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As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY
RECEIPTS
Deposit Agreement
Dated as of April 24, 1998
As amended and restated as of April 17, 2000
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of April 24, 1998, as amended and restated as of
April 17, 2000 among ARM HOLDINGS PLC, incorporated under the laws of England
and Wales (herein called the Issuer), THE BANK OF NEW YORK, a New York banking
corporation (herein called the Depositary), and all Owners and Beneficial Owners
from time to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Issuer desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Issuer from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by
and between the parties hereto as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
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Section 1.1 American Depositary Shares.
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The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent three
(3) Shares, until there shall occur a distribution upon Deposited Securities
covered by Section 4.3 or a change in Deposited Securities covered by Section
4.8 with respect to which additional Receipts are not executed and delivered,
and thereafter American Depositary Shares shall evidence the amount of Shares or
Deposited Securities specified in such Sections.
Section 1.2 Article; Section.
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Wherever references are made in this Deposit Agreement to an "Article" or
"Articles" or to a "Section" or "Sections", such references shall mean an
article or articles or a section or sections of this Deposit Agreement, unless
otherwise required by the context.
Section 1.3 Beneficial Owner.
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The term "Beneficial Owner" shall mean any person owning from time to time
any beneficial interest in the American Depositary Shares evidenced by any
Receipt, and who may or may not be the Owner of such Receipt.
Section 1.4 Commission.
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The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
Section 1.5 Custodian.
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The term "Custodian" shall mean the London office of The Bank of New York,
as agent of the Depositary for the purposes of this Deposit Agreement, and any
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other firm or corporation which may hereafter be appointed by the Depositary
pursuant to the terms of Section 5.5, as substitute or additional custodian or
custodians hereunder, as the context shall require and shall also mean all of
them collectively.
Section 1.6 Delivery; Deposit; Surrender; Transfer; Withdraw.
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The terms "deliver", "deposit", "surrender", "transfer" or "withdraw", when
used (i) with respect to Shares: (a) in the case of book-entry Shares, shall
refer to an entry or entries in an account or accounts maintained by
institutions authorized under applicable law to effect transfers of securities,
or (b) in the case of certificated Shares, to the physical delivery, deposit,
withdrawal or transfer of certificates representing the Shares and (ii) with
respect to American Depositary Shares evidenced by Receipts, (a) in the case of
American Depositary Shares available in book-entry form, shall refer to
appropriate adjustments in the records maintained by (1) the Depositary, (2) DTC
or its nominee, or (3) institutions that have accounts with DTC, as applicable,
or (b) otherwise, shall refer to the physical delivery, deposit, surrender,
transfer or withdrawal of such American Depositary Shares evidenced by Receipts.
Section 1.7 Deposit Agreement.
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The term "Deposit Agreement" shall mean this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
Section 1.8 Depositary; Corporate Trust Office.
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The term "Depositary" shall mean The Bank of New York, a New York banking
corporation and any successor as depositary hereunder. The term "Corporate Trust
Office", when used with respect to the Depositary, shall mean the corporate
trust office of the Depositary which at the date of this Agreement is 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
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Section 1.9 Deposited Securities.
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The term "Deposited Securities" as of any time shall mean Shares at such
time deposited or deemed to be deposited under this Deposit Agreement and any
and all other securities, property and cash received by the Depositary or the
Custodian in respect thereof and at such time held hereunder, subject as to cash
to the provisions of Section 4.5.
Section 1.10 Dollars; Pounds; Xxxxx.
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The term "Dollars" shall mean United States dollars. The term
"{pound-sterling}" shall mean English Pounds and the term "p" shall mean English
xxxxx.
Section 1.11 Foreign Currency.
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The term "Foreign Currency" shall mean any currency other than Dollars.
Section 1.12 Foreign Registrar.
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The term "Foreign Registrar" shall mean the entity that presently carries
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Issuer for the transfer and
registration of Shares.
Section 1.13 Issuer.
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The term "Issuer" shall mean ARM Holdings plc, incorporated
under the laws of England and Wales, and its successors.
Section 1.14 Owner.
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The term "Owner" shall mean the person in whose name a Receipt
is registered on the books of the Depositary maintained for such purpose.
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Section 1.15 Receipts.
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The term "Receipts" shall mean the American Depositary
Receipts, substantially in the form of Exhibit "A" annexed hereto,
issued hereunder evidencing American Depositary Shares as such receipts may be
amended from time to time in accordance with the provisions hereof.
Section 1.16 Registrar.
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The term "Registrar" shall mean any bank or trust company
having an office in the Borough of Manhattan, The City of New York, which
shall be appointed to register Receipts and transfers of Receipts as herein
provided.
Section 1.17 Securities Act of 1933.
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The term "Securities Act of 1933" shall mean the United
States Securities Act of 1933, as from time to time amended.
Section 1.18 Shares.
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The term "Shares" shall mean Ordinary Shares in registered form of the
Issuer, par value of 0.05 GBP each, heretofore validly issued and outstanding
and fully paid, nonassessable and free of any pre-emptive rights of the holders
of outstanding Shares or hereafter validly issued and outstanding and fully
paid, nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares or interim certificates representing such Shares provided,
however, that if there shall occur any change in par value, a split-up or
consolidation or any other reclassification or, upon the occurrence of an event
described in Section 4.8, an exchange or conversion in respect of the Shares,
the term "Shares" shall thereafter mean the successor securities resulting from
such change in par value, split-up or consolidation or such other
reclassification or such exchange or conversion.
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ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.
Section 2.1 Form and Transferability of Receipts.
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Receipts shall be substantially in the form set forth in Exhibit A annexed
to this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. No Receipt shall be entitled to any benefits
under this Deposit Agreement or be valid or obligatory for any purpose, unless
such Receipt shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary and, if a
Registrar for the Receipts shall have been appointed, countersigned by the
manual or facsimile signature of a duly authorized officer of the Registrar. The
Depositary shall maintain books on which each Receipt so executed and delivered
as hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts bearing the manual or facsimile signature of a duly
authorized signatory of the Depositary who was at any time a proper signatory of
the Depositary shall bind the Depositary, notwithstanding that such signatory
has ceased to hold such office prior to the execution and delivery of such
Receipts by the Registrar or did not hold such office on the date of issuance of
such Receipts.
The Receipts with the consent of the Issuer (which consent shall not be
unreasonably withheld) may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall
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be transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Issuer and the Depositary,
notwithstanding any notice to the contrary, may treat the Owner thereof as the
absolute owner thereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in this Deposit Agreement and for all other purposes.
Section 2.2 Deposit of Shares.
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Subject to the terms and conditions of this Deposit Agreement, Shares or
evidence of rights to receive Shares may be deposited by delivery thereof to any
Custodian hereunder, accompanied by any appropriate instrument or instruments of
transfer, or endorsement, in form satisfactory to the Custodian, together with
all such certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order, a Receipt or Receipts for the number of American Depositary Shares
representing such deposit. No Share shall be accepted for deposit unless
accompanied by evidence satisfactory to the Depositary that any necessary
exemption is in force or approval has been granted by or there has been
compliance with the rules and regulations of any governmental body in the United
Kingdom which is then performing the function of the regulation of currency
exchange. If required by the Depositary, Shares presented for deposit at any
time, whether or not the transfer books of the Issuer or the Foreign Registrar,
if applicable, are closed, shall also be accompanied by an agreement or
assignment, or other instrument satisfactory to the Depositary, which will
provide for the prompt transfer to the Custodian of any dividend, or right to
subscribe for additional Shares or to receive other property which any person in
whose name the Shares are or have been recorded may thereafter receive upon or
in respect of such deposited Shares, or in lieu thereof, such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary.
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At the request and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as practicable, present such
certificate or certificates to the Issuer or the Foreign Registrar, if
applicable, for transfer and recordation of the Shares being deposited in the
name of the Depositary or its nominee or such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine.
Section 2.3 Execution and Delivery of Receipts.
-----------------------------------
Upon receipt by any Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition, if the transfer books of the Issuer or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Issuer that any
Deposited Securities have been recorded upon the books of the Issuer or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee), together with the other documents required as
above specified, such Custodian shall notify the Depositary of such deposit and
the person or persons to whom or upon whose written order a Receipt or Receipts
are deliverable in respect thereof and the number of American Depositary Shares
to be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver as promptly
as practicable at its
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Corporate Trust Office, to or upon the order of the person or persons
entitled thereto, a Receipt or Receipts, registered in the name or names and
evidencing any authorized number of American Depositary Shares requested by such
person or persons, but only upon payment to the Depositary of the fees of the
Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.9, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities.
Section 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
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The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall as
promptly as practicable execute a new Receipt or Receipts and deliver the same
to or upon the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts as promptly as practicable for any authorized
number of American Depositary Shares requested, evidencing the same aggregate
number of American Depositary Shares as the Receipt or Receipts surrendered.
The Depositary, upon the written request or with the written approval of
the Issuer, may appoint one or more co-transfer agents for the purpose of
effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. Such co-transfer agents may be
removed by the Depositary upon the request or with the written approval of the
Issuer and substitutes appointed by the Depositary upon the request or with the
written approval of the Issuer. Each co-transfer agent appointed under this
Section 2.4 shall give notice in writing to the Issuer and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Owners or persons entitled to Receipts, but only to the extent
that the Depositary would in similar circumstances be entitled to so require,
and will be entitled to protection and indemnity to the same extent as the
Depositary.
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Section 2.5 Surrender of Receipts and Withdrawal of Shares.
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Upon surrender at the Corporate Trust Office of the Depositary of a Receipt
for the purpose of withdrawal of the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, and upon payment of the
fee of the Depositary for the surrender of Receipts as provided in Section 5.9
and payment of all taxes and governmental charges payable in connection with
such surrender and withdrawal of the Deposited Securities, and subject to the
terms and conditions of this Deposit Agreement, the Owner of such Receipt shall
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities at the time represented by the American Depositary Shares evidenced
by such Receipt. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates in the name of such Owner or as ordered by him or
by certificates properly endorsed or accompanied by proper instruments of
transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of such
Receipts to such Owner or as ordered by him. Such delivery shall be made, as
hereinafter provided as promptly as practicable.
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A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the London office of such
Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and
conditions of this Deposit Agreement, to or upon the written order of the person
or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering a Receipt,
and for the account of such Owner, the Depositary shall direct the Custodian to
forward any cash or other property (other than rights) comprising, and forward a
certificate or certificates and other proper documents of title for, the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt to the Depositary for delivery at the Corporate Trust Office of the
Depositary. Such direction shall be given by letter or, at the request, risk and
expense of such Owner, by cable, telex or facsimile transmission.
Section 2.6 Limitations on Execution and Delivery, Transfer and
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Surrender of Receipts.
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As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, Custodian or Registrar may require payment
from the depositor of Shares or the presentor of the Receipt of a sum sufficient
to reimburse it for any tax or other governmental charge and any stock transfer
or registration fee with respect thereto (including any such tax or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any laws or governmental regulations relating to
Receipts or American Depositary Shares or to the withdrawal of Deposited
Securities and any such reasonable regulations, if any, the Depositary may
establish consistent with the provisions of this Deposit Agreement, including,
without limitation, this Section 2.6.
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The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Issuer at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or any securities exchange on which such Receipts or Shares
are listed or under any provision of this Deposit Agreement, or for any other
reason, subject to the provisions of Section 7.7 hereof. Notwithstanding any
other provision of this Deposit Agreement or the Receipts, the surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be
suspended, except as permitted in General Instruction IA(i) and in Form F-6 (as
such instruction may be amended from time to time) under the Securities Act in
connection with respect to (i) temporary delays caused by closing the transfer
books of the Depositary or the Issuer or the deposit of Shares in connection
with voting at a shareholders' meeting, or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance with any U.S.
or foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Shares required to be registered under the provisions of the Securities Act
of 1933, unless a registration statement is in effect as to such Shares, or, to
the extent the Depository has received instructions with respect thereto from
the Issuer any Shares the deposit of which would violate any provision of the
Articles of Association of the Issuer.
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Section 2.7 Lost Receipts, etc.
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In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
Section 2.8 Cancellation and Destruction of Surrendered Receipts.
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All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
Section 2.9 Pre-Release of Receipts.
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The Depositary may issue Receipts against the delivery by the Issuer (or
any agent of the Issuer recording Share ownership) of rights to receive Shares
from the Issuer (or any such agent). No such issue of Receipts will be deemed a
"Pre-Release" that is subject to the restrictions of the following paragraph.
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Unless requested in writing by the Issuer to cease doing so, the Depositary
may, notwithstanding Section 2.3 hereof, execute and deliver Receipts prior to
the receipt of Shares pursuant to Section 2.2 ("Pre-Release"). The Depositary
may, pursuant to Section 2.5, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in satisfaction of such Pre-Release, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited hereunder; provided, however, that the Depositary reserves the right
to disregard such limit from time to time as it deems reasonably appropriate,
and may, with the prior written consent of the Issuer, change such limit for
purposes of general application. The Depositary will also set Dollar limits with
respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
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The Depositary may retain for its own account any compensation received by
it in connection with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Owners.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
Section 3.1 Filing Proofs, Certificates and Other Information.
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Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
or such information relating to the registration on the books of the Issuer or
the Foreign Registrar, if applicable, to execute such certificates and to make
such representations and warranties, as the Depositary may deem necessary or
proper. The Depositary may withhold the delivery or registration of transfer of
any Receipt or the distribution of any dividend or sale or distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties made.
Section 3.2 Liability of Owner or Beneficial Owner for Taxes.
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If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented by any Receipt, such tax
or other governmental charge shall be payable by the Owner or Beneficial Owner
of such Receipt to the Depositary. The Depositary may refuse to effect any
transfer of such Receipt or any withdrawal of Deposited Securities represented
by American Depositary Shares evidenced by such Receipt until such payment is
made, and may withhold any dividends or other distributions, or may sell for the
account of the Owner or Beneficial Owner thereof any part or all of the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt, and may apply such dividends or other distributions or the
proceeds of any such sale in payment of such tax or other governmental charge
and the Owner or Beneficial Owner of such Receipt shall remain liable for any
deficiency.
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Section 3.3 Warranties on Deposit of Shares.
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Every person depositing Shares under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, nonassessable and free of any pre-emptive rights
of the holders of outstanding Shares and that the person making such deposit is
duly authorized so to do. Every such person shall also be deemed to represent
that the deposit of such Shares and the sale of Receipts evidencing American
Depositary Shares representing such Shares by that person are not restricted
under the Securities Act of 1933. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts.
Section 3.4 Disclosure of Interests.
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Notwithstanding any other provision of this Deposit Agreement, each Owner
and Beneficial Owner agrees to be bound by and subject to the Memorandum and
Articles of Association of the Issuer (to the same extent as if such American
Depositary Shares evidenced by such Receipt were the Shares represented by such
American Depositary Shares evidenced by such Receipt, provided, however, that
such provisions shall apply to such persons only to the extent feasible), and to
provide such information as the Issuer may request in a disclosure notice (a
"Disclosure Notice") given pursuant to statutory provisions of English law or
the Memorandum and Articles of Association. Failure of an Owner or Beneficial
Owner to provide in a timely fashion information requested in any Disclosure
Notice may, in the Issuer's sole discretion, result in the withholding of
certain rights in respect of such Owner or Beneficial Owner's American
Depositary Shares (including voting rights and certain rights as to dividends in
respect of the Shares represented by such American Depositary Shares). The
Depositary agrees to use its reasonable efforts to comply with any instructions
received from the Issuer requesting that the Depositary take the actions
specified therein to obtain such information.
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In addition, any Owner or Beneficial Owner who is or becomes directly or
indirectly interested (within the meaning of Section 208 and 209 of the United
Kingdom Companies Xxx 0000, as amended from time to time (the "Companies Act")),
in the issued ordinary share capital of the Issuer equal to or in excess of the
then "notifiable interest" (at the date hereof, three percent (3%)) or such
other amount as may be required by the Companies Act, or is aware that another
person for whom it holds such Receipts is so interested, must within two (2)
business days (or such other period as may be required by the Companies Act)
after becoming so interested or so aware, and thereafter upon any changes of at
least one percent (1%) of the outstanding Shares, notify the Issuer as required
by the Companies Act.
If the Issuer requests information from the Depositary or the Custodian, as
the registered owners of Shares, pursuant to the Memorandum and Articles of
Association of the Issuer or the Companies Act, the obligations of the
Depositary or the Custodian, as the case may be, shall be limited to disclosing
to the Issuer such information relating to the Shares in question as has in each
case been recorded by it pursuant to the terms of this Deposit Agreement.
-18-
ARTICLE 4. THE DEPOSITED SECURITIES.
-------------------------
Section 4.1 Cash Distributions.
-------------------
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, subject to the
provisions of Section 4.5, convert such dividend or distribution as promptly as
practicable into Dollars and shall distribute as promptly as practicable the
amount thus received (net of the fees of the Depositary as provided in Section
5.9 hereof, if applicable) to the Owners entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively; provided, however, that in the event that the Issuer or
the Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owner of the Receipts evidencing American Depositary
Shares representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Owner a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Owners
entitled thereto. The Issuer or its agent will remit to the appropriate
governmental agency in the United Kingdom all amounts withheld and owing to such
agency. The Depositary will forward to the Issuer or its agent such information
from its records as the Issuer may reasonably request to enable the Issuer or
its agent to file necessary reports with governmental agencies, and the
Depositary or the Issuer or its agent may file any such reports necessary to
obtain benefits under the applicable tax treaties for the Owners of Receipts.
Section 4.2 Distributions Other Than Cash, Shares or Rights.
------------------------------------------------
Subject to the provisions of Section 4.11 and Section 5.9, whenever the
Depositary shall receive any distribution other than a distribution described in
Sections 4.1, 4.3 or 4.4, the Depositary shall, after consultation with the
Issuer, cause the securities or property received by it to be distributed to the
Owners entitled thereto, as promptly as practicable in proportion to the number
of American Depositary Shares representing such Deposited Securities held by
them respectively, in any manner that the Depositary, after consultation with
the Issuer, may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Issuer or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act of 1933 in order to be distributed to Owners or Beneficial
Owners) the Depositary, after consultation with the Issuer, deems such
distribution not to be feasible, the Depositary after consultation with the
Issuer may adopt such method as it may deem equitable and practicable for the
purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees of the
Depositary as provided in Section 5.9) shall be distributed by the Depositary to
the Owners entitled thereto as in the case of a distribution received in cash
provided, however, that no such distribution to Owners pursuant to this Section
4.2 shall be unreasonably delayed by any action of the Depositary or any of its
agents. To the extent that such securities or property or the net proceeds
thereof are not effectively distributed to Owners as provided in this paragraph,
each American Depositary Share shall thereafter also represent the additional
securities or property distributed in respect of the Shares represented by such
American Depositary Share prior to such distribution.
-19-
Section 4.3 Distributions in Shares.
------------------------
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may with the approval of the
Issuer, and shall if the Issuer shall so request, distribute to the Owners of
outstanding Receipts entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution, subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of fees of the
Depositary as provided in Section 5.9; provided, however, that no such
distribution to Owners shall be unreasonably delayed by any action of the
Depositary or any of its agents. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions described in
Section 4.1. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
-20-
Section 4.4 Rights.
-------
In the event that the Issuer 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, after consultation
with the Issuer, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering by reason of applicable law, the Depositary
may not either make such rights available to any Owners or dispose of such
rights and make the net proceeds available to such Owners, then the Depositary
shall allow the rights to lapse. If at the time of the offering of any rights
the Depositary determines in its discretion that it is lawful and feasible to
make such rights available to all Owners or to certain Owners but not to other
Owners, the Depositary after consultation with the Issuer may distribute to any
Owner to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will make such rights available to such Owner upon
written notice from the Issuer to the Depositary that (a) the Issuer has elected
in its sole discretion to permit such rights to be exercised and (b) such Owner
has executed such documents as the Issuer has determined in its sole discretion
are reasonably required under applicable law.
After consultation with the Issuer, if the Depositary has distributed
warrants or other instruments for rights to all or certain Owners, then upon
instruction from such an Owner pursuant to such warrants or other instruments to
the Depositary from such Owner to exercise such rights, upon payment by such
Owner to the Depositary for the account of such Owner of an amount equal to the
purchase price of the Shares to be received upon the exercise of the rights, and
upon payment of the fees of the Depositary and any other charges as set forth in
such warrants or other instruments, the Depositary shall, on behalf of such
Owner, exercise the rights and purchase the Shares, and the Issuer shall cause
the Shares so purchased to be delivered to the Depositary on behalf of such
Owner. As agent for such Owner, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.2 of this Deposit Agreement, and
shall, pursuant to Section 2.3 of this Deposit Agreement, execute and deliver
Receipts to such Owner. In the case of a distribution pursuant to the second
paragraph of this section, such Receipts shall be legended in accordance with
applicable U.S. laws, and shall be subject to the appropriate restrictions on
sale, deposit, cancellation, and transfer under such laws.
-21-
If the Depositary determines in its reasonable discretion that it is not
lawful and feasible to make such rights available to all or certain Owners, it
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Owners to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.9 and all taxes and governmental charges payable in connection with such
rights and subject to the terms and conditions of this Deposit Agreement) for
the account of such Owners otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Owners because of exchange restrictions or the date of
delivery of any Receipt or otherwise. No distributions of rights or the net
proceeds of any sale of rights to Owners shall be unreasonably delayed by any
action of the Depositary or any of its agents.
-22-
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to Owners or are
registered under the provisions of such Act, provided that nothing in the
Deposit Agreement will create or be construed to create, any obligation on the
part of the Issuer to file a registration statement with respect to such rights
or securities or to endeavor to have such a registration statement declared
effective. If an Owner of Receipts requests distribution of warrants or other
instruments, notwithstanding that there has been no such registration under such
Act, the Depositary shall not effect such distribution unless it has received an
opinion from recognized counsel in the United States for the Issuer upon which
the Depositary may rely that such distribution to such Owner is exempt from such
registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
Section 4.5 Conversion of Foreign Currency.
-------------------------------
Whenever the Depositary shall receive Foreign Currency, by way of dividends
or other distributions or the net proceeds from the sale of securities, property
or rights, and if at the time of the receipt thereof the Foreign Currency so
received can in the judgment of the Depositary be converted on a reasonable
basis into Dollars and the resulting Dollars transferred to the United States,
the Depositary shall convert or cause to be converted as promptly as
practicable, by sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars shall be distributed as promptly as
practicable to the Owners entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the holders thereof
to such Dollars, then to the holders of such warrants and/or instruments upon
surrender thereof for cancellation. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.9.
-23-
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that any Foreign Currency
received by the Depositary is not pursuant to applicable law convertible in
whole or in part into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the Foreign Currency (or an appropriate document evidencing the right to receive
such Foreign Currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
If any such conversion of Foreign Currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the Foreign Currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
-24-
Section 4.6 Fixing of Record Date.
----------------------
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever 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, the Depositary,
after consultation with the Issuer to the extent practicable, shall fix a record
date (which will be as close as reasonably practicable to the date corresponding
to the record date, if any, fixed by the Issuer in respect of Shares) (a) for
the determination of the Owners who shall be (i) entitled to receive such
dividend, distribution or rights or the net proceeds of the sale thereof or (ii)
entitled to give instructions for the exercise of voting rights at any such
meeting, or (b) on or after which each American Depositary Share will represent
the changed number of Shares. Subject to the provisions of Sections 4.1 through
4.5 and to the other terms and conditions of this Deposit Agreement, the Owners
on such record date shall be entitled, as the case may be, to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively and to give
voting instructions and to act in respect of any other such matter.
-25-
Section 4.7 Voting of Deposited Securities.
------------------------------
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Issuer the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be approved of by the Issuer which shall contain (a) such
information as is contained in such notice of meeting, (b) a statement that the
Owners as of the close of business on a specified record date will be entitled,
subject to any applicable provision of English law and of the Memorandum and
Articles of Association of the Issuer, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount of Shares or
other Deposited Securities represented by their respective American Depositary
Shares and (c) a statement as to the manner in which such instructions may be
given including an express indication that such instructions may be given or
deemed given in accordance with the last sentence of this paragraph if no
instruction is received, to the Depositary to give a discretionary proxy to a
person designated by the Issuer. Upon the written request of an Owner on such
record date, received on or before the date established by the Depositary for
such purpose, (the "Instruction Date") the Depositary shall endeavor, in so far
as practicable, to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Shares or other Deposited Securities, other than in accordance with such
instructions or deemed instructions. If no instructions are received by the
Depositary from any Owner with respect to any of the Deposited Securities
represented by the American Depositary Shares evidenced by such Owner's Receipts
on or before the Instruction Date, the Depositary shall deem such Owner to have
instructed the Depositary to give a discretionary proxy to a person designated
by the Issuer with respect to such Deposited Securities and the Depositary shall
give a discretionary proxy to a person designated by the Issuer to vote such
Deposited Securities, provided, that no such instruction shall be given with
respect to any matter as to which the Issuer informs the Depositary (and the
Issuer agrees to provide such information as promptly as practicable in writing)
that (x) the Issuer does not wish such proxy given, (y) substantial opposition
exists or (z) such matter materially and adversely affects the rights of holders
of Shares.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
-26-
Section 4.8 Changes Affecting Deposited Securities.
--------------------------------------
In circumstances where the provisions of Section 4.3 do not apply, upon any
change in nominal value, change in par value, split-up, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Issuer
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent
the new Deposited Securities so received in exchange or conversion, unless
additional Receipts are delivered pursuant to the following sentence. In any
such case the Depositary may with the Issuer's approval, and shall if the Issuer
shall so request, execute and deliver additional Receipts as in the case of a
dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
Immediately upon the occurrence of any such change, conversion or exchange
covered by this Section 4.8 in respect of the Deposited Securities, the
Depositary shall give notice thereof in writing to all Owners.
Section 4.9 Reports.
-------
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Issuer. The
Depositary shall also, upon written request of the Issuer, send to the Owners
copies of such reports when furnished by the Issuer pursuant to Section 5.6.
Section 4.10 Lists of Owners.
---------------
Promptly upon request by the Issuer, the Depositary shall furnish to it a
list, as of a recent date, of the names, addresses and holdings of American
Depositary Shares by all persons in whose names Receipts are registered on the
books of the Depositary.
-27-
Section 4.11 Withholding.
-----------
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
Section 5.1 Maintenance of Office and Transfer Books by the
-----------------------------------------------------
Depositary.
----------
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners, provided that such inspection shall not be for the purpose of
communicating with Owners in the interest of a business or object other than the
business of the Issuer or a matter related to this Deposit Agreement or the
Receipts.
The Depositary may close the transfer books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder, provided that any such closing of the transfer books shall be
subject to the provisions of Section 7.7 which limit the suspensions of
withdrawals of Shares.
-28-
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act as Registrar or appoint a Registrar upon the written request or with the
written approval of the Issuer or one or more co-registrars for registry of such
Receipts in accordance with any requirements of such exchange or exchanges.
Any such co-registrar shall, upon the Issuer's request, and may, with the
approval of the Issuer, be removed and a substitute or substitutes appointed by
the Depositary.
The Issuer will have the right to inspect the transfer and registration
records of the Depositary, take copies thereof and to require the Depositary,
the Registrar and any co-registrars, to supply copies of such portions of such
records as the Issuer may reasonably request.
Section 5.2 Prevention or Delay in Performance by the Depositary
-----------------------------------------------------
or the Issuer.
-------------
Neither the Depositary nor the Issuer nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner or other person, if by reason of any provision of any
present or future law or regulation of the United States or any other country,
or of any governmental or regulatory authority or stock exchange, or by reason
of any provision, present or future, of the Memorandum and Articles of
Association of the Issuer, or by reason of any provisions of any securities
issued or distributed by the Issuer, or any offering or distribution thereof, or
by reason of any act of God or war or other circumstances beyond its control,
the Depositary or the Issuer or any of their respective directors, employees,
agents or affiliates shall be prevented or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of this Deposit Agreement or the Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Issuer
incur any liability to any Owner or Beneficial Owner or other person by reason
of any non-performance or delay, caused as aforesaid, in the performance of any
act or thing which by the terms of this Deposit Agreement it is provided shall
or may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement. Where, by the
terms of a distribution pursuant to Sections 4.1, 4.2, or 4.3 of the Deposit
Agreement, or an offering or distribution pursuant to Section 4.4 of the Deposit
Agreement, or for any other reason, such distribution or offering may not be
made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
-29-
Section 5.3 Obligations of the Depositary, the Custodian and the
-----------------------------------------------------
Issuer.
------
The Issuer assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to any Owner or Beneficial Owner or other person
except that it agrees to perform its obligations specifically set forth in this
Deposit Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner or other
person (including, without limitation, liability with respect to the validity or
worth of the Deposited Securities), except that it agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither the Depositary nor the Issuer shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
-30-
Neither the Depositary nor the Issuer shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or
holder of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of this Deposit Agreement.
Section 5.4 Resignation and Removal of the Depositary.
-----------------------------------------
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Issuer, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Issuer by written notice
of such removal effective upon the appointment of a successor depositary and its
acceptance of such appointment as hereinafter provided.
-31-
In case at any time the Depositary acting hereunder shall resign or be
removed, the Issuer 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 Issuer 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 Issuer shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5 The Custodians.
--------------
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, appoint a substitute custodian or custodians, each of
which shall thereafter be a Custodian hereunder. Whenever the Depositary in its
discretion determines that it is in the best interest of the Owners to do so, it
may appoint substitute or additional custodian or custodians, which shall
thereafter be one of the Custodians hereunder. Upon demand of the Depositary any
Custodian shall deliver such of the Deposited Securities held by it as are
requested of it to any other Custodian or such substitute or additional
custodian or custodians. Each such substitute or additional custodian shall
deliver to the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the Depositary. Immediately
upon any change in Custodian the Depositary shall give notice thereof in writing
to all Owners, each of the Custodians and the Issuer.
-32-
Upon the appointment of any successor depositary hereunder, each Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of each Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
Section 5.6 Notices and Reports.
-------------------
On or before the first date on which the Issuer gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Issuer agrees to transmit to the Depositary and the Custodian a copy
of the notice thereof in the form given or to be given to holders of Shares or
other Deposited Securities. The Issuer shall furnish to the Custodian and the
Depositary a summary, in English, of any applicable provision or proposed
provisions of the Article Association of the Issuer that may be relevant or
pertaining to such notice of meeting or either subject of a vote thereat.
The Issuer will arrange for the prompt transmittal by the Issuer to the
Depositary and the Custodian of such notices and any other reports and
communications which are made generally available by the Issuer to holders of
its Shares. If requested in writing by the Issuer, the Depositary will arrange
for the mailing as promptly as practicable of copies of such notices, reports
and communications to all Owners. The Issuer will timely provide the Depositary
with the quantity of such notices, reports, and communications, as requested by
the Depositary from time to time, in order for the Depositary to effect such
mailings.
-33-
Section 5.7 Distribution of Additional Shares, Rights, etc.
----------------------------------------------
The Issuer agrees that in the event of any issuance or distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities, (each a
"Distribution") the Issuer will promptly furnish to the Depositary a written
opinion from U.S. counsel for the Issuer, which counsel shall be satisfactory to
the Depositary, stating whether or not the Distribution requires a Registration
Statement under the Securities Act of 1933 to be in effect prior to making such
Distribution available to Owners entitled thereto. If in the opinion of such
counsel a Registration Statement is required, such counsel shall furnish to the
Depositary a written opinion as to whether or not there is a Registration
Statement in effect which will cover such Distribution.
The Issuer agrees with the Depositary that neither the Issuer nor any
company controlled by, controlling or under common control with the Issuer will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Issuer or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act of 1933.
Section 5.8 Indemnification.
---------------
The Issuer agrees to indemnify the Depositary, its directors, employees,
agents and affiliates and any Custodian against, and hold each of them harmless
from, any liability or expense (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted,
in accordance with the provisions of this Deposit Agreement and of the Receipts,
as the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Issuer or any of its
directors, employees, agents and affiliates.
-34-
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which may arise out of any "Pre-release Transaction".
For purposes of this provision, the term "Pre-release Transaction" means any
transaction entered into by the Depositary (other than any such transaction to
which the Issuer is a party) to implement or carry out any one or more
Pre-releases (including without limitation any transaction pursuant to Section
2.9), but does not include the execution and delivery, transfer or exchange, or
surrender and cancellation of any Pre-released Receipts or any other act
performed or omitted in accordance with the provisions of this Deposit Agreement
or the Receipts. In addition, for the avoidance of doubt, it is understood that
the first sentence of this subparagraph shall not apply to any liability or
expense which may arise out of any misstatement or alleged misstatement or
omission or alleged omission in any registration statement, proxy statement,
prospectus (or placement memorandum) or preliminary prospectus (or preliminary
placement memorandum) relating to the offer or sale of American Depositary
Shares, except to the extent any such liability or expense arises out of (i)
information relating to the Depositary or any Custodian (other than the Issuer),
as applicable, furnished in writing and not materially changed or altered by the
Issuer expressly for use in any of the foregoing documents, or, (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
The Depositary agrees to indemnify the Issuer, its directors, employees,
agents and affiliates and hold each of them harmless from any liability or
expense (including, but not limited to, the fees and expenses of counsel) which
may arise out of acts performed or omitted by the Depositary, the Registrar or
any Custodian or their respective directors, employees, agents and affiliates
arising out of their negligence or bad faith.
-35-
The obligations set forth in this Section 5.8 shall survive the termination
of this Deposit Agreement and any succession or substitution of any person
indemnified hereby.
Section 5.9 Charges of Depositary.
----------------------
The Issuer agrees to pay the fees, reasonable expenses and out-of- pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Issuer from
time to time. The Depositary shall present its statement for such charges and
expenses to the Issuer once every three months or at such other intervals as the
Issuer and the Depositary may agree. The charges and expenses of the Custodian
are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Issuer or an exchange regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3),
whichever applicable: (1) taxes and other governmental charges, (2) such
registration fees as may from time to time be in effect for the registration of
transfers, if any, of Shares generally on the Share register of the Issuer or
Foreign Registrar and applicable to transfers of Shares to the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such reasonable expenses as are incurred by the Depositary in the conversion of
foreign currency pursuant to Section 4.5 (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the execution and delivery
of Receipts pursuant to Section 2.3, 4.3 or 4.4, and the surrender of Receipts
pursuant to Section 2.5 or 6.2, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement including, but not limited to, Sections 4.1 through 4.4
hereof and (7) a fee for the distribution of securities pursuant to Section 4.2,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause (7)
treating all such securities as if they were Shares), but which securities are
instead distributed by the Depositary to Owners.
-36-
The Depositary, subject to Section 2.9 hereof, may own and deal in any
class of securities of the Issuer and its affiliates and in Receipts.
Section 5.10 Retention of Depositary Documents.
----------------------------------
The Depositary is authorized to destroy those documents, records, bills and
other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Issuer
requests that such papers be retained for a longer period or turned over to the
Issuer or to a successor depositary.
Section 5.11 Exclusivity.
------------
The Issuer agrees not to appoint any other depositary for issuance of
American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder.
ARTICLE 6. AMENDMENT AND TERMINATION.
Section 6.1 Amendment.
----------
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Issuer and
the Depositary in any respect which they may deem necessary or desirable without
the consent of the Owners. Any amendment which shall impose or increase any fees
or charges (other than taxes and other governmental charges, registration fees,
cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or which shall otherwise prejudice any substantial existing right of
Owners, shall, however, not become effective as to outstanding Receipts until
the expiration of thirty days after notice of such amendment shall have been
given to the Owners of outstanding Receipts. Every Owner at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Owner of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
- 37 -
Section 6.2 Termination.
------------
The Depositary shall at any time at the direction of the Issuer terminate
this Deposit Agreement by mailing notice of such termination to the Owners of
all Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate this Deposit
Agreement by mailing notice of such termination to the Issuer and the Owners of
all Receipts then outstanding if at any time 90 days shall have expired after
the Depositary shall have delivered to the Issuer a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.4. On and after the date of
termination, the Owner of a Receipt will, upon (a) surrender of such Receipt at
the Corporate Trust Office of the Depositary, (b) payment of the fee of the
Depositary for the surrender of Receipts referred to in Section 2.5, and (c)
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
in this Deposit Agreement, and shall continue to deliver Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of this Deposit Agreement, and any applicable taxes or governmental charges). At
any time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, unsegregated and without liability for
interest, for the pro rata benefit of the Owners of Receipts which have not
theretofore been surrendered, such Owners thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit
Agreement, except for its obligations to the Issuer under Section 5.8 hereof and
to account for such net proceeds and other cash (after deducting, in each case,
the fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of this Deposit Agreement, and any applicable taxes or governmental charges).
Upon the termination of this Deposit Agreement, the Issuer shall be discharged
from all obligations under this Deposit Agreement except for its obligations to
the Depositary under Sections 5.8 and 5.9 hereof.
- 38 -
ARTICLE 7. MISCELLANEOUS.
Section 7.1 Counterparts.
-------------
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any Owner or Beneficial Owner during business hours.
- 39 -
Section 7.2 No Third Party Beneficiaries.
-----------------------------
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
Section 7.3 Severability.
-------------
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
Section 7.4 Holders and Owners as Parties; Binding Effect.
----------------------------------------------
The Owners and Beneficial Owners from time to time shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of the Receipts by acceptance thereof.
Section 7.5 Notices.
--------
Any and all notices to be given to the Issuer shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to ARM Holdings plc, 90 Fulbourn
Road, Xxxxxx Xxxxxx, Xxxxxxxxx XX0 0XX, Xxxxxx Xxxxxxx, or any other place to
which the Issuer may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if in English and personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed mail Bank of New
York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: American
Depositary Receipt Administration, or any other place to which the Depositary
may have transferred its Corporate Trust Office.
- 40 -
Any and all notices to be given to any Owner shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to such Owner at the address of such
Owner as it appears on the transfer books for Receipts of the Depositary, or, if
such Owner shall have filed with the Depositary a written request that notices
intended for such Owner be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile transmission
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a cable, telex or
facsimile transmission) is deposited, postage prepaid, in a post-office letter
box. The Depositary or the Issuer may, however, act upon any cable, telex or
facsimile transmission received by it, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
Section 7.6 Governing Law.
--------------
This Deposit Agreement and the Receipts shall be interpreted and all rights
hereunder and thereunder and provisions hereof and thereof shall be governed by
the laws of the State of New York.
Section 7.7 Compliance with U.S. Securities Laws.
-------------------------------------
Notwithstanding anything in this Deposit Agreement to the contrary, the
Issuer and the Depositary each agrees that it will not exercise any rights it
has under this Deposit Agreement to permit the withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A.(1) of the General Instructions to
the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
- 41 -
IN WITNESS WHEREOF, ARM HOLDINGS PLC and THE BANK OF NEW YORK have duly
executed this agreement as of the day and year first set forth above and all
Owners shall become parties hereto upon acceptance by them of Receipts issued in
accordance with the terms hereof.
ARM HOLDINGS PLC
By:
----------------------
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:
----------------------
Name:
Title:
- 42 -
ARTICLE 1. DEFINITIONS ................................................. 2
SECTION 1.1 AMERICAN DEPOSITARY SHARES................................... 3
SECTION 1.2 ARTICLE; SECTION............................................. 3
SECTION 1.3 BENEFICIAL OWNER............................................. 3
SECTION 1.4 COMMISSION................................................... 3
SECTION 1.5 CUSTODIAN.................................................... 3
SECTION 1.6 DELIVERY; DEPOSIT; SURRENDER; TRANSFER; WITHDRAW............. 4
SECTION 1.7 DEPOSIT AGREEMENT............................................ 4
SECTION 1.8 DEPOSITARY; CORPORATE TRUST OFFICE........................... 4
SECTION 1.9 DEPOSITED SECURITIES......................................... 5
SECTION 1.10 DOLLARS; POUNDS; XXXXX...................................... 5
SECTION 1.11 FOREIGN CURRENCY............................................. 5
SECTION 1.12 FOREIGN REGISTRAR............................................ 5
SECTION 1.13 ISSUER....................................................... 5
SECTION 1.14 OWNER........................................................ 5
SECTION 1.15 RECEIPTS..................................................... 6
SECTION 1.16 REGISTRAR.................................................... 6
SECTION 1.17 SECURITIES ACT OF 1933....................................... 6
SECTION 1.18 SHARES....................................................... 6
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS........................................... 7
SECTION 2.1 FORM AND TRANSFERABILITY OF RECEIPTS......................... 7
SECTION 2.2 DEPOSIT OF SHARES............................................ 8
SECTION 2.3 EXECUTION AND DELIVERY OF RECEIPTS........................... 9
SECTION 2.4 TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS... 10
SECTION 2.5 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES............... 11
SECTION 2.6 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS..................................................
SECTION 2.7 LOST RECEIPTS, ETC........................................... 14
SECTION 2.8 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS......... 14
SECTION 2.9 PRE-RELEASE OF RECEIPTS...................................... 14
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.................... 16
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION............ 16
SECTION 3.2 LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES............. 16
SECTION 3.3 WARRANTIES ON DEPOSIT OF SHARES.............................. 17
SECTION 3.4 DISCLOSURE OF INTERESTS...................................... 17
ARTICLE 4. THE DEPOSITED SECURITIES..................................... 18
SECTION 4.1 CASH DISTRIBUTIONS........................................... 18
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS.............. 19
SECTION 4.3 DISTRIBUTIONS IN SHARES...................................... 20
SECTION 4.4 RIGHTS....................................................... 21
SECTION 4.5 CONVERSION OF FOREIGN CURRENCY............................... 23
SECTION 4.6 FIXING OF RECORD DATE........................................ 24
SECTION 4.7 VOTING OF DEPOSITED SECURITIES............................... 25
SECTION 4.8 CHANGES AFFECTING DEPOSITED SECURITIES....................... 26
SECTION 4.9 REPORTS...................................................... 27
SECTION 4.10 LISTS OF OWNERS.............................................. 27
SECTION 4.11 WITHHOLDING.................................................. 27
2
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER................ 28
SECTION 5.1 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE DEPOSITARY... 28
SECTION 5.2 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY OR THE
ISSUER....................................................... 29
SECTION 5.3 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN AND THE ISSUER.. 30
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY.................... 31
SECTION 5.5 THE CUSTODIANS............................................... 32
SECTION 5.6 NOTICES AND REPORTS.......................................... 33
SECTION 5.7 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC............... 34
SECTION 5.8 INDEMNIFICATION.............................................. 34
SECTION 5.9 CHARGES OF DEPOSITARY........................................ 36
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS............................ 37
SECTION 5.11 EXCLUSIVITY.................................................. 37
ARTICLE 6. AMENDMENT AND TERMINATION.................................... 37
SECTION 6.1 AMENDMENT.................................................... 37
SECTION 6.2 TERMINATION.................................................. 38
ARTICLE 7. MISCELLANEOUS................................................ 39
SECTION 7.1 COUNTERPARTS................................................. 39
SECTION 7.2 NO THIRD PARTY BENEFICIARIES................................. 40
SECTION 7.3 SEVERABILITY................................................. 40
SECTION 7.4 HOLDERS AND OWNERS AS PARTIES; BINDING EFFECT................ 40
SECTION 7.5 NOTICES...................................................... 40
SECTION 7.6 GOVERNING LAW................................................ 41
SECTION 7.7 COMPLIANCE WITH U.S. SECURITIES LAWS......................... 41
- 3 -
EXHIBIT A TO DEPOSIT AGREEMENT
No. __________________________
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents three (3)
deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF THE
PAR VALUE OF 0.05 GBP EACH
OF
ARM HOLDINGS PLC
(INCORPORATED UNDER THE LAWS OF ENGLAND AND WALES)
The Bank of New York as depositary (hereinafter called the "Depositary"),
hereby certifies that __________________________, or registered assigns IS
THE OWNER OF __________________
AMERICAN DEPOSITARY SHARES
representing deposited Ordinary Shares (herein called "Shares") of ARM HOLDINGS
PLC, incorporated under the laws of the United Kingdom (herein called the
"Company"). At the date hereof, each American Depositary Share represents three
(3) Shares which are either deposited or subject to deposit under the deposit
agreement at the London office of The Bank of New York (herein called the
"Custodian"). The Depositary's Corporate Trust Office is located at a different
address than its principal executive office. Its Corporate Trust Office is
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive
office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
----------------------
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of April 24, 1998, as amended and restated
April 17, 2000 (herein called the "Deposit Agreement"), by and among the
Company, the Depositary, and all Owners and Beneficial Owners from time to time
of Receipts issued thereunder, each of whom by accepting a Receipt agrees to
become a party thereto and become bound by all the terms and conditions thereof.
The Deposit Agreement sets forth the rights of Owners and Beneficial Owners of
the Receipts and the rights and duties of the Depositary in respect of the
Shares deposited thereunder and any and all other securities, property and cash
from time to time received in respect of such Shares and held thereunder (such
Shares, securities, property, and cash are herein called "Deposited
Securities"). Copies of the Deposit Agreement are on file at the Depositary's
Corporate Trust Office in New York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms not defined herein shall have the meanings set
forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
-----------------------------------------------
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt for the purposes of withdrawal of the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary provided in this Receipt, and subject to the terms and
conditions of the Deposit Agreement, the Owner hereof is entitled to delivery,
to him or upon his order, of the amount of Deposited Securities at the time
represented by the American Depositary Shares for which this Receipt is issued.
Delivery of such Deposited Securities may be made by the delivery of (a)
certificates in the name of the Owner hereof or as ordered by him or by the
delivery of certificates properly endorsed or accompanied by proper instruments
of transfer to the Owner hereof or as ordered by him and (b) any other
securities, property and cash to which such Owner is then entitled in respect of
this Receipt or as ordered by him. Such delivery will be made at the option of
the Owner hereof, either at the office of the Custodian or at the Corporate
Trust Office of the Depositary, provided that the forwarding of certificates for
Shares or other Deposited Securities for such delivery at the Corporate Trust
Office of the Depositary shall be at the risk and expense of the Owner hereof.
Notwithstanding any other provision of the Deposit Agreement or this Receipt,
the surrender of outstanding Receipts and withdrawal of Deposited Securities may
not be suspended, except as permitted in General Instruction IA(i) and in Form
F-6 (as such instruction may be amended from time to time) under the Securities
Act in connection with respect to (i) temporary delays caused by closing the
transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities.
-2-
3. TRANSFERS, COMBINATION, AND SPLIT-UPS OF RECEIPTS.
--------------------------------------------------
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer, and duly stamped as
may be required by the laws of the State of New York and of the United States
and funds sufficient to pay any applicable transfer taxes and the expenses of
the Depositary. This Receipt, subject to the terms of the Deposit Agreement, may
be split into other such Receipts, or may be combined with other such Receipts
into one Receipt, evidencing the same aggregate number of American Depositary
Shares as the Receipt or Receipts surrendered.
4. LIMITATIONS ON EXECUTION AND DELIVER, TRANSFER AND SURRENDER OF RECEIPTS.
-------------------------------------------------------------------------
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination, or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, the Custodian, or Registrar may
require payment from the depositor of Shares or the presentor of the Receipt of
a sum sufficient to reimburse it for any tax or other governmental charge and
any stock transfer or registration fee with respect thereto (including any such
tax or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as provided in this Receipt, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with any laws or governmental
regulations relating to Receipts or American Depositary Shares or to the
withdrawal of Deposited Securities and any such reasonable regulations, if any,
the Depositary may establish consistent with the provisions of the Deposit
Agreement or this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or any securities exchange on which such Receipts or Shares
are listed or under any provision of the Deposit Agreement or this Receipt, or
for any other reason, subject to Article (22) hereof. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under the
Deposit Agreement any Shares required to be registered under the provisions of
the Securities Act of 1933, unless a registration statement is in effect as to
such Shares, or, to the extent the Depositary has received instructions with
respect thereto from the Company any Shares the deposit of which would violate
any provision of the Articles of Association of the Company.
-3-
5. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.
------------------------------------------------
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner or Beneficial Owner hereof to
the Depositary. The Depositary may refuse to effect any transfer of this Receipt
or any withdrawal of Deposited Securities represented by American Depositary
Shares evidenced by this Receipt until such payment is made, and may withhold
any dividends or other distributions, or may sell for the account of the Owner
or Beneficial Owner hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner or Beneficial
Owner hereof shall remain liable for any deficiency.
6. WARRANTIES ON DEPOSIT OF SHARES.
-------------------------------
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, nonassessable, and free of any pre-emptive
rights of the holders of outstanding Shares and that the person making such
deposit is duly authorized so to do. Every such person shall also be deemed to
represent that the deposit of such Shares and the sale of Receipts evidencing
American Depositary Shares representing such Shares by that person are not
restricted under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance of Receipts.
7. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
--------------------------------------------------
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
or such information relating to the registration on the books of the Company or
the Foreign Registrar, if applicable, to execute such certificates and to make
such representations and warranties, as the Depositary may deem necessary or
proper. The Depositary may withhold the delivery or registration of transfer of
any Receipt or the distribution of any dividend or sale or distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties made. No Share shall be accepted for
deposit unless accompanied by evidence satisfactory to the Depositary that any
necessary exemption is in force or approval has been granted by any governmental
body in the United Kingdom which is then performing the function of the
regulation of currency exchange.
-4-
8. CHARGES OF DEPOSITARY.
----------------------
The Company agrees to pay the fees, reasonable expenses and out-of- pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months or at such other intervals as
the Company and the Depositary may agree. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3 of
the Deposit Agreement), whichever applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers, if any, of Shares generally on the Share register
of the Company or Foreign Registrar and applicable to transfers of Shares to the
name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals under the Deposit Agreement, (3) such cable,
telex and facsimile transmission expenses as are expressly provided in the
Deposit Agreement, (4) such reasonable expenses as are incurred by the
Depositary in the conversion of foreign currency pursuant to Section 4.5 of the
Deposit Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares
(or portion thereof) for the execution and delivery of Receipts pursuant to
Section 2.3, 4.3 or 4.4, and the surrender of Receipts pursuant to Section 2.5
or 6.2 of the Deposit Agreement, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement including, but not limited to Sections 4.1 through 4.4
thereof, (7) a fee for the distribution of securities pursuant to Section 4.2 of
the Deposit Agreement, such fee being in an amount equal to the fee for the
execution and delivery of American Depositary Shares referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this clause (7) treating all such securities as if they were
Shares), but which securities are instead distributed by the Depositary to
Owners.
The Depositary, subject to Article (8) hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
-5-
9. PRE-RELEASE OF RECEIPTS.
-----------------------
The Depositary may issue Receipts against the delivery by the Company (or
any agent of the Company recording Share ownership) of rights to receive Shares
from the Company (or any such agent). No such issue of Receipts will be deemed a
"Pre-Release" that is subject to the restrictions of the following paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.3 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.5 of the Deposit Agreement, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in satisfaction of such Pre-Release, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited under the Deposit Agreement; provided, however, that the Depositary
reserves the right to disregard such limit from time to time as it deems
reasonably appropriate, and may, with the prior written consent of the Company,
change such limit for purposes of general application. The Depositary will also
set Dollar limits with respect to Pre-Release transactions to be entered into
under the Deposit Agreement with any particular Pre-Releasee on a case-by-case
basis as the Depositary deems appropriate. For purposes of enabling the
Depositary to fulfill its obligations to the Owners under the Deposit Agreement,
the collateral referred to in clause (b) above shall be held by the Depositary
as security for the performance of the Pre-Releasee's obligations to the
Depositary in connection with a Pre-Release transaction, including the
Pre-Releasee's obligation to deliver Shares or Receipts upon termination of a
Pre-Release transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities under the Deposit Agreement).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Owners.
-6-
10. TITLE TO RECEIPTS.
-----------------
It is a condition of this Receipt and every successive holder and Owner of
this Receipt by accepting or holding the same consents and agrees, that title to
this Receipt when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument, provided, 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 distribution of
dividends or other distributions or to any notice provided for in the Deposit
Agreement or for all other purposes.
11. VALIDITY OF RECEIPT.
-------------------
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
12. 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
Securities and Exchange Commission (hereinafter called the "Commission").
Such reports and communications will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also, upon written request of the Company, send to Owners of
Receipts copies of such reports when furnished by the Company pursuant to the
Deposit Agreement.
The Depositary will keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners provided that such inspection shall not be for the purpose of
communicating with Owners in the interest of a business or object other than the
business of the Company or a matter related to the Deposit Agreement or the
Receipts.
-7-
13. DIVIDENDS AND DISTRIBUTIONS.
---------------------------
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into United States dollars
transferable to the United States, and subject to the Deposit Agreement, convert
such dividend or distribution as promptly as practicable into Dollars and will
distribute, as promptly as practicable, the amount thus received to the Owners
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them, respectively; provided,
however, that in the event that the Company or the Depositary is required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes, the amount
distributed to the Owners of the Receipts evidencing American Depositary Shares
representing such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary will, after consultation with the Company, cause the securities or
property received by it to be distributed to the Owners entitled thereto, as
promptly as practicable in proportion to the number of ADSs representing such
Deposited Securities held by them, respectively, in any manner that the
Depositary, after consultation with the Company, may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason the Depositary,
after consultation with the Company, deems such distribution not to be feasible,
the Depositary, after consultation with the Company, may adopt such method as it
may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees of the Depositary as provided in Section 5.9
of the Deposit Agreement) shall be distributed by the Depositary to the Owners
entitled thereto as in the case of a distribution received in cash; provided,
however, that no such distribution to Owners pursuant to Section 4.2 of the
Deposit Agreement shall be unreasonably delayed by any action of the Depositary
or any of its agents. To the extent that such securities or property or the net
proceeds thereof are not effectively distributed to Owners as provided in this
paragraph, each American Depositary Share shall thereafter also represent the
additional securities or property distributed in respect of the Shares
represented by such American Depositary Share prior to such distribution.
-8-
If any distribution upon Deposited Securities consists of a dividend in, or
free distribution of, Shares, the Depositary may with the approval of the
Company, and shall if the Company shall so request, distribute to the Owners of
outstanding Receipts entitled thereto, in proportion to the number of ADSs
representing such Deposited Securities held by them, respectively, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free distribution
subject to the terms and conditions of the Deposit Agreement with respect to the
deposit of Shares and the issuance of American Depositary Shares evidenced by
Receipts, including the withholding of any tax or other governmental charge as
provided in Section 4.11 of the Deposit Agreement and the payment of the fees of
the Depositary as provided in Section 5.9 of the Deposit Agreement, provided,
however, that no such distribution to Owners shall be unreasonably delayed by
any action of the Depositary or any of its agents. In lieu of delivering
Receipts for fractional American Depositary Shares in any such case, the
Depositary will sell the amount of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions set forth in the Deposit Agreement. If additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also represent the
additional Shares distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
14. CONVERSION OF FOREIGN CURRENCY.
------------------------------
Whenever the Depositary shall receive Foreign Currency, by way of dividends
or other distributions or the net proceeds from the sale of securities, property
or rights, and if at the time of the receipt thereof the Foreign Currency so
received can in the judgment of the Depositary be converted on a reasonable
basis into Dollars and the resulting Dollars transferred to the United States,
the Depositary shall convert or cause to be converted as promptly as
practicable, by sale or in any other manner that it may determine, such Foreign
Currency into Dollars, and such Dollars shall be distributed as promptly as
practicable to the Owners entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the holders thereof
to such Dollars, then to the holders of such warrants and/or instruments upon
surrender thereof for cancellation. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.9 of the Deposit Agreement.
-9-
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that any Foreign Currency
received by the Depositary is not pursuant to applicable law convertible in
whole or in part into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the Foreign Currency (or an appropriate document evidencing the right to receive
such Foreign Currency) received by the Depositary to, or in its discretion may
hold such Foreign Currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
If any such conversion of Foreign Currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the Foreign Currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
15. 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, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available in Dollars to such
Owners or, if by the terms of such rights offering by reason of applicable law,
the Depositary may not either make such rights available to any Owners or
dispose of such rights and make the net proceeds available to such Owners, then
the Depositary shall allow the rights to lapse. If at the time of the offering
of any rights the Depositary determines in its discretion that it is lawful and
feasible to make such rights available to all Owners or to certain Owners but
not to other Owners, the Depositary, after consultation with the Company, may
distribute, to any Owner to whom it determines the distribution to be lawful and
feasible, in proportion to the number of American Depositary Shares held by such
Owner, warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner under the Deposit Agreement, the Depositary will make such rights
available to such Owner upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
-10-
After consultation with the Company, if the Depositary has distributed
warrants or other instruments for rights to all or certain Owners, then upon
instruction from such an Owner pursuant to such warrants or other instruments to
the Depositary from such Owner to exercise such rights, upon payment by such
Owner to the Depositary for the account of such Owner of an amount equal to the
purchase price of the Shares to be received upon the exercise of the rights, and
upon payment of the fees of the Depositary and any other charges as set forth in
such warrants or other instruments, the Depositary shall, on behalf of such
Owner, exercise the rights and purchase the Shares, and the Company shall cause
the Shares so purchased to be delivered to the Depositary on behalf of such
Owner. As agent for such Owner, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.2 of the Deposit Agreement, and
shall, pursuant to Section 2.3 of the Deposit Agreement, execute and deliver
Receipts to such Owner. In the case of a distribution pursuant to the second
paragraph of this Article, such Receipts shall be legended in accordance with
applicable U.S. laws, and shall be subject to the appropriate restrictions on
sale, deposit, cancellation, and transfer under such laws.
If the Depositary determines in its reasonable discretion that it is not
lawful and feasible to make such rights available to all or certain Owners, it
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Owners to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.9 of the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise. No
distributions of rights or the net proceeds of any sale of rights to Owners
shall be unreasonably delayed by any action of the Depositary or any of its
agents.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to Owners or are
registered under the provisions of such Act, provided that nothing in the
Deposit Agreement will create or be construed to create, any obligation on the
part of the Company to file a registration statement with respect to such rights
or securities or to endeavor to have such a registration statement declared
effective. If an Owner of Receipts requests distribution of warrants or other
instruments, notwithstanding that there has been no such registration under such
Act, the Depositary shall not effect such distribution unless it has received an
opinion from recognized counsel in the United States for the Company upon which
the Depositary may rely that such distribution to such Owner is exempt from such
registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
-11-
16. RECORD DATES.
------------
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever 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, the Depositary,
after consultation with the Company to the extent practicable, shall fix a
record date (which will be as close as reasonably practicable to the date
corresponding to the record date, if any, fixed by the Company in respect of
Shares) (a) for the determination of the Owners who shall be (i) entitled to
receive such dividend, distribution or rights or the net proceeds of the sale
thereof or (ii) entitled to give instructions for the exercise of voting rights
at any such meeting, or (b) on or after which each American Depositary Share
will represent the changed number of Shares, subject to the provisions of the
Deposit Agreement.
17. VOTING OF DEPOSITED SECURITIES.
------------------------------
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be approved of or furnished by the Company which shall
contain (a) such information as is contained in such notice of meeting, (b) a
statement that the Owners as of the close of business on a specified record date
will be entitled, subject to any applicable provision of English law and of the
Memorandum and Articles of Association of the Company, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares and (c) a statement as to the manner in which such
instructions may be given including an express indication that such instructions
may be given or deemed given in accordance with the last sentence of this
paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated by the Company. Upon the written
request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose, (the "Instruction Date") the
Depositary shall endeavor, in so far as practicable, to vote or cause to be
voted the amount of Shares or other Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions or deemed
instructions. If no instructions are received by the Depositary from any Owner
with respect to any of the Deposited Securities represented by the American
Depositary Shares evidenced by such Owner's Receipts on or before the
Instruction Date, the Depositary shall deem such Owner to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company
with respect to such Deposited Securities and the Depositary shall give a
discretionary proxy to a person designated by the Company to vote such Deposited
Securities, provided, that no such instruction shall be given with respect to
any matter as to which the Company informs the Depositary (and the Company
agrees to provide such information as promptly as practicable in writing) that
(x) the Company does not wish such proxy given, (y) substantial opposition
exists or (z) such matter materially and adversely affects the rights of holders
of Shares.
-12-
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
18. CHANGES AFFECTING DEPOSITED SECURITIES.
--------------------------------------
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent the new Deposited Securities so received in exchange
or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may with the Company's
approval, and shall if the Company shall so request, execute and deliver
additional Receipts as in the case of a dividend in Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities.
Immediately upon the occurrence of any such change, conversion or exchange
covered by this Article 17 in respect of the Deposited Securities, the
Depositary shall give notice thereof in writing to all Owners.
-13-
19. LIABILITY OF THE COMPANY AND DEPOSITARY.
---------------------------------------
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents, or affiliates shall incur any liability to any
Owner or Beneficial Owner or other person, if by reason of any provision of any
present or future law of the United States or any other country, or of any other
governmental 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 by reason of any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof, or by
reason of any act of God or war or other circumstances beyond its control, the
Depositary or the Company or any of their respective directors, employees,
agents or affiliates shall be prevented or forbidden from or be subject to any
civil or criminal penalty on account of doing or performing any act or thing
which by the terms of the Deposit Agreement or the Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Company
incur any liability to any Owner or Beneficial Owner or other person by reason
of any non-performance or delay, caused as aforesaid, in the performance of any
act or thing which by the terms of the Deposit Agreement it is provided shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement. Where, by the
terms of a distribution pursuant to Sections 4.1, 4.2, or 4.3 of the Deposit
Agreement, or an offering or distribution pursuant to Section 4.4 of the Deposit
Agreement, such distribution or offering may not be made available to Owners of
Receipts, and the Depositary may not dispose of such distribution or offering on
behalf of such Owners and make the net proceeds available to such Owners, then
the Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Each of the Company and the Depositary assumes
no obligation nor shall it be subject to any liability under the Deposit
Agreement to any Owner or Beneficial Owner or other person, except that it
agrees to perform its obligations specifically set forth in the Deposit
Agreement without negligence or bad faith. The Depositary shall not be subject
to any liability with respect to the validity or worth of the Deposited
Securities. Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit, or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary. Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or holder of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary shall not be
responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any such vote is cast or the
effect of any such vote, provided that any such action or nonaction is in good
faith. The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with a matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
-14-
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of the Deposit Agreement.
20. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
-----------------------------------------
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal, effective upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement.
21. THE CUSTODIAN.
-------------
Whenever the Depositary in its discretion determines that it is in the best
interest of the Owners to do so, it may appoint a substitute or additional
custodian or custodians. Immediately upon any change in Custodian the Depositary
shall give notice thereof in writing to all Owners, each of the Custodians and
the Company.
22. AMENDMENT.
---------
The form of the Receipts and any provisions of the Deposit Agreement may at
any time and from time to time be amended by agreement between the Company and
the Depositary in any respect which they may deem necessary or desirable without
the consent of the Owners. Any amendment which shall impose or increase any fees
or charges (other than taxes and other governmental charges, registration fees,
cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or which shall otherwise prejudice any substantial existing right of
Owners of Receipts, shall, however, not become effective as to outstanding
Receipts until the expiration of thirty days after notice of such amendment
shall have been given to the Owners of outstanding Receipts. Every Owner of a
Receipt at the time any amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented thereby except in
order to comply with mandatory provisions of applicable law.
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23. TERMINATION OF DEPOSIT AGREEMENT.
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The Depositary shall at any time at the direction of the Company terminate
the Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Owners of
all Receipts then outstanding if at any time 90 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in the Deposit Agreement. On and after the
date of termination, the Owner of this Receipt, will upon (a) surrender of this
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5 of
the Deposit Agreement, and (c) payment of any applicable taxes or governmental
charges, will be entitled to delivery, to him or upon his order, of the amount
of Deposited Securities represented by the American Depositary Shares evidenced
by this Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable taxes
or governmental charges). At any time after the expiration of one year from the
date of termination, the Depositary may sell the Deposited Securities then held
under the Deposit Agreement and may thereafter hold uninvested the net proceeds
of any such sale, together with any other cash then held by it thereunder,
unsegregated and without liability for interest, for the pro rata benefit of the
Owners of Receipts which have not theretofore been surrendered, such Owners
thereupon becoming general creditors of the Depositary with respect to such net
proceeds. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement, except for its obligations to the
Company with respect to indemnification and to account for such net proceeds and
other cash (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges). Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations under
the Deposit Agreement except for its obligations to the Depositary with respect
to indemnification, charges, and expenses.
24. COMPLIANCE WITH U.S. SECURITIES LAWS.
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Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under the Deposit Agreement to permit the withdrawal or
delivery of Deposited Securities in a manner which would violate the U.S.
securities laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
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25. DISCLOSURE OF INTERESTS.
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Notwithstanding any other provision of the Deposit Agreement, each Owner
and Beneficial Owner agrees to be bound by and subject to the Memorandum and
Articles of Association of the Company (to the same extent as if such American
Depositary Shares evidenced by such Receipt were the Shares represented by such
American Depositary Shares evidenced by such Receipt, provided, however, that
such provisions shall apply to such persons only to the extent feasible), and to
provide such information as the Company may request in a disclosure notice (a
"Disclosure Notice") given pursuant to statutory provisions of English law or
the Memorandum and Articles of Association. Failure of an Owner or Beneficial
Owner to provide in a timely fashion information requested in any Disclosure
Notice may, in the Company's sole discretion, result in the withholding of
certain rights in respect of such Owner or Beneficial Owner's American
Depositary Shares (including voting rights and certain rights as to dividends in
respect of the Shares represented by such American Depositary Shares). The
Depositary agrees to use its reasonable efforts to comply with any instructions
received from the Company requesting that the Depositary take the actions
specified therein to obtain such information.
In addition, any Owner or Beneficial Owner who is or becomes directly or
indirectly interested (within the meaning of Section 208 and 209 of the United
Kingdom Companies Xxx 0000, as amended from time to time (the "Companies Act")),
in the issued ordinary share capital of the Company equal to or in excess of the
then "notifiable interest" (at the date hereof, three percent (3%)) or such
other amount as may be required by the Companies Act, or is aware that another
person for whom it holds such Receipts is so interested, must within two (2)
business days (or such other period as may be required by the Companies Act)
after becoming so interested or so aware, and thereafter upon any changes of at
least one percent (1%) of the outstanding Shares, notify the Company as required
by the Companies Act.
If the Company requests information from the Depositary or the Custodian,
as the registered owners of Shares, pursuant to the Memorandum and Articles of
Association of the Company or the Companies Act, the obligations of the
Depositary or the Custodian, as the case may be, shall be limited to disclosing
to the Company such information relating to the Shares in question as has in
each case been recorded by it pursuant to the terms of the Deposit Agreement.
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