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CARNIVAL PLC
AND
JPMORGAN CHASE BANK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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Amended and Restated Deposit Agreement
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Dated as of April, 2003
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TABLE OF CONTENT
PAGE
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PARTIES........................................................................... 1
RECITALS.......................................................................... 1
ARTICLE I
Definitions
SECTION 1.01 American Depositary Shares ....................................... 1
SECTION 1.02. Commission........................................................ 2
SECTION 1.03. Company .......................................................... 2
SECTION 1.04. Custodian ........................................................ 2
SECTION 1.05. Delivery, Execute, Issue et al. .................................. 2
SECTION 1.06. Deposit Agreement ................................................ 2
SECTION 1.07. Depositary; Depositary's Office .................................. 2
SECTION 1.08. Deposited Securities ............................................. 2
SECTION 1.09. Direct Registration Receipt....................................... 2
SECTION 1.10. Direct Registration System........................................ 2
SECTION 1.11. Holder ........................................................... 2
SECTION 1.12. Receipt Register.................................................. 3
SECTION 1.13. Receipts ......................................................... 3
SECTION 1.14. Securities Act of 1933............................................ 3
SECTION 1.15 Securities Exchange Act of 1934 .................................. 3
SECTION 1.16. Shares ........................................................... 3
ARTICLE II
Form of Receipts,
Deposit of Shares,
Execution and Transfer of Receipts and
Withdrawal of Deposited Securities
SECTION 2.01. Form and Transferability of Receipts ............................. 3
SECTION 2.02. Deposit of Shares................................................. 4
SECTION 2.03. Execution and Delivery of Receipts ............................... 5
SECTION 2.04. Transfer, Combination and Split-up of Receipts.................... 5
SECTION 2.05. Withdrawal of Deposited Securities................................ 5
SECTION 2.06. Limitations on Execution and Delivery and Transfer of Receipts
and Withdrawal of Deposited Securities ........................... 6
SECTION 2.07. Substitution of Receipts.......................................... 7
SECTION 2.08. Cancellation and Destruction of Receipts ......................... 7
ARTICLE III
Certain Obligations of Holders
SECTION 3.01. Information....................................................... 8
SECTION 3.02. Liability of Holder for Taxes..................................... 8
SECTION 3.03. Warranties on Deposit of Shares .................................. 8
SECTION 3.04. Disclosure of Interests .......................................... 8
ARTICLE IV
Deposited Securities
SECTION 4.01. Cash Distributions ............................................... 9
SECTION 4.02. Distributions Other Than Cash or Shares........................... 9
SECTION 4.03. Distributions in Shares........................................... 10
SECTION 4.04. Rights ........................................................... 10
SECTION 4.05. Conversion of Foreign Currency ................................... 11
SECTION 4.06. Fixing of Record Date............................................. 11
SECTION 4.07 Voting of Deposited Securities.................................... 12
SECTION 4.08. Changes Affecting Deposited Securities ........................... 12
SECTION 4.09. Withholding ...................................................... 12
ARTICLE V
The Depositary
and the Company
SECTION 5.01. Maintenance of Depositary's Office and Register; Certain Agents
of the Depositary; Lists of Holders .............................. 13
SECTION 5.02. Prevention or Delay in Performance ............................... 14
SECTION 5.03. Obligations Limited .............................................. 14
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary ............................................. 15
SECTION 5.05. The Custodian..................................................... 15
SECTION 5.06. Notices and Reports to Holders ................................... 16
SECTION 5.07. Issuance of Additional Shares, etc. .............................. 16
SECTION 5.08. Indemnification .................................................. 16
SECTION 5.09. Charges of Depositary ............................................ 17
SECTION 5.10. Statutory Reports ................................................ 17
SECTION 5.11. Available Information to the Commission .......................... 17
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment......................................................... 17
SECTION 6.02. Termination ...................................................... 18
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts ..................................................... 18
SECTION 7.02. No Third Party Beneficiaries ..................................... 18
SECTION 7.03. Severability ..................................................... 18
SECTION 7.04. Holders Parties; Binding Effect .................................. 19
SECTION 7.05. Notices .......................................................... 19
SECTION 7.06. Governing Law .................................................... 19
SECTION 7.07. Amendment and Restatement of Old Deposit Agreement ............... 19
TESTIMONIUM .................................................................. 20
SIGNATURES .................................................................. 20
EXHIBIT A
FORM OF FACE OF RECEIPT........................................................... A-1
Introductory Paragraph ........................................................ A-1
(1) The Deposit Agreement................................................... A-1
(2) Withdrawal of Deposited Securities...................................... A-2
(3) Transfers, Split-ups and Combinations................................... A-2
(4) Certain Limitations..................................................... A-2
(5) Liability of Holder for Taxes........................................... A-3
(6) Warranties by Depositor................................................. A-4
(7) Disclosure of Interests................................................. A-4
(8) Charges of Depositary................................................... A-4
(9) Title to Receipts....................................................... A-4
(10) Validity of Receipt..................................................... A-5
(11) Available Information................................................... A-5
Signature of Depositary........................................................ A-5
Address of Depositary's Office................................................. A-5
FORM OF REVERSE OF RECEIPT
(1) Distributions upon Deposited Securities................................. A-6
(2) Record Dates ........................................................... A-7
(3) Voting of Deposited Securities ......................................... A-7
(4) Changes Affecting Deposited Securities.................................. A-8
(5) Reports; Inspection of Register......................................... A-8
(6) Withholding............................................................. A-8
(7) Liability of the Company and the Depositary ............................ A-8
(8) Resignation and Removal of Depositary the Custodian .................... A-9
(9) Amendment of Deposit Agreement and Receipts ............................ A-9
(10) Termination of Deposit Agreement ....................................... A-10
EXHIBIT B
CHARGES OF THE DEPOSITARY......................................................... B-1
AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT (the "Deposit Agreement") dated
as of April , 2003 among CARNIVAL PLC (fka P & O Princess Cruises PLC), a public
limited company organized under the laws of England and Wales (the "Company"),
JPMORGAN CHASE BANK (fka Xxxxxx Guaranty Trust Company of New York), a New York
corporation, as depositary (the "Depositary") and all holders from time to time
of Receipts issued hereunder.
WITNESSETH:
WHEREAS, the Company and the Depositary entered into a deposit
agreement dated as of October 20, 2000 (the "Old Deposit Agreement") to provide
for the deposit of ordinary shares (the "Shares") of the Company with the
Depositary or with the Custodian as agent of the Depositary for the purposes set
forth in such Old Deposit Agreement, for the creation of American Depositary
Shares representing the Shares so deposited and for the execution and delivery
of Receipts ("Old ADRs") evidencing the American Depositary Shares;
WHEREAS, the Company and the Depositary desire to amend certain terms
of the Old Deposit Agreement in accordance with Section 6.01 thereof and to
reflect such amendments pursuant to the terms and conditions set forth in this
Deposit Agreement;
WHEREAS, the Company desires to provide for the continued deposit of
Shares of the Company from time to time with the Depositary or the Custodian and
for the execution and delivery of Receipts evidencing the American Depositary
Shares representing the Shares so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
among the parties hereto as follows;
ARTICLE I
Definitions
SECTION 1.01. The term "American Depositary Shares" shall mean the
rights evidenced by the Receipts executed and delivered hereunder, including the
interests in the Deposited Securities granted to the holders of Receipts
pursuant to the terms and conditions of this Deposit Agreement. Each American
Depositary Share shall represent rights to receive one Share until there shall
occur a distribution upon Deposited Securities referred to in Section 4.03 or a
change in Deposited Securities referred to in Section 4.08 with respect to which
additional Receipts are not executed and delivered, and thereafter each American
Depositary Share shall represent the right to receive the Deposited Securities
specified in such Sections.
SECTION 1.02. The term "Commission" shall mean the Securities and
Exchange Commission of the United States or any successor governmental agency.
SECTION 1.03. The term, "Company" shall mean Carnival plc, a public
limited company organized under the laws of England and Wales and its
successors.
SECTION 1.04. The term "Custodian" shall mean one or more agent or
agents of the Depositary (singly or collectively, as the context requires)
appointed by the Depositary to act as Custodian for the purposes of this Deposit
Agreement pursuant to Section 5.05.
SECTION 1.05. The terms "deliver", "execute", "issue", "register",
"surrender", "transfer" or "cancel", when used with respect to Direct
Registration Receipts, shall refer to an entry or entries or an electronic
transfer or transfers in the Direct Registration System.
SECTION 1.06. 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. The term "Depositary" shall mean JPMorgan Chase Bank, a
New York corporation, and any successor as depositary hereunder. The term
"Depositary's Office" shall mean the office of the Depositary for the
administration of depositary receipts.
SECTION 1.08. The term "Deposited Securities" as of any time shall
mean all Shares at such time deposited under this Deposit Agreement and any and
all other Shares, securities, property and cash received at any time by the
Depositary or the Custodian in respect or in lieu of such deposited Shares and
other Shares (or evidence of rights to receive Shares), securities, property and
cash at such time held hereunder.
SECTION 1.09. The term "Direct Registration Receipt" means a Receipt,
the ownership of which is recorded on the Direct Registration System.
SECTION 1.10. The term "Direct Registration System" means the system
for the uncertificated registration of ownership of securities established by
The Depository Trust Company ("DTC") and utilized by the Depositary pursuant to
which the Depositary may record the ownership of Receipts without the issuance
of a certificate, which ownership shall be evidenced by periodic statements
issued by the Depositary to the Holders entitled thereto. For purposes hereof,
the Direct Registration System shall include access to the Profile Modification
System maintained by DTC which provides for automated transfer of ownership
between DTC and the Depositary.
SECTION 1.11. The term "Holder" shall mean the person or persons in
whose name a Receipt is registered on the Receipt Register maintained by the
Depositary for such purpose.
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SECTION 1.12. The term "Receipt Register" means the register
maintained by the Depositary for the registration of transfer, combination and
split-up of Receipts, and, in the case of Direct Registration Receipts, shall
include the Direct Registration System.
SECTION 1.13. The term "Receipts" shall mean the American depositary
receipts executed and delivered hereunder. Receipts may be either in physical
certificated form or Direct Registration Receipts. Receipts in physical
certificated form shall be in substantially the form of Exhibit A hereto,
evidencing American Depositary Shares, as the same may be amended from time to
time in accordance with the provisions hereof. References to "Receipts" shall
include Direct Registration Receipts, unless the context otherwise requires.
SECTION 1.14. The term "Securities Act of 1933" shall mean the United
States Securities Act of 1933, as from time to time amended.
SECTION 1.15. The term "Securities Exchange Act of 1934" shall mean
the United States Securities Exchange Act of 1934, as from time to time amended.
SECTION 1.16. The term "Shares" shall mean the ordinary shares in the
capital of the Company. References to Shares shall include evidence of rights to
receive Shares, whether or not stated in the particular instance; provided that
in no event shall shares include evidence of rights to receive Shares with
respect to which the full purchase price has not been paid.
ARTICLE II
Form of Receipts, Deposit of Shares,
Execution and Transfer of Receipts and
Withdrawal of Deposited Securities
SECTION 2.01. Form and Transferability of Receipts. (a) Certificated
Receipts. Receipts in certificated form shall be engraved or printed or
lithographed on steel-engraved borders and shall be substantially in the form
set forth in Exhibit A annexed hereto, with appropriate insertions,
modifications and omissions as hereinafter provided. Receipts may be issued in
denominations of any number of American Depositary Shares. Receipts in
certificated form shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized officer of the Depositary. Unless so executed, no
Receipt in certificated form shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose. Receipts in
certificated form bearing the facsimile signature of anyone who was at any time
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of such Receipts. Receipts in certificated form may, with the prior
written consent of the Company (which consent shall not be unreasonably
withheld), be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with this Deposit Agreement as
may be required by the Depositary in respect of its obligations hereunder or as
may be required to comply with any applicable law or regulations or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be traded or to conform with any usage with respect
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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.
(b) Direct Registration Receipts. Notwithstanding anything in this
Deposit Agreement or in the Receipt to the contrary, American Depositary Shares
shall be evidenced by Direct Registration Receipts, unless certificated Receipts
are specifically requested by the Holder and for no additional fee. Holders
shall be bound by the terms and conditions of this Deposit Agreement and of the
form of Receipt, regardless of whether their Receipts are Direct Registration
Receipts or certificated Receipts.
(c) Transferability. Title to a Receipt (and to the Deposited
Securities represented by the American Depositary Shares evidenced thereby),
when properly endorsed (in the case of Receipts in certificated form) or upon
delivery to the Depositary of properly executed instruments of transfer, shall
be transferable by delivery with the same effect as in the case of a negotiable
instrument; provided that the Company and the Depositary, notwithstanding any
notice to the contrary, may treat the Holder thereof as the absolute owner
thereof for the purpose of determining the person entitled to any distribution
or notice and for all other purposes.
SECTION 2.02. Deposit of Shares. (a) Deposit with Custodian. Shares
may be deposited under this Deposit Agreement by delivery thereof to the
Custodian, properly endorsed or accompanied by a duly executed instrument or
instruments of transfer in form satisfactory to the custodian, together with any
other documents and payments required under this Deposit Agreement, and 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 through the Direct Registration System (or, if specifically requested,
certificated Receipts) for the number of American Depositary Shares representing
such deposited Shares. At the request, risk and expense of any holder of Shares,
and for the account of such holder, the Depositary may receive certificates for
Shares to be deposited, together with any other documents and payments required
under this Deposit Agreement, for the purpose of forwarding such Share
certificates to the Custodian for deposit hereunder.
(b) Assignment and Proxy. If required by the Depositary, Shares
presented for deposit at any time, whether or not any register of Shareholders
of the Company is closed, shall also be accompanied by (1) an agreement or
assignment, or other instrument satisfactory to the Depositary, which will
provide for the prompt transfer to the Custodian or its nominee 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, and (2) if the Shares are registered in the name of the person on
whose behalf they are presented for deposit, a proxy or proxies entitling the
Custodian to vote such deposited Shares for any and all purposes until the
Shares are registered in the name of the Custodian or its nominee.
(c) Registration and Holding. Upon each delivery to the Custodian of a
certificate or certificates for Shares (or other Deposited Securities pursuant
to Section 4.03, 4.04 or 4.08) in
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registered form to be deposited hereunder, together with any other documents and
payments required under this Deposit Agreement, the Custodian shall as soon as
practicable present such certificate or certificates for registration of
transfer of the Shares (or other Deposited Securities) being deposited in the
name of the Custodian or its nominee at the cost and expense of the person
making such deposit (or for whose benefit such deposit is made) and shall obtain
evidence satisfactory to it of such registration. Deposited Securities shall be
held by the Custodian for the account and to the order of the Depositary at such
place or places as the Depositary shall determine.
SECTION 2.03. Execution and Delivery of Receipts. After the deposit of
any Shares pursuant to Section 2.02, the 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, first class airmail postage prepaid, or, at the request, risk
and expense of the person making the deposit, by cable, telex or facsimile
transmission. After receiving such notice from the Custodian, the Depositary,
subject to this Deposit Agreement, shall execute and deliver at the Depositary's
Office to or upon the order of the person or persons named in the notice
delivered to the Depositary, a Receipt or Receipts, registered in the name or
names requested by such person or persons, and evidencing in the aggregate the
number of American Depositary Shares to which such person or persons are
entitled.
SECTION 2.04. Transfer, Combination and Split-up of Receipts. The
Depositary subject to this Deposit Agreement, shall register transfers of
Receipts in the Receipt register from time to time upon receipt at any of its
designated transfer offices of proper instruments of transfer or upon any
surrender of a Receipt at any of its designated transfer offices, by the Holder
in person or by duly authorized attorney, properly endorsed or accompanied by
proper instruments of transfer, and duly stamped as may be required by
applicable law. Thereupon the Depositary shall execute a new Receipt or Receipts
and deliver the same to or upon the order of the person entitled thereto
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the Receipts surrendered. The Depositary, subject to this Deposit
Agreement, shall upon surrender at any of its designated transfer offices 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 those evidenced by the
Receipt or Receipts surrendered. At the request of a Holder, the Depositary
shall, for the purpose of substituting a certificated Receipt with a Direct
Registration Receipt, or vice versa, execute and deliver a certificated
Receipt or a Direct Registration Receipt, as the case may be, for any
authorized number of American Depositary Shares requested, evidencing the
same aggregate number of American Depositary Shares as those evidenced by the
certificated Receipt or Direct Registration Receipt, as the case may be,
substituted. The Depositary may close the Receipt Register 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 request of the Company.
SECTION 2.05. Withdrawal of Deposited Securities. Upon receipt at the
Depositary's Office or at such other offices as the Depositary may designate of
a Holder's written
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order directing the Depositary to cause the Deposited Securities represented by
the American Depositary Shares evidenced by a Receipt to be withdrawn and
delivered to or upon the written order of the person or persons designated in
such order along with a certificated Receipt (properly endorsed in blank or
accompanied by proper instruments of transfer in blank, to the extent required
by the Depositary) or, in the case of a Direct Registration Receipt, proper
instruments of transfer in blank, to the extent required by the Depositary, the
Depositary shall (i) cancel such certificated Receipt or make a notation on the
Direct Registration System reflecting the cancellation of such Direct
Registration Receipts, as the case may be, and (ii) direct the Custodian to
deliver without unreasonable delay, subject to this Deposit Agreement and to the
provisions of or governing Deposited Securities, to or upon the written order of
the person or persons designated in such order, the Deposited Securities at the
time represented by the American Depositary Shares evidenced by such Receipt,
and the Custodian shall so deliver such Deposited Securities, at the office of
the Custodian, except that the Depositary may, at the request, risk and expense
of the Holder make delivery of such Deposited Securities without unreasonable
delay to such person or persons at the Depositary's Office or at any other place
specified by the Holder in such order. Directions shall be given by letter or,
at the request, risk and expense of the Holder, by cable, telex or facsimile
transmission. Delivery of Deposited Securities may be made by the delivery of
certificates, to the extent such Deposited Securities may be represented by
certificates, which, if required by law, shall be properly endorsed or
accompanied by properly executed instruments of transfer, and if such
certificates may be so registered, registered in the name of such Holder, or as
ordered by such Holder or properly endorsed or accompanied by proper instruments
of transfer. Notwithstanding any provision of this Deposit Agreement or the
Receipts to the contrary, the Depositary may restrict withdrawals of Deposited
Securities only for the reasons set forth in General Instruction I.A.(1) to Form
F-6 (as such instructions may be amended from time to time) under the Securities
Act of 1933.
SECTION 2.06. Limitations on Execution and Delivery and Transfer of
Receipts and Withdrawal of Deposited Securities. As a condition precedent to the
execution and delivery, registration, registration of transfer, split-up or
combination of any Receipt or the withdrawal of any Deposited Securities, the
Depositary the Company or the Custodian may require of the presentor of the
Receipt or the depositor of Shares; (a) payment of a sum sufficient to pay or
reimburse it for payment of (i) any stock transfer or other tax or other
governmental charge with respect thereto, (ii) any stock transfer or
registration fees for the registration of transfers of Shares or other Deposited
Securities upon any applicable register and (iii) any charges of the Depositary
upon delivery of Receipts against deposits of Shares and upon withdrawal of
Deposited Securities against surrender of Receipts set forth in Exhibit B (b)
the production of proof satisfactory identity and genuineness of any signature
and as to any other matter contemplated by Section 3.01; and, (c) compliance
with such reasonable regulations, if any, as the Depositary may establish
consistent with the provisions of this Deposit Agreement. The delivery of
Receipts against deposits of Shares generally may be suspended, or deposits of
particular Shares may be refused, or the registration of transfer of Receipts or
the withdrawal of Deposited Securities generally may be suspended, or the
registration of transfer of Receipts or the withdrawal of Deposited Securities
in particular instances may be refused, during any period when the Receipt
register or any register for Shares, or other Deposited Securities is closed, or
when any such action is deemed necessary or advisable by the Depositary or the
Company at any
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time or from time to time for any reason, including without limitation any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement, or in connection with voting at
any meeting of Shareholders or the payment of dividends. The Depositary may
issue Receipts against rights to receive Shares from the Company, or any
Custodian, or any registrar, transfer agent, clearing agency or other entity
recording Share ownership or transactions. The Depositary may issue Receipts
against other rights to receive Shares (a "pre-release") only if (x) such
Receipts are fully collateralized (marked to market daily) with cash or U.S.
government securities until such Shares are deposited, (y) the applicant for
such Receipts represents in writing that it owns such Shares, has assigned all
beneficial right, title and interest in such Shares to the Depositary, holds
such Shares for the account of the Depositary, shall not dispose of such Shares
other than in satisfaction of the pre-release and will deliver such Shares to
the Custodian within five business days of demand therefor (no evidence of
ownership is required or time of delivery specified) and (z) all such Receipts
represent not more than 30% of all American Depositary Shares (excluding those
evidenced by Pre-released ADRs), provided, however, that the Depositary reserves
the right to change or disregard such limit from time to time as it deems
appropriate. Such collateral, but not the earnings thereon, shall be held for
the benefit of the Holders. The Depositary may retain for its own account any
compensation for the issuance of Receipts against such other rights to receive
Shares, including without limitation earnings on the collateral securing such
rights. Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares required to be
registered pursuant to the provisions of the Securities Act of 1933, unless a
registration statement under the Securities Act of 1933 is in effect as to such
Shares. The Depositary will use reasonable efforts to comply with written
instructions of the Company to not accept for deposit hereunder any Shares
identified in such instructions at such times and under such circumstances as
may reasonably be specified in such instructions in order to facilitate the
Company's compliance with the securities laws in the United States.
SECTION 2.07. Substitution of Receipts. In case any Receipt in
certificated form shall be mutilated, destroyed, lost or stolen, the Depositary
shall issue a new Receipt through the Direct Registration System or, as the
Holder may specifically request, execute and deliver a new Receipt of like
tenor, in either case in exchange and substitution for such mutilated Receipt
upon cancellation thereof, or in lieu of and in substitution for such destroyed
or lost or stolen Receipt, unless the Depositary has notice that such Receipt
has been acquired by a bona fide purchaser, upon the Holder thereof filing with
the Depositary (a) a request for such execution and delivery and (b) a
sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary, including, without limitation, evidence satisfactory
to the Depositary of such destruction or loss or theft of such Receipt, the
authenticity thereof and the Holder's ownership thereof.
SECTION 2.08. Cancellation and Destruction of Receipts. All Receipts
surrendered to the Depositary shall be canceled by the Depositary. The
Depositary is authorized to destroy Receipts so canceled.
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ARTICLE III
Certain Obligations of Holders
SECTION 3.01. Information. Any person presenting Shares for deposit or
any Holder of a Receipt may be required from time to time to file with the
Depositary or the Custodian such proof as to citizenship, residence, exchange
control approval, legal or beneficial ownership of Receipts, Deposited
Securities or other securities, compliance with all applicable laws and
regulations, all applicable provisions of or governing Deposited Securities, and
the terms of this Deposit Agreement, or other information, and to execute and
deliver to the Depositary or the Custodian such certificates, including such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may require by written request to the Depositary or the
Custodian. The Depositary may withhold the delivery or registration of transfer
of any Receipt or any distribution on or withdrawal of any Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt until
the foregoing is accomplished to the Company's and the Depositary's
satisfaction.
SECTION 3.02. Liability of Holder for Taxes. If any tax or other
governmental charge shall become available by or on behalf of the Custodian or
the Depositary with respect to any Receipt or any Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, such
tax or other governmental charge shall be payable by the Holder of such Receipt,
who shall pay the amount thereof to the Depositary. The Depositary may refuse to
effect registration of transfer of such Receipt or any withdrawal of the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold or deduct from any
distributions on such Deposited Securities or may sell for the account of the
Holder thereof any part or all of such Deposited Securities (after attempting by
reasonable means to notify such Holder prior to such sale), and may apply such
cash or the proceeds of any such sale in payment of such tax or other
governmental charge, the Holder of such Receipt remaining liable for any
deficiency.
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 are validly issued and
outstanding, fully paid, nonassessable and free of preemptive rights, and that
the person making such deposit is duly authorized so to do and that such Shares
(A) are not "restricted securities" as such term is defined in Rule 144 under
the Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and sold
freely in the United States or (B) have been registered under the Securities Act
of 1933. Such representations and warranties shall survive the deposit of Shares
and the execution and delivery of Receipts therefor.
SECTION 3.04. Disclosure of Interests. Notwithstanding any other
provision of this Deposit Agreement, each Holder agrees to comply with requests
from the Company which are made under statutory provisions in the United Kingdom
to provide information as to the capacity in which such Holder owns Receipts and
regarding the identity of any other person interested in such Receipts and the
nature of such interest and may, pursuant to such statutory
8
provisions and any provisions of the Articles of Association of the Company,
forfeit the right to vote and to direct the voting of, and be prohibited from
transferring, Receipts as to which compliance is not made, all as if such
Receipts were to the extent practicable the Shares represented by the American
Depositary Shares evidenced thereby, and the Depositary agrees to use its
reasonable efforts to comply with any instructions received from the Company
requesting that the Depositary take the reasonable actions specified therein to
obtain such information.
ARTICLE IV
Deposited Securities
SECTION 4.01. Cash Distributions. Whenever the Depositary or the
Custodian shall receive any cash dividend or other cash distribution on any
Deposited Securities, the Depositary or the Custodian shall, after any necessary
conversion of such distribution into U.S. dollars pursuant to Section 4.05 and
after fixing a record date in respect thereof pursuant to Section 4.06, subject
to this Deposit Agreement, distribute the amount thus received, by checks drawn
on a bank in The City of New York, to the Holders on such record date of
Receipts evidencing American Depositary Shares representing such Deposited
Securities, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by each of them respectively;
provided that the Depositary shall make appropriate adjustments in the amounts
so distributed in respect of (a) any of such Deposited Securities being not
entitled, by reason of their date of issuance or otherwise, to receive all or
any portion of such distribution or (b) any amounts (i) required to be withheld
by the Company, the Custodian or the Depositary from any such distribution on
account of taxes, or (ii) charged by the Depositary or withheld from
distribution in connection with the conversion of foreign currency into U.S.
dollars pursuant to Section 4.05. The Depositary shall distribute only such
amount as can be distributed without distributing to any Holder a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and become part
of the next sum received by the Depositary for distribution to Holders of
Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash or Shares. Whenever the
Depositary shall receive any distribution other than cash or Shares upon any
Deposited Securities, subject to this Deposit Agreement, the Depositary shall
cause such securities or property to be distributed to the Holders on a record
date fixed pursuant to Section 4.06 of Receipts evidencing American Depositary
Shares representing such Deposited Securities, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by each
of them respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided that if in the opinion
of the Depositary such distribution cannot be made proportionately among the
Holders entitled thereto, or if for any other reason (including any tax
withholding or securities laws requirement) the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, and the
9
distribution by the Depositary to the Holders of the net proceeds of any such
sale as in the case of a distribution received in cash pursuant to Section 4.01.
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 or shall, if the Company shall so request subject to this
Deposit Agreement, distribute to the Holders on a record date fixed pursuant to
Section 4.06 of Receipts evidencing American Depositary Shares representing such
Deposited Securities, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by each of them respectively,
additional Receipts for an aggregate number of American Depositary Shares
representing the number of Shares received as such dividend or free
distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in the case of any such distribution, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds of such sale as in the case of a distribution received in cash
pursuant to Section 4.01. If additional Receipts are not so distributed, each
American Depositary Share shall thenceforth also represent the additional Shares
so distributed upon such Deposited Securities. The Depositary may withhold any
distribution of Receipts under this Section 4.03 to Holders having an address in
the United States until the Company furnishes to the Depositary (a) evidence
that a registration statement under the Securities Act of 1933 covering such
Receipts and related Shares is in effect or (b) an opinion of counsel for the
Company in the United States satisfactory to the Depositary to the effect that
such distribution does not require registration under the Securities Act of
1933.
SECTION 4.04. Rights. If 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 nature, the Depositary shall have
discretion as to the procedure to be followed in making such rights available to
the Holders or in disposing of such rights and distributing the net proceeds
thereof as in the case of a distribution received in cash pursuant to Section
4.01; provided that the Depositary shall, if requested by the Company, subject
to this Deposit Agreement: (a) if at the time of the offering of any such rights
the Depositary determines that it is lawful and feasible to make such rights
available to Holders by means of warrants or otherwise, the Depositary shall
distribute such warrants or other instruments therefor in such form as it may
determine to the Holders on a record date fixed pursuant to Section 4.06 of
Receipts evidencing American Depositary Shares representing such Deposited
Securities, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by each of them respectively, or
employ such other method as it may deem feasible in order to facilitate the
exercise, sale or transfer of rights by such Holders; or (b) if at the time of
any such offering of any such rights the Depositary determines that it is not
lawful or not feasible to make such rights available to Holders by means of
warrants or otherwise, or if the rights represented by such warrants or such
other instruments are not exercised and appear to be about to lapse, the
Depositary in its discretion may sell such rights or such warrants or other
instruments at public or private sale, at such place or places and upon such
terms as it may deem proper, and may allocate the proceeds of such sales for
account of the Holders otherwise entitled to such rights, warrants or other
instruments upon an averaged or other practicable basis without regard to any
distinctions among such Holders because of exchange restrictions, or the date of
delivery of any Receipt or Receipts or otherwise, and distribute the net
proceeds so allocated to the extent
10
practicable as in the case of a distribution received in cash pursuant to
Section 4.01. The Depositary will not offer such rights to Holders having an
address in the United States, unless the Company furnishes to the Depositary (i)
evidence that a registration statement under the Securities Act of 1933 covering
such offering is in effect or (ii) an opinion of counsel for the Company in the
United States satisfactory to the Depositary to the effect that such offering
does not require registration under the Securities Act of 1933.
SECTION 4.05. Conversion of Foreign Currency. Whenever the Depositary
or the Custodian shall receive foreign currency as a cash dividend or other
distribution or as the net proceeds from the sale of securities, property or
rights, and, in the judgment of the Depositary, the foreign currency so received
can then be converted on a reasonable basis into U.S. dollars and the resulting
U.S. dollars can then be transferred to the United States, the Depositary shall
convert or cause to be converted, by sale or in any other manner that it may
determine, such foreign currency into U.S. dollars and shall transfer the
resulting U.S. dollars (net of its charges and expenses in effecting such
conversion) to the United States. Such U.S. dollars shall be distributed to the
Holders entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments that entitle the holders thereof to such U.S.
dollars, then to the holders of such warrants or instruments, as applicable,
upon surrender thereof for cancellation. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Holders on account of exchange restrictions or otherwise. If such conversion or
distribution can be effected only with the approval or license of any government
or agency thereof, the Depositary shall file such application for approval or
license, if any, as it may deem desirable. If at any time the Depositary shall
determine that in its judgment any foreign currency received by the Depositary
is not convertible on a reasonable basis into U.S. dollars transferable to the
United States, or if any approval or license of any governmental authority or
agency thereof that is required for such conversion is denied or in the opinion
of the Depositary is not obtainable at a reasonable cost or within a reasonable
period, the Depositary shall in its discretion, but subject to applicable laws
and regulations either distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) to, or hold such
foreign currency for the respective accounts of, the Holders entitled to receive
the same. If any such conversion of foreign currency, in whole or in part, can
be effected for distribution to some but not all of the Holders entitled
thereto, the Depositary may in its discretion make such conversion and
distribution in U.S. dollars to the extent permissible to the Holders entitled
thereto and may distribute the balance of the foreign currency received by the
Depositary to, or hold such balance for the respective accounts of, the Holders
entitled thereto for whom such conversion and distribution is not practicable.
SECTION 4.06. Fixing of Record Date. Whenever any distribution is
being made pursuant to Sections 4.01 through 4.05 or 4.07 upon any Deposited
Securities or any meeting of holders of Shares or other Deposited Securities is
being held or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall fix a record date for the determination of
the Holders of Receipts evidencing the American Depositary Shares representing
such Deposited Securities who shall be entitled to receive such distribution or
the net proceeds of the sale thereof, or to give instructions for the exercise
of voting rights at any
11
such meeting or receive such notice or solicitation or act in respect of such
other matter. Subject to the provisions of Sections 4.01 through 4.05 and
Section 4.07 and to the other terms and conditions of this Deposit Agreement,
only such Holders at the close of business on such record date shall be entitled
to receive any such distribution or proceeds to give such voting instructions,
or to receive such notice or solicitation or to act in respect of any such other
matter.
SECTION 4.07. Voting of Deposited Securities. As soon as practicable
after receipt of notice of any meeting or solicitation of consents or proxies of
holders of Shares or other Deposited Securities, the Depositary shall mail to
the Holders a notice, which shall contain (a) such information as is contained
in such notice of meeting, and (b) a statement that the Holders at the close of
business on a specified record date will be entitled, subject to any applicable
provisions of law and applicable provisions of or governing Deposited
Securities, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the amount of Deposited Securities represented by the
respective numbers of American Depositary Shares represented by such Holders'
Receipts, and (c) a statement as to the manner in which such instructions may be
given, including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company.
Upon the written request of a Holder on such record date, received on or before
the date established by the Depositary for such purpose, the Depositary shall
endeavor, insofar as practicable and permitted under any applicable provisions
of law and any applicable provisions of or governing Deposited Securities, to
vote or cause to be voted the amount of Deposited Securities represented by the
number of American Depositary Shares evidenced by such Holder's Receipts in
accordance with any nondiscretionary instructions set forth in such request. The
Depositary shall not vote any Deposited Securities except in accordance with
written instructions from a Holder entitled hereunder to give such instructions.
SECTION 4.08. Changes Affecting Deposited Securities. Upon any change
in par value, split-up, consolidation, cancellation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities that shall be received by the
Depositary in exchange for, or in conversion, replacement, or otherwise in
respect of, Deposited Securities shall be treated as Deposited Securities under
this Deposit Agreement, and the Receipts shall thenceforth evidence American
Depositary Shares representing the right to receive the Deposited Securities so
received to the extent additional Receipts are not delivered pursuant to the
following sentence. In any such case the Depositary may with the Company's
approval, and shall if the Company shall so request, subject to this Deposit
Agreement, execute and deliver additional Receipts as in the case of a dividend
of Shares, or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such newly received Deposited Securities.
SECTION 4.09. Withholding. In connection with any distribution to
Holders, the Company will remit to the appropriate governmental authority or
agency all amounts (if any) required to be withheld and owing to such authority
or agency by the Company and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required to be
withheld and owing to such authority or agency by the Depositary
12
or the Custodian. The Depositary will forward to the Company such information
from its records as the Company may reasonably request to enable the Company to
file necessary reports with governmental authorities or agencies, and either the
Company or the Depositary may file any such reports necessary to obtain benefits
under any applicable tax treaties for Holders. If the Depositary determines that
any distribution in property (including Shares or rights to subscribe therefor)
on Deposited Securities is subject to any tax that the Depositary or the
Custodian is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property, after deduction of such taxes, to the Holders entitled thereto as in
the case of a distribution in cash pursuant to Section 4.01 or a distribution
other than cash or Shares pursuant to Section 4.02.
ARTICLE V
The Depositary and the Company
SECTION 5.01. Maintenance of Depositary' s Office and Register;
Certain Agents of the Depositary; Lists of Holders. (a) Depositary's Office. The
Depositary shall maintain in the Borough of Manhattan, The City of New York, at
the Depositary's Office facilities for the delivery and surrender of Shares, the
execution and delivery, registration, registration of transfer, combination and
split-up of Receipts and the withdrawal of Deposited Securities all in
accordance with the provisions of this Deposit Agreement.
(b) The Register. The Depositary shall keep a Receipt Register at the
Depositary's Office for the registration of Receipts and transfers of Receipts
that at all reasonable times shall be open for inspection by the Holders and the
Company; provided that such inspection shall not be for the purpose of
communicating with Holders 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 Receipt Register at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder.
(c) Receipt Registrars and Co-Transfer Agents. 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 Receipt registrar
or, upon the request or with the approval of the Company, appoint a Receipt
registrar or one or more co-registrars to register Receipts and transfers,
combinations and split-ups of Receipts and to countersign Receipts in accordance
with any requirements of such exchange or exchanges and with the terms of any
such appointment. Such Receipt registrar or co-registrars may be removed and a
substitute or substitutes appointed by the Depositary upon the request or with
the approval of the Company. The Depositary, upon the request or with the
approval of the Company, may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. Such co-transfer agents
may be removed and substitutes
13
appointed by the Depositary upon the request or with the approval of the
Company. Each Receipt registrar, co-registrar or co-transfer agent appointed
under this Section 5.01 (other than JPMorgan Chase Bank) shall give notice in
writing to the Company and the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
(d) Lists of Holders. At the expense of the Company, the Company shall
have the right to inspect transfer and registration records of the Depositary,
take copies thereof and require the Depositary, the Receipt registrar and any
co-transfer agents or co-registrars to supply copies of such portions of such
records as the Company may request. The Depositary shall furnish to the Company
promptly upon the written request of the Company, a list of the names, addresses
and holdings of American Depositary Shares by all Holders as of a recent date.
SECTION 5.02. Prevention or Delay in Performance. Neither the
Depositary, its agents nor the Company shall incur any liability if, by reason
of any present or future law, any applicable provision of or governing any
Deposited Securities, act of God, war or other circumstances beyond its control,
the Depositary, its agents or the Company shall be prevented or forbidden from,
or subjected to any civil or criminal penalty on account of, or delayed in,
doing or performing any act or thing which by the terms of this Deposit
Agreement it is provided shall be done or performed, nor shall the Depositary,
its agents or the Company incur any liability to any Holder or other person by
reason of any nonperformance or delay, caused as aforesaid, in performance of
any act or thing that by the terms of this Deposit Agreement it is provided
shall or may be done or performed, or by reason of any exercise of, or failure
to exercise, any discretion provided for in this Deposit Agreement.
SECTION 5.03. Obligations Limited. The Company assumes no obligation
and shall be subject to no liability under this Deposit Agreement or the
Receipts to Holders or other persons, except to perform such obligations as are
specifically set forth and undertaken by it to perform in this Deposit Agreement
without gross negligence or bad faith. Each of the Depositary and its agents
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to Holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to perform in
this Deposit Agreement without gross negligence or bad faith. Without limitation
of the preceding sentence, none of the Depositary, its agents or the Company
shall be: (a) under any obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or in respect of
the Receipts, that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required; or (b) liable for any action or inaction by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Holder, or any other person believed
by it to be competent to give such advice or information. The Depositary, its
agents and the Company may rely and shall be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties. The
Depositary and its Agents shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, for the manner in
which any such vote is cast or for the effect of any such vote. In no event
shall the Depositary or any of its agents be liable for any indirect, special,
punitive or consequential damages. In no event shall the
14
Company or any of its agents be liable to any Holder or other third party for
any indirect, special, punitive or consequential damages. The Depositary and its
agents may own and deal in any class of securities of the Company and its
affiliates and in Receipts. 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; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of its election so to do delivered to the Company or
be removed as Depositary by the Company by written notice of such removal
delivered to the Depositary, such resignation or removal to take effect upon the
appointment of and acceptance by a successor depositary as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed,
the Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
The City of New York. Every successor depositary shall execute and deliver to
its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor; but such predecessor, nevertheless
upon payment of all sums due to 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, and such predecessor shall
thereupon 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 Holders. Any such successor depositary shall promptly mail notice of
its appointment to the Holders. Any corporation into or with which the
Depositary may be merged or consolidated shall be the successor of the
Depositary without the execution or filing of any document or any further act.
SECTION 5.05. The Custodian. The Depositary, upon the request or with
the approval of the Company, may from time to time (and shall, as promptly as
practicable, whenever there be no Custodian hereunder) appoint one or more
agents to act for it as Custodian hereunder. Each Custodian so appointed (other
than JPMorgan Chase Bank) shall give notice in writing to the Company and the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms hereof. The Custodian in acting hereunder shall be subject at all times
and in all respects to the directions of the Depositary and shall be responsible
solely to it. The Custodian may resign 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. The Depositary may discharge
the Custodian at any time upon notice to the Custodian being discharged. Any
Custodian ceasing to act hereunder as Custodian shall deliver all Deposited
Securities held by it to a Custodian continuing to act upon the instruction of
the Depositary. The Depositary shall give notice in writing to all Holders of
the name and location of the appointment of any Custodian not named in the
Receipts. Upon the appointment of any successor depositary hereunder, the
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 the
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of the Custodian, execute and deliver to
the Custodian all such instruments as may be proper to give to the
15
Custodian full and complete power and authority as agent hereunder of such
successor depositary.
SECTION 5.06. Notices and Reports to Holders. On or before the first
date on which the Company gives notice, by publication or otherwise, of any
meeting of holders of Shares or other Deposited Securities, or of any adjourned
meeting of such holders, or of the taking of any action by such holders other
than at a meeting, the Company shall transmit to 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 Depositary will, at the Company's expense, arrange for
the prompt transmittal by the Custodian to the Depositary of such notices and of
any reports and other communications that are made generally available by the
Company to holders of its Shares or other Deposited Securities and arrange for
the mailing, at the Company's expense, of copies thereof to all Holders or, at
the request of the Company, make such notices, reports and other communications
available to all Holders on a basis similar to that for holders of Shares or
other Deposited Securities, or on such other basis as the Company may advise the
Depositary may be required by any applicable law, regulation or stock exchange
requirement. The Company has delivered to the Depositary and the Custodian a
copy of the provisions of and governing the Shares and any other Deposited
Securities issued by the Company or any affiliate of the Company, and promptly
upon any amendment thereto or change therein, the Company shall deliver to the
Depositary and the Custodian a copy of such provisions as so amended or changed,
The Depositary may rely upon such copy for all purposes of this Agreement. The
Depositary will, at the expense of the Company, make such copy and such
notices, reports and other communications available for inspection by Holders at
the Depositary's office, at the office of the Custodian and at any other
designated transfer offices.
SECTION 5.07. Issuance of Additional Shares, etc. Before the Company
or any company control1ing, controlled by or under common control with the
Company (a) issues (i) additional Shares, (ii) rights to subscribe for Shares,
(iii) securities convertible into or exchangeable for Shares, or (iv) rights to
subscribe for any such securities or (b) deposits any Shares under this Deposit
Agreement, the Company will furnish to the Depositary a written opinion from
counsel for the Company in the United States, which counsel shall be
satisfactory to the Depositary, to the effect that a registration statement
under the Securities Act of 1933 in respect of such issue or deposit is either
in effect or not required under such Act. The Depositary will use reasonable
efforts to comply with written instructions of the Company to not accept for
deposit hereunder any Shares identified in such instructions at such times and
under such circumstances as may reasonably be specified in such instructions in
order to facilitate the Company's compliance with securities laws in the United
States.
SECTION 5.08. Indemnification. The Company shall indemnify, defend and
save harmless the Depositary, the Custodian, any Receipt registrar, co-transfer
agent, co-registrar or any other agent of the Depositary appointed hereunder
(the "indemnified persons") against any loss, liability or expense (including
fees and expenses of counsel) that may arise (a) out of acts performed or
omitted in connection with this Deposit Agreement and the Receipts, as the same
may be amended, modified or supplemented from time to time, (i) by any
indemnified person, except to the extent such loss, liability or expense is due
to gross negligence or bad faith of such
16
indemnified person, or (ii) by the Company or any of its agents, or (b) out of
or in connection with any offer or sale of Receipts, American Depositary Shares,
Shares or other Deposited Securities or any registration statement under the
Securities Act of 1933 in respect thereof, except to the extent such loss,
liability or expense is due to information (or omissions from such information)
relating to such indemnified person, furnished in writing to the Company by such
indemnified person expressly for use in a registration statement under the
Securities Act of 1933. The obligations set forth in this Section 5.08 shall
survive the termination of this Deposit Agreement and the succession or
substitution of any indemnified person.
SECTION 5.09. Charges of Depositary. The Company agrees to pay all
charges and expenses of the Depositary and those of any Receipt registrar,
co-transfer agent and co-registrar and any other agent of the Depositary
appointed under this Deposit Agreement (except those of the Custodian which are
for the sole account of the Depositary) that are shown in Exhibit B hereto,
which is hereby incorporated herein, to be payable by the Company,
notwithstanding the termination of this Deposit Agreement or the succession or
substitution of any of such person. Any other charges and expenses of the
Depositary and its agents hereunder not otherwise provided for herein will be
paid by the Company upon consultation and agreement between the Depositary and
the Company.
SECTION 5.10. Statutory Reports. The Depositary shall make available
for inspection by Holders at the Depositary's Office and at any other designated
transfer offices any reports and communications received from the Company which
are both (a) received by the Depositary, the Custodian or the nominee of either
as the holder of Deposited Securities and (b) made generally available to the
holders of Deposited Securities by the Company.
SECTION 5.11. Available Information to the Commission. The Company is
subject to the periodic reporting requirements under the Securities Exchange Act
of 1934 and will in accordance therewith file reports and other information with
the Commission. Such reports and other information may be inspected and copied
at the public reference facilities maintained by the Commission located at the
date hereof at Judiciary Plaza, 000 Xxxxx Xxxxxx X.X., Xxxxxxxxxx, X.X. 00000.
ARTICLE VI
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 in any respect that they may
deem necessary or desirable. Any amendment that shall impose or increase any
fees or charges (other than the fees and charges referred to in clauses (a)
through (c) in Exhibit B hereto) or that shall otherwise prejudice any
substantial existing right of Holders, shall not, however, become effective as
to outstanding Receipts until the expiration of three months after notice of
such amendment shall have been given to the Holders. Every Holder at the
expiration of three months after such notice shall be deemed by holding such
Receipt to consent and agree to such amendment and to be
17
bound by the Deposit Agreement or the Receipts as amended thereby. In no event
shall any amendment impair the right of the Holder 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 giving notice of
such termination to the Holders at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may terminate this Deposit
Agreement, upon the notice set forth in the preceding sentence of this Section
6.02, at any time after 90 days after the Depositary shall have delivered to the
Company its written resignation if, at the end of such 90 days, a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.04. After the date so fixed for termination, the
Depositary and its agents shall perform no further acts under this Deposit
Agreement, except to advise Holders of such termination, to receive and hold
distributions on Deposited Securities (or convert them into cash as provided in
this Deposit Agreement), and to deliver Deposited Securities in exchange for
Receipts surrendered to the Depositary. As soon as practicable after the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and may thereafter (so long as it may
lawfully do so) hold the net proceeds of any such sale, together with any other
cash then held by it hereunder, without liability for interest, for the pro rata
benefit of the Holders of Receipts that have not theretofore been surrendered.
After making such sale, the Depositary shall be discharged from all obligations
in respect of the Receipts and this Deposit Agreement, except to account for
such net proceeds and other cash. After the date so fixed for termination, the
Company shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary and its agents under Sections 5.08
and 5.09.
ARTICLE VII.
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in
any number of counterparts, each of which shall be deemed an original and all of
such counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodian and shall
be open to inspection by any Holder during business hours.
SECTION 7.02. No Third Party Beneficiaries. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not 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.
18
SECTION 7.04. Holders Parties; Binding Effect. The Holders and owners
of Receipts from time to time shall be parties to this Deposit Agreement and
shall be bound by all of the terms and conditions hereof and of the Receipts by
acceptance thereof.
SECTION 7.05. Notices. (a) To the Company. Any and all notices to be
given to the Company shall be duly given if personally delivered or sent by
mail, first class airmail postage prepaid, or by cable, telex or facsimile
transmission in each case confirmed by letter, addressed to P & O Princess
Cruises plc, 00 Xxx Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Attention: The Secretary, or
any other address which the Company may specify in writing to the Depositary.
(b) To the Depositary. Any and all notices to be given to the
Depositary shall be duly given if personally delivered or sent by mail, first
class airmail postage prepaid, or by cable, telex or facsimile transmission in
each case confirmed by letter, addressed to JPMorgan Xxxxx Xxxx, 0 Xxxxx
Xxxxxxxxx Plaza, 40th Floor, New York, New York 10081, Attention: ADR
Administration, which is the location of the Depositary's Office on the date of
this Deposit Agreement, or any other address which the Depositary may specify in
writing to the Company.
(c) To the Holders. Any and all notices to be given to any Holder
shall be duly given if personally delivered or sent by mail, first class airmail
postage prepaid, or by cable, telex or facsimile transmission in each case
confirmed by letter, addressed to such Holder at the address of such Holder as
it appears in the transfer books for Receipts of the Depositary, or, if such
Holder shall have filed with the Depositary a written request that notices
intended for such Holder be mailed to some other address, at the address
designated in such request.
(d) General. Notice duly given as aforesaid, (i) to the Company or the
Depositary shall be deemed to be effected when received and (ii) to a Holder by
mail or by 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,
first class airmail postage prepaid, in a post office letter box. The Depositary
or the Company may act upon any cable, telex or facsimile transmission received
by it from the other or from any Holder, notwithstanding that such cable, telex
or facsimile transmission shall not subsequently be confirmed by letter or
answerback as aforesaid.
SECTION 7.06 Governing Law. This Deposit Agreement and the Receipts
shall be interpreted and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by the laws of the State of New York.
SECTION 7.07 Amendment and Restatement of Old Deposit Agreement. The
Deposit Agreement amends and restates the Old Deposit Agreement in its entirety
to consist exclusively of the Deposit Agreement, and each Old ADR is hereby
deemed amended and restated to substantially conform to the form of Receipt set
forth in Exhibit A annexed hereto.
19
IN WITNESS WHEREOF, CARNIVAL PLC and JPMORGAN CHASE BANK have duly executed
this Deposit Agreement as of the day and year first above set forth and all
holders of Receipts shall become parties hereto upon acceptance by them of
Receipts issued in accordance with the terms hereof.
CARNIVAL PLC
By
------------------------------------------
Title:
JPMORGAN CHASE BANK
By
------------------------------------------
Title: Vice President
20
EXHIBIT A
TO
DEPOSIT AGREEMENT
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPTS
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
OF
CARNIVAL PLC
(Incorporated under the laws of England)
No. __________________
JPMORGAN CHASE BANK, incorporated under the laws of the State of New
York, as depositary (the "Depositary"), hereby certifies that
_______________ is the owner of ___________ American Depositary Shares
("American Depositary Shares"), representing deposited Ordinary Shares or
evidence of rights to receive such Ordinary Shares ("Shares"), of CARNIVAL
PLC, a public limited company incorporated under the laws of England and
Wales (the "Company"). At the date hereof each American Depositary Share
represents one Share deposited under the Deposit Agreement (hereinafter
defined) at the London office of JPMorgan Chase Bank, as Custodian (the
"Custodian").
(1) The Deposit Agreement. This American Depositary Receipt is one of
the receipts (the "Receipts") executed and delivered pursuant to the
Amended and Restated Deposit Agreement dated as of April, 2003 (as amended
from time to time, the "Deposit Agreement") by and among the Company, the
Depositary and all registered holders ("Holders") from time to time of
Receipts, each of whom by accepting a Receipt becomes a party thereto,
bound by all applicable terms and provisions thereof and hereof. The
Deposit Agreement sets forth the rights of Holders and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and
any and all other securities, property and cash from time to time received
in respect of such Shares and held thereunder (such Shares, securities,
property and cash, collectively, the "Deposited Securities"). Copies of the
Deposit Agreement and of the Company's provisions of or governing Deposited
Securities are on file at the Depositary's Office, the office
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of the Custodian and at any other designated transfer offices. The
statements made on, the face and the reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and
subject to the detailed provisions thereof. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities. Capitalized terms used herein that are not defined herein shall
have the meanings assigned to them in the Deposit Agreement.
(2) Withdrawal of Deposited Securities. Upon surrender of this Receipt
and payment of the fee of the Depositary provided for in paragraph (8) on
the face of this Receipt at the Depositary's Office or at such other
offices as it may designate, subject to the Deposit Agreement, and
applicable provisions of or governing the Deposited Securities, the Holder
hereof is entitled to the delivery without unreasonable delay at the office
of the Custodian to such Holder or upon such Holder's order of the
Deposited Securities at the time represented by the American Depositary
Shares evidenced by this Receipt. Delivery of such Deposited Securities may
be made by the delivery of certificates, to the extent such Deposited
Securities may be represented by certificates, in the name of the Holder
hereof or as ordered by such Holder or by the delivery of certificates
which, if required by law, shall be properly endorsed or accompanied by
properly executed instruments of transfer or, in the case of cash or
property, in the manner described on the reverse hereof. At the request,
risk and expense of the Holder hereof, the Depositary shall direct the
Custodian to forward such Deposited Securities for delivery at the
Depositary's Office or at such other place as may have been designated by
the Depositary and specified by the Holder. Notwithstanding any provision
of the Deposit Agreement or this Receipt to the contrary, the Depositary
may restrict withdrawals of Deposited Securities only for the reasons set
forth in General Instruction I.A.(1) to Form F-6 (as such instructions may
be amended from time to time) under the Securities Act of 1933.
(3) Transfers, Split-ups and Combinations. This Receipt is
transferable on the register maintained by the Depositary by the Holder
hereof in person or by duly authorized attorney, upon surrender of this
Receipt at any designated transfer office properly endorsed or accompanied
by proper instruments of transfer and duly stamped as may be required by
applicable law; provided that the Depositary may close the Receipt register
at any time or from time to time when deemed expedient by it in connection
with the performance of its duties under the Deposit Agreement or at the
request of the Company. This Receipt may be split into other Receipts or
may be combined with other Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as those evidenced by the
Receipt or Receipts surrendered.
(4) Certain Limitations. Prior to the execution and delivery,
registration, registration of transfer, split-up or combination of any
Receipt, the delivery of any distribution in respect thereof, or the
withdrawal of any Deposited Securities, the Depositary, the Company or the
Custodian may require: (a) payment of (i) any stock transfer or other tax
or other governmental charge with respect thereto, (ii) any stock
transfer or registration fees in effect for the registration of transfers
of Shares or other Deposited Securities generally in any applicable
register and (iii) any applicable charges as provided in paragraph (8) on
the face of this Receipt; (b) proof satisfactory to it of the identity and
genuineness of any signature and of such other information (including,
without limitation, information as to citizenship, residence, exchange
control
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approval, or legal or beneficial ownership of any securities) as it may
deem necessary or proper or as the Company may require; and (c) compliance
with such regulations, if any, as the Depositary may establish consistent
with the Deposit Agreement. The delivery of Receipts against deposits of
Shares generally or particular Shares, or the registration of transfer of
Receipts or withdrawal of Deposited Securities generally or in particular
instances may be suspended or refused, during any period when the Receipt
register or any register for Shares or other Deposited Securities is closed
or when any such action is deemed necessary or advisable by the Depositary
or the Company for any reason. The Depositary may issue Receipts against
rights to receive Shares from the Company, or any Custodian, or any
registrar, transfer agent, clearing agency or other entity recording Share
ownership or transactions. The Depositary may issue Receipts against other
rights to receive Shares (a "pre-release") only if (x) such Receipts are
fully collateralized (marked to market daily) with cash or U.S. government
securities until such Shares are deposited, (y) the applicant for such
Receipts represents in writing that it owns such Shares, has assigned all
beneficial right, title and interest in such Shares to the Depositary,
holds such Shares for the account of the Depositary, shall not dispose of
such Shares other than in satisfaction of the pre-release and will deliver
such Shares to the Custodian within five business days of demand therefor
(no evidence of ownership is required or time of delivery specified) and
(z) all such Receipts represent not more than 30% of all American
Depositary Shares (excluding those evidenced by Pre-released ADRs),
provided, however, that the Depositary reserves the right to change or
disregard such limit from time to time as it deems appropriate. Such
collateral, but not the earnings thereon, shall be held for the benefit of
the Holders. The Depositary may retain for its own account any compensation
for the issuance of Receipts against such other rights to receive Shares,
including without limitation earnings on the collateral securing such
rights. Without limitation of the foregoing, the Depositary will not
knowingly accept for deposit under the Deposit Agreement any Shares
required to be registered pursuant to the provisions of the United States
Securities Act of 1933, as amended, unless a registration statement is in
effect as to such Shares. The Depositary will use reasonable efforts to
comply with instructions of the Company to not accept for deposit hereunder
any Shares identified in such instructions at such times and under such
circumstances as may reasonably be specified in such instructions in order
to facilitate the Company's compliance with securities laws in the United
States.
(5) Liability of Holder for Taxes. If any tax or other governmental
charge shall become payable by or on behalf of the Custodian or the
Depositary with respect to this Receipt or any Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt,
such tax or other governmental charge shall be payable by the Holder
hereof, who shall pay the amount thereof to the person who has paid such
tax or other governmental charge. The Depositary may refuse to effect any
registration of transfer of this Receipt or any withdrawal of such
Deposited Securities until such payment is made, and may withhold or deduct
from any distributions on such Deposited Securities, or may sell for the
account of the Holder hereof any part or all of such Deposited Securities
(after attempting by reasonable means to notify the Holder hereof prior to
such sale), and may apply such cash or the proceeds of any such sale in
payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency.
A-3
(6) Warranties by Depositor. Every person depositing Shares under the
Deposit Agreement shall be deemed thereby to represent and warrant that
such Shares and each certificate therefor are validly issued and
outstanding, fully paid, non assessable and free of preemptive rights, and
that the person making such deposit is duly authorized so to do and that
such Shares (A) are not "restricted securities" as such term is defined in
Rule 144 under the Securities Act of 1933 unless at the time of deposit
they may be freely transferred in accordance with Rule 144(k) and may
otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. Such representations and
warranties shall survive the deposit of Shares and issuance of Receipts.
(7) Disclosure of Interests. Notwithstanding any other provision of
the Deposit Agreement or this Receipt, each Holder agrees to comply with
requests from the Company which are made under statutory provisions in the
United Kingdom to provide information as to the capacity in which such
Holder owns Receipts and regarding the identity of any other person
interested in such Receipts and the nature of such interest and may,
pursuant to such statutory provisions and any provisions of the Articles of
Association of the Company, forfeit the right to vote and to direct the
voting of, and be prohibited from transferring, Receipts as to which
compliance is not made, all as if such Receipts were to the extent
practicable the Shares represented by the American Depositary Shares
evidenced thereby, and the Depositary agrees to use its reasonable efforts
to comply with any instructions received from the Company requesting that
the Depositary take the reasonable actions specified therein to obtain such
information.
(8) Charges of Depositary. The Depositary will charge each person to
whom Receipts are delivered against deposits of Shares, and each person
surrendering Receipts for withdrawal of Deposited Securities, U.S. $5.00
for each 100 American Depositary Shares (or portion thereof) evidenced by
the Receipts delivered or surrendered. The Company will pay all other
charges of the Depositary and those of any Receipt registrar, co-transfer
agent, co-registrar and any other agent of the Depositary (except the
Custodian), plus reasonable expenses, except (i) stock transfer or other
taxes and other governmental charges (which are payable by Holders or
persons depositing Shares), (ii) cable, telex and facsimile transmission
and delivery charges incurred at the request of persons depositing Shares
or Holders, of Receipts in connection with the delivery of Shares, Receipts
or Deposited Securities, (which are payable by such persons or Holders),
(iii) transfer or registration fees for the registration of transfers of
deposited Shares and other Deposited Securities on any applicable register
in the name of the Custodian or its nominee or in connection with any
withdrawal of Deposited Securities (which are payable by the person
depositing Shares or withdrawing Deposited Securities), and (iv) such
charges as are incurred or paid by the Depositary in the conversion of
foreign currency into U.S. dollars (which are reimbursable out of such
foreign currency). The provisions in respect of these charges may be
changed in the manner indicated on the reverse hereof.
(9) Title to Receipts. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consents and
agrees, that title to this Receipt (and to the Deposited Securities
represented by the American Depositary Shares evidenced hereby), when
properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, that the Depositary,
A-4
notwithstanding any notice to the contrary, may treat the person in whose
name this Receipt is registered on the register maintained by the
Depositary as the absolute owner hereof for the purpose of determining the
person entitled to any distribution or notice and for all other purposes.
(10) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any
purpose unless executed by the Depositary by the manual signature of a duly
authorized officer of the Depositary or, if a Receipt registrar for the
Receipts shall have been appointed, by the manual signature of a duly
authorized officer of such registrar or any co-registrar.
(11) Available Information. The Company is subject to the periodic
reporting requirements under the Securities Exchange Act of 1934 and will
in accordance therewith file reports and other information with the
Commission. Such reports and other information may be inspected and copied
at the public reference facilities maintained by the Commission located at
the date hereof at Judiciary Plaza, 000 Xxxxx Xxxxxx X.X., Xxxxxxxxxx, X.X.
00000.
Dated:
JPMORGAN CHASE BANK, as Depositary
By
--------------------------------
(Title)
As of the date of the Deposit Agreement, the address of the
Depositary's Office is 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-5
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(1) Distributions upon Deposited Securities. Whenever the
Depositary or the Custodian shall receive any cash dividend or other cash
distribution upon any Deposited Securities, the Depositary or the Custodian
shall, after any necessary conversion of such distribution to U.S. dollars
as hereinafter discussed and fixing a record date in respect thereof for
determining Holders entitled thereto referred to in paragraph (2) below,
subject to the provisions of the Deposit Agreement, distribute the amount
thus received, by checks drawn on a bank in The City of New York, to the
Holders entitled thereto on such record date of Receipts evidencing
American Depositary Shares representing such Deposited Securities, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by each of them respectively; provided that the
Depositary shall make appropriate adjustments in the amounts so distributed
in respect of (a) any of the Deposited Securities being not entitled, by
reason of their date of issuance or otherwise, to receive all or any
portion at such distribution or (b) any amounts (i) required to be withheld
by the Company, the Custodian or the Depositary on account of taxes or (ii)
charged by the Depositary or withheld from distribution in connection with
the conversion of foreign currency into U.S. dollars. If in the judgment of
the Depositary amounts received in foreign currency may not be converted on
a reasonable basis into U.S. dollars transferable to the United States, or
may not be so convertible for all of the Holders entitled thereto, the
Depositary may in its discretion either make such conversion and
distribution in U.S. dollars to the extent permissible to the Holders
entitled thereto and may distribute the balance of the foreign currency
received and not so convertible by the Depositary to, or hold such balance
or all such foreign currency for the respective accounts of, the Holders
entitled thereto for whom such conversion and distribution is not
practicable. If in the opinion of the Depositary any distribution other
than cash or Shares upon any Deposited Securities cannot be made
proportionately among the Holders entitled thereto, or if for any other
reason the Depositary deems such distribution not to be feasible, the
Depositary may adopt such method as it may deem equitable for the purpose
of effecting such distribution, including the sale (at public or private
sale) of the securities or property thus received, or any part thereof, and
the net proceeds of any such sale will be distributed by the Depositary to
the Holders entitled thereto as in the case of a distribution received in
cash. If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall
if the Company shall so request, subject to the provisions of the Deposit
Agreement, distribute to the Holders entitled thereto on a record date
referred to in paragraph (2) below of Receipts evidencing American
Depositary Shares representing such Deposited Securities, in proportion to
the number of American Depositary Shares representing such Deposited
Securities held by each of them respectively, additional Receipts for an
aggregate number of American Depositary Shares corresponding to the number
of Shares received as such dividend or free distribution. In lieu of
delivering Receipts for fractional American Depositary Shares in the case
of any such distribution, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the net
proceeds to the Holders entitled thereto as in the case of a distribution
received in cash. If additional Receipts are not so distributed, each
American Depositary Share shall thenceforth also
A-6
represent the additional Shares so distributed upon such Deposited
Securities. If 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 nature, the Depositary shall have discretion as
to whether such rights are to be made available to the Holders; provided
that the Depositary will, if requested by the Company, either (y) make such
rights available to Holders by means of warrants or otherwise, if lawful
and feasible, or (z) if making such rights available is not lawful or not
feasible, or if such rights or warrants are not exercised and appear to be
about to lapse, sell such rights or warrants at public or private sale, at
such place or places and upon such terms as the Depositary may deem proper,
and allocate the proceeds of such sales for account of the Holders
otherwise entitled thereto upon an averaged or other practicable basis
without regard to any distinctions among such Holders because of exchange
restrictions, or the date of delivery of any Receipt or Receipts, or
otherwise, and distribute the net proceeds so allocated to the Holders
entitled thereto as in the case of a distribution received in cash. The
Depositary need not distribute securities, Receipts or rights unless the
Company furnishes certain evidence or opinions in respect of United States
securities laws (which the Company has no obligation to do).
(2) Record Dates. Whenever any distribution referred to in
paragraph (1) above is being made upon any Deposited Securities or any
meeting of holders of Shares or other Deposited Securities is being held or
wherever the Depositary shall find it necessary or convenient in connection
with the giving of a notice or solicitation of a consent or any other
matter, the Depositary will fix a record date for the determination of the
Holders of Receipts evidencing the American Depositary Shares representing
such Deposited Securities who shall be entitled to receive such
distribution or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting, or
receive such notice or solicitation or act in respect of such other matter,
subject to the provisions of the Deposit Agreement .
(3) Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary will mail to the Holders a notice that will
contain (a) such information as is contained in such notice of meeting and
(b) a statement that the Holders at the close of business on a specified
record date will be entitled, subject to any applicable provisions of law
and applicable provisions of and governing the Deposited Securities, to
instruct the Depositary as to the exercise of voting rights, if any,
pertaining to the amount of Deposited Securities represented by their
respective number of American Depositary Shares, and (c) a brief statement
as to the manner in which such instructions may be given, including an
express indication that instructions may be given to the Depositary to give
a discretionary proxy to a person designated by the Company. Upon the
written request of a Holder on such record date, received on or before the
date established by the Depositary for such purpose, the Depositary will
endeavor insofar as practicable and permitted under any applicable
provisions of law and applicable provisions of or governing the Deposited
Securities, to vote or cause to be voted the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Holder's
Receipt or Receipts in accordance with any nondiscretionary instructions
set forth in such request. The Depositary will not vote any Deposited
Securities represented by the American Depositary Shares evidenced by this
Receipt except in accordance with written instructions from the Holder
entitled hereunder to give such instructions.
A-7
(4) Changes Affecting Deposited Securities. Upon any change in
par value, split-up, consolidation, cancellation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the
Company or to which it is a party, any securities that shall be received by
the Depositary in exchange for, or in conversion, replacement or otherwise
in respect of, Deposited Securities shall be treated as Deposited
Securities under the Deposit Agreement, and this Receipt shall thenceforth
evidence American Depositary Shares representing the right to receive the
Deposited Securities so received to the extent that additional Receipts are
not delivered pursuant to the following sentence. In any such case, the
Depositary may with the Company's approval, and shall if the Company shall
so request, execute and deliver additional Receipts as in the case of a
dividend of Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts.
(5) Reports; Inspection of Register. The Depositary will make
available for inspection by Holders at the Depositary's Office and at any
other designated transfer offices any reports and communications received
from the Company which are both (a) received by the Depositary, the
Custodian or the nominee of either as the holder of the Deposited
Securities and (b) made generally available to the holders of Deposited
Securities by the Company. The Depositary will also mail or make available
to Holders copies of such reports when furnished by the Company as provided
in the Deposit Agreement. The Depositary will keep a register, at its
transfer office in The City of New York, for the registration of Receipts
and their transfer, which at all reasonable times will be open for
inspection by the Holders and the Company; provided that such inspection
shall not be for the purpose of communicating with Holders 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.
(6) Withholding. In connection with any distribution to Holders,
the Company will remit to the appropriate governmental authority or agency
all amounts (if any) required to be withheld and owing to such authority or
agency by the Company and the Depositary will remit to the appropriate
governmental authority or agency all amounts (if any) required to be
withheld and owing to such authority or agency by the Depositary. If the
Depositary determines that any distribution in property (including Shares
or Rights to subscribe therefor) on Deposited Securities is subject to any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including
Shares and rights to subscribe therefor) in such amounts and in such manner
as the Depositary deems necessary and practicable to pay such taxes, by
public or private sale, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after
deduction of such taxes to the Holders entitled thereto.
(7) Liability of the Company and the Depositary. Neither the
Depositary, its agents nor the Company shall incur any liability if, by
reason of' any present or future law, applicable provision of or governing
any Deposited Security, act of God, war or other circumstance beyond its
control, the Depositary, its agents or the Company shall be prevented or
forbidden from, or subjected to any civil or criminal penalty on account
of, or delayed in, doing or performing any act or thing which by the terms
of the Deposit Agreement it is provided shall
A-8
be done or performed. Each of the Company, the Depositary and its agents
assume no obligation and shall be subject to no liability under the Deposit
Agreement or this Receipt to Holders or other persons, except to perform
such obligations as are specifically set forth and undertaken by it to
perform in the Deposit Agreement without gross negligence or bad faith.
Neither the Depositary, its agents nor the Company will 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 this
Receipt that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished
as often as may be required. Neither the Depositary, its agents nor the
Company will be liable for any action or inaction by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, or any other person believed by
it to be competent to give such advice or information. The Depositary, its
agents and the Company may rely and shall be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible for any
failure to carry out any instructions to vote any of the Deposited
securities, for the manner in which any such vote is cast or the effect of
any such vote. The Depositary and its agents may own and deal in any class
of securities of the Company and its affiliates and in Receipts. The
Company has agreed to indemnify the Depositary, the Custodian, any Receipt
registrar, co-transfer agent, co-registrar or other agent of the Depositary
appointed hereunder (the "indemnified persons") against any loss, liability
or expense (including fees and expenses of counsel) that may arise (a) out
of acts performed or omitted in connection with the Deposit Agreement and
the Receipts, (i) by any indemnified person, except to the extent that any
such loss, liability or expense is due to the gross negligence or bad faith
of such indemnified person, or (ii) by the Company or any of its agents, or
(b) out of or in connection with any offer or sale of Receipts, American
Depositary Shares, Shares or any other Deposited Securities or any
registration statement under the Securities Act of 1933 in respect thereof.
In no event shall the Depositary or any of its agents be liable for any
indirect, special, punitive or consequential damages. In no event shall the
Company or any of its agents be liable to any Holder or other third party
for any indirect, special, punitive or consequential damages.
(8) Resignation and Removal of Depositary; the 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, or be
removed by the Company by written notice of such removal, such resignation
or removal to take effect upon the appointment of and acceptance by a
successor depositary as provided in the Deposit Agreement. The Depositary
may, upon written request or written approval of the Company, at any time
appoint substitute or additional custodians and the term "Custodian" refers
to each Custodian or all Custodians as the context requires.
(9) Amendment of Deposit Agreement and Receipts. The Receipts and
the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary. Any amendment that shall
impose or increase any fees or charges (other than stock transfer or other
taxes and other governmental charges, transfer or registration fees, cable,
telex or facsimile transmission costs, delivery costs, and expenses of the
Depositary in connection with conversion of foreign currency into U.S.
dollars) or that shall
A-9
otherwise prejudice any substantial existing right of Holders, shall not,
however, become effective as to outstanding Receipts until the expiration
of three months after notice of such amendment shall have been given to the
Holders. Every Holder at the expiration of such three months shall be
deemed by holding such Receipt to consent and agree to such amendment and
to be bound by the Deposit Agreement or the Receipt as amended thereby. In
no event shall any amendment impair the right of the Holder hereof to
surrender this Receipt and receive therefor the Deposited Securities
represented hereby, except in order to comply with mandatory provisions of
applicable law.
(10) Termination of Deposit Agreement. The Depositary will at any
time at the direction of the Company terminate the Deposit Agreement by
mailing notice of such termination to the Holders at least 30 days prior to
the date fixed in such notice for such termination. The Depositary may
terminate the Deposit Agreement, upon the notice set forth in the preceding
sentence, at any time after 90 days after the Depositary shall have
resigned, if a successor depositary shall not have been appointed and
accepted its appointment. After the date so fixed for termination, the
Depositary will perform no further acts under the Deposit Agreement, except
to advise Holders of such termination, receive and hold distributions on
Deposited Securities (or convert them into cash) and deliver Deposited
Securities being withdrawn. As soon as practicable after the expiration of
six months from the date so fixed for termination, the Depositary shall
sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold the net proceeds of any such sale, together with any
other cash then held by it under the Deposit Agreement, without liability
for interest, for the pro rata benefit of the Holders of Receipts not
theretofore surrendered for withdrawal of Deposited Securities.
A-10
EXHIBIT B
TO
DEPOSIT AGREEMENT
CHARGES OF THE DEPOSITARY
The charges of the Depositary, subject to Sections 5.09 and 6.01
of the Deposit Agreement, are as follows:
Service Rate By Whom Paid
------- ---- ------------
(1) Delivery of Receipts U.S.$0.05 per American Person to whom
against deposits Depositary Share Receipts are
of Shares delivered
(2) Withdrawal of U.S.$0.05 per American Person
surrendering Deposited Securities Depositary Share
Receipts
against surrender of
Receipts
The Company will pay all other charges of the Depositary and those of
any Receipt registrar, co-transfer agent, co-registrar and any other agent
of the Depositary (except the Custodian), plus reasonable expenses such as
printing, translation, stationery, postage, insurance, cables, etc.,
incurred by the Depositary or any such person in the exercise of its duties
and obligations under the Deposit Agreement, in accordance with agreements
in writing entered into between the Depositary and the Company from time to
time, except (a) stock transfer or other taxes and other governmental
charges, and cable, telex, facsimile transmission and delivery charges,
which are payable by persons depositing Shares or Holders, (b) transfer or
registration fees for the registration of transfers of deposited Shares and
other Deposited Securities on any applicable register in the name of the
Custodian or its nominee or in connection with the withdrawal of Deposited
Securities (which are payable by persons depositing Shares or withdrawing
Deposited Securities) and (c) charges of the Depositary in connection with
the conversion of foreign currency into U.S. dollars (which are
reimbursable out of such foreign currency).
B-1
