Exhibit 1
EXECUTION COPY
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RANDGOLD & EXPLORATION COMPANY LIMITED
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of March 3, 1997, as
Amended and Restated as of November 9, 1998,
As further Amended and Restated as of ________, 2004
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1. DEFINITIONS. .......................................................... 4
SECTION 1.1 AMERICAN DEPOSITARY SHARES. ................................. 4
SECTION 1.2 ARTICLE; SECTION. ........................................... 5
SECTION 1.3 COMMISSION. ................................................. 5
SECTION 1.4 CUSTODIAN. .................................................. 5
SECTION 1.5 DEPOSIT AGREEMENT. .......................................... 5
SECTION 1.6 DEPOSITARY; CORPORATE TRUST OFFICE. ......................... 5
SECTION 1.7 DEPOSITED SECURITIES. ....................................... 5
SECTION 1.8 DOLLARS; RAND; R. ........................................... 6
SECTION 1.9 FOREIGN REGISTRAR. .......................................... 6
SECTION 1.10 ISSUER. ..................................................... 6
SECTION 1.11 OWNER. ...................................................... 6
SECTION 1.12 RECEIPTS. ................................................... 6
SECTION 1.13 REGISTRAR. .................................................. 6
SECTION 1.14 RESTRICTED SECURITIES. ...................................... 6
SECTION 1.15 SECURITIES ACT OF 1933. ..................................... 7
SECTION 1.16 SHARES. ..................................................... 7
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. ....................................... 9
SECTION 2.5 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES. ............. 10
SECTION 2.6 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS. ...................................... 11
SECTION 2.7 LOST RECEIPTS, ETC. ......................................... 12
SECTION 2.8 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. ....... 12
SECTION 2.9 PRE RELEASE OF RECEIPTS. .................................... 12
3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS. .......................... 13
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. ......... 13
SECTION 3.2 LIABILITY OF OWNER FOR TAXES. ............................... 13
SECTION 3.3 WARRANTIES ON DEPOSIT OF SHARES. ............................ 13
4. THE DEPOSITED SECURITIES. .............................................. 14
SECTION 4.1 CASH DISTRIBUTIONS. 14
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS. ............ 14
SECTION 4.3 DISTRIBUTIONS IN SHARES. .................................... 15
SECTION 4.4 RIGHTS. ..................................................... 15
SECTION 4.5 CONVERSION OF FOREIGN CURRENCY. ............................. 17
SECTION 4.6 FIXING OF RECORD DATE. ...................................... 18
SECTION 4.7 VOTING OF DEPOSITED SECURITIES. ............................. 18
SECTION 4.8 CHANGES AFFECTING DEPOSITED SECURITIES. ..................... 19
SECTION 4.9 REPORTS. .................................................... 19
SECTION 4.10 LISTS OF OWNERS. ............................................ 19
SECTION 4.11 WITHHOLDING. ................................................ 20
5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER. ........................ 20
SECTION 5.1 MAINTENANCE OF OFFICE AND TRANSFER BOOKS
BY THE DEPOSITARY. .......................................... 20
SECTION 5.2 PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY OR THE ISSUER. ................................... 20
SECTION 5.3 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN
AND THE ISSUER. ............................................. 21
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY. .................. 22
SECTION 5.5 THE CUSTODIANS. ............................................. 23
SECTION 5.6 NOTICES AND REPORTS. ........................................ 23
SECTION 5.7 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC. ............. 24
SECTION 5.8 INDEMNIFICATION. ............................................ 24
SECTION 5.9 CHARGES OF DEPOSITARY. ...................................... 24
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS. .......................... 25
SECTION 5.11 EXCLUSIVITY. ................................................ 25
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS. ....................... 26
6. AMENDMENT AND TERMINATION. ............................................ 26
SECTION 6.1 AMENDMENT. .................................................. 26
SECTION 6.2 TERMINATION. ................................................ 26
7. MISCELLANEOUS. ........................................................ 27
SECTION 7.1 COUNTERPARTS. ............................................... 27
SECTION 7.2 NO THIRD PARTY BENEFICIARIES. ............................... 27
SECTION 7.3 SEVERABILITY. ............................................... 28
SECTION 7.4 HOLDERS AND OWNERS AS PARTIES; BINDING EFFECT. .............. 28
SECTION 7.5 NOTICES. .................................................... 28
SECTION 7.6 GOVERNING LAW. .............................................. 29
SECTION 7.7 COMPLIANCE WITH U.S. SECURITIES LAWS. ....................... 29
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of March 3, 1997, as Amended and Restated as of
November 9, 1998, and as further Amended and Restated as of ______________,
2004, among RANDGOLD & EXPLORATION COMPANY LIMITED, incorporated under the laws
of the Republic of South Africa (herein called the Issuer), THE BANK OF NEW
YORK, a New York banking corporation (herein called the Depositary), and all
Owners and holders from time to time of American Depositary Receipts issued
hereunder.
W I T N E S S E T H :
WHEREAS, the 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;
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; and
WHEREAS, the Issuer and the Depositary entered into a Deposit Agreement
March 3, 1997, as Amended and Restated as of November 9, 1998, and now desire to
amend and restate the Deposit Agreement to provide for revised voting provisions
in Section 4.7;
NOW, THEREFORE, in consideration of the premises, the parties hereby agree
that, pursuant to Section 6.1 hereof, this Deposit Agreement shall be amended
and restated and it is agreed by and between the parties hereto as follows:
1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
Section 1.1 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent 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.
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 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States. Section 1.4 Custodian.
The term "Custodian" shall mean each of ABSA Bank Limited, French
Bank of South Africa, First National Bank of South Africa and Nedcor Bank
Limited, each as agent of the Depositary for the purposes of this Deposit
Agreement, and any other firm or corporation which may hereafter be appointed by
the Depositary pursuant to the terms of Section 5.5, as substitute or additional
custodian or custodians hereunder, as the context shall require and shall also
mean all of them collectively. Section 1.5 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
Section 1.6 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
Section 1.7 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held hereunder, subject as to
cash to the provisions of Section 4.5.
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Section 1.8 Dollars; Rand; R.
The term "Dollars" shall mean United States dollars. The term "Rand"
or "R" shall mean South African rand.
Section 1.9 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Issuer for the transfer and
registration of Shares. Section 1.10 Issuer.
The term "Issuer" shall mean Randgold & Exploration Company Limited,
incorporated under the laws of the Republic of South Africa, and its successors.
Section 1.11 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose. Section
1.12 Receipts.
The term "Receipts" shall mean the American Depositary Receipts
issued hereunder evidencing American Depositary Shares.
Section 1.13 Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein provided.
Section 1.14 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Issuer or its affiliates (as defined in Rule 144 under the Securities Act of
1933) in a transaction or chain of transactions not involving any public
offering or which are subject to resale limitations under Regulation D under
that Act or both, or which are held by an officer, director (or persons
performing similar functions) or other affiliate of the Issuer, or which are
subject to other restrictions on sale or deposit under the laws of the United
States or the Republic of South Africa, or under a shareholder agreement or the
Articles of Association and By-laws of the Issuer.
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Section 1.15 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
Section 1.16 Shares.
The term "Shares" shall mean ordinary shares in registered form of
the Issuer, par value Rand 0.01 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.
2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.
Section 2.1 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual 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 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 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.
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 approval has been granted by any governmental body in the Republic
of South Africa which is then performing the function of the regulation of
currency exchange. If required by the Depositary, Shares presented for deposit
at any time, whether or not the transfer books of the 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.
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 transfer and recordation can be
accomplished, 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.
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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 at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person or
persons, but only upon payment to the Depositary of the fees of the Depositary
for the execution and delivery of such Receipt or Receipts as provided in
Section 5.9, and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Deposited Securities.
Section 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
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The Depositary may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Owners or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary.
Section 2.5 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.9 and payment of all taxes and governmental charges payable in connection with
such surrender and withdrawal of the Deposited Securities, and subject to the
terms and conditions of this Deposit Agreement, the Owner of such Receipt shall
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities at the time represented by the American Depositary Shares evidenced
by such Receipt. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates in the name of such Owner or as ordered by him or
by certificates properly endorsed or accompanied by proper instruments of
transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of such
Receipts to such Owner or as ordered by him. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the 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
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any cash or other property (other than rights) comprising, and forward a
certificate or certificates and other proper documents of title for, the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt to the Depositary for delivery at the Corporate Trust Office of the
Depositary. Such direction shall be given by letter or, at the request, risk and
expense of such Owner, by cable, telex or facsimile transmission.
Section 2.6 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.
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 regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.6.
The delivery of Receipts against 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 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
subject only 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.
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Section 2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt of like tenor in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt. Before
the Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
Section 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
Section 2.9 Pre-Release of Receipts.
Notwithstanding Section 2.3 hereof, the Depositary may execute and
deliver Receipts prior to the receipt of Shares pursuant to Section 2.2
("Pre-Release of Receipts") and may deliver Shares prior to the receipt and
cancellation of Receipts if the person to whom such Shares are to be delivered
is a banking institution organized pursuant to the laws of The Republic of South
Africa ("South African Bank") ("Pre-Release of Shares"). (Pre-Release of
Receipts and Pre-Release of Shares are collectively referred to herein as
"Pre-Release"). The Depositary may, pursuant to Section 2.5, deliver Shares upon
the receipt and cancellation of Receipts which have been Pre-Released, whether
or not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such Receipt has been Pre-Released. The Depositary may
receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom Receipts or Shares are to be delivered ("Pre-Releasee") that
such Pre-Releasee, or its customer, owns the Shares or Receipts to be remitted,
as the case may be, (b) at all times fully collateralized with cash or such
other collateral as the Depositary deems appropriate and, in connection with the
Pre-Release of Shares, preceded or accompanied by an unconditional guaranty by
the Pre-Releasee to deliver Receipts for cancellation on the same calendar day
on which the Shares are delivered to the Pre-Releasee (or, if such Receipts are
not so delivered, to return the Shares), (c) terminable by the Depositary on not
more than five (5) business days notice, and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
number of American Depositary Shares which are outstanding at any time as a
result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited hereunder; provided, however, that the Depositary reserves the
right to change or disregard such limit from time to time as it deems
appropriate.
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The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
Section 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner 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 for Taxes.
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 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 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 of such Receipt shall remain
liable for any deficiency.
Section 3.3 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and 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.
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4. THE DEPOSITED SECURITIES.
Section 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other
cash distribution on any Deposited Securities, the Depositary shall, subject to
the provisions of Section 4.5, convert such dividend or distribution into
Dollars and shall distribute the amount thus received (net of the fees 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
Republic of South Africa 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 cause the securities
or property received by it to be distributed to the Owners entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the 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 holders) the
Depositary deems such distribution not to be feasible, the Depositary may adopt
such method as it may deem equitable and practicable for the purpose of
effecting such distribution, including, but not limited to, the public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale (net of the fees of the Depositary as
provided in Section 5.9)
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shall be distributed by the Depositary to the Owners entitled thereto as in the
case of a distribution received in cash.
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, 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. 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.
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 shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of any Owners and making the net
proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason, the Depositary may not either make such rights available
to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse. If at the time
of the offering of any rights the Depositary determines in its discretion that
it is lawful and feasible to make such rights available to all Owners or to
certain Owners but not to other Owners, the Depositary may distribute to any
Owner to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed,
if an Owner of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner hereunder, the Depositary will make such rights available
to such Owner upon written notice from the Issuer to the Depositary that (a) the
Issuer has elected in its sole discretion to permit
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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.
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.
If the Depositary determines in its discretion that it is not lawful
and feasible to make such rights available to all or certain Owners, it may sell
the rights, warrants or other instruments in proportion to the number of
American Depositary Shares held by the Owners to whom it has determined it may
not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.9 and all taxes and governmental charges payable in connection with such
rights and subject to the terms and conditions of this Deposit Agreement) for
the account of such Owners otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Owners because of exchange restrictions or the date of
delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Owners or are registered under the provisions of such Act. 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.
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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, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment
any foreign currency received by the Depositary is not convertible on a
reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the 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, but if
requested by the Owner, shall distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary to, or, if not so requested by the Owner 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, but if
requested by the Owner shall, distribute the balance of the foreign currency (or
an appropriate document evidencing the right to receive such foreign currency)
received by the Depositary to, or, if not so requested by the Owner, hold such
balance uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
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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 shall fix a record date (a) for the determination of
the Owners who shall be (i) entitled to receive such dividend, distribution or
rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting, or (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.
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 in the sole discretion of the Depositary, 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 South African law and
of the 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 date established by the
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Depositary for such purpose, 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 deemed given
and no such discretionary proxy 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.
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, 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.
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, send to the Owners copies of such
reports furnished by the Issuer pursuant to Section 5.6.
Section 4.10 Lists of Owners.
Promptly upon request by the Issuer, the Depositary shall, at the
expense of the Issuer, furnish to it a list, as of a recent date, of the names,
addresses and holdings
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of American Depositary Shares by all persons in whose names Receipts are
registered on the books of the Depositary.
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.
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.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
Section 5.2 Prevention or Delay in Performance by the Depositary or the
Issuer.
Neither the Depositary nor the Issuer shall incur any liability to
any Owner or holder of any Receipt, 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
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authority or stock exchange, or by reason of any provision, present or future,
of the Articles of Association of the Issuer, or by reason of any act of God or
war or other circumstances beyond its control, the Depositary or the Issuer
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 it is provided shall be done or performed; nor shall
the Depositary or the Issuer incur any liability to any Owner or holder of any
Receipt by reason of any non-performance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of 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.
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 Owners or holders of Receipts, 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 holder of any Receipt
(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.
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 any
other person believed by it in good faith to be competent to give such advice or
information.
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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.
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.
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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.
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 will arrange for the translation into English and 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, at the Issuer's expense, 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.
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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
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.
The Depositary agrees to indemnify the Issuer, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
Section 5.9 Charges of Depositary.
The 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
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every three months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Issuer or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), whichever is applicable: (1) taxes and other governmental charges,
(2) such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the Share register of the
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 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.
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.
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Section 5.12 List of Restricted Securities Owners.
From time to time, the Issuer shall provide to the Depositary a list
setting forth, to the actual knowledge of the Issuer, those persons or entities
who beneficially own Restricted Securities and the Issuer shall update that list
on a regular basis. The Issuer agrees to advise in writing each of the persons
or entities so listed that such Restricted Securities are ineligible for deposit
hereunder. The Depositary may rely on such a list or update but shall not be
liable for any action or omission made in reliance thereon.
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. 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 30 days after notice of such amendment shall have been given to
the Owners of outstanding Receipts. Every Owner at the time any amendment so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
Section 6.2 Termination.
The Depositary shall at any time at the direction of the 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
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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 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.
7. MISCELLANEOUS.
Section 7.1 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any holder or Owner of a Receipt during business
hours.
Section 7.2 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
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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 holders and Owners of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
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 Randgold & Exploration
Company Limited, 0 Xxxxx Xxxxxx, Xxxxx, X.X. Xxx 00000, Xxxxxxxxx 0000, Xxxxxxxx
xx Xxxxx Xxxxxx, 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 to The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
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.
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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 prevent 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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IN WITNESS WHEREOF, RANDGOLD & EXPLORATION COMPANY LIMITED 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.
RANDGOLD & EXPLORATION COMPANY LIMITED
By: ______________________
THE BANK OF NEW YORK,
as Depositary
By: ______________________
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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 RAND O.O1 EACH OF
RANDGOLD & EXPLORATION COMPANY LIMITED
(INCORPORATED UNDER THE LAWS OF THE REPUBLIC OF SOUTH AFRICA)
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 Randgold &
Exploration Company Limited, incorporated under the laws of the Republic of
South Africa (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 ABSA Bank Ltd., French Bank of
South Africa, First National Bank of South Africa and Nedcor Bank Limited,
(herein collectively 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 March 3, 1997, as Amended and Restated as
of November 9, 1998, and as further Amended and Restated as of ______________,
2004 (herein called the "Deposit Agreement"), by and among the Company, the
Depositary, and all Owners and holders 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 holders 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, 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 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
this Receipt to such Owner 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 be suspended only for (i) temporary delays caused by closing the
transfer books of the Depositary or the Company or the deposit of Shares in
-2-
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.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of Shares or the presentor of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any regulations the Depositary may establish consistent with the provisions of
the Deposit Agreement or this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to 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.
4. LIABILITY OF 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
-3-
charge shall be payable by the Owner hereof to the Depositary. The Depositary
may refuse to effect any transfer of this Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner 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 hereof shall remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
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.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any 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
approval has been granted by any governmental body in the Republic of South
Africa which is then performing the function of the regulation of currency
exchange.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once
-4-
every three months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3 of the Deposit Agreement), whichever is applicable: (1) taxes and
other governmental charges, (2) such registration fees as may from time to time
be in effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to the name of the Depositary or its nominee or the Custodian or its
nominee on the making of deposits or withdrawals under the Deposit Agreement,
(3) such cable, telex and facsimile transmission expenses as are expressly
provided in the Deposit Agreement, (4) such expenses as are incurred by the
Depositary in the conversion of foreign currency pursuant to Section 4.5 of the
Deposit Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares
(or portion thereof) for the execution and delivery of Receipts pursuant to
Section 2.3, 4.3 or 4.4, 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, and (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.
8. LOANS AND PRE-RELEASE OF SHARES AND RECEIPTS.
Notwithstanding Section 2.3 of the Deposit Agreement, the Depositary may
execute and deliver Receipts prior to the receipt of Shares pursuant to Section
2.2 of the Deposit Agreement ("Pre-Release of Receipts") and may deliver Shares
prior to the receipt and cancellation of Receipts if the person to whom such
Shares are to be delivered is a banking institution organized pursuant to the
laws of The Republic of South Africa ("South African Bank") ("Pre-Release of
Shares"). (Pre-Release of Receipts and Pre-Release of Shares are collectively
referred to herein as "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
-5-
such Receipt has been Pre-Released. The Depositary may receive Receipts in lieu
of Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a)
preceded or accompanied by a written representation from the person to whom
Receipts or Shares are to be delivered ("Pre-Releasee") that such Pre-Releasee,
or its customer, owns the Shares or Receipts to be remitted, as the case may be,
(b) at all times fully collateralized with cash or such other collateral as the
Depositary deems appropriate and, in connection with the Pre-Release of Shares,
preceded or accompanied by an unconditional guaranty by the Pre-Releasee to
deliver Receipts for cancellation on the same calendar day on which the Shares
are delivered to the Pre-Releasee (or, if such Receipts are not so delivered, to
return the Shares), (c) terminable by the Depositary on not more than five (5)
business days notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Releases
will not normally exceed thirty percent (30%) of the Shares deposited under the
Deposit Agreement; provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive 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 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 and for all
other purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual 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.
-6-
11. 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 by holders and Owners at the public reference facilities maintained by
the Commission located at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also, upon written request, 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 of Receipts provided that such inspection shall not be for the
purpose of communicating with Owners of Receipts in the interest of a business
or object other than the business of the Company or a matter related to the
Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into United States dollars
transferable to the United States, and subject to the Deposit Agreement, convert
such dividend or distribution into Dollars and will distribute the amount thus
received to the Owners of Receipts entitled thereto; provided, however, that in
the event that the Company or the Depositary is required to withhold and does
withhold from such cash dividend or such 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 Section 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 cause the securities or property received by it to be
distributed to the Owners of Receipts entitled thereto, in any manner that the
Depositary may deem equitable and practicable for accomplishing
-7-
such distribution; provided, however, that if in the opinion of the Depositary
such distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees of the Depositary as provided in Section 5.9 of the
Deposit Agreement) shall be distributed by the Depositary to the Owners of
Receipts entitled thereto as in the case of a distribution received in cash.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, and shall if the
Company shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, 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. 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.
13. 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
-8-
transferred to the United States, the Depositary shall convert or cause to be
converted, by sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars shall be distributed to the Owners
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.9 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the 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, but if
requested by the Owner, shall distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary to, or, if not so requested by the Owner, 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, but if requested by
the Owner shall, distribute the balance of the foreign currency (or an
appropriate document evidencing the right to receive such foreign currency)
received by the Depositary to, or, if not so requested by the Owner, hold such
balance uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
14. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of
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any Owners and making the net proceeds available to such Owners or, if by the
terms of such rights offering or for any other reason, the Depositary may not
either make such rights available to any Owners or dispose of such rights and
make the net proceeds available to such Owners, then the Depositary shall allow
the rights to lapse. If at the time of the offering of any rights the Depositary
determines in its discretion that it is lawful and feasible to make such rights
available to all Owners or to certain Owners but not to other Owners, the
Depositary may distribute, to any Owner to whom it determines the distribution
to be lawful and feasible, in proportion to the number of American Depositary
Shares held by such Owner, warrants or other instruments therefor in such form
as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner 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.
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 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
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Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to Owners or are
registered under the provisions of such Act. 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.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever 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
shall fix a record date (a) for the determination of the Owners of Receipts who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of Shares, subject
to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting, (b) a statement that the Owners of Receipts as of the close
of business on a specified record date will be entitled, subject to any
applicable provision of law and of the Articles of Association of the Company,
to instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of
-11-
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 of a Receipt 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 date
established by the Depositary for such purpose, 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 deemed given and no such discretionary proxy shall be given with
respect to any matter as to which the Company informs the Depositary (and the
Company agrees to provide such information as promptly as practicable in
writing) 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.
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.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent the new Deposited Securities so received in exchange
or conversion, unless additional Receipts are delivered pursuant to the
-12-
following sentence. In any such case the Depositary may, and shall if the
Company shall so request, execute and deliver additional Receipts as in the case
of a dividend on the Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts specifically describing such new Deposited
Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company shall incur any liability to any
Owner or holder of any Receipt, 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
other governmental or regulatory authority or stock exchange, or by reason of
any provision, present or future, of the Articles of Association of the Company,
or by reason of any act of God or war or other circumstances beyond its control,
the Depositary or the Company 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 it is provided shall be done
or performed; nor shall the Depositary or the Company incur any liability to any
Owner or holder of a Receipt by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement. 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 of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or holders of Receipts, except that they agree to perform their
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. The Depositary shall not be subject to any liability with respect
to the validity or worth of the Deposited Securities. Neither the Depositary nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Securities or in
respect of the Receipts, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
shall be furnished as often as may be required, and the Custodian shall not be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary. Neither the
Depositary nor the Company shall be liable for any action or nonaction by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Owner or 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
-13-
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 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 Company agrees to indemnify the Depositary, its
directors, employees, agents and affiliates and any Custodian against, and hold
each of them harmless from, any liability or expense (including, but not limited
to, the fees and expenses of counsel) which may arise out of acts performed or
omitted, in accordance with the provisions of the Deposit Agreement and of the
Receipts, as the same may be amended, modified or supplemented from time to
time, (i) by either the Depositary or a Custodian or their respective directors,
employees, agents and affiliates, except for any liability or expense arising
out of the negligence or bad faith of either of them, or (ii) by the Company or
any of its directors, employees, agents and affiliates. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision of the
Deposit Agreement.
19. 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. Whenever
the Depositary in its discretion determines that it is in the best interest of
the Owners of Receipts to do so, it may appoint substitute or additional
custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than
taxes and other governmental charges, registration fees, cable, telex or
facsimile transmission costs, delivery costs or other such expenses), or which
shall otherwise prejudice any substantial existing right of Owners of Receipts,
shall, however, not become effective as to outstanding Receipts until the
expiration of 30 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
-14-
Agreement as amended thereby. In no event shall any amendment impair the right
of the Owner of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary 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 a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5 of
the Deposit Agreement and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights 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 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
-15-
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.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
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 prevent 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.
-16-
