Voting Record Date will be entitled, subject to
any applicable law, the Company's Articles of Association and the provisions of
or governing the Deposited Securities, either (i) to use such voting card in
order to attend, vote and speak at such meeting as the proxy of the Depositary
or its nominee solely with respect to the Deposited Securities represented by
such Registered Holder's ADSs or (ii) to appoint any other person as the
substitute proxy of such Registered Holder, solely with respect to the Deposited
Securities represented by such Registered Holder's ADSs (iii) to appoint the
person nominated by the Depositary as the substitute proxy of such Registered
Holder and to instruct such person nominated by the Depositary as to the
exercise of the voting rights pertaining to the Deposited Securities represented
by such Registered Holder's ADSs and (d) if the person nominated by the
Depositary is to be appointed by such Registered Holder as its substitute proxy,
a brief statement as to the manner in which voting instructions may be given to
the person nominated by the Depositary. Upon the written request of a Registered
Holder on the Voting Record Date received on or before the date established by
the Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the provisions of the Company's
Articles of Association and the provisions of the Deposited Securities, to cause
to be voted the Deposited Securities in accordance with the instructions set
forth in such request.
Neither the Depositary nor the Custodian nor the nominee of either of them
shall exercise any discretion as to voting and neither the Depositary nor the
Custodian nor the nominee of either of them shall vote or attempt to exercise
the right to vote the Deposited Securities represented by American Depositary
Shares except pursuant to and in accordance with such written instructions from
Registered Holders given in accordance with Section 4.09 of the Deposit
Agreement. Deposited Securities represented by American Depositary Shares for
which no specific voting instructions are received by the Depositary from the
Registered Holder shall not be voted by the Depositary or its nominee but may be
directly voted by Registered Holders in attendance at meetings of shareholders
as proxy for the Depositary, subject to, and in accordance with, the provisions
of Section 4.09 of the Deposit Agreement and the Company's Articles of
Association.
For purposes of this Article (16), "Registered Holder" shall mean the
person in whose name an ADS is registered on the books of the Depositary or the
Registrar.
(17) Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement or
otherwise in respect of, such Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and the ADRs shall, subject to
the provisions of the Deposit Agreement and applicable law, evidence ADSs
representing the right to receive such additional securities. Alternatively, the
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of an opinion
of counsel to the Company satisfactory to the Depositary that such distributions
are not in violation of any applicable laws or regulations, execute and deliver
additional ADRs as in the case of a stock dividend on the Shares, or call for
the surrender of outstanding ADRs to be exchanged for new ADRs, in either case,
A-15
as well as in the event of newly deposited Shares, with necessary modifications
to the form of ADR contained in Exhibit A to the Deposit Agreement, specifically
describing such new Deposited Securities or corporate change. The Company agrees
to, jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new form of ADR.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders or Beneficial Owners, the
Depositary may, and with the Company's approval, shall if the Company requests,
subject to receipt of an opinion of Company's counsel satisfactory to the
Depositary that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales for the account of the Holders and Beneficial Owners
otherwise entitled to such securities upon an averaged or other practicable
basis without regard to any distinctions among such Holders and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to Section 4.02 of the Deposit Agreement.
The Depositary shall not be responsible for (i) any failure to determine that it
may be lawful or feasible to make such securities available to Holders in
general or any Holder or Holders in particular, or (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
(18) Liability of the Company and the Depositary. Neither the
Depositary nor the Company nor any of their respective controlling persons,
directors, employees, agents or affiliates shall incur any liability to any
Holder or Beneficial Owners or any other person, if, by reason of any provision
of any present or future law or regulation of the United States, the United
Kingdom or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or by reason of any provision, present
or future, of the Memorandum and Articles of Association of the Company or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, revolutions, rebellions, explosions and
computer failure), the Depositary, its controlling persons or its agents or the
Company or its agents shall be prevented or forbidden from or subjected to any
civil or criminal penalty or restraint on account of, or delayed in, doing or
performing any act or thing which by the terms of the Deposit Agreement it is
provided shall be done or performed; nor shall the Depositary, its controlling
persons or its agents or the Company, its controlling person or its agents incur
any liability to any Holder or other person by reason of any non-performance or
delay, caused as aforesaid, in 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 in the Memorandum and Articles of Association of
the Company or provisions of or governing Deposited Securities. Where, by the
terms of a distribution pursuant to Sections 4.02, 4.03, 4.04 or 4.05 of the
Deposit Agreement, or an offering or distribution pursuant to Sections 4.06,
4.10 or 5.07 of the Deposit Agreement or in the Memorandum and Articles of
A-16
Association of the Company, or for any other reason, such distribution or
offering may not be made available to Holders, or some of them, and the
Depositary may not dispose of such distribution or offering on behalf of such
Holders and make the net proceeds available to such Holders, then the Depositary
shall not make such distribution or offering, and shall allow any such rights,
if applicable, to lapse. The Depositary and the Company shall be entitled to
rely upon any written notice, request or other document it believes to be
genuine and to have been signed or presented by the proper party or parties
without liability under the Deposit Agreement. Neither the Depositary nor the
Company shall have any obligation to perform any act inconsistent with the terms
of the Deposit Agreement and the Depositary and the Company disclaim liability
for any consequential or punitive damages for any breach of the terms of the
Deposit Agreement.
Each of the Company and its agents assumes no obligation and shall be
subject to no liability under the Deposit Agreement or any ADRs to Holders or
other persons, except that each of the Company and its agents agrees to perform
its obligations specifically set forth in the Deposit Agreement without
negligence or bad faith and using its reasonable judgment.
Each of the Depositary and its agents assumes no obligation and shall be
subject to no liability under the Deposit Agreement or any ADRs to Holders or
other persons (including, without limitation, liability with respect to the
validity or worth of the Deposited Securities), except that each of the
Depositary and its agents agrees to perform its obligations specifically set
forth in the Deposit Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, its
controlling persons, nor any of its agents, nor the Company, its controlling
persons nor any of its agents shall be (a) under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the ADSs, which in its opinion may involve
it in expense or liability, unless indemnity satisfactory to it against all
expense (including fees and disbursements of counsel) and liability be furnished
as often as may be required (and no Custodian shall be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary), or (b) 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, its controlling persons, its agents, any Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any vote is cast or the effect of any vote, provided that any such
action or omission is in good faith and in accordance with the terms of the
Deposit Agreement.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
(19) Resignation and Removal of the Depositary; the Custodian. The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice of its election to do so delivered to the Company, such
resignation to be effective on the earlier of (i) the 60th day after delivery
thereof to the Company, or (ii) upon the appointment by the Company of a
A-17
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal, which notice shall be effective on the earlier
of (i) the 60th day after delivery thereof to the Depositary, or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its 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, (i) execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder, (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
(20) Amendment. The form of the ADRs in respect of ADSs and any
provisions of the Deposit Agreement may at any time and from time to time be
amended by written agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable without the consent of the
Holders. Any amendment which shall impose or increase any fees or charges (other
than the charges of the Depositary for deposits, custody, transfer and
registration fees, fees in connection with foreign exchange control regulations,
and taxes and other governmental charges), or which shall otherwise prejudice
any substantial existing right of Holders or Beneficial Owners, shall not,
however, become effective as to outstanding ADSs until the expiration of 60 days
after notice of such amendment shall have been given to the Holders of
outstanding ADSs. The parties hereto agree that any amendments which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order for
(a) the American Depositary Shares to be registered on Form F-6 under the
Securities Act or (b) the American Depositary Shares or Shares to be traded
solely in electronic book-entry form and (ii) do not in either such case impose
or increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders or Beneficial Owners. Every Holder
and Beneficial Owner at the time any amendment so becomes effective shall be
deemed, by continuing to hold such ADSs, to consent and agree to such amendment
and to be bound by the Deposit Agreement and the ADR, if applicable, as amended
thereby. In no event shall any amendment impair the right of the Holder to
surrender such ADSs and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment of the Deposit Agreement to
ensure compliance therewith, the Company and the Depositary may amend the
Deposit Agreement and any ADR at any time in accordance with such changed rules.
Amendment to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment is given to Holders or within any other period
of time as required for compliance.
A-18
(21) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all ADSs then outstanding at least 30 days
prior to the date fixed in such notice for such termination. If 60 days shall
have expired after (i) the Depositary shall have delivered to the Company a
written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in Article (19) hereof and Section 5.04 of
the Deposit Agreement, the Depositary may terminate the Deposit Agreement by
mailing notice of such termination to the Holders of all ADSs then outstanding
at least 30 days prior to the date fixed for such termination. On and after the
date of termination of the Deposit Agreement, the Holder will, upon surrender of
such ADSs at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Article
(2) hereof and Section 2.05 of the Deposit Agreement and subject to the
conditions and restrictions therein set forth, and upon payment of any
applicable taxes or governmental charges, be entitled to delivery, to him or
upon his order, of the amount of Deposited Securities represented by such
Receipt. If any ADSs shall remain outstanding after the date of termination of
the Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of ADRs, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in Section 2.05 of the Deposit Agreement,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for ADSs surrendered to the Depositary (after deducting, or charging, as the
case may be, in each case the charges of the Depositary for the surrender of an
ADS, any expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated escrow account, without liability for interest for
the pro rata benefit of the Holders of ADSs whose ADRs have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement with respect to the ADSs and the Shares,
Deposited Securities and ADRs, except to account for such net proceeds and other
cash (after deducting, or charging, as the case may be, in each case the charges
of the Depositary for the surrender of an ADS, any expenses for the account of
the Holder in accordance with the terms and conditions of the Deposit Agreement
and any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement as to ADSs, the Company shall be discharged
from all obligations under the Deposit Agreement as to the ADSs and the Shares,
Deposited Securities and American Depositary Shares except for its obligations
to the Depositary under Article (10) hereof, and Sections 5.08 and 5.09 of the
Deposit Agreement.
A-19
(22) Compliance with U.S. Securities Laws. Notwithstanding any
provisions in this ADR or the Deposit Agreement to the contrary, the Company and
the Depositary each agrees that it will not exercise any rights it has under the
Deposit Agreement or this ADR to prevent the withdrawal or delivery of Deposited
Securities in a manner which would violate the United States securities laws,
including, but not limited to, Instruction I.A.(1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
(23) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (23), the Depositary and its
agents, on their own behalf, may own and deal in any class of securities of the
Company and its affiliates and in ADSs. The Depositary may issue ADSs against
evidence of rights from the Company to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares furnished on behalf of the holder
thereof. In its capacity as Depositary, the Depositary shall not lend Shares or
ADSs; provided, however, that the Depositary may (i) issue ADSs prior to the
receipt of Shares pursuant to Section 2.02 of the Deposit Agreement and (ii)
deliver Shares prior to the receipt and cancellation of ADSs pursuant to Section
2.05 of the Deposit Agreement, including ADSs which were issued under (i) above
but for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) accompanied by or subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or Shares
are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
United States government securities or such other collateral as the Depositary
deems appropriate, (c) terminable by the Depositary on not more than five (5)
business days notice and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally
limit the number of ADSs and Shares involved in such Pre-Release Transactions at
any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may also set limits with respect to
the number of ADSs and Shares involved in Pre-Release Transactions with any one
person on a case by case basis as it deems appropriate. The Depositary may
retain for its own account any compensation received by it in conjunction with
the foregoing. Collateral provided pursuant to (b) above, but not earnings
thereon, shall be for the benefit of the Holder.
A-20
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto __________________ whose taxpayer identification number is
__________________ and whose address including postal zip code is _____________,
the within Receipt and all rights thereunder, hereby irrevocably constituting
and appointing __________________ attorney-in fact to transfer said Receipt on
the books of the Depositary with full power of substitution in the premises.
Dated: Name:
------------- -------------------------------------
By:
---------------------------------------
Title:
------------------------------------
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an
attorney, executor, administrator, trustee
or guardian, the person executing the
endorsement must give his/her full title in
such capacity and proper evidence of
authority to act in such capacity, if not
on file with the Depositary, must be
forwarded with this ADR.
--------------------
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs
must be guaranteed by a member of a
Medallion Signature Program approved by the
Securities Transfer Association, Inc.
A-21
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences ADSs
representing 'partial entitlement' ordinary shares of WPP 2005 plc and as such
do not entitle the holders thereof to the same per-share entitlement as other
ordinary shares (which are 'full entitlement' ordinary shares) issued and
outstanding at such time. The ADSs represented by this ADR shall entitle holders
to distributions and entitlements identical to other ADSs when the ordinary
shares represented by such ADSs become 'full entitlement' ordinary shares."]
A-22
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
1. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons depositing
Shares or surrendering ADSs for cancellation agree to pay the following fees of
the Depositary:
----------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
----------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to U.S. $5.00 per 100 ADSs (or Person depositing Shares or person
of Shares (excluding issuances fraction thereof) issued. receiving ADSs.
as a result of distributions
described in paragraph (4)
below).
----------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to U.S. $5.00 per 100 ADSs (or Person surrendering ADSs for
Securities against surrender fraction thereof) surrendered. purpose of withdrawal of Deposited
of ADSs. Securities or person to whom
Deposited Securities are delivered.
----------------------------------------------------------------------------------------------------------------
(3) Distribution of cash Up to U.S. $2.00 per 100 ADSs (or Person to whom distribution is made.
dividends or other cash fraction thereof) held, unless
distributions (i.e., sale of prohibited by the exchange upon
rights and other which the ADSs are listed.
entitlements).
----------------------------------------------------------------------------------------------------------------
(4) Distribution of ADSs pursuant Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
to (i) stock dividends or fraction thereof) issued, unless
other free stock prohibited by the exchange upon
distributions, or (ii) which the ADSs are listed.
exercise of rights to
purchase additional ADSs.
----------------------------------------------------------------------------------------------------------------
(5) Distribution of securities Up to U.S. $5.00 per unit of 100 Person to whom distribution is made.
other than ADSs or rights to securities (or fraction thereof)
purchase additional ADSs distributed.
(i.e., spin-off shares).
----------------------------------------------------------------------------------------------------------------
(6) Depositary Services. Up to U.S. $2.00 per 100 ADSs (or Person of record on last day of any
fraction thereof) held as of the calendar year.
last day of each calendar year,
except to the extent of any cash
dividend fee(s) charged under
paragraph (3) above during the
applicable calendar year.
----------------------------------------------------------------------------------------------------------------
(7) Transfer of ADRs. U.S. $1.50 per certificate Person presenting certificate for
presented for transfer. transfer.
----------------------------------------------------------------------------------------------------------------
B-1
2. Charges
Holders, Beneficial Owners, persons depositing Shares for deposit and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Securities shall be responsible for the following charges:
taxes (including applicable interest and penalties) and other governmental
charges;
such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
the fees and expenses incurred by the Depositary, the Custodian or any
nominee in connection with the servicing or delivery of Deposited
Securities.
B-2
