Exhibit 1
EXECUTION COPY
================================================================================
ICAP Plc
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of ______________, 2004
================================================================================
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS..................................................1
SECTION 1.01 AMERICAN DEPOSITARY SHARES................................1
SECTION 1.02 BENEFICIAL OWNER..........................................1
SECTION 1.03 COMMISSION................................................1
SECTION 1.04 COMPANY...................................................2
SECTION 1.05 CUSTODIAN.................................................2
SECTION 1.06 DEPOSIT AGREEMENT.........................................2
SECTION 1.07 DEPOSIT, DELIVER, EXECUTE, ISSUE, REGISTER,
SURRENDER, TRANSFER, WITHDRAW OR CANCEL...................2
SECTION 1.08 DEPOSITARY; CORPORATE TRUST OFFICE........................2
SECTION 1.09 DEPOSITED SECURITIES......................................2
SECTION 1.10 DOLLARS; GBP..............................................2
SECTION 1.11 FOREIGN REGISTRAR.........................................2
SECTION 1.12 OWNER.....................................................3
SECTION 1.13 RECEIPTS..................................................3
SECTION 1.14 REGISTRAR.................................................3
SECTION 1.15 RESTRICTED SECURITIES.....................................3
SECTION 1.16 SECTION; ARTICLE..........................................3
SECTION 1.17 SECURITIES ACT OF 1933....................................3
SECTION 1.18 SHARES....................................................3
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.................4
SECTION 2.01 FORM AND TRANSFERABILITY OF RECEIPTS......................4
SECTION 2.02 DEPOSIT OF SHARES.........................................4
SECTION 2.03 EXECUTION AND DELIVERY OF RECEIPTS........................5
SECTION 2.04 TRANSFER OF RECEIPTS; COMBINATION AND
SPLIT-UP OF RECEIPTS......................................6
SECTION 2.05 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES............6
SECTION 2.06 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS.................................7
SECTION 2.07 LOST RECEIPTS, ETC........................................8
SECTION 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS......8
SECTION 2.09 PRE-RELEASE OF RECEIPTS...................................8
SECTION 2.10 MAINTENANCE OF RECORDS....................................9
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL
OWNERS OF RECEIPTS...........................................9
SECTION 3.01 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.........9
SECTION 3.02 LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.........10
SECTION 3.03 WARRANTIES ON DEPOSIT OF SHARES..........................10
SECTION 3.04 DISCLOSURE OF INTERESTS..................................10
SECTION 3.05 OWNERSHIP RESTRICTIONS...................................11
ARTICLE 4. THE DEPOSITED SECURITIES....................................12
SECTION 4.01 CASH DISTRIBUTIONS.......................................12
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS..........12
SECTION 4.03 DISTRIBUTIONS IN SHARES..................................13
SECTION 4.04 RIGHTS...................................................13
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY...........................14
SECTION 4.06 FIXING OF RECORD DATE....................................15
SECTION 4.07 VOTING OF DEPOSITED SECURITIES...........................16
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES...................16
SECTION 4.09 REPORTS..................................................17
SECTION 4.10 LISTS OF OWNERS..........................................17
SECTION 4.11 WITHHOLDING..............................................17
-i-
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY..............17
SECTION 5.01 MAINTENANCE OF OFFICE AND TRANSFER BOOKS
BY THE DEPOSITARY........................................17
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY OR THE COMPANY................................18
SECTION 5.03 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN
AND THE COMPANY..........................................18
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY................19
SECTION 5.05 THE CUSTODIANS...........................................20
SECTION 5.06 NOTICES AND REPORTS......................................21
SECTION 5.07 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC...........21
SECTION 5.08 INDEMNIFICATION..........................................22
SECTION 5.09 CHARGES OF DEPOSITARY....................................22
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS........................23
SECTION 5.11 EXCLUSIVITY..............................................23
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS.....................23
ARTICLE 6. AMENDMENT AND TERMINATION...................................24
SECTION 6.01 AMENDMENT................................................24
SECTION 6.02 TERMINATION..............................................24
ARTICLE 7. MISCELLANEOUS...............................................25
SECTION 7.01 COUNTERPARTS.............................................25
SECTION 7.02 NO THIRD PARTY BENEFICIARIES.............................25
SECTION 7.03 SEVERABILITY.............................................25
SECTION 7.04 OWNERS AND BENEFICIAL OWNERS AS PARTIES;
BINDING EFFECT...........................................25
SECTION 7.05 NOTICES..................................................26
SECTION 7.06 COMPLIANCE WITH US SECURITIES LAWS.......................26
SECTION 7.07 SUBMISSION TO JURISDICTION; APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS.............................26
SECTION 7.08 WAIVER OF IMMUNITIES.....................................27
SECTION 7.09 GOVERNING LAW............................................27
-ii-
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ________________, 2004, among ICAP Plc,
incorporated under the laws of England and Wales (herein called the Company),
THE BANK OF NEW YORK, a New York banking corporation (herein called the
Depositary), and all Owners and Beneficial Owners from time to time of American
Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1.
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01 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 the
number of Shares specified in Exhibit A annexed hereto, until there shall occur
a distribution upon Deposited Securities covered by Section 4.03 or a change in
Deposited Securities covered by Section 4.08 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 1.02 Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from time to
time any beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 1.03 Commission.
The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
-1-
SECTION 1.04 Company.
The term "Company" shall mean ICAP Plc, incorporated under the laws of
England and Wales, and its successors.
SECTION 1.05 Custodian.
The term "Custodian" shall mean the London office of The Bank of New York,
as agent of the Depositary for the purposes of this Deposit Agreement, and any
other firm or corporation which may hereafter be appointed by the Depositary
pursuant to the terms of Section 5.05, as substitute or additional custodian or
custodians hereunder, as the context shall require and shall also mean all of
them collectively.
SECTION 1.06 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 1.07 Deposit, deliver, execute, issue, register, surrender, transfer,
withdraw or cancel.
The terms "deposit", "deliver", "execute", "issue", "register",
"surrender", "transfer", "withdraw" or "cancel", when used with respect to
Shares, shall refer, where the context requires, to an entry or entries or an
electronic transfer or transfers in an account or accounts maintained by
institutions authorized under the laws of England and Wales to effect transfers
of securities and not to the physical transfer of certificates representing the
Shares.
SECTION 1.08 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 1.09 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 4.05.
SECTION 1.10 Dollars; GBP.
The term "Dollars" shall mean United States dollars. The term "GBP" shall
mean Great British Pounds.
SECTION 1.11 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently carries
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
-2-
SECTION 1.12 Owner.
The term "Owner" shall mean the person or persons in whose name a Receipt
is registered on the books of the Depositary maintained for such purpose.
SECTION 1.13 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
SECTION 1.14 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 1.15 Restricted Securities.
The term "Restricted Securities shall mean Shares, or American Depositary
Shares representing Shares, that are acquired directly or indirectly from the
Company 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 Company, or which would
require registration under the Securities Act of 1933 in connection with the
public offer and sale thereof in the United States, or which are subject to
other restrictions on sale or deposit under the laws of the United States,
England and Wales, or under a shareholder agreement or the Memorandum and
Articles of Association of the Company.
SECTION 1.16 Section; Article.
Wherever references are made in this Deposit Agreement to a "Section" or
"Sections" or to an "Article" or "Articles", such references shall mean a
section or sections or an article or articles of this Deposit Agreement, unless
the context otherwise requires.
SECTION 1.17 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.18 Shares.
The term "Shares" shall mean ordinary shares in registered form of the
Company, 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 or similar rights of the holders of outstanding Shares or
interim certificates representing such Shares; provided, however, that, if there
shall occur any change in nominal value, a split-up or consolidation or any
other reclassification or, upon the occurrence of an event described in Section
4.08, an exchange or conversion in respect of the Shares of the Company, the
term "Shares" shall thereafter also mean the successor securities resulting from
such change in nominal value, split-up or consolidation or such other
reclassification or such exchange or conversion.
-3-
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual signature of a duly authorized signatory of the Depositary;
provided, however, that such signature may be a facsimile if a Registrar for the
Receipts shall have been appointed and such Receipts are countersigned by the
manual signature of a duly authorized officer of the Registrar. The Depositary
shall maintain books on which each Receipt so executed and delivered as
hereinafter provided and the transfer of each such Receipt shall be registered.
Receipts bearing the manual or facsimile signature of a duly authorized
signatory of the Depositary who was at any time a proper signatory of the
Depositary shall bind the Depositary, notwithstanding that such signatory has
ceased to hold such office prior to the execution and delivery of such Receipts
by the Registrar or did not hold such office on the date of issuance of such
Receipts.
The Receipts may and, if legal counsel to the Company so advises, shall,
be endorsed with or have incorporated in the text thereof such legends or
recitals or modifications not inconsistent with the provisions of this Deposit
Agreement as may be required by the Depositary or required to comply with any
applicable law or regulations thereunder or with the rules and regulations of
any securities exchange upon which American Depositary Shares may be listed or
to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject by
reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of New York; provided, however, that
the Depositary and the Company, notwithstanding any notice to the contrary, may
treat the Owner thereof as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under this Deposit Agreement to any
holder of a Receipt unless such holder is the Owner thereof.
SECTION 2.02 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
-4-
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, if any, has been
granted by any governmental body in England and Wales, as applicable, which is
then performing the function of the regulation of currency exchange. If required
by the Depositary, Shares presented for deposit at any time, whether or not the
transfer books of the Company or the Foreign Registrar, if applicable, are
closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
At the request, risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents specified
above, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company or the
Foreign Registrar, if applicable, for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine. The Depositary shall provide written notice
informing the Company of any such other place or places.
SECTION 2.03 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02
hereunder (and in addition, if the transfer books of the Company or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Company that any
Deposited Securities have been recorded upon the books of the Company or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee), together with the other documents required as
specified above, such Custodian shall notify the Depositary of such deposit and
the person or persons to whom or upon whose written order a Receipt or Receipts
are deliverable in respect thereof and the number of American Depositary Shares
to be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this
-5-
Deposit Agreement, shall execute and deliver at its Corporate Trust Office, to
or upon the order of the person or persons entitled thereto, a Receipt or
Receipts, registered in the name or names and evidencing any authorized number
of American Depositary Shares requested by such person or persons, but only upon
payment to the Depositary of the fees and expenses of the Depositary for the
execution and delivery of such Receipt or Receipts as provided in Section 5.09,
and of all taxes and governmental charges and fees payable in connection with
such deposit and the transfer of the Deposited Securities.
SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall, without unreasonable delay, 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
evidencing the same aggregate number of American Depositary Shares as were
evidenced by the Receipts surrendered and deliver the same to or upon the order
of the person entitled thereto subject to receipt of any certifications and
agreements by such person as the Depositary and the Company may require in order
to comply with applicable laws.
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.
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 2.05 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
5.09 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 and English law, the Owner of
such Receipt shall be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities at the time represented by the American
Depositary Shares evidenced by such Receipt. Delivery of such Deposited
Securities may be made by the delivery of (a) certificates in the name of such
Owner or as ordered by him or certificates properly endorsed or accompanied by
proper instruments of transfer to such Owner or as ordered by him and (b) any
other securities,
-6-
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 London office of such
Custodian, subject to Sections 2.06, 3.01 and 3.02 and to the other terms and
conditions of this Deposit Agreement and English law, to or upon the written
order of the person or persons designated in the order delivered to the
Depositary as above provided, the amount of Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, except that the
Depositary may make delivery to such person or persons at the Corporate Trust
Office of the Depositary of any dividends or distributions with respect to the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt, or of any proceeds of sale of any dividends, distributions or
rights, which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering a Receipt,
and for the account of such Owner, the Depositary shall direct the Custodian to
forward any cash or other property (other than rights) comprising, and forward a
certificate or certificates, if applicable, 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. Rights, if any, shall be delivered to such Owner pursuant to
Section 4.04.
SECTION 2.06 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 presenter of the Receipt of a sum sufficient
to reimburse it for any tax or other governmental charge and any stock transfer
or registration fee with respect thereto (including any such tax or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as herein provided, may require (a) the production of proof
satisfactory to it as to the identity and genuineness of any signature, (b)
compliance with any laws or regulations, relating to depositary receipts in
general or to the withdrawal or sale of Deposited Securities, (c) delivery of
such certificates as the Company may from time to time specify in writing to the
Depositary to assure compliance with the Securities Act of 1933 and rules and
regulations thereunder and (d) compliance with such reasonable procedures, if
any, as the Depositary may establish consistent with the provisions of this
Deposit Agreement, including, without limitation, this Section 2.06.
-7-
The delivery of Receipts against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in this Deposit Agreement or the
Receipts, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities, or (iv) any other
reason that may at any time be specified in paragraph I(A)(1) of the General
Instructions to Form F-6, as from time to time in effect, or any successor
provision thereto. 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.
SECTION 2.07 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 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. Cancelled Receipts shall not be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose. The Depositary is
authorized to destroy Receipts so cancelled.
SECTION 2.09 Pre-Release of Receipts.
Notwithstanding Section 2.03 hereof, unless requested in writing by the
Company to cease doing so, the Depositary may execute and deliver Receipts prior
to the receipt of Shares pursuant to Section 2.02 (a "Pre-Release"). The
Depositary may, pursuant to Section 2.05, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation from the person
to whom Receipts or Shares are to be delivered, that such person, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
-8-
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts as the case may be), other than
in satisfaction of such Pre-Release, (b) at all times fully collateralized with
cash or such other collateral as the Depositary determines in good faith will
provide substantially similar liquidity and security, (c) terminable by the
Depositary on not more than five (5) business days notice, and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The number of Shares represented by American Depositary Shares
which are outstanding at any time as a result of Pre-Release 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, and may, after consultation
with the Company, change such limit for purposes of general application.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
SECTION 2.10 Maintenance of Records.
The Depositary agrees to maintain records of all Receipts surrendered and
Deposited Securities withdrawn under Section 2.05, substitute Receipts delivered
under Section 2.07, and cancelled or destroyed Receipts under Section 2.08, in
keeping with procedures ordinarily followed by stock transfer agents located in
The City of New York. The Depositary shall provide reasonable access to such
records to the Company and its agents from time to time during normal business
hours upon the reasonable request of the Company.
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
or such information relating to the registration on the books of the Company or
the Foreign Registrar, if applicable, to execute such certificates and to make
such representations and warranties, as the Depositary may deem necessary or
proper. The Depositary may, including pursuant to the provisions of Section 3.05
hereof, 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. The Depositary shall notify the Company,
upon its request, of the availability of any such proofs, certificates or other
information and shall provide copies thereof to the Company as promptly as
practicable upon request by the Company, unless such disclosure is prohibited by
law.
-9-
SECTION 3.02 Liability of Owner or Beneficial Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt, any American Depositary
Share or any Deposited Securities represented by any Receipt, such tax or other
governmental charge shall be payable by the Owner or Beneficial Owner of such
Receipt to the Depositary. The Depositary may refuse to effect any transfer of
such Receipt or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced by such Receipt until such payment is made, and may
withhold any dividends or other distributions, or may sell for the account of
the Owner or Beneficial Owner thereof any part or all of the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge and the Owner
or Beneficial Owner of such Receipt shall remain liable for any deficiency.
Neither the Company nor the Depositary shall be liable for failure of an Owner
or Beneficial Owner to comply with applicable tax laws or governmental charges.
SECTION 3.03 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, if applicable, are validly issued, fully paid, nonassessable and free
of any preemptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that the deposit of such Shares and the sale of
Receipts evidencing American Depositary Shares representing such Shares by that
person are not restricted under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of Shares and issuance of Receipts.
SECTION 3.04 Disclosure of Interests.
To the extent that provisions of or governing any Deposited Securities
(including the Company's Memorandum and Articles of Association or applicable
English law) may require the disclosure of beneficial or other ownership of
Deposited Securities, other Shares and other securities to the Company and may
provide for blocking transfer and voting or other rights to enforce such
disclosure or limit such ownership, Owners and Beneficial Owners of Receipts
shall comply with all such disclosure requirements and ownership limitations and
shall cooperate with the Depositary in its compliance with any Company
instructions relating to those requirements and limits.
Each Owner and Beneficial Owner shall provide information the Company may
request in a disclosure notice (a "Disclosure Notice") given pursuant to the
United Kingdom Companies Xxx 0000 (that Act, as amended and including any
statutory re-enactment of that Act, the "Companies Act") or the Memorandum and
Articles of Association of the Company within the time period specified in that
Disclosure Notice. In addition, each Owner and Beneficial Owner shall comply
with the provisions of the Companies Act with regard to notifying the Company of
interests in Shares. As of the date of the Deposit Agreement, the Companies Act
required that any person that is or becomes directly or indirectly interested
(within the meaning of the Companies Act) in three percent or more of the
outstanding Shares, or is aware that another person for whom that person holds
Shares is so interested must, within two business days
-10-
after becoming so interested or so aware (and thereafter in certain
circumstances upon any change to the particulars previously notified), notify
the Company as required by the Companies Act.
SECTION 3.05 Ownership Restrictions.
Notwithstanding any other provision in this Deposit Agreement, the Company
may restrict transfers of the Shares where such transfer might result in
ownership of Shares exceeding limits imposed by applicable English law or the
Memorandum and Articles of Association of the Company. The Company may also
restrict, in such manner as it deems reasonably appropriate, transfers of the
American Depositary Shares where such transfer may result in the total number of
Shares represented by the American Depositary Shares owned by a single Owner to
exceed any applicable English law or the Company's Memorandum and Articles of
Association. The Company may, in such manner as it deems appropriate in its sole
discretion (but subject to applicable law), instruct the Depositary to take
action with respect to the ownership interest of any Owner in excess of the
limitation set forth in the preceding sentence, including, but not limited to, a
mandatory sale or disposition on behalf of the Owner of the Shares represented
by American Depositary Shares held by such Owner in excess of limitations, if
and to the extent such disposition is permitted by applicable law and to the
extent the same action could have been taken with respect to holders of Shares
under similar circumstances.
Without prejudice to the foregoing, the Company may also impose any and
all restrictions in respect of any American Depositary Shares as it is entitled
to impose in respect of the Shares represented by such American Depositary
Shares pursuant to the Company's Memorandum and Articles of Association, as in
force from time to time, including without limitation, the removal or limitation
of voting rights, the withholding of dividends or other monies payable on such
Shares or any payments to be made pursuant to this Deposit Agreement in respect
thereof and restrictions on the transfer of such Shares.
-11-
ARTICLE 4.
THE DEPOSITED SECURITIES
SECTION 4.01 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 4.05, convert such dividend or distribution into Dollars
and shall distribute, as promptly as practicable, the amount thus received (net
of the fees and expenses of the Depositary as provided in Section 5.09) to the
Owners entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively;
provided, however, that in the event that the Company or the Depositary shall be
required to withhold and does withhold from such cash dividend or such other
cash distribution an amount on account of taxes, the amount distributed to the
Owner of the Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Owner a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to Owners entitled thereto.
The Company or its agent will remit to the appropriate governmental agency in
England and Wales, as applicable, all amounts withheld and owing to such agency.
The Depositary will forward to the Company or its agent such information from
its records as the Company may reasonably request to enable the Company or its
agent to file necessary reports with governmental agencies, and the Depositary
or the Company or its agent may file any such reports necessary to obtain
benefits under the applicable tax treaties for the Owners of Receipts.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Section 4.01, 4.03 or 4.04, the Depositary shall cause the securities or
property received by it to be distributed to the Owners entitled thereto, after
deduction or upon payment of any fees and expenses of the Depositary or any
taxes or other governmental charges, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Owners or Beneficial Owners) the Depositary deems such distribution not to be
feasible, the Depositary may, after consultation with the Company, adopt such
method as it may deem equitable and practicable for the purpose of effecting
such distribution, including, but not limited to, the public or private sale of
the securities or property thus received, or any part thereof, and the net
proceeds of any such sale (net of the fees and expenses of the Depositary as
provided in Section 5.09) shall be distributed by the Depositary to the Owners
entitled thereto, all in the manner and subject to the conditions described in
Section 4.01.
-12-
SECTION 4.03 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, subject to
the following sentence, if the Company shall so request, distribute, as promptly
as practicable, 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 the fees and expenses of the Depositary as provided in
Section 5.09. The Depositary may withhold any such distribution of Receipts if
it has not received satisfactory assurances from the Company that such
distribution does not require registration under the Securities Act of 1933 or
is exempt from registration under the provisions of such Act. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary shall sell the amount of Shares represented by the aggregate of
such fractions and distribute the net proceeds, all in the manner and subject to
the conditions described in Section 4.01. 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 4.04 Rights.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall, after
consultation with the Company, have discretion as to the procedure to be
followed in making such rights available to any Owners or in disposing of such
rights on behalf of any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering or for any other reason, the
Depositary may not either make such rights available to any Owners or dispose of
such rights and make the net proceeds available to such Owners, then the
Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the Depositary, after consultation with the Company, determines in
its reasonable 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 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.
-13-
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of this Deposit Agreement, and shall, pursuant to Section 2.03 of
this Deposit Agreement, execute and deliver Receipts to such Owner; provided,
however, that 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 and expenses of the Depositary as provided in
Section 5.09 and all taxes and governmental charges payable in connection with
such rights and subject to the terms and conditions of this Deposit Agreement)
for the account of such Owners otherwise entitled to such rights, warrants or
other instruments, upon an averaged or other practical basis without regard to
any distinctions among such Owners because of exchange restrictions or the date
of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided, that nothing in this
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement under the Securities Act of 1933 with respect to such
rights or underlying securities or to endeavor to have such a registration
statement declared effective or otherwise to register such rights or securities
under any other applicable laws for any purpose. If an Owner of Receipts
requests the distribution of warrants or other instruments, notwithstanding that
there has been no such registration under the Securities Act of 1933, 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.
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or
-14-
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, as promptly as practicable, convert or cause to be
converted, by sale or in any other manner that it may reasonably 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 5.09.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
SECTION 4.06 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Owners who shall be (i)
entitled to receive such dividend, distribution or rights or the net proceeds of
the sale thereof, (ii) entitled to give instructions for the exercise of voting
rights at any such meeting or (iii) responsible for any fee assessed by the
Depositary pursuant to this Deposit Agreement, or (b) on or after which each
-15-
American Depositary Share will represent the changed number of Shares. Subject
to the provisions of Sections 4.01 through 4.05 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 4.07 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the sole discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting received
by the Depositary from the Company, (b) a statement that the Owners as of the
close of business on a specified record date will be entitled, subject to any
applicable provision of English law and of the Memorandum and Articles of
Association of the Company, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares and (c) a
statement as to the manner in which such instructions may be given. Upon the
written request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor,
in so far as practicable, to vote or cause to be voted the amount of Shares or
other Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in such
request. The Depositary shall not vote or attempt to exercise the right to vote
that attaches to the Shares or other Deposited Securities, other than in
accordance with such instructions.
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 4.08 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 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, or upon the redemption or cancellation by the Company
of the Deposited Securities, any securities, cash or property which shall be
received by the Depositary or a Custodian in exchange for, in conversion of, in
lieu of or in respect of Deposited Securities, shall be treated as new Deposited
Securities under this Deposit Agreement, and American Depositary Shares shall
thenceforth represent, in addition to the existing Deposited Securities, the
right to receive the new Deposited Securities so received in exchange or
conversion, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may, and shall if the Company shall so
reasonably request, execute and deliver additional Receipts as in the case of a
dividend in Shares, or call for
-16-
the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request, send to the Owners copies of such
reports when furnished by the Company pursuant to Section 5.06.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the expense
of the Company, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names Receipts are registered on the books of the Depositary.
SECTION 4.11 Withholding.
In 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 reasonably deems necessary and practicable to
pay such taxes or charges and the Depositary shall distribute the net proceeds
of any such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners, provided that such inspection shall
not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Company or a matter related to
this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder or at the written reasonable request of the Company, provided
that any such closing of the transfer books
-17-
shall be subject to the provisions of Section 2.06 which limit the suspension of
withdrawals of Shares.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
The Company shall have the right, at all reasonable times, to inspect
transfer and registration records of the Depositary, the Registrar and any
co-transfer agents or co-registrars and to require such parties to supply copies
of such portions of their records relating thereto as the Company may reasonably
request.
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall incur any liability
to any Owner or Beneficial Owner, (i) if by reason of any provision of any
present or future law or regulation of the United States or any other country,
or of any governmental or regulatory authority or stock exchange, or by reason
of any provision, present or future, of the Memorandum and Articles of
Association of the Company, or by reason of any provision of any securities
issued or distributed by the Company, or any offering or distribution thereof,
or by reason of any act of God or war or terrorism or other circumstances beyond
its control, the Depositary or the Company or any of their respective directors,
officers, employees, agents or affiliates shall be prevented, delayed or
forbidden from, or be subject to any civil or criminal penalty on account of,
doing or performing any act or thing which by the terms of this Deposit
Agreement or Deposited Securities it is provided shall be done or performed,
(ii) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of this Deposit Agreement it
is provided shall or may be done or performed, (iii) by reason of any exercise
of, or failure to exercise, any discretion provided for in this Deposit
Agreement, (iv) for the inability of any Owner or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Owners or Beneficial Owners, or (v) for any
special, consequential or punitive damages for any breach of the terms of this
Deposit Agreement. Where, by the terms of a distribution pursuant to Section
4.01, 4.02, or 4.03 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.04 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 5.03 Obligations of the Depositary, the Custodian and the Company.
The Company, its directors, officers, employees, agents and affiliates
assume no obligation nor shall any of them be subject to any liability under
this Deposit Agreement to Owners or Beneficial Owners, except that the Company
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
-18-
The Depositary, its directors, officers, employees, agents and affiliates
assume assumes no obligation nor shall any of them be subject to any liability
under this Deposit Agreement to any Owner or Beneficial Owner (including,
without limitation, liability with respect to the validity or worth of the
Deposited Securities), except that the Depositary agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates 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
on behalf of any Owner or Beneficial Owner or any person.
Neither the Depositary nor the Company nor the Company nor any of their
respective directors, officers, employees, agents or affiliates 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.
Each of the Depositary, the Company and their respective directors,
officers, employees, agents and controlling persons may rely and shall be
protected in acting upon any written notice, request, direction or other
document believed by such person to be genuine and to have been signed or
presented by the proper party or parties.
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 5.04 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 60 days prior
written notice of such removal, to become effective upon the later of (i) the
60th day after
-19-
delivery of the notice to the Depositary and (ii) the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its reasonable efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.05 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 a substitute or additional custodian or custodians, after
consultation with the Company to the extent practicable, each of 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.
-20-
SECTION 5.06 Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the prompt transmittal by the Company to the
Depositary and the Custodian of such notices and any other reports and
communications which are made generally available by the Company to holders of
its Shares. If requested in writing by the Company, the Depositary will arrange
for the mailing, at the Company's expense, of copies of such notices, reports
and communications to all Owners. The Company will timely provide the Depositary
with the quantity of such notices, reports, and communications, as reasonably
requested by the Depositary from time to time, in order for the Depositary to
effect such mailings.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution of
(1) additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into or exchangeable for Shares, or (4) rights to subscribe for such
securities (each a "Distribution"), the Company will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Company, which counsel
shall be reasonably 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.
Nothing in this Section 5.07 or elsewhere in this Deposit Agreement shall
create any obligation on the part of the Company or the Depositary to file a
registration statement under the Securities Act of 1933 in respect of any such
securities or rights.
The Company agrees with the Depositary that neither the Company nor any
person controlled by, controlling or under common control with the Company will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Company or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act of 1933 or an
exemption is provided by the Securities Act of 1933.
The Depositary will comply with the written instructions of the Company
not to accept knowingly for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may be specified in
such instructions in order to facilitate the Company's compliance with the
securities laws of the United States.
-21-
SECTION 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its directors, officers,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of any registration
with the Commission of Receipts, American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or 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, officers, employees, agents and affiliates, except
for any liability or expense arising out of the negligence or bad faith of any
of them, or (ii) by the Company or any of its directors, officers, employees,
agents and affiliates.
The Indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09 hereof) of a Receipt or Receipts in
accordance with Section 2.09 hereof and which would not otherwise have arisen
had such Receipt or Receipts not been the subject of a Pre-Release pursuant to
Section 2.09 hereof; provided, however, that the indemnities provided in the
preceding paragraph shall apply to any such liability or expense (i) to the
extent that such liability or expense would have arisen had a Receipt or
Receipts not been the subject of a Pre-Release, or (ii) which may arise out of
any misstatement or alleged misstatement or omission or alleged omission in any
registration statement, proxy statement, prospectus (or placement memorandum),
or preliminary prospectus (or preliminary memorandum) relating to the offer or
sale of American Depositary Shares, except to the extent that any such liability
or expense arises out of (a) information relating to the Depositary or any
Custodian, as applicable, furnished in writing and not materially changed or
altered by the Company, expressly for use in any of the foregoing documents, or,
(b) if such information is provided, the failure to state a material fact
necessary to make the information provided not misleading.
The Depositary agrees to indemnify the Company, its directors, officers,
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, officers, employees, agents and
affiliates due to their negligence or bad faith.
SECTION 5.09 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 at least once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts
-22-
pursuant to Section 4.03), or by Owners, as applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time be in
effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals hereunder, (3) such cable,
telex and facsimile transmission expenses as are expressly provided in this
Deposit Agreement, (4) such expenses as are incurred by the Depositary in the
conversion of foreign currency pursuant to Section 4.05, (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 2.03, 4.03 or 4.04 and the
surrender of Receipts pursuant to Section 2.05 or 6.02, (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 4.01 through 4.04 hereof, (7) a fee for the distribution of
securities pursuant to Section 4.02, 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, and (8) any other charge payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the date or dates set by
the Depositary in accordance with Section 4.06 and shall be payable at the sole
discretion of the Depositary by billing such Owners for such charge or by
deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.09 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills
and other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Company
requests that such papers be retained for a longer period or turned over to the
Company or to a successor depositary.
SECTION 5.11 Exclusivity.
The Company agrees not to appoint any other depositary for issuance of
American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder, other than a successor depositary as provided in Section
5.04 hereof.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a list
setting forth, to the actual knowledge of the Company, those persons or entities
who beneficially own Restricted Securities and the Company shall update that
list on a regular basis. The Company agrees to advise in writing each of the
persons or entities so listed that such Restricted Securities are ineligible for
deposit hereunder. The Depositary (i) may rely on the list provided under this
Section 5.12, as most recently updated, but shall not be liable for any action
or omission made in
-23-
reliance thereon and (ii) shall keep such a list strictly confidential, except
as required by applicable law, legal process, regulation, judicial or
administrative proceeding.
ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or Beneficial Owners in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners, shall, however, not become effective as to
outstanding Receipts until the expiration of thirty days after notice of such
amendment shall have been given to the Owners of outstanding Receipts. Every
Owner and Beneficial Owner, at the time any amendment so becomes effective,
shall be deemed, by continuing to hold such Receipt or any interest therein, 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 6.02 Termination.
The Depositary shall, at any time at the direction of the Company,
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 60 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding at least 30 days prior to the date of
termination, if at any time 30 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04. 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 2.05, 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, shall not accept deposits of
Shares (and shall so instruct each Custodian) and shall not give any further
notices or perform any further acts under this Deposit Agreement, except that
the Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the
-24-
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 four months 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) and except for its obligations to the Company
under Section 5.08 hereof. Upon the termination of this Deposit Agreement, the
Company shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary under Sections 5.08 and 5.09
hereof.
ARTICLE 7.
MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any Owner or Beneficial Owner during business hours.
SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
SECTION 7.03 Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04 Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance thereof or any interest therein.
-25-
SECTION 7.05 Notices.
Any and all notices to be given to the Company shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to ICAP Plc, 0 Xxxxxxxxx
Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx, Attention: Company Secretary, or any other
place to which the Company may have transferred its principal office with notice
to the Depositary.
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 with notice to the Company.
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 Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06 Compliance with US Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary, the
Company and the Depositary each agrees that it will not exercise any rights it
has under this Deposit Agreement to permit the withdrawal or delivery of
Deposited Securities in a manner which would violate the US 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.
SECTION 7.07 Submission to Jurisdiction; Appointment of Agent for Service of
Process.
The Company hereby (i) irrevocably designates and appoints ICAP North
America, Inc., Harborside Financial Center, 0000 Xxxxx Xxxx, Xxxxxx Xxxx, XX
00000, Attention: General Counsel, as the Company's authorized agent upon which
process may be served in any suit or proceeding arising out of or relating to
the Shares or Deposited Securities, the American Depositary Shares, the Receipts
or this Agreement, (ii) consents and submits to the jurisdiction of any state or
federal court in the State of New York in which any such suit or proceeding may
be instituted, and (iii) agrees that service of process upon said authorized
agent shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding. The Company agrees to deliver, upon the
execution and delivery of this Deposit Agreement, a written
-26-
acceptance by such agent of its appointment as such agent. The Company further
agrees to take any and all action, including the filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment in full force and effect for so long as any American Depositary
Shares or Receipts remain outstanding or this Deposit Agreement remains in
force. In the event the Company fails to continue such designation and
appointment in full force and effect, the Company hereby waives personal service
of process upon it and consents that any such service of process may be made by
certified or registered mail, return receipt requested, directed to the Company
at its address last specified for notices hereunder, and service so made shall
be deemed completed five (5) days after the same shall have been so mailed.
SECTION 7.08 Waiver of Immunities.
To the extent that the Company or any of its properties, assets or
revenues may have or may hereafter become entitled to, or have attributed to it,
any right of immunity, on the grounds of sovereignty or otherwise, from any
legal action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, the Company, to the
fullest extent permitted by law, hereby irrevocably and unconditionally waives,
and agrees not to plead or claim, any such immunity and consents to such relief
and enforcement.
SECTION 7.09 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York, except with respect to its
authorization and execution by the Company, which shall be governed by the laws
of England and Wales.
-27-
IN WITNESS WHEREOF, ICAP Plc and THE BANK OF NEW YORK have duly executed
this Deposit Agreement as of the day and year first set forth above and all
Owners and Beneficial Owners shall become parties hereto upon acceptance by them
of Receipts issued in accordance with the terms hereof.
ICAP Plc
By: ______________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By: ______________________
Name:
Title:
-28-
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share represents two
(2) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF
THE PAR VALUE OF 0.10 GBP EACH OF
ICAP Plc
(INCORPORATED UNDER THE LAWS OF ENGLAND AND WALES)
The Bank of New York, as depositary (hereinafter called the "Depositary"),
hereby certifies that___________ __________________________________________, or
registered assigns IS THE OWNER OF ___________________________________.
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares (herein called "Shares") of ICAP Plc,
incorporated under the laws of England and Wales (herein called the "Company").
At the date hereof, each American Depositary Share represents two (2) Shares
deposited or subject to deposit under the Deposit Agreement (as such term is
hereinafter defined) at the London office of The Bank of New York (herein called
the "Custodian"). The Depositary's Corporate Trust Office is located at a
different address than its principal executive office. Its Corporate Trust
Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal
executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of ________________, 2004 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and Beneficial Owners from time to time of Receipts issued thereunder, each of
whom by accepting a Receipt agrees to become a party thereto and become bound by
all the terms and conditions thereof. The Deposit Agreement sets forth the
rights of Owners and Beneficial Owners of the Receipts and the rights and duties
of the Depositary in respect of the Shares deposited thereunder and any and all
other securities, property and cash from time to time received in respect of
such Shares and held thereunder (such Shares, securities, property, and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Depositary's Corporate Trust Office in New York City and at the
office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
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 and English
law, the Owner hereof is entitled to delivery, to him or upon his order, of the
Deposited Securities at the time represented by the American Depositary Shares
for which this Receipt is issued. Delivery of such Deposited Securities may be
made by the delivery of (a) certificates in the name of the Owner hereof or as
ordered by him or certificates properly endorsed or accompanied by proper
instruments of transfer and (b) any other securities, property and cash to which
such Owner is then entitled in respect of this Receipt. Such delivery will be
made at the option of the Owner hereof, either at the office of the Custodian or
at the Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt
or withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of the Shares or the presentor
of the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require (a) the production of proof satisfactory to it as to the
identity and genuineness of any signature, (b) compliance with any laws or
regulations, relating to depositary receipts in general or to the withdrawal or
sale of Deposited Securities, (c) delivery of such certificates as the Company
may from time to time specify in writing to the Depositary to assure compliance
with the Securities Act of 1933 and the rules and regulations thereunder and (d)
compliance with such reasonable procedures, if any, as the Depositary may
establish consistent with the provisions of the Deposit Agreement or this
Receipt, including, without limitation, this Article 3.
The delivery of Receipts against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to the provisions of the following
sentence. Notwithstanding anything to the contrary in the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act of 1933, unless a registration statement is
in effect as to such Shares.
4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt, any American Depositary Share or any Deposited Securities
represented hereby, such tax or other governmental charge shall be payable by
the Owner or Beneficial Owner hereof to the Depositary. The Depositary may
refuse to effect any transfer of this Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner or Beneficial Owner
hereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner or Beneficial Owner hereof shall remain
liable for any deficiency. Neither the Company nor the Depositary shall be
liable for failure of an Owner or Beneficial Owner to comply with applicable tax
laws or governmental charges.
2
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor,
if applicable, are validly issued, fully paid, non-assessable, and free of any
preemptive 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 or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
or such information relating to the registration on the books of the Company or
the Foreign Registrar, if applicable, to execute such certificates and to make
such representations and warranties, as the Depositary may deem necessary or
proper. The Depositary may withhold the delivery or registration of transfer of
any Receipt or the distribution of any dividend or sale or distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties made. No Share shall be accepted for
deposit unless accompanied by evidence satisfactory to the Depositary that any
necessary approval has been granted by any governmental body in England and
Wales, as applicable, 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 at least once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 of the Deposit Agreement), or by Owners, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Shares generally on the
Share register of the Company or Foreign Registrar and applicable to transfers
of Shares to or from the name of the Depositary or its nominee or the Custodian
or its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission expenses as
are expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.05 of the Deposit
3
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
2.03, 4.03 or 4.04 of the Deposit Agreement and the surrender of Receipts
pursuant to Section 2.05 or 6.02 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 Sections 4.01 through 4.04 of the Deposit
Agreement, (7) a fee for the distribution of securities pursuant to Section 4.02
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, and
(8) any other charge payable by the Depositary, any of the Depositary's agents,
including the Custodian, or the agents of the Depositary's agents in connection
with the servicing of Shares or other Deposited Securities (which charge shall
be assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.06 of the Deposit Agreement and shall be payable at
the sole discretion of the Depositary by billing such Owners for such charge or
by deducting such charge from one or more cash dividends or other cash
distributions).
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. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.03 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.02 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.05 of the Deposit Agreement, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial right, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Share or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be, other than
in satisfaction of such Pre-Release), (b) at all time fully collateralized with
cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares represented by
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 disregard such limit from time to time as it deems
reasonably appropriate, and may, with the prior written consent of the Company,
change such limit for purposes of
4
general application.
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 Owner and holder of
this Receipt by accepting or holding the same consents and agrees, that title to
this Receipt when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument under the laws of New York; provided, however, that the
Depositary and the Company, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the books of the
Depositary as the absolute Owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement or for all other purposes, and
neither the Depositary nor the Company shall have any obligation or be subject
to any liability under the Deposit Agreement to any holder of a Receipt unless
such holder is the Owner thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and communications will be available for
inspection and copying 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, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of
5
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, as promptly as
practicable, the amount thus received (net of the fees and expenses of the
Depositary as provided in Article 7 hereof and Section 5.09 of the Deposit
Agreement) to the Owners of Receipts entitled thereto; provided, however, that
in the event that the Company or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, the amount distributed to
the Owners of the Receipts evidencing American Depositary Shares representing
such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Section 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will cause the securities or property received by it to be
distributed to the Owners entitled thereto, in any manner that the Depositary
may deem equitable and practicable for accomplishing such distribution;
provided, however, that if in the opinion of the Depositary such distribution
cannot be made proportionately among the Owners of Receipts entitled thereto, or
if for any other reason the Depositary deems such distribution not to be
feasible, the Depositary may, after consultation with the Company, adopt such
method as it may deem equitable and practicable for the purpose of effecting
such distribution, including, but not limited to, the public or private sale of
the securities or property thus received, or any part thereof, and the net
proceeds of any such sale (net of the fees and expenses of the Depositary as
provided in Article 7 hereof and Section 5.09 of the Deposit Agreement) will be
distributed by the Depositary to the Owners of Receipts entitled thereto all in
the manner and subject to the conditions described in Section 4.01 of the
Deposit Agreement.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may, and shall, subject to the following sentence, if the
Company shall so request, distribute, as promptly as practicable, 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 and expenses of the
Depositary as provided in Article 7 hereof and Section 5.09 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
6
the conditions described in Section 4.01 of the Deposit Agreement. If additional
Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby.
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 reasonably 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. 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, after
consultation with the Company, have discretion as to the procedure to be
followed in making such rights available to any Owners or in disposing of such
rights on behalf of any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering or for any other reason, the
Depositary may not either make such rights available to any Owners or dispose of
such rights and make the net proceeds available to such Owners, then the
Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the Depositary, after consultation with the Company, determines in
its reasonable 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 and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary
7
on behalf of such Owner. As agent for such Owner, the Depositary will cause the
Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit
Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute
and deliver Receipts to such Owner; provided, however, that in the case of a
distribution pursuant to the second paragraph of this Article 13, such Receipts
shall be legended in accordance with applicable U.S. laws, and shall be subject
to the appropriate restrictions on sale, deposit, cancellation, and transfer
under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary as provided in
Section 5.09 of the Deposit Agreement and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of the Deposit Agreement) for the account of such Owners otherwise entitled to
such rights, warrants or other instruments, upon an averaged or other practical
basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided, that nothing in the
Deposit Agreement shall create, any obligation on the part of the Company to
file a registration statement under the Securities Act of 1933 with respect to
such rights or underlying securities or to endeavor to have such a registration
statement declared effective or otherwise to register such rights or securities
under any other applicable laws for any purpose. If an Owner of Receipts
requests the distribution of warrants or other instruments, notwithstanding that
there has been no such registration under the Securities Act of 1933, 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.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall, as promptly as practicable, convert or
cause to be converted, by sale or in any other manner that it may reasonably
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
8
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 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Owners of Receipts who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting or (iii) responsible for any fee
assessed by the Depositary pursuant to the Deposit Agreement, or (b) on or after
which each American Depositary Share will represent the changed number of
Shares, subject to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable
9
thereafter, mail to the Owners of Receipts a notice, the form of which notice
shall be in the sole discretion of the Depositary, which shall contain (a) such
information as is contained in such notice of meeting received by the Depositary
from the Company, (b) a statement that the Owners of Receipts as of the close of
business on a specified record date will be entitled, subject to any applicable
provision of English law and of the Memorandum and Articles of Association of
the Company, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given. Upon the written
request of an Owner of a Receipt on such record date, received on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by such American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request. The Depositary shall not vote or attempt to exercise the right
to vote that attaches to the Shares or other Deposited Securities, other than in
accordance with such instructions.
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 4.03 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, or upon the
redemption or cancellation by the Company of the Deposited Securities, any
securities, cash or property which shall be received by the Depositary or a
Custodian in exchange for, in conversion of, in lieu of or in respect of
Deposited Securities shall be treated as new Deposited Securities under the
Deposit Agreement, and American Depositary Shares shall thenceforth represent,
in addition to the existing Deposited Securities, the right to receive the new
Deposited Securities so received in exchange or conversion, unless additional
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, and shall, if the Company shall so reasonably 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.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall incur any liability
to any Owner or Beneficial Owner of any Receipt, (i) 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 by
reason of any provision, present or future, of the Memorandum and Articles of
Association of the Company, or by reason of any provision of any securities
issued or distributed by the
10
Company, or any offering or distribution thereof, or by reason of any act of God
or war or terrorism or other circumstances beyond its control, the Depositary or
the Company or any of their respective directors, officers, employees, agents or
affiliates shall be prevented, delayed or forbidden from or be subject to any
civil or criminal penalty on account of doing or performing any act or thing
which by the terms of the Deposit Agreement or Deposited Securities it is
provided shall be done or performed, (ii) 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,
(iii) by reason of any exercise of, or failure to exercise, any discretion
provided for in the Deposit Agreement, (iv) for the inability of any Owner or
Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of the Deposit Agreement, made available to Owners or Beneficial
Owners, or (v) for any special, consequential or punitive damages for any breach
of the terms of the Deposit Agreement. Where, by the terms of a distribution
pursuant to Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering
or distribution pursuant to Section 4.04 of the Deposit Agreement, such
distribution or offering may not be made available to Owners of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary nor any
of their respective directors, officers, employees, agents or affiliates assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or Beneficial Owners of Receipts, except that they agree to perform
their obligations specifically set forth in the Deposit Agreement without
negligence or bad faith. The Depositary shall not be subject to any liability
with respect to the validity or worth of the Deposited Securities. Neither the
Depositary nor the Company nor any of their respective directors, officers,
employees, agents or affiliates 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, on behalf of any Owner or
Beneficial Owner or other person. Neither the Depositary nor the Company nor any
of their respective directors, officers, employees, agents or affiliates 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. Each of the
Depositary, the Company and their respective directors, officers, employees,
agents and controlling persons may rely and shall be protected in acting upon
any written notice, request, direction or other document believed by such person
to be genuine and to have been signed or presented by the proper party or
parties. The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith. The Depositary shall not be liable
for any acts or omissions made by a successor depositary whether in connection
with a previous act or omission of the Depositary or in connection with a matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises, the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. The Company agrees to indemnify the Depositary, its
directors, officers, employees, agents and affiliates and any Custodian against,
and hold each of them harmless from, any liability or
11
expense (including, but not limited to, the reasonable expenses of counsel)
which may arise out of any registration with the Commission of Receipts,
American Depositary Shares or Deposited Securities or the offer or sale thereof
in the United States or 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, officers, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, officers, employees, agents and affiliates. The Indemnities contained
in the preceding sentence shall not extend to any liability or expense which
arises solely and exclusively out of a Pre-Release of a Receipt or Receipts in
accordance with Section 2.09 of the Deposit Agreement and which would not
otherwise have arisen had such Receipt or Receipts not been the subject of a
Pre-Release pursuant to Section 2.09 of the Deposit Agreement; provided,
however, that the indemnities provided in the preceding paragraph shall apply to
any such liability or expense (i) to the extent that such liability or expense
would have arisen had a Receipt or Receipts not been the subject of a
Pre-Release, or (ii) which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary memorandum) relating to the offer or sale of American Depositary
Shares, except to the extent that any such liability or expense arises out of
(a) information relating to the Depositary or any Custodian, as applicable,
furnished in writing and not materially changed or altered by the Company,
expressly for use in any of the foregoing documents, or, (b) if such information
is provided, the failure to state a material fact necessary to make the
information provided not misleading. 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; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
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 60 days prior written
notice of such removal, to become effective upon the later of (i) the 60th day
after delivery of the notice to the Depositary and (ii) the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. Whenever the Depositary in its discretion determines that it
is in the best interest of the Owners of Receipts to do so, it may appoint a
substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or Beneficial Owners of
Receipts in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees and cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any
12
substantial existing right of Owners of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner and Beneficial Owner of a Receipt at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt or any interest therein, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented thereby except in
order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary, at any time at the direction of the Company, shall
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 60 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 at least 30 days prior to the date of
termination, if at any time 30 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 2.05 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, shall not accept deposits of Shares (and shall so instruct each
Custodian) and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in the Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges). At any time after the
expiration of four months 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 Deposit Agreement, and any applicable taxes or governmental
13
charges) and except for its obligations to the Company under Section 5.08 of the
Deposit Agreement. 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. SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
In the Deposit Agreement, the Company has (i) appointed ICAP North
America, Inc., Harborside Financial Center, 0000 Xxxxx Xxxx, Xxxxxx Xxxx, XX
00000, Attention: General Counsel, as the Company's authorized agent upon which
process may be served in any suit or proceeding arising out of or relating to
the Shares or Deposited Securities, the American Depositary Shares, the Receipts
or this Agreement, (ii) consented and submitted to the jurisdiction of any state
or federal court in the State of New York in which any such suit or proceeding
may be instituted, and (iii) agreed that service of process upon said authorized
agent shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding.
To the extent that the Company or any of its properties, assets or
revenues may have or hereafter become entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise, from any legal
action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, in any jurisdiction
in which proceedings may at any time be commenced, with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or the Deposit Agreement, the Company, to the fullest
extent permitted by law, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity and consents to such relief and
enforcement.
23. DISCLOSURE OF INTERESTS.
To the extent that provisions of or governing any Deposited Securities
(including the Company's Memorandum and Articles of Association or applicable
English law) may require the disclosure of beneficial or other ownership of
Deposited Securities, other Shares and other securities to the Company and may
provide for blocking transfer and voting or other rights to enforce such
disclosure or limit such ownership, Owners and Beneficial Owners of Receipts
shall comply with all such disclosure requirements and ownership limitations and
shall cooperate with the Depositary in its compliance with any Company
instructions relating to those requirements and limits.
Each Owner and Beneficial Owner shall provide information the Company may
request in a disclosure notice (a "Disclosure Notice") given pursuant to the
United Kingdom Companies Xxx 0000 (that Act, as amended and including any
statutory re-enactment of that Act, the "Companies Act") or the Memorandum and
Articles of Association of the Company within the time period specified in that
Disclosure Notice. In addition, each Owner and Beneficial Owner shall comply
with the provisions of the Companies Act with regard to notifying the
14
Company of interests in Shares. As of the date of the Deposit Agreement, failure
to comply with a Disclosure Notice could result in the imposition of sanctions
against the holder of the Shares in respect of which the non-complying person is
or was, or appears to be or has been, interested as provided in the Companies
Act and the Memorandum and Articles of Association of the Company, including the
withdrawal of the voting rights of those Shares and the imposition of
restrictions on the rights to receive dividends and to transfer those Shares. As
of the date of the Deposit Agreement, the Companies Act required that any person
that is or becomes directly or indirectly interested (within the meaning of the
Companies Act) in three percent or more of the outstanding Shares, or is aware
that another person for whom that person holds Shares is so interested must,
within two business days after becoming so interested or so aware (and
thereafter in certain circumstances upon any change to the particulars
previously notified), notify the Company as required by the Companies Act.
24. OWNERSHIP RESTRICTIONS.
Notwithstanding any other provision in the Deposit Agreement, the Company
may restrict transfers of the Shares where such transfer might result in
ownership of Shares exceeding limits imposed by applicable English law or the
Memorandum and Articles of Association of the Company. The Company may also
restrict, in such manner as it deems reasonably appropriate, transfers of the
American Depositary Shares where such transfer may result in the total number of
Shares represented by the American Depositary Shares owned by a single Owner to
exceed any applicable English law or the Company's Memorandum and Articles of
Association. The Company may, in such manner as it deems appropriate in its sole
discretion (but subject to applicable law), instruct the Depositary to take
action with respect to the ownership interest of any Owner in excess of the
limitation set forth in the preceding sentence, including, but not limited to, a
mandatory sale or disposition on behalf of the Owner of the Shares represented
by American Depositary Shares held by such Owner in excess of limitations, if
and to the extent such disposition is permitted by applicable law and to the
extent the same action could have been taken with respect to holders of Shares
under similar circumstances.
Without prejudice to the foregoing, the Company may also impose any and
all restrictions in respect of any American Depositary Shares as it is entitled
to impose in respect of the Shares represented by such American Depositary
Shares pursuant to the Company's Memorandum and Articles of Association, as in
force from time to time, including without limitation, the removal or limitation
of voting rights, the withholding of dividends or other monies payable on such
Shares or any payments to be made pursuant to the Deposit Agreement in respect
thereof and restrictions on the transfer of such Shares.
15
