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IMPERIAL TOBACCO GROUP PLC
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
OUTSTANDING UNDER THE TERMS OF THE
AMENDED AND RESTATED DEPOSIT AGREEMENT, DATED AS OF
NOVEMBER 2, 1998
---------------------------------------
Amendment No. 1
to
Deposit Agreement
---------------------------------------
Dated as of September 12, 2008
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Table of Contents
Page
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ARTICLE I
DEFINITIONS....................................................................2
SECTION 1.01 Definitions................................................2
SECTION 1.02 Effective Date.............................................2
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT................................................2
SECTION 2.01 Deposit Agreement..........................................2
SECTION 2.02 Amendments Binding on all Holders and Beneficial Owners....3
SECTION 2.03 Deregistration of Securities...............................3
ARTICLE III
AMENDMENTS TO THE FORM OF ADR..................................................4
SECTION 3.01 ADR Amendment..............................................4
SECTION 3.02 Deregistration of Securities...............................5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.................................................6
SECTION 4.01 Representations and Warranties.............................6
ARTICLE V
MISCELLANEOUS..................................................................6
SECTION 5.01 New ADRs...................................................6
SECTION 5.02 Notice of Amendment to Holders of ADSs.....................7
SECTION 5.03 Indemnification............................................7
SECTION 5.04 Ratification...............................................8
SECTION 5.05 Governing Law..............................................8
SECTION 5.06 Counterparts...............................................8
i
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of
September 12, 2008 (the "Amendment"), by and among Imperial Tobacco Group PLC,
a public limited company incorporated in England (the "Company"), Citibank,
N.A., a national banking association organized under the laws of the United
States of America (the "Depositary"), and all Holders and Beneficial Owners from
time to time of American Depositary Shares outstanding under the Amended and
Restated Deposit Agreement, dated as of November 2, 1998.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain Amended
and Restated Deposit Agreement, dated as of November 2, 1998 and as amended and
supplemented prior to the date hereof by Letter Agreements, dated September 21,
2007 and as of May 20, 2008 (as so amended and supplemented, the "Deposit
Agreement"), for the creation of American Depositary Shares representing the
Shares (as defined in the Deposit Agreement) so deposited and for the execution
and delivery of American Depositary Receipts ("ADRs") in respect of the American
Depositary Shares; and
WHEREAS, the Company has filed a Form 15F with the U.S. Securities and
Exchange Commission ("SEC") in order to seek to terminate the registration of
its securities under the United States Securities and Exchange Act of 1934, as
amended ("Exchange Act"), and its obligation to file with the SEC, or submit to
the SEC, reports under Sections 13(a) and 15(d) of the Exchange Act.
WHEREAS, the Company desires to (x) amend the Deposit Agreement, the ADRs
currently outstanding and the form of ADR annexed to the Deposit Agreement to
reflect such change, and (y) to give notice thereof to all Holders (as defined
in the Deposit Agreement) of ADSs; and
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement, the ADRs currently outstanding and the form of ADR annexed to the
Deposit Agreement as Exhibit A for the purposes set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement, the ADRs currently outstanding and
the form of ADR annexed as Exhibit A to the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Unless otherwise specified in this
Amendment, all capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the Deposit Agreement.
SECTION 1.02 Effective Date. The term "Effective Date" shall mean
the date set forth above and as of which this Amendment shall become effective.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01 Deposit Agreement. All references in the Deposit
Agreement to the terms "Deposit Agreement" shall, as of the Effective Date,
refer to the Amended and Restated Deposit Agreement, dated as of November 2,
1998 and as amended and supplemented prior to the date hereof by Letter
Agreements, dated September 21, 2007 and as of May 20, 2008, and as amended by
this Amendment and as further amended and supplemented after the Effective Date.
2
SECTION 2.02 Amendments Binding on all Holders and Beneficial
Owners. From and after the Effective Date, the amendments to the Deposit
Agreement effected hereby shall be binding on all Holders and Beneficial Owners
of ADSs issued and outstanding as of the Effective Date and on all Holders and
Beneficial Owners of ADSs issued after the Effective Date.
SECTION 2.03 Deregistration of Securities. To reflect the
application by the Company to terminate the registration of its securities under
the Exchange Act, the Deposit Agreement is hereby amended as of the Effective
Date by deleting Section 4.12 in its entirety and inserting the following in its
stead:
"Section 4.12. Available Information. The Company has been subject
to the periodic reporting requirements of the Exchange Act, and has filed
with the Commission, and submitted to the Commission, certain reports that
can be retrieved from the Commission's internet website at xxx.xxx.xxx,
and can be inspected and copied at the public reference facilities
maintained by the Commission at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000. The Company has filed a Form 15F ("Form 15F") with the Commission,
which has suspended the Company's duty under the Exchange Act to file or
submit the reports required under Sections 13(a) or 15(d) of the Exchange
Act. Upon the effectiveness of Form 15F, the Company's duty to file or
submit reports under Sections 13(a) or 15(d) of the Exchange Act will
terminate and the Company will, pursuant to Rule 12g3-2(e)(1), receive the
exemption from the reporting obligations of the Exchange Act provided by
Rule 12g3-2(b). In order to satisfy the conditions of Rule 12g3-2(b) the
3
Company intends to publish the information contemplated in Rule
12g3-2(b)(1)(iii) under the Exchange Act on its internet website or
through an electronic information delivery system generally available to
the public in the Company's primary trading market, and to translate the
information so published into English in accordance with the instructions
to Rule 12g3-2(e). The Company has specified in Form 15F the internet
website or the electronic information delivery system on which it intends
to publish such information. The information so published by the Company
cannot be retrieved from the Commission's internet website, and cannot be
inspected or copied at the public reference facilities maintained by the
Commission. If the Form 15F is not declared effective, the Company will
again be subject to the periodic reporting requirements of the Exchange
Act and will be required to file with the Commission, and submit to the
Commission, certain reports that can be retrieved from the Commission's
internet website at xxx.xxx.xxx, and can be inspected and copied at the
public reference facilities maintained by the Commission."
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01 ADR Amendment. The first sentence of paragraph (1) of
the form of ADR attached as Exhibit A to the Deposit Agreement and in each of
the ADRs issued and outstanding under the terms of the Deposit Agreement is
hereby amended as of the Effective Date by deleting such sentence in its
entirety and inserting the following in its stead:
"This American Depositary Receipt is one of an issue (herein called
the Receipts), all issued and to be issued upon the terms and conditions set
forth in the Amended and Restated Deposit Agreement, dated as of November 2,
1998, as amended and supplemented by Letter Agreements, dated September 21, 2007
and as of May 20, 2008 and as further amended by Amendment No. 1 to Amended and
Restated Deposit Agreement, dated as of [September __, 2008] (as so amended and
supplemented, and as further amended and supplemented from time to time, the
"Deposit Agreement"), by and among the Company, the Depositary and all Holders
and Beneficial Owners from time to time of American Depositary Shares issued
thereunder, each of whom by accepting an American Depositary Share becomes bound
by all the terms and conditions thereof."
4
SECTION 3.02 Deregistration of Securities. To reflect the
application by the Company to terminate the registration of its securities under
the Exchange Act, the form of Receipt attached as Exhibit A to the Deposit
Agreement and each of the Receipts issued and outstanding under the terms of the
Deposit Agreement is hereby amended as of the Effective Date by deleting the
first sub-paragraph of paragraph (13) and inserting the following in its stead:
"The Company has been subject to the periodic reporting requirements
of the Exchange Act, and has filed with the Commission, and submitted to the
Commission certain reports that can be retrieved from the Commission's internet
website at xxx.xxx.xxx, and can be inspected and copied at the public reference
facilities maintained by the Commission at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000. The Company has filed a Form 15F ("Form 15F") with the Commission, which
has suspended the Company's duty under the Exchange Act to file or submit the
reports required under Sections 13(a) or 15(d) of the Exchange Act. Upon the
effectiveness of Form 15F, the Company's duty to file or submit reports under
Sections 13(a) or 15(d) of the Exchange Act will terminate and the Company will,
pursuant to Rule 12g3-2(e)(1), receive the exemption from the reporting
obligations of the Exchange Act provided by Rule 12g3-2(b). In order to satisfy
the conditions of Rule 12g3-2(b) the Company intends to publish the information
contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act on its internet
website or through an electronic information delivery system generally available
to the public in the Company's primary trading market. The Company has specified
in Form 15F the internet website or the electronic information delivery system
on which it intends to publish such information. The information so published by
the Company cannot be retrieved from the Commission's internet website, and
cannot be inspected or copied at the public reference facilities maintained by
the Commission. If the Form 15F is not declared effective, the Company will
again be subject to the periodic reporting requirements of the Exchange Act and
will be required to file with the Commission, and submit to the Commission,
certain reports that can be retrieved from the Commission's internet website at
xxx.xxx.xxx, and can be inspected and copied at the public reference facilities
maintained by the Commission."
5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties. The Company represents
and warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and
the Deposit Agreement and all other documentation executed and delivered by the
Company in connection therewith, will be and have been, respectively, duly and
validly authorized, executed and delivered by the Company, and constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and any other document furnished hereunder or thereunder in
England, neither of such agreements need to be filed or recorded with any court
or other authority in England, nor does any stamp or similar tax need be paid in
England on or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company
in connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 New ADRs. From and after the Effective Date, the
Depositary shall arrange to have new ADRs printed or amended that reflect the
changes to the form of ADR effected by this Amendment. All ADRs issued hereunder
after the Effective Date, once such new ADRs are available, whether upon the
deposit of Shares or other Deposited Securities or upon the transfer,
6
combination or split up of existing ADRs, shall be substantially in the form of
the specimen ADR attached as Exhibit A hereto. However, ADRs issued prior or
subsequent to the date hereof, which do not reflect the changes to the form of
ADR effected hereby, do not need to be called in for exchange and may remain
outstanding until such time as the Holders thereof choose to surrender them for
any reason under the Deposit Agreement. The Depositary is authorized and
directed to take any and all actions deemed necessary to effect the foregoing.
SECTION 5.02 Notice of Amendment to Holders of ADSs. The Depositary
is hereby directed to send notices informing the Holders of ADSs (i) of the
terms of this Amendment, (ii) of the Effective Date of this Amendment, and (iii)
that the Holder of ADRs shall be given the opportunity, but that it is
unnecessary, to substitute their ADRs with new ADRs reflecting the changes
effected by this Amendment, as provided in Section 5.01 hereof and (iv) that
Holders of Uncertificated ADSs do not need to take any action in connection with
the Amendment, and (v) that copies of this Amendment may be retrieved from the
Commission's website at xxx.xxx.xxx and may be obtained from the Depositary and
the Company upon request. The notice to Holders of ADSs shall be substantially
in the form of Exhibit B attached hereto.
SECTION 5.03 Indemnification. The parties hereto shall remain
subject to the indemnification provisions of Section 5.08 of the Deposit
Agreement, as amended hereby in connection with any and all liability it or they
may incur as a result of the terms of this Amendment and the transactions
contemplated herein.
7
SECTION 5.04 Ratification. Except as expressly amended hereby, the
terms, covenants and conditions of the Deposit Agreement as executed shall
remain in full force and effect.
SECTION 5.05 Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be wholly performed in the State of New York.
SECTION 5.06 Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
such counterparts together shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
IMPERIAL TOBACCO GROUP PLC
By: /s/ Trevor Xxxxxx Xxxxxxxx
-------------------------------
Name: Trevor Xxxxxx Xxxxxxxx
Title: Authorised Signatory
CITIBANK, N.A., as Depositary
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
8
Number CUSIP 435142101
American Depositary Shares,
each American Depositary Share
representing two (2) fully paid
Ordinary Shares
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
IMPERIAL TOBACCO GROUP PLC
(A public limited company incorporated in England - Company Number 3236483)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (herein called the
"Depositary"), hereby certifies that ______________ is the owner of ____________
American Depositary Shares, each representing two (2) deposited Ordinary Shares,
including evidence of rights to receive such Ordinary Shares (the "Shares") of
Imperial Tobacco Group PLC, a public limited company incorporated in England
(the "Company"). As of the date of the Deposit Agreement (hereinafter referred
to), each American Depositary Share represents two (2) Shares deposited under
the Deposit Agreement with the Custodian which at the date of execution of the
Deposit Agreement is Citibank, N.A., London Branch (the "Custodian"). The ratio
of Depositary Shares to shares of stock is subject to subsequent amendment as
provided in Article IV of the Deposit Agreement. The Depositary's principal
executive office is located at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts (herein called the Receipts), all issued
and to be issued upon the terms and conditions set forth in the Amended and
Restated Deposit Agreement, dated as of November 2, 1998, as amended and
supplemented by Letter Agreements, dated September 21, 2007 and as of May 20,
2008 and as further amended by Amendment No. 1 to Amended and Restated Deposit
Agreement, dated as of September 12, 2008 (as so amended and as further
A-1
amended and supplemented from time to time, the "Deposit Agreement"), by and
among the Company, the Depositary and all Holders and Beneficial Owners from
time to time of American Depositary Shares evidenced by Receipts issued
thereunder, each of whom by accepting an American Depositary Share becomes bound
by all the terms and conditions thereof. The Deposit Agreement sets forth the
rights and obligations of Holders and Beneficial Owners and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property
and cash, collectively, "Deposited Securities"). Copies of the Deposit Agreement
are on file at the Principal Office of the Depositary and the Custodian.
Holders and Beneficial Owners from time to time shall be parties to the
Deposit Agreement and shall be bound by all of the terms and conditions thereof
and of this Receipt by acceptance hereof of any beneficial interest therein.
Holders and beneficial owners of American depositary shares issued under the
Original Deposit Agreement (as defined in the Deposit Agreement) agree, by
continuing to hold such American depositary shares or to have such beneficial
interest, to be parties to the Deposit Agreement and are bound by all of the
terms and conditions hereof.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Memorandum and Articles
of Association of the Company and are qualified by and subject to the detailed
provisions of the Deposit Agreement, to which reference is hereby made. All
capitalized terms used herein which are not otherwise defined herein shall have
the meanings ascribed thereto in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of this Receipt and upon
payment of (i) the charges of the Depositary for the making of withdrawals and
cancellation of Receipts (as set forth in Article (10) hereof and Section 5.09
and Exhibit B of the Deposit Agreement) and (ii) all fees, stamp, transfer or
other applicable taxes and governmental charges payable in connection with such
surrender and withdrawal, and, subject to the terms and conditions of the
Deposit Agreement, the Company's Memorandum and Articles of Association, Article
(23) of this Receipt and the provisions of or governing the Deposited Securities
and other applicable laws, the Holder hereof is entitled to the delivery, to him
or upon his order, of the amount of Deposited Securities at the time represented
by the American Depositary Shares evidenced by this Receipt. Subject to the last
sentence of this paragraph, such Deposited Securities may be delivered in
registered form or by electronic delivery. Such Deposited Securities may be
delivered by the delivery of (a) certificates in the name of the Holder hereof
or as ordered by him or by certificates properly endorsed or accompanied by
proper instruments of transfer to such Holder or as ordered by him and (b) any
other securities, property and cash to which such Holder is then entitled in
respect of this Receipt. Delivery shall be made, at the option of the Holder
hereof, either at the principal office of the Custodian or at the Principal
Office of the Depositary for further delivery to such Holder, provided that the
forwarding of certificates for Shares or other Deposited Securities for such
delivery at the Principal Office of the Depositary shall be at the request, risk
and expense of the Holder hereof, and for the account of such Holder.
A-2
A Receipt surrendered for such purposes shall if so required by the
Depositary be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Holder thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon, the
Depositary shall direct the Custodian to deliver at the designated office of the
Custodian, subject to Sections 2.06, 3.01, 3.02, 5.09 and to the other terms and
conditions of the Deposit Agreement, the Company's Memorandum and Articles of
Association, and to the provisions of or governing the Deposited Securities and
other applicable laws, now or hereafter in effect, to or upon the written order
of the person or persons designated in the order delivered to the Depositary if
so required by the Depositary as provided above, the Deposited Securities
represented by such Receipt together with any certificate or other proper
documents of or relating to title for the Deposited Securities, except that the
Depositary may make delivery to such person or persons at the Principal Office
of the Depositary of any dividends or distributions with respect to the
Deposited Securities represented by such Receipt, or of any proceeds of sale of
any dividends, distributions or rights, which may at the time be held by the
Depositary.
The Depositary shall not accept for surrender a Receipt evidencing
American Depositary Shares representing less than one Share. In the case of
surrender of a Receipt evidencing a number of American Depositary Shares
representing other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be recorded in the name
of the Holder surrendering such Receipt, and shall deliver to the person
surrendering such Receipt the net cash proceeds from the sale by the Depositary
of any remaining fractional share.
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the
limitations set forth herein and in the Deposit Agreement, the transfer of this
Receipt is registrable on the books of the Depositary at its Principal Office by
the Holder hereof in person or by duly authorized attorney, upon surrender of
this Receipt at any of the Depositary's designated transfer offices, properly
endorsed for transfer or accompanied by a proper instrument or instruments of
transfer (including any certifications that the Depositary or the Company may
require in order to comply with applicable laws, signature guarantees in
accordance with standard industry practice and the accurate completion of any
endorsements appearing on this Receipt) and (i) duly stamped as may be required
by the laws of the State of New York and the United States of America, and (ii)
accompanied by funds sufficient to pay any applicable stamp, transfer or other
applicable taxes, duties and the charges set forth in Article (10) hereof, and
upon compliance with such regulations, if any, as the Depositary may establish
for such purpose, subject to Article (23) of this Receipt. This Receipt may be
split into other such Receipts, or may be combined with other such Receipts into
one Receipt for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary, any Custodian or any Registrar may require payment
from the presenter of the Receipt of a sum sufficient to reimburse it for any
stamp, transfer or other applicable tax, duties or other governmental charge and
any stock transfer or registration fee with respect thereto (including any such
A-3
tax, duty, charge, fee and expense with respect to Shares being deposited or
Deposited Securities being withdrawn) and payment of any applicable fees as
provided in this Receipt, may require the production of proof satisfactory to it
as to the identity and genuineness of any signature or other matters, subject to
Article (23) of this Receipt, and may also require compliance with any laws or
governmental regulations relating to American Depositary Receipts or to the
withdrawal of Deposited Securities.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of Receipts
against the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of outstanding Receipts generally may be suspended, during any
period when the transfer books of the Depositary or the Company (or the
appointed agent for the Company for the transfer and registration of Shares,
which may but need not be the Share Registrar) are closed, or if any such action
is deemed necessary or advisable by the Depositary or the Company in good faith
at any time or from time to time, because of any requirement of law or of any
government or governmental body or commission, or any securities exchange on
which the Receipts or Shares are listed, or under any provision of the Deposit
Agreement or provisions of or governing the Deposited Securities, or any meeting
of shareholders of the Company or for any other reason, subject in all cases to
Article (23) hereof. Notwithstanding any provision of the Deposit Agreement or
this Receipt to the contrary, Holders of Receipts are entitled to withdraw the
Deposited Securities at any time, subject only to the limitations permitted in
General Instructions I.A.(1) to Form F-6 (as such instruction may be amended
from time to time) under the Securities Act of 1933 in connection with (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a shareholders'
meeting, or the payment of dividends, (ii) the payment of fees, taxes, and
similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the
Securities Act of 1933, unless a registration statement is in effect as to such
Shares or other Deposited Securities.
A-4
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: ___________________________ By: ___________________________
Authorized Officer Vice President
The address of the Principal Office of the Depositary is 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-5
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(5) Compliance With Information Requests. Notwithstanding any other
provision of this Deposit Agreement, the Company may from time to time request
Holders or former Holders to provide information as to the capacity in which
they hold or held Receipts and regarding the identity of any other persons then
or previously interested in such Receipts and the nature of such interest and
various other matters. Each Holder agrees to provide any such information
reasonably requested by the Company or the Depositary pursuant to this Section,
whether or not they are Holders at the time of such request. The Depositary
agrees to use reasonable efforts to comply with written instructions received
from the Company requesting the Depositary to forward any such requests to the
Holders and to forward to the Company any such responses to such requests
received by the Depositary.
(6) Ownership Restrictions. The Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
under applicable law or the Memorandum and Articles of Association of the
Company. The Company may also restrict, in such manner as it deems appropriate,
transfers of the American Depositary Shares where such transfer may result in
the total number of Shares represented by the American Depositary Shares
beneficially owned by a single Holder to exceed the limits under any applicable
law. The Company may, in its sole discretion, instruct the Depositary to take
action with respect to the ownership interest of any Holder in excess of the
limitation set forth in the preceding sentence, including but not limited to a
mandatory sale or disposition on behalf of a Holder of the Shares represented by
the American Depositary Shares held by such Holder in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any stamp,
transfer or other applicable tax, duty or other governmental charge shall become
payable by or on behalf of the Depositary or any Custodian with respect to any
Receipt or any Deposited Securities represented by the American Depositary
Shares evidenced hereby, such tax, duty or other governmental charge shall be
payable by the Holder hereof to the Depositary. The Depositary may refuse to
effect any registration of transfer of this Receipt or any withdrawal of
Deposited Securities represented by the American Depositary Shares evidenced
hereby until such payment is made, and the Company and the Depositary may
withhold or deduct from any dividends or other distributions, or may sell for
the account of the Holder hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax, duty or other governmental charge, with the Holder hereof
remaining liable for any deficiency. The Holder shall indemnify the Depositary,
the Company, the Custodian and any of their respective directors, employees,
agents, and Affiliates against, and hold each of them harmless from, any claims
by any governmental authority with respect to taxes, additions to tax, penalties
or interest arising out of any refund of tax, reduced rate of withholding at
source or other tax benefit obtained for such Holder pursuant to Section 4.15 of
the Deposit Agreement.
A-6
(8) Representations and Warranties of Depositors. Every person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that, to the best of such person's knowledge, such Shares and each
certificate therefor are validly issued and outstanding, fully paid and
non-assessable, that any preemptive rights have been validly waived or exercised
and that the person making such deposit is duly authorized to do so. Each such
person shall be deemed to acknowledge complete responsibility for the report of
any false information relating to foreign exchange transactions to the
Depositary, the Custodian or any governmental authority in England in connection
with the issuance of Receipts and the deposit, transfer, surrender or withdrawal
of Shares or Receipts. Every such person shall be deemed to represent that the
deposit of Shares or sale of Receipts by that person is not restricted, and such
Shares do not constitute Restricted Securities, under the Securities Act of
1933. Such representations and warranties shall survive any such deposit,
transfer, surrender and withdrawal of Shares and Receipts. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions reasonably necessary to correct the
consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit or any Holder may, in addition to the requirements
of Articles (4) and (5) hereof, be required from time to time (i) to file with
the Depositary or a Custodian such proof of citizenship or residence, taxpayer
status, exchange control approval, payment of all applicable taxes or other
governmental charges, the identity of any person legally or beneficially
interested in the Receipt and the nature of such interest, (ii) provide such
information relating to the registration on the books of the Company (or the
appointed agent of the Company for transfer and registration of Shares, which
may, but need not, be the Share Registrar) of the Shares presented for deposit,
(iii) establish compliance with all applicable laws, rules and regulations of or
governing the Deposited Securities and the terms of the Deposit Agreement, and
(iv) execute and deliver to the Depositary or a Custodian such certificates and
to make such representations and warranties as the Depositary or the Company may
deem necessary or proper or as the Company reasonably may require by written
request to the Depositary and the Custodian. Subject to Article (23) hereof and
the terms of the Deposit Agreement, the Depositary may withhold the delivery or
registration of transfer of any Receipt or the distribution or sale of any
dividend or other distribution of rights or of the proceeds thereof, or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are delivered or such representations and warranties
made.
(10) Charges of Depositary. The Depositary shall charge any party to whom
Receipts are issued (including, without limitation, deposit or issuance pursuant
to a stock split declared by the Company or an exchange of stock for the Shares
or Deposited Securities, or a distribution of Receipts pursuant to Section 4.11
of the Deposit Agreement), or who surrenders Receipts, a fee of U.S. $3.00 or
less, and a fee of U.S. $5.00 or less, in each case, per 100 American Depositary
Shares (or portion thereof) for the issuance or surrender, respectively, of a
Receipt. In addition, Holders will pay all stamp, transfer and other applicable
taxes and other governmental charges, registration fees, cable, telex and
facsimile transmission and delivery expenses, and customary and other expenses
incurred by the Depositary in connection with its obligations and duties under
the Deposit Agreement, as set forth in Exhibit B thereof. Any other charges and
expenses of the Depositary under the Deposit Agreement will be paid by the
Company after consultation and agreement between the Depositary and the Company
A-7
concerning the nature and amount of such charges and expenses. All fees and
charges may at any time and from time to time be changed by agreement between
the Company and the Depositary. The charges and expenses of the Custodian,
nominee or any other agent of the Depositary are for the sole account of the
Depositary. The provisions in respect of these charges may be changed in the
manner indicated in Article (21) of this Receipt.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each American Depositary Share
evidenced hereby), when such Receipt is properly endorsed or accompanied by a
proper instrument or instruments of transfer, is transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that the Company and the Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this Receipt is registered on the books of
the Depositary as the absolute owner hereof for the purpose of determining the
person entitled to any distribution of dividends or other distributions or to
any notice provided for in the Deposit Agreement and for all other purposes, and
neither the Depositary nor the Company shall have the obligations or be subject
to any liability hereunder or under the Deposit Agreement to any holder of a
Receipt unless such holder is a Holder thereof.
(12) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt has been executed by the Depositary by the manual signature
of a duly authorized signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar has been appointed and this Receipt
has been countersigned by the manual signature of a duly authorized officer of
the Registrar; and provided, further, that, only with respect to the Receipts
originally issued, the signatures of both the Depositary and the Registrar may
be facsimiles.
(13) Available Information. The Company has been subject to the periodic
reporting requirements of the Exchange Act, and has filed with the Commission,
and submitted to the Commission certain reports that can be retrieved from the
Commission's internet website at xxx.xxx.xxx, and can be inspected and copied at
the public reference facilities maintained by the Commission at 000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000. The Company has filed a Form 15F ("Form 15F") with
the Commission, which has suspended the Company's duty under the Exchange Act to
file or submit the reports required under Sections 13(a) or 15(d) of the
Exchange Act. Upon the effectiveness of Form 15F, the Company's duty to file or
submit reports under Sections 13(a) or 15(d) of the Exchange Act will terminate
and the Company will, pursuant to Rule 12g3-2(e)(1), receive the exemption from
the reporting obligations of the Exchange Act provided by Rule 12g3-2(b). In
order to satisfy the conditions of Rule 12g3-2(b) the Company intends to publish
the information contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act on
its internet website or through an electronic information delivery system
generally available to the public in the Company's primary trading market. The
Company has specified in Form 15F the internet website or the electronic
information delivery system on which it intends to publish such information. The
information so published by the Company cannot be retrieved from the
Commission's internet website, and cannot be inspected or copied at the public
reference facilities maintained by the Commission. If the Form 15F is not
declared effective, the Company will again be subject to the periodic reporting
requirements of the Exchange Act and will be required to file with the
Commission, and submit to the Commission, certain reports that can be retrieved
from the Commission's internet website at xxx.xxx.xxx, and can be inspected and
copied at the public reference facilities maintained by the Commission.
A-8
The Depositary will make available for inspection by Holders at its
Principal Office and at the office of each Custodian, copies of the Deposit
Agreement, any notices, reports or communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary, a Custodian, or the nominee of either of them as the holder of
the Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. To the extent required under Rule 12g3-2(b)
or otherwise in accordance with the Securities Exchange Act of 1934, as amended,
such reports and communications shall be in English. The Depositary will also
send to Holders copies of such reports when furnished by the Company pursuant to
Section 5.06 of the Deposit Agreement.
The Registrar will keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by Holders, 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.
Subject to Article (23) hereof, the Registrar may close the transfer books
(with notice to the Company if other than in the ordinary course of business),
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder or at the
reasonable written request of the Company.
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary or any Custodian receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary, pursuant to Section 4.08 of the Deposit Agreement, be
converted on a practicable basis, by sale or any other manner that it may
determine in accordance with applicable law, into Dollars transferable to the
United States, and subject to the Deposit Agreement, promptly convert or cause
to be converted such dividend or distribution into Dollars and will distribute
promptly the amount thus received (net of fees of, and expenses incurred by, the
Depositary) to the Holders entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively without liability for interest thereon. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Holder a fraction of one Cent, and any balance not so distributable shall
be held by the Depositary (without liability for interest thereon) and shall be
added to and become part of the next sum received by the Depositary for
distribution to Holders of Receipts then outstanding. Pursuant to Articles (4)
and (7) hereof, if the Company or the Depositary is required to withhold and
does withhold from any cash dividend or other cash distribution in respect of
any Deposited Securities an amount on account of taxes, duties or other
governmental charges, the amount distributed to Holders on the American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded to the relevant
governmental authority by the person holding the withheld amounts.
A-9
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall deposit or cause such
Shares to be deposited with and registered in the name of the Custodian and
thereupon the Depositary may, subject to Section 5.07 hereof, either (i)
distribute to the Holders entitled thereto, as of the record date fixed pursuant
to Section 4.09 of the Deposit Agreement, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts for American Depositary Shares, which
represents in aggregate the number of Shares received as such dividend, or free
distribution, subject to the terms of this Deposit Agreement, including, without
limitation, Sections 2.02, 2.03, 5.07 and 5.09 of the Deposit Agreement; in lieu
of delivering Receipts for fractional American Depositary Shares in any such
case, the Depositary shall sell the number of Shares represented by the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.02 of the Deposit
Agreement, or (ii) if additional Receipts are not so distributed (except
pursuant to the preceding sentence), each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby. In the event that the Depositary determines that
any distribution in property (including Shares and rights to subscribe therefor)
is subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, after the Company, in the fulfillment of its
obligations under Section 5.07 of the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders, or if the
Company does not provide a satisfactory opinion as provided in Section 5.07, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges, or effect the distribution of unregistered
Shares, and the Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to Holders entitled thereto in
proportion to the number of American Depositary Shares held by them respectively
and the Depositary shall distribute any unsold balance of such property in
accordance with the provisions of this Deposit Agreement.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares of the corresponding Series or any rights of any other nature, the
Depositary may, after consultation with the Company, and, if requested in
writing by the Company, shall, take action, subject to the terms of this Deposit
Agreement, as follows:
(a) if at the time of the offering of any rights, the Depositary
determines in its discretion, after obtaining, at the Company's
expense, opinion(s) of counsel reasonably satisfactory to the
Depositary, that it is lawful and feasible to make such rights
available to all or certain Holders or Beneficial Owners but not to
others, by means of warrants or otherwise, the Depositary may
distribute warrants or other instruments therefor in such form as it
may determine, to the Holders entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited
Securities held by them respectively, or employ such other method as
it may deem feasible after obtaining, at the Company's expense,
opinion(s) of counsel reasonably satisfactory to the Depositary in
order to facilitate the exercise, sale or transfer of rights or the
securities obtainable upon the exercise of such rights, by such
Holders or Beneficial Owners; or
A-10
(b) if at the time of the offering of any rights, the Depositary
determines in its discretion, after obtaining, at the Company's
expense, opinion(s) of counsel reasonably satisfactory to the
Depositary, that it is not lawful or not feasible to make such
rights available to certain Holders or Beneficial Owners by means of
warrants or otherwise, or if the rights represented by such warrants
or such other instruments are not exercised and appear to be about
to lapse, the Depositary may, in its discretion, sell such rights or
such warrants or other instruments at public or private sale, in a
riskless principal capacity, at such place or places and upon such
terms as it may deem proper, and allocate the proceeds of such sales
for the account of the Holders otherwise entitled to such rights,
warrants or other instruments upon an averaged or other practicable
basis without regard to any distinctions among such Holders because
of exchange restrictions or the date of delivery of any Receipt or
Receipts, or otherwise, and distribute such net proceeds so
allocated to the extent practicable as in the case of a distribution
of cash pursuant to Section 4.02 hereof. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful
or feasible to make such rights available to Holders in general or
any Holder or Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any
liability to the purchaser of such rights, warrants or other
instruments.
If the Depositary does not receive such written request from the Company,
the Depositary shall, after consultation with the Company, and after obtaining
opinion(s) of counsel reasonably satisfactory to the Depositary, have discretion
as to the procedure to be followed (i) in making such rights available to the
Holders, or (ii) in disposing of such rights on behalf of such Holders and
distributing the net proceeds available in dollars to such Holders as in the
case of a distribution of cash pursuant to Section 4.02 of the Deposit
Agreement, or (iii) in allowing such rights to lapse in the event such rights
may not be made available to Holders or be disposed of and the net proceeds
thereof made available to Holders.
Notwithstanding anything to the contrary in this Article (14), if
registration (under the Securities Act or any other applicable law) of the
securities to which any rights relate may be required in order for the Company
to offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not offer such rights to the
Holders (i) unless and until a registration statement under the Securities Act
covering such offering is in effect, or (ii) unless the Company furnishes the
Depositary opinion(s) of counsel for the Company in the United States and
counsel to the Company in any other applicable country in which rights would be
distributed, satisfactory to the Depositary or other evidence satisfactory to
the Depositary to the effect that the offering and sale of such securities to
the Holders of such Receipts are exempt from or do not require registration
under the provisions of the Securities Act or any other applicable laws. Because
English law presently does not recognize the issuance of preemptive rights in
negotiable form and the possibility of such issuance is unlikely, a liquid
market for preemptive rights may not exist, and this may adversely affect (1)
the ability of the Depositary to dispose of such rights or (2) the amount the
Depositary would realize upon disposal of rights.
A-11
Whenever the Custodian shall receive any distribution other than cash,
Shares or rights upon any Deposited Securities, the Depositary shall, after
consultation with the Company, and after obtaining, at the Company's expense,
opinion(s) of counsel satisfactory to the Depositary that the proposed
distribution does not violate any applicable laws or regulations, cause the
securities or property so received to be distributed to the Holders entitled
thereto, as of a record date fixed pursuant to Section 4.09 of the Deposit
Agreement, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution, net of expenses of the Depositary; provided, however, that, if in
the opinion of the Depositary or its counsel, it cannot cause such securities or
property to be distributed or such distribution cannot be made proportionately
among the Holders entitled thereto, or if for any other reason (including
without limitation any requirement (i) that the Company, the Depositary or the
Custodian withhold an amount on account of taxes or other governmental charges
or (ii) that under applicable securities or exchange control regulations or law
such securities must be registered under the Securities Act or other law in
order to be distributed to Holders), the Depositary deems such distribution not
to be feasible, the Depositary shall determine a practicable method of effecting
such distribution and may rely on such advice, which method may include, but not
be limited to, the sale (at public or private sale) of the securities or
property thus received, or any part thereof, and the distribution of the net
proceeds of any such sale (net of taxes, fees and expenses of the Depositary set
forth in Section 5.09 or in Exhibit B of the Deposit Agreement) by the
Depositary to the Holders entitled thereto as in the case of a distribution
received in cash.
Pursuant to Articles (4) and (7) hereof, if the Depositary determines that
any distribution in property (including Shares and rights to subscribe therefor)
is subject to any tax, duty or other governmental charges which the Depositary
is obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes, duties or governmental charges,
and the Depositary shall distribute the net proceeds of any such sale after
deduction of such taxes, duties or governmental charges to Holders entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively and shall distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement.
The Custodian, the Depositary or the Company or its agents shall use
reasonable efforts to make and maintain arrangements enabling Holders who are
citizens or residents of the United States to receive any rebates, tax and/or
duty credits or other benefits (pursuant to treaty or otherwise) relating to
dividend payments on the American Depositary Shares to which they are entitled,
and they may file any such reports necessary to obtain benefits under applicable
tax treaties for the Holders.
(15) Fixing of Record Date. Whenever the Depositary shall receive notice
of the fixing of a record date by the Company for the determination of holders
of Deposited Securities entitled to receive any cash dividend or other cash
distribution or any distribution other than cash, or any rights to be issued
with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, or whenever the
A-12
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, after consultation with the Company and subject to the rules of the
exchange on which ADSs are listed, fix a record date for the determination of
the Holders of Receipts who shall be entitled to receive such dividend,
distribution rights or the net proceeds of the sale thereof, to give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each American Depositary Share. Subject
to the provisions of Sections 4.02 through 4.08 of the Deposit Agreement and to
the other terms and conditions of this Receipt and the Deposit Agreement, the
Holders of Receipts at the close of business on such record date shall be
entitled to receive the amount distributable by the Depositary with respect to
such dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by them
respectively, or to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
(16) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Shares are entitled to vote, or
of solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix a record date in respect of such meeting
for the giving of instructions for voting or such consent or proxy. The
Depositary shall, if requested in writing in a timely manner by the Company and
at the Company's expense, mail to Holders: (a) such notice of meeting, (b) a
statement that the Holders at the close of business on the specified record date
will be entitled, subject to any applicable law, the Company's Memorandum and
Articles of Association and the provisions of or governing Deposited Securities
(which provisions, if any, shall be summarized in pertinent part by the
Company), to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the Shares or other Deposited Securities represented by such
Holder's American Depositary Shares and (c) a brief statement as to the manner
in which such instructions may be given. Upon the written request of a Holder of
American Depositary Shares evidenced by a Receipt on such record date received
on or before the date established by the Depositary for such purpose, the
Depositary shall endeavor, insofar as practicable and permitted under applicable
law and the provisions of the Company's Memorandum and Articles of Association
and the provisions of the Deposited Securities, to vote or cause the Custodian
to vote the Shares and/or other Deposited Securities represented by American
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request.
Unless specifically instructed by at least five Holders or Holders
representing not less than 10% of the total voting rights of all holders of
Shares having the right to vote at such meeting, the Depositary shall not demand
voting by a poll and, in such case where polling is not used, the Depositary
shall follow the instructions of the Holders having sent in timely voting
instructions holding Receipts evidencing a majority of the American Depositary
Shares held by all Holders having sent timely voting instructions.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
A-13
to and in accordance with such written instructions from Holders. Shares or
other Deposited Securities represented by American Depositary Shares for which
no specific voting instructions are received by the Depositary from the Holder
shall not be voted.
(17) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or a Custodian in
exchange for, or in conversion of or replacement or otherwise in respect of,
such Deposited Securities shall be treated as new Deposited Securities under the
Deposit Agreement, and the Receipts shall, subject to the provisions of the
Deposit Agreement and applicable law, evidence American Depositary Shares
representing the right to receive such additional securities. Alternatively, the
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of an opinion
of counsel to the Company satisfactory to the Depositary that such distributions
are not in violation of any applicable laws or regulations, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts, in
either case, as well as in the event of newly deposited shares, with necessary
modifications to the form of Receipt contained in this Exhibit A to the Deposit
Agreement, specifically describing such new Deposited Securities or corporate
change. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new Receipts. Notwithstanding the foregoing, in the event that
any security so received may not be lawfully distributed to some or all Holders,
the Depositary may, and with the Company's approval, shall if the Company
requests, subject to receipt of an opinion of Company's counsel satisfactory to
the Depositary that such action is not in violation of any applicable laws or
regulations, if the Company requests, sell such securities at public or private
sale, at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales for the account of the Holders otherwise
entitled to such securities upon an averaged or other practicable basis without
regard to any distinctions among such Holders and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to Section 4.02 of the Deposit Agreement. The Depositary shall not
be responsible for (i) any failure to determine that it may be lawful or
feasible to make such securities available to Holders in general or any Holder
or Holders in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
(18) Indemnification. The Company agrees to indemnify the Depositary, the
Custodian and any of their respective directors, employees, agents and
affiliates against, and hold each of them harmless from, any loss, liability,
tax, charge or expense of any kind whatsoever (including, but not limited to,
the reasonable fees and expenses of counsel) that may arise (a) out of or in
connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Shares or other
Deposited Securities, as the case may be, or any offering documents in respect
thereof or (b) out of acts performed or omitted, including but not limited to
any delivery by the Depositary on behalf of the Company of information regarding
the Company, in connection with the Deposit Agreement, the Receipts, the
American Depositary Shares, the Shares or any Deposited Securities, as the same
may be amended, modified or supplemented from time to time, in any such case (i)
A-14
by the Depositary, the Custodian or any of their respective directors,
employees, agents and affiliates, except to the extent such loss, liability,
tax, charge or expense is due to negligence or bad faith of any of them, or (ii)
by the Company or any of its directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which may arise out of any Pre-Release Transaction (as
defined in Article (24) hereof and Section 5.10 of the Deposit Agreement) other
than a Pre-Release Transaction entered into at the request of the Company.
The Depositary agrees to indemnify the Company and its directors,
employees, agents and affiliates and hold each of them harmless from any loss,
liability, charge or expense of any kind whatsoever (including, but not limited
to, the reasonable fees and expenses of counsel) which may arise out of acts
performed or omitted by the Depositary in any such case, due to the negligence
or bad faith of the Depositary.
The obligations set forth in this Article (18) shall survive the
termination of the Deposit Agreement and the succession or substitution of any
party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this Article (18) and Section
5.08 of the Deposit Agreement) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim,
which defense shall be reasonable in the circumstances. No indemnified person
shall compromise or settle any action or claim without the consent of the
indemnifying person, which consent shall not be unreasonably withheld.
(19) Liability of the Company and the Depositary. None of the Depositary,
its controlling persons or its agents nor the Company, its controlling persons
nor its agents, if any, will incur any liability to any Holder or other person
if, by reason of any present or future law, the Memorandum and Articles of
Association of the Company, the provisions of or governing any Deposited
Security, act of God, war or other circumstance beyond its control, the
Depositary, its agents or the Company or its agents shall be prevented, delayed
or forbidden from doing or performing any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement. Each of the Depositary, its controlling persons and its
agents, the Company, its controlling persons and its agents assumes 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 in good faith and using its reasonable judgment. The Depositary and
the Company undertake to perform such duties and only such duties as are
specifically set forth in the Deposit Agreement, and no implied covenants or
obligations will be read into the Deposit Agreement against the Depositary or
the Company or their respective agents. None of the Depositary, its controlling
persons or its agents nor the Company its controlling persons or its agents will
be (a) under any obligation to appear in, prosecute or defend any action, suit
or other proceeding in respect of any Deposited Securities or this Receipt that
A-15
in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it in its sole discretion against all expense and liability be
furnished as often as may be required or (b) liable for any action or inaction
by it or them 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 or them in good faith to be competent to give such advice
or information. The Depositary, its controlling persons and its agents and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request, direction or other document believed
by them in good faith to be genuine and to have been signed or presented by the
proper party or parties. Subject to the provisions of this paragraph (19), the
Depositary and its agents will not be liable 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. The Depositary may own
and deal in any class of securities of the Company and its affiliates and in
Receipts.
(20) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of its election so to do delivered to the
Company, such resignation to be effective on the earlier of (i) the 60th day
after delivery thereof to the Company, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal which notice shall be effective on the earlier of
(i) the 60th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its best efforts to
appoint a successor depositary which shall be a bank or trust company having an
office in the Borough of Manhattan, the City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor, but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall (i) execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder, (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
(21) Amendment, Supplement. The Receipts outstanding under the Deposit
Agreement in respect of the Shares and any provisions of the Deposit Agreement
(including this form of Receipt) may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
consent of the Holders. Any amendment or supplement which shall impose or
increase any fees or charges (other than transfer and registration fees, fees in
A-16
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders or Beneficial
Owners, shall not, however, become effective as to outstanding Receipts until
the expiration of 60 days after notice of such amendment or supplement shall
have been given to the Holders of outstanding Receipts. The parties hereto agree
that any amendments or supplements which (i) are reasonably necessary (as agreed
by the Company and the Depositary) in order for (a) the American Depositary
Shares to be registered on Form F-6 under the Securities Act or (b) the American
Depositary Shares or Shares to be traded solely in electronic book-entry form
and (ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to prejudice any substantial rights of
Holders or Beneficial Owners. Every Holder and Beneficial Owner at the time any
amendment or supplement so becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment or supplement and to
be bound by the Deposit Agreement as amended or supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement the Deposit Agreement and the Receipt at any time in
accordance with such changed rules. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance.
(22) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in Article (20) hereof and Section 5.04 of
the Deposit Agreement, the Depositary may terminate the Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed for such termination. On
and after the date of termination of the Deposit Agreement, the Holder will,
upon surrender of such Receipt at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of Receipts
referred to in Article (2) hereof and Section 2.05 of the Deposit Agreement and
subject to the conditions and restrictions therein set forth, and upon payment
of any applicable stamp, transfer or other applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by such Receipt. If any Receipts shall remain
outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.05 of the Deposit Agreement, together with any dividends or
A-17
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, or charging, as the case may be, in each case
the charges of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder in accordance with the terms and conditions of the
Deposit Agreement and any applicable stamp, transfer or other applicable taxes
or governmental charges or assessments). At any time after the expiration of six
months from the date of termination of the Deposit Agreement, the Depositary may
and intends to sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, in an unsegregated account, without
liability for interest for the pro rata benefit of the Holders of Receipts whose
Receipts have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
with respect to the Receipts and the Shares, Deposited Securities and American
Depositary Shares, except for its obligations to the Company under Article (18)
hereof and Section 5.08 of the Deposit Agreement and except to account for such
net proceeds and other cash (after deducting, or charging, as the case may be,
in each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable stamp, transfer or other
applicable taxes or governmental charges or assessments). Upon the termination
of the Deposit Agreement as to Receipts, the Company shall be discharged from
all obligations under the Deposit Agreement as to the Receipts and the Shares,
Deposited Securities and American Depositary Shares except for its obligations
to the Depositary under Articles (10) and (18) hereof, and Sections 5.08 and
5.09 of the Deposit Agreement.
(23) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this Receipt or the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Instruction I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
(24) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this Article (24), the Depositary and its agents, on
their own behalf, may own and deal in any class of securities of the Company and
its affiliates and in Receipts. The Depositary may issue Receipts against
evidence of rights to receive Shares from the Company, any agent of the Company
or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
ownership of Shares furnished on behalf of the holder thereof. In its capacity
as Depositary, the Depositary shall not lend Shares or Receipts; provided,
however, that the Depositary may (i) issue Receipts prior to the receipt of
Shares pursuant to Section 2.02 of the Deposit Agreement and (ii) deliver Shares
prior to the receipt and cancellation of Receipts pursuant to Section 2.05 of
the Deposit Agreement, including Receipts which were issued under (i) above but
for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive Receipts in lieu of
Shares under (i) above and receive Shares in lieu of Receipts under (ii) above.
Each such Pre-Release Transaction will be (a) accompanied by or subject to a
written agreement whereby the person or entity (the "Applicant") to whom
Receipts or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or
A-18
Receipts that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) agrees to indicate the Depositary as owner of such Shares or
Receipts in its records and to hold such Shares or Receipts in trust for the
Depositary until such Shares or Receipts are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or Receipts and (z) agrees to any
additional restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized with cash, United States government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of Receipts and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the Receipts outstanding (without giving effect to Receipts
outstanding under (i) above), provided, however, that the Depositary reserves
the right to change or disregard such limit from time to time as it deems
appropriate. The Depositary may also set limits with respect to the number of
Receipts and Shares involved in Pre-Release Transactions with any one person on
a case by case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be for the benefit of the Holders (other than the Applicant).
A-19
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto _____________________ whose taxpayer identification number is
________________ and whose address including postal zip code is
__________________________, the within Receipt and all rights and interests
represented thereby, and hereby irrevocably constitutes and appoints
__________________ attorney-in-fact to transfer said Receipt on the books of the
Depositary, with full power of substitution in the premises.
Dated: _________ Name:
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an
attorney, executor, administrator, trustee
or guardian, the person executing the
endorsement must give his full title in such
capacity and proper evidence of authority to
act in such capacity, if not on file with
the Depositary, must be forwarded with this
Receipt.
All endorsements or assignments of Receipts
must be guaranteed by a member of a
Medallion Signature Program approved by the
Securities Transfer Association Inc.
SIGNATURE GUARANTEED
_________________________________
[EXHIBIT B]
FORM OF NOTICE TO HOLDERS
NOTICE OF DEREGISTRATION
To the Holders of American Depositary Shares ("ADSs") representing the Deposited
Securities of the Company
------------------------------------------------------------ ------------------------------------------------------------
Company: Imperial Tobacco Group PLC, a public limited company
incorporated in England.
------------------------------------------------------------ ------------------------------------------------------------
Depositary: Citibank, N.A.
------------------------------------------------------------ ------------------------------------------------------------
Custodian: Citibank, N.A. - London Branch.
------------------------------------------------------------ ------------------------------------------------------------
Deposited Securities: Ordinary Shares of the Company ("Shares").
------------------------------------------------------------ ------------------------------------------------------------
ADS CUSIP No.: 453142101
------------------------------------------------------------ ------------------------------------------------------------
Shares to ADS Ratio: Two (2) Shares to one (1) ADS.
------------------------------------------------------------ ------------------------------------------------------------
Deposit Agreement: Amended and Restated Deposit Agreement, dated as of
November 2, 1998, as amended and supplemented by Letter
Agreements, dated September 21, 2007 and as of May 20,
2008 (as so amended and supplemented, the "Deposit
Agreement"), and as amended by Amendment No. 1 to Amended
and Restated Deposit Agreement, dated as of September __,
2008 (the "Amendment"), by and among the Company, the
Depositary and the Holders (as defined in the Deposit
Agreement) and Beneficial Owners of ADSs issued thereunder.
------------------------------------------------------------ ------------------------------------------------------------
Effective Date: September 12, 2008.
------------------------------------------------------------ ------------------------------------------------------------
The Company has filed a Form 15F with the Securities and Exchange Commission
("SEC") to terminate the registration of its securities under the Securities
Exchange Act of 1934, as amended ("Exchange Act"). The filing of Form 15F
suspends the Company's obligations to file with the SEC reports pursuant to the
Exchange Act. Absent an objection from the SEC, the deregistration of the
Company's securities and the termination of the Company's obligations under the
Exchange Act will only become effective upon the expiration of 90 days after the
Company filed its Form 15F, or such shorter period as the SEC may determine. A
copy of the Company's Form 15F may be retrieved from the SEC's website at
xxx.xxx.xxx.
B-1
The Company and the Depositary have agreed to amend the Deposit Agreement to
reflect the application by the Company to de-register its securities and
terminate its reporting obligations under the Exchange Act. A signed copy of
the Amendment has been filed with the SEC under cover of Registration Statement
on Form F-6 (Registration No. [insert number]) (the "F-6 Registration
Statement"). The F-6 Registration Statement has become effective immediately
upon the filing of such F-6 Registration Statement with the SEC (the "Effective
Date"). As of the Effective Date, the Deposit Agreement and all ADRs have been
amended to reflect, inter alia, the application by the Company to de-register
its securities, and to terminate its reporting obligations, under the Exchange
Act.
By continuing to hold any outstanding ADS issued under the Deposit Agreement
after the Effective Date, you will be deemed to have agreed to be bound by the
terms of the Deposit Agreement as amended by the Amendment. The Depositary shall
arrange to have new ADRs printed that reflect the changes effected by the
Amendment. However, ADRs issued prior to the Effective Date do not need to be
surrendered for exchange. If you hold ADSs in uncertificated form, you do not
need to take any action.
Copies of the Deposit Agreement and the Amendment are available from
the SEC's website at xxx.xxx.xxx and from the Depositary's office located at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. If you have any questions regarding
the Amendment, please call Citibank, N.A. -- ADS Holder Services at
0-000-000-0000.
Citibank, N.A., as Depositary
September 12, 2008
B-2
