Contract
EXHIBIT 2.1
DEPOSIT AGREEMENT
by and among
VERONA PHARMA PLC
and
CITIBANK, N.A.,
as Depositary,
and
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES
ISSUED HEREUNDER
Dated as of May 2, 2017
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS .................................................................................................................................1
Section 1.1 βADS Record Dateβ .............................................................................................1
Section 1.2 βAffiliateβ ............................................................................................................1
Section 1.3 βAmerican Depositary Receipt(s)β, βADR(s)β and βReceipt(s)β ........................1
Section 1.4 βAmerican Depositary Share(s)β and βADS(s)β ..................................................2
Section 1.5 βApplicantβ ..........................................................................................................2
Section 1.6 βArticles of Associationβ .....................................................................................2
Section 1.7 βBeneficial Ownerβ ..............................................................................................2
Section 1.8 βCertificated ADS(s)β ..........................................................................................3
Section 1.9 βCitibankβ ............................................................................................................3
Section 1.10 βCommissionβ ......................................................................................................3
Section 1.11 βCompanyβ ..........................................................................................................3
Section 1.12 βCRESTβ .............................................................................................................3
Section 1.13 βCustodianβ ..........................................................................................................3
Section 1.14 βDeliverβ and βDeliveryβ .....................................................................................3
Section 1.15 βDeposit Agreementβ ...........................................................................................4
Section 1.16 βDepositaryβ ........................................................................................................4
Section 1.17 βDeposited Propertyβ ...........................................................................................4
Section 1.18 βDeposited Securitiesβ .........................................................................................4
Section 1.19 βDollarsβ and β$β .................................................................................................4
Section 1.20 βDTCβ ..................................................................................................................4
Section 1.21 βDTC Participantβ ................................................................................................4
Section 1.22 βExchange Actβ ...................................................................................................4
Section 1.23 βForeign Currencyβ ..............................................................................................4
Section 1.24 βFull Entitlement ADR(s)β, βFull Entitlement ADS(s)β and βFull
Entitlement Share(s)β ...........................................................................................5
Section 1.25 βHolder(s)β ...........................................................................................................5
Section 1.26 βPartial Entitlement ADR(s)β, βPartial Entitlement ADS(s)β and
βPartial Entitlement Share(s)β .............................................................................5
Section 1.27 βPoundsβ, βXxxxxβ and βΒ£β ..................................................................................5
Section 1.28 βPre-Release Transactionβ ...................................................................................5
Section 1.29 βPrincipal Officeβ ................................................................................................5
Section 1.30 βRegistrarβ ...........................................................................................................5
Section 1.31 βRestricted Securitiesβ .........................................................................................5
Section 1.32 βRestricted ADR(s)β, βRestricted ADS(s)β and βRestricted Sharesβ ..................6
Section 1.33 βSecurities Actβ ...................................................................................................6
Section 1.34 βShare Registrarβ .................................................................................................6
Section 1.35 βSharesβ ...............................................................................................................6
Section 1.36 βUncertificated ADS(s)β ......................................................................................6
Section 1.37 βUnited Statesβ and βU.S.β ..................................................................................6
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ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS ...................................................6
Section 2.1 Appointment of Depositary. ................................................................................6
Section 2.2 Form and Transferability of ADSs. .....................................................................7
Section 2.3 Deposit of Shares. ................................................................................................8
Section 2.4 Registration and Safekeeping of Deposited Securities. .....................................10
Section 2.5 Issuance of ADSs. ..............................................................................................10
Section 2.6 Transfer, Combination and Split-up of ADRs. ..................................................11
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities. ...........................11
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of ADSs;
Suspension of Delivery, Transfer, etc. ...............................................................13
Section 2.9 Lost ADRs, etc. ..................................................................................................13
Section 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance of
Records. .............................................................................................................14
Section 2.11 Escheatment. ......................................................................................................14
Section 2.12 Partial Entitlement ADSs. ..................................................................................14
Section 2.13 Certificated/Uncertificated ADSs. .....................................................................15
Section 2.14 Restricted ADSs. ................................................................................................16
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs ....................................................................................18
Section 3.1 Proofs, Certificates and Other Information. .......................................................18
Section 3.2 Liability for Taxes and Other Charges. .............................................................18
Section 3.3 Representations and Warranties on Deposit of Shares. .....................................19
Section 3.4 Compliance with Information Requests. ...........................................................19
Section 3.5 Ownership Restrictions. .....................................................................................19
Section 3.6 Reporting Obligations and Regulatory Approvals. ............................................20
ARTICLE IV
THE DEPOSITED SECURITIES .................................................................................................20
Section 4.1 Cash Distributions. .............................................................................................20
Section 4.2 Distribution in Shares. .......................................................................................21
Section 4.3 Elective Distributions in Cash or Shares. ..........................................................22
Section 4.4 Distribution of Rights to Purchase Additional ADSs. .......................................23
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares. ..............24
Section 4.6 Distributions with Respect to Deposited Securities in Bearer Form. ................25
Section 4.7 Redemption. .......................................................................................................25
Section 4.8 Conversion of Foreign Currency. ......................................................................26
Section 4.9 Fixing of ADS Record Date...............................................................................27
Section 4.10 Voting of Deposited Securities. .........................................................................27
Section 4.11 Changes Affecting Deposited Securities. ..........................................................29
Section 4.12 Available Information. .......................................................................................30
Section 4.13 Reports. ..............................................................................................................30
Section 4.14 List of Holders. ..................................................................................................30
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Section 4.15 Taxation. ............................................................................................................31
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY ............................................32
Section 5.1 Maintenance of Office and Transfer Books by the Registrar. ...........................32
Section 5.2 Exoneration. .......................................................................................................32
Section 5.3 Standard of Care. ...............................................................................................33
Section 5.4 Resignation and Removal of the Depositary; Appointment of Successor
Depositary. .........................................................................................................34
Section 5.5 The Custodian. ...................................................................................................35
Section 5.6 Notices and Reports. ..........................................................................................35
Section 5.7 Issuance of Additional Shares, ADSs etc. .........................................................36
Section 5.8 Indemnification. .................................................................................................37
Section 5.9 ADS Fees and Charges. .....................................................................................38
Section 5.10 Pre-Release Transactions. ..................................................................................39
Section 5.11 Restricted Securities Owners. ............................................................................40
ARTICLE VI
AMENDMENT AND TERMINATION .......................................................................................40
Section 6.1 Amendment/Supplement. ..................................................................................40
Section 6.2 Termination. .......................................................................................................41
ARTICLE VII
MISCELLANEOUS ......................................................................................................................42
Section 7.1 Counterparts. ......................................................................................................42
Section 7.2 No Third-Party Beneficiaries. ............................................................................42
Section 7.3 Severability. .......................................................................................................42
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect. ..............................42
Section 7.5 Notices. ..............................................................................................................42
Section 7.6 Governing Law and Jurisdiction. .......................................................................43
Section 7.7 Assignment. .......................................................................................................45
Section 7.8 Compliance with U.S. Securities Laws. ............................................................45
Section 7.9 England and Wales Law References. ................................................................45
Section 7.10 Titles and References. ........................................................................................45
EXHIBITS
Form of ADR. ................................................................................................. A-1
Fee Schedule. ...................................................................................................B-1
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of May 2, 2017, by and among (i) Verona Pharma
plc, a public limited company incorporated under the laws of England and Wales and its
successors (the βCompanyβ), (ii) CITIBANK, N.A., a national banking association organized
under the laws of the United States of America (βCitibankβ) acting in its capacity as depositary,
and any successor depositary hereunder (Citibank in such capacity, the βDepositaryβ), and
(iii) all Holders and Beneficial Owners of American Depositary Shares issued hereunder (all
such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company desires to establish with the Depositary an ADR facility to
provide for the deposit of the Shares (as hereinafter defined) and the creation of American
Depositary Shares representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts (as hereinafter defined) evidencing such American Depositary
Shares; and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR facility
upon the terms set forth in the Deposit Agreement (as hereinafter defined); and
WHEREAS, any American Depositary Receipts issued pursuant to the terms of the
Deposit Agreement are to be substantially in the form of Exhibit A attached hereto, with
appropriate insertions, modifications and omissions, as hereinafter provided in the Deposit
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have the meanings set
forth below, unless otherwise clearly indicated:
Section 1.1 βADS Record Dateβ shall have the meaning given to such term in
Section 4.9.
Section 1.2 βAffiliateβ shall have the meaning assigned to such term by the
Commission (as hereinafter defined) under Regulation C promulgated under the Securities Act
(as hereinafter defined), or under any successor regulation thereto.
Section 1.3 βAmerican Depositary Receipt(s)β, βADR(s)β and βReceipt(s)β shall
mean the certificate(s) issued by the Depositary to evidence the American Depositary Shares
issued under the terms of the Deposit Agreement in the form of Certificated ADS(s) (as
hereinafter defined), as such ADRs may be amended from time to time in accordance with the
provisions of the Deposit Agreement. An ADR may evidence any number of ADSs and may, in
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the case of ADSs held through a central depository such as DTC, be in the form of a βBalance
Certificate.β
Section 1.4 βAmerican Depositary Share(s)β and βADS(s)β shall mean the rights
and interests in the Deposited Property (as hereinafter defined) granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of the Deposit Agreement and, if issued
as Certificated ADS(s) (as hereinafter defined), the ADR(s) issued to evidence such ADSs.
ADS(s) may be issued under the terms of the Deposit Agreement in the form of (a) Certificated
ADS(s) (as hereinafter defined), in which case the ADS(s) are evidenced by ADR(s), or
(b) Uncertificated ADS(s) (as hereinafter defined), in which case the ADS(s) are not evidenced
by ADR(s) but are reflected on the direct registration system maintained by the Depositary for
such purposes under the terms of Section 2.13. Unless otherwise specified in the Deposit
Agreement or in any ADR, or unless the context otherwise requires, any reference to ADS(s)
shall include Certificated ADS(s) and Uncertificated ADS(s), individually or collectively, as the
context may require. Each ADS shall represent the right to receive, and to exercise the beneficial
ownership interests in, the number of Shares specified in the form of ADR attached hereto as
Exhibit A (as amended from time to time) that are on deposit with the Depositary and/or the
Custodian, subject, in each case, to the terms and conditions of the Deposit Agreement and the
applicable ADR (if issued as a Certificated ADS), until there shall occur a distribution upon
Deposited Securities referred to in Section 4.2 or a change in Deposited Securities referred to in
Section 4.11 with respect to which additional ADSs are not issued, and thereafter each ADS shall
represent the right to receive, and to exercise the beneficial ownership interests in, the applicable
Deposited Property on deposit with the Depositary and the Custodian determined in accordance
with the terms of such Sections, subject, in each case, to the terms and conditions of the Deposit
Agreement and the applicable ADR (if issued as a Certificated ADS). In addition, the ADS(s)-
to-Share(s) ratio is subject to amendment as provided in Articles IV and VI of the Deposit
Agreement (which may give rise to Depositary fees).
Section 1.5 βApplicantβ shall have the meaning given to such term in Section 5.10.
Section 1.6 βArticles of Associationβ shall mean the Articles of Association of the
Company, as amended and restated from time to time.
Section 1.7 βBeneficial Ownerβ shall mean, as to any ADS, any person or entity
having a beneficial interest deriving from the ownership of such ADS. Notwithstanding
anything else contained in the Deposit Agreement, any ADR(s) or any other instruments or
agreements relating to the ADSs and the corresponding Deposited Property, the Depositary, the
Custodian and their respective nominees are intended to be, and shall at all times during the term
of the Deposit Agreement be, the record holders only of the Deposited Property represented by
the ADSs for the benefit of the Holders and Beneficial Owners of the corresponding ADSs. The
Depositary, on its own behalf and on behalf of the Custodian and their respective nominees,
disclaims any beneficial ownership interest in the Deposited Property held on behalf of the
Holders and Beneficial Owners of ADSs. The beneficial ownership interests in the Deposited
Property are intended to be, and shall at all times during the term of the Deposit Agreement
continue to be, vested in the Beneficial Owners of the ADSs representing the Deposited
Property. The beneficial ownership interests in the Deposited Property shall, unless otherwise
agreed by the Depositary, be exercisable by the Beneficial Owners of the ADSs only through the
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Holders of such ADSs, by the Holders of the ADSs (on behalf of the applicable Beneficial
Owners) only through the Depositary, and by the Depositary (on behalf of the Holders and
Beneficial Owners of the corresponding ADSs) directly, or indirectly through the Custodian or
their respective nominees, in each case upon the terms of the Deposit Agreement and, if
applicable, the terms of the ADR(s) evidencing the ADSs. A Beneficial Owner of ADSs may or
may not be the Holder of such ADSs. A Beneficial Owner shall be able to exercise any right or
receive any benefit hereunder solely through the person who is the Holder of the ADSs owned by
such Beneficial Owner. Unless otherwise identified to the Depositary, a Holder shall be deemed
to be the Beneficial Owner of all the ADSs registered in his/her/its name. The manner in which
a Beneficial Owner holds ADSs (e.g., in a brokerage account vs. as registered holder) may affect
the rights and obligations of, the manner in which, and the extent to which, services are made
available to, Beneficial Owners pursuant to the terms of the Deposit Agreement.
Section 1.8 βCertificated ADS(s)β shall have the meaning set forth in Section 2.13.
Section 1.9 βCitibankβ shall mean Citibank, N.A., a national banking association
organized under the laws of the United States of America, and its successors.
Section 1.10 βCommissionβ shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency thereto in the United States.
Section 1.11 βCompanyβ shall mean Verona Pharma plc, a public limited company
incorporated under the laws of England and Wales, and its successors.
Section 1.12 βCRESTβ shall mean the system for the paperless settlement of trades in
securities and the holding of uncertificated securities operated by Euroclear UK & Ireland
Limited in accordance with the Uncertificated Securities Regulations 2001 (SI 2001 No. 3755),
as amended from time to time, or any successor thereto.
Section 1.13 βCustodianβ shall mean (i) as of the date hereof, Citibank N.A., London
Branch, having its principal office at 25 Canada Square, Canary Xxxxx, Xxxxxx, X00 0XX,
Xxxxxx Xxxxxxx, as the custodian of Deposited Property for the purposes of the Deposit
Agreement, (ii) Citibank, N.A., acting as custodian of Deposited Property pursuant to the
Deposit Agreement, and (iii) any other entity that may be appointed by the Depositary pursuant
to the terms of Section 5.5 as successor, substitute or additional custodian hereunder. The term
βCustodianβ shall mean any Custodian individually or all Custodians collectively, as the context
requires.
Section 1.14 βDeliverβ and βDeliveryβ shall mean (x) when used in respect of Shares
and other Deposited Securities, either (i) the physical delivery of the certificate(s) representing
such securities, or (ii) the book-entry transfer and recordation of such securities on the books of
the Share Registrar (as hereinafter defined) or in the book-entry settlement of CREST, and (y)
when used in respect of ADSs, either (i) the physical delivery of ADR(s) evidencing the ADSs, or
(ii) the book-entry transfer and recordation of ADSs on the books of the Depositary or any book-
entry settlement system in which the ADSs are settlement-eligible.
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Section 1.15 βDeposit Agreementβ shall mean this Deposit Agreement and all exhibits
hereto, as the same may from time to time be amended and supplemented from time to time in
accordance with the terms of the Deposit Agreement.
Section 1.16 βDepositaryβ shall mean Citibank, N.A., a national banking association
organized under the laws of the United States, in its capacity as depositary under the terms of the
Deposit Agreement, and any successor depositary hereunder.
Section 1.17 βDeposited Propertyβ shall mean the Deposited Securities and any cash
and other property held on deposit by the Depositary and the Custodian in respect of the ADSs
under the terms of the Deposit Agreement, subject, in the case of cash, to the provisions of
Section 4.8. All Deposited Property shall be held by the Custodian, the Depositary and their
respective nominees for the benefit of the Holders and Beneficial Owners of the ADSs
representing the Deposited Property. The Deposited Property is not intended to, and shall not,
constitute proprietary assets of the Depositary, the Custodian or their nominees. Beneficial
ownership in the Deposited Property is intended to be, and shall at all times during the term of
the Deposit Agreement continue to be, vested in the Beneficial Owners of the ADSs representing
the Deposited Property. Notwithstanding the foregoing, the collateral delivered in connection
with Pre-Release Transactions described in Section 5.10 shall not constitute Deposited Property.
Section 1.18 βDeposited Securitiesβ shall mean the Shares and any other securities
held on deposit by the Custodian from time to time in respect of the ADSs under the Deposit
Agreement and constituting Deposited Property.
Section 1.19 βDollarsβ and β$β shall refer to the lawful currency of the United States.
Section 1.20 βDTCβ shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded in the United
States and, as such, the custodian for the securities of DTC Participants (as hereinafter defined)
maintained in DTC, and any successor thereto.
Section 1.21 βDTC Participantβ shall mean any financial institution (or any nominee
of such institution) having one or more participant accounts with DTC for receiving, holding and
delivering the securities and cash held in DTC. A DTC Participant may or may not be a
Beneficial Owner. If a DTC Participant is not the Beneficial Owner of the ADSs credited to its
account at DTC, or of the ADSs in respect of which the DTC Participant is otherwise acting,
such DTC Participant shall be deemed, for all purposes hereunder, to have all requisite authority
to act on behalf of the Beneficial Owner(s) of the ADSs credited to its account at DTC or in
respect of which the DTC Participant is so acting. A DTC Participant, upon acceptance in any
one of its DTC accounts of any ADSs (or any interest therein) issued in accordance with the
terms and conditions of the Deposit Agreement, shall be deemed for all purposes to be a party to,
and bound by, the terms of the Deposit Agreement and the applicable ADR(s) to the same extent
as, and as if the DTC Participant were, the Holder of such ADSs.
Section 1.22 βExchange Actβ shall mean the United States Securities Exchange Act of
1934, as amended from time to time.
Section 1.23 βForeign Currencyβ shall mean any currency other than Dollars.
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Section 1.24 βFull Entitlement ADR(s)β, βFull Entitlement ADS(s)β and βFull
Entitlement Share(s)β shall have the respective meanings set forth in Section 2.12.
Section 1.25 βHolder(s)β shall mean the person(s) in whose name the ADSs are
registered on the books of the Depositary (or the Registrar, if any) maintained for such purpose.
A Holder may or may not be a Beneficial Owner. If a Holder is not the Beneficial Owner of the
ADS(s) registered in its name, such person shall be deemed, for all purposes hereunder, to have
all requisite authority to act on behalf of the Beneficial Owners of the ADSs registered in its
name. The manner in which a Holder holds ADSs (e.g., in certificated vs. uncertificated form)
may affect the rights and obligations of, and the manner in which the services are made available
to, Holders pursuant to the terms of the Deposit Agreement.
Section 1.26 βPartial Entitlement ADR(s)β, βPartial Entitlement ADS(s)β and
βPartial Entitlement Share(s)β shall have the respective meanings set forth in Section 2.12.
Section 1.27 βPoundsβ, βXxxxxβ and βΒ£β shall refer to the lawful currency of
England. βPre-Release Transactionβ shall have the meaning set forth in Section 5.10.
Section 1.29 βPrincipal Officeβ shall mean, when used with respect to the Depositary,
the principal office of the Depositary at which at any particular time its depositary receipts
business shall be administered, which, at the date of the Deposit Agreement, is located at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
Section 1.30 βRegistrarβ shall mean the Depositary or any bank or trust company
having an office in the Borough of Manhattan, The City of New York, which shall be appointed
by the Depositary to register issuances, transfers and cancellations of ADSs as herein provided,
and shall include any co-registrar appointed by the Depositary for such purposes. Registrars
(other than the Depositary) may be removed and substitutes appointed by the Depositary. Each
Registrar (other than the Depositary) appointed pursuant to the Deposit Agreement shall be
required to give notice in writing to the Depositary accepting such appointment and agreeing to
be bound by the applicable terms of the Deposit Agreement.
Section 1.31 βRestricted Securitiesβ shall mean Shares, Deposited Securities or ADSs
which (i) have been acquired directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and are subject to resale
limitations under the Securities Act or the rules issued thereunder, or (ii) are held by an executive
officer or director (or persons performing similar functions) or other Affiliate of the Company, or
(iii) are subject to other restrictions on sale or deposit under the laws of the United States,
England and Wales, or under a shareholder agreement or the Articles of Association of the
Company or under the regulations of an applicable securities exchange unless, in each case, such
Shares, Deposited Securities or ADSs are being transferred or sold to persons other than an
Affiliate of the Company in a transaction (a) covered by an effective resale registration
statement, or (b) exempt from the registration requirements of the Securities Act (as hereinafter
defined), and the Shares, Deposited Securities or ADSs are not, when held by such person(s),
Restricted Securities.
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Section 1.32 βRestricted ADR(s)β, βRestricted ADS(s)β and βRestricted Sharesβ
shall have the respective meanings set forth in Section 2.14.
Section 1.33 βSecurities Actβ shall mean the United States Securities Act of 1933, as
amended from time to time.
Section 1.34 βShare Registrarβ shall mean Computershare Investor Services plc, a
company registered in England and Wales under company number 3498808 and whose
registered office is at Xxx Xxxxxxxxx, Xxxxxxxxxxx Xxxx, Xxxxxxx XX00 0XX or any other
institution organized under the laws of England and Wales appointed by the Company to carry
out the duties of registrar for the Shares, and any successor thereto.
Section 1.35 βSharesβ shall mean the Companyβs ordinary shares, nominal value Β£0.05
per share, validly issued and outstanding and fully paid and may, if the Depositary so agrees after
consultation with the Company, include evidence of the right to receive Shares; provided that in
no event shall Shares include evidence of the right to receive Shares with respect to which the
full purchase price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived, disapplied or exercised; provided further, however, that, if there shall
occur any change in nominal value, split-up, consolidation, reclassification, exchange,
conversion or any other event described in Section 4.11 in respect of the Shares of the Company,
the term βSharesβ shall thereafter, to the maximum extent permitted by law, represent the
successor securities resulting from such event.
Section 1.36 βUncertificated ADS(s)β shall have the meaning set forth in Section 2.13.
Section 1.37 βUnited Statesβ and βU.S.β shall have the meaning assigned to it in
Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as depositary for the Deposited Property and hereby authorizes and directs the
Depositary to act in accordance with the terms and conditions set forth in the Deposit Agreement
and the applicable ADRs. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms and conditions of the Deposit
Agreement shall be deemed for all purposes to (a) be a party to and bound by the terms of the
Deposit Agreement and the applicable ADR(s), and (b) appoint the Depositary its attorney-in-
fact, with full power to delegate, to act on its behalf and to take any and all actions contemplated
in the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary in its sole discretion may
deem necessary or appropriate to carry out the purposes of the Deposit Agreement and the
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applicable ADR(s), the taking of such actions to be the conclusive determinant of the necessity
and appropriateness thereof.
Section 2.2 Form and Transferability of ADSs.
(a) Form. Certificated ADSs shall be evidenced by definitive ADRs which shall be
engraved, printed, lithographed or produced in such other manner as may be agreed upon by the
Company and the Depositary. ADRs may be issued under the Deposit Agreement in
denominations of any whole number of ADSs. The ADRs shall be substantially in the form set
forth in Exhibit A to the Deposit Agreement, with any appropriate insertions, modifications and
omissions, in each case as otherwise contemplated in the Deposit Agreement or required by law.
ADRs shall be (i) dated, (ii) signed by the manual or facsimile signature of a duly authorized
signatory of the Depositary, (iii) countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar, and (iv) registered in the books maintained by the Registrar
for the registration of issuances and transfers of ADSs. No ADR and no Certificated ADS
evidenced thereby shall be entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such ADR shall have
been so dated, signed, countersigned and registered. ADRs bearing the facsimile signature of a
duly-authorized signatory of the Depositary or the Registrar, who at the time of signature was a
duly-authorized signatory of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so authorized prior to
the delivery of such ADR by the Depositary. The ADRs shall bear a CUSIP number that is
different from any CUSIP number that was, is or may be assigned to any depositary receipts
previously or subsequently issued pursuant to any other arrangement between the Depositary (or
any other depositary) and the Company and which are not ADRs outstanding hereunder.
(b) Legends. The ADRs may be endorsed with, or have incorporated in the text
thereof, such legends or recitals not inconsistent with the provisions of the Deposit Agreement as
may be (i) necessary to enable the Depositary and the Company to perform their respective
obligations hereunder, (ii) required to comply with any applicable laws or regulations, or with
the rules and regulations of any securities exchange or market upon which ADSs may be traded,
listed or quoted, or to conform with any usage with respect thereto, (iii) necessary to indicate any
special limitations or restrictions to which any particular ADRs or ADSs are subject by reason of
the date of issuance of the Deposited Securities or otherwise, or (iv) required by any book-entry
system in which the ADSs are held. Holders and Beneficial Owners shall be deemed, for all
purposes, to have notice of, and to be bound by, the terms and conditions of the legends set forth,
in the case of Holders, on the ADR registered in the name of the applicable Holders or, in the
case of Beneficial Owners, on the ADR representing the ADSs owned by such Beneficial
Owners.
(c) Title. Subject to the limitations contained herein and in the ADR, title to an ADR
(and to each Certificated ADS evidenced thereby) shall be transferable upon the same terms as a
certificated security under the laws of the State of New York, provided that, in the case of
Certificated ADSs, such ADR has been properly endorsed or is accompanied by proper
instruments of transfer. Notwithstanding any notice to the contrary, the Depositary and the
Company may deem and treat the Holder of an ADS (that is, the person in whose name an ADS
is registered on the books of the Depositary) as the absolute owner thereof for all purposes.
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Neither the Depositary nor the Company shall have any obligation nor be subject to any liability
under the Deposit Agreement or any ADR to any holder or any Beneficial Owner unless, in the
case of a holder of ADSs, such holder is the Holder registered on the books of the Depositary or,
in the case of a Beneficial Owner, such Beneficial Owner, or the Beneficial Ownerβs
representative, is the Holder registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for the
acceptance of the ADSs into DTC. All ADSs held through DTC will be registered in the name
of the nominee for DTC (currently βCede & Co.β). Unless issued by the Depositary as
Uncertificated ADSs, the ADSs registered in the name of Cede & Co. will be evidenced by one
or more ADR(s) in the form of a βBalance Certificate,β which will provide that it represents the
aggregate number of ADSs from time to time indicated in the records of the Depositary as being
issued hereunder and that the aggregate number of ADSs represented thereby may from time to
time be increased or decreased by making adjustments on such records of the Depositary and of
DTC or its nominee as hereinafter provided. Citibank, N.A. (or such other entity as is appointed
by DTC or its nominee) may hold the βBalance Certificateβ as custodian for DTC. Each
Beneficial Owner of ADSs held through DTC must rely upon the procedures of DTC and the
DTC Participants to exercise or be entitled to any rights attributable to such ADSs. The DTC
Participants shall for all purposes be deemed to have all requisite power and authority to act on
behalf of the Beneficial Owners of the ADSs held in the DTC Participantsβ respective accounts
in DTC and the Depositary shall for all purposes be authorized to rely upon any instructions and
information given to it by DTC Participants. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADSs registered in the name
of the nominee for DTC will be shown on, and transfers of such ownership will be effected only
through, records maintained by (i) DTC or its nominee (with respect to the interests of DTC
Participants), or (ii) DTC Participants or their nominees (with respect to the interests of clients of
DTC Participants). Any distributions made, and any notices given, by the Depositary to DTC
under the terms of the Deposit Agreement shall (unless otherwise specified by the Depositary)
satisfy the Depositaryβs obligations under the Deposit Agreement to make such distributions, and
give such notices, in respect of the ADSs held in DTC (including, for avoidance of doubt, to the
DTC Participants holding the ADSs in their DTC accounts and to the Beneficial Owners of such
ADSs).
Section 2.3 Deposit of Shares. Subject to the terms and conditions of the Deposit
Agreement and applicable law, Shares or evidence of rights to receive Shares (other than
Restricted Securities) may be deposited by any person (including the Depositary in its individual
capacity but subject, however, in the case of the Company or any Affiliate of the Company, to
Section 5.7) at any time, whether or not the transfer books of the Company or the Share
Registrar, if any, are closed, by Delivery of the Shares to the Custodian. Every deposit of Shares
shall be accompanied by the following: (A) (i) in the case of Shares represented by certificates
issued in registered form, appropriate instruments of transfer or endorsement, in a form
satisfactory to the Custodian, (ii) in the case of Shares represented by certificates in bearer form,
the requisite coupons and talons pertaining thereto, and (iii) in the case of Shares delivered by
book-entry transfer and recordation, confirmation of such book-entry transfer and recordation in
the books of the Share Registrar or of CREST, as applicable, to the Custodian or that irrevocable
instructions have been given to cause such Shares to be so transferred and recorded, (B) such
certifications and payments (including, without limitation, the Depositaryβs fees and related
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charges) and evidence of such payments (including, without limitation, stamping or otherwise
marking such Shares by way of receipt) as may be required by the Depositary or the Custodian in
accordance with the provisions of the Deposit Agreement and applicable law, (C) if the
Depositary so requires, a written order directing the Depositary to issue and deliver to, or upon
the written order of, the person(s) stated in such order the number of ADSs representing the
Shares so deposited, (D) evidence satisfactory to the Depositary (which may be an opinion of
counsel) that all necessary approvals have been granted by, or there has been compliance with
the rules and regulations of, any applicable governmental agency in England and Wales, and
(E) if the Depositary so requires, (i) an agreement, assignment or instrument satisfactory to the
Depositary or the Custodian which provides for the prompt transfer by any person in whose
name the Shares are or have been recorded to the Custodian of any distribution, or right to
subscribe for additional Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall be satisfactory to the
Depositary or the Custodian and (ii) 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
exercise voting rights in respect of the Shares for any and all purposes until the Shares so
deposited are registered in the name of the Depositary, the Custodian or any nominee.
Without limiting any other provision of the Deposit Agreement, the Depositary shall
instruct the Custodian not to, and the Depositary shall not knowingly, accept for deposit (a) any
Restricted Securities, except as contemplated by Section 2.14 nor (b) any fractional Shares or
fractional Deposited Securities nor (c) a number of Shares or Deposited Securities which upon
application of the ADS to Shares ratio would give rise to fractional ADSs. No Shares shall be
accepted for deposit unless accompanied by evidence, if any is required by the Depositary, that is
reasonably satisfactory to the Depositary or the Custodian that all conditions to such deposit have
been satisfied by the person depositing such Shares under the laws and regulations of England
and Wales and any necessary approval has been granted by any applicable governmental body in
England and Wales, if any. The Depositary may issue ADSs 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 by the Company or any such custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in respect of the
Shares.
Without limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement (A) any Shares or other securities required to be registered
under the provisions of the Securities Act, unless (i) a registration statement is in effect as to
such Shares or other securities or (ii) the deposit is made upon terms contemplated in Section
2.14, or (B) any Shares or other securities the deposit of which would violate any provisions of
the Articles of Association of the Company. For purposes of the foregoing sentence, the
Depositary shall be entitled to rely upon representations and warranties made or deemed made
pursuant to the Deposit Agreement and shall not be required to make any further investigation.
The Depositary will comply with written instructions of the Company (received by the
Depositary reasonably in advance) not to accept for deposit hereunder any Shares identified in
such instructions at such times and under such circumstances as may reasonably be specified in
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such instructions in order to facilitate the Company's compliance with the securities laws of the
United States.
Section 2.4 Registration and Safekeeping of Deposited Securities. The Depositary
shall instruct the Custodian upon each Delivery of registered Shares being deposited hereunder
with the Custodian (or other Deposited Securities pursuant to Article IV hereof), together with
the other documents above specified, to present such Shares, together with the appropriate
instrument(s) of transfer or endorsement, duly stamped, to the Share Registrar for transfer and
registration of the Shares (as soon as transfer and registration can be accomplished and at the
expense of the person for whom the deposit is made) in the name of the Depositary, the
Custodian or a nominee of either. Deposited Securities shall be held by the Depositary, or by a
Custodian for the account and to the order of the Depositary or a nominee of the Depositary, in
each case, on behalf of the Holders and Beneficial Owners, at such place(s) as the Depositary or
the Custodian shall determine. Notwithstanding anything else contained in the Deposit
Agreement, any ADR(s), or any other instruments or agreements relating to the ADSs and the
corresponding Deposited Property, the registration of the Deposited Securities in the name of the
Depositary, the Custodian or any of their respective nominees, shall, to the maximum extent
permitted by applicable law, vest in the Depositary, the Custodian or the applicable nominee the
record ownership in the applicable Deposited Securities with the beneficial ownership rights and
interests in such Deposited Securities being at all times vested with the Beneficial Owners of the
ADSs representing the Deposited Securities. Notwithstanding the foregoing, the Depositary, the
Custodian and the applicable nominee shall at all times be entitled to exercise the beneficial
ownership rights in all Deposited Property, in each case only on behalf of the Holders and
Beneficial Owners of the ADSs representing the Deposited Property, upon the terms set forth in
the Deposit Agreement and, if applicable, the ADR(s) representing the ADSs. The Depositary,
the Custodian and their respective nominees shall for all purposes be deemed to have all requisite
power and authority to act in respect of Deposited Property on behalf of the Holders and
Beneficial Owners of ADSs representing the Deposited Property, and upon making payments to,
or acting upon instructions from, or information provided by, the Depositary, the Custodian or
their respective nominees all persons shall be authorized to rely upon such power and authority.
Section 2.5 Issuance of ADSs. The Depositary has made arrangements with the
Custodian for the Custodian to confirm to the Depositary upon receipt of a deposit of Shares
(i) that a deposit of Shares has been made pursuant to Section 2.3, (ii) that such Deposited
Securities have been recorded in the name of the Depositary, the Custodian or a nominee of
either on the shareholdersβ register maintained by or on behalf of the Company by the Share
Registrar on the books of CREST, (iii) that all required documents have been received, and
(iv) the person(s) to whom or upon whose order ADSs are deliverable in respect thereof and the
number of ADSs to be so delivered. Such notification may be made by letter, cable, telex,
SWIFT message or, at the risk and expense of the person making the deposit, by facsimile or
other means of electronic transmission. Upon receiving such notice from the Custodian, the
Depositary, subject to the terms and conditions of the Deposit Agreement and applicable law,
shall issue the ADSs representing the Shares so deposited to or upon the order of the person(s)
named in the notice delivered to the Depositary and, if applicable, shall execute and deliver at its
Principal Office Receipt(s) registered in the name(s) requested by such person(s) and evidencing
the aggregate number of ADSs to which such person(s) are entitled, but, in each case, only upon
payment to the Depositary of the charges of the Depositary for accepting a deposit of Shares and
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issuing ADSs (as set forth in Section 5.9 and Exhibit B hereto) and all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the Shares and the
issuance of the ADS(s). The Depositary shall only issue ADSs in whole numbers and deliver, if
applicable, ADR(s) evidencing whole numbers of ADSs. Nothing herein shall prohibit any Pre-
Release Transaction upon the terms set forth in the Deposit Agreement.
Section 2.6 Transfer, Combination and Split-up of ADRs.
(a) Transfer. The Registrar shall register the transfer of ADRs (and of the ADSs
represented thereby) on the books maintained for such purpose and the Depositary shall
(x) cancel such ADRs and execute new ADRs evidencing the same aggregate number of ADSs
as those evidenced by the ADRs canceled by the Depositary, (y) cause the Registrar to
countersign such new ADRs and (z) Deliver such new ADRs to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i) the ADRs have been
duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary
at its Principal Office for the purpose of effecting a transfer thereof, (ii) the surrendered ADRs
have been properly endorsed or are accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice), (iii) the
surrendered ADRs have been duly stamped (if required by the laws of the State of New York or
of the United States), and (iv) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B hereto) have been paid, subject, however, in each case, to the terms and conditions of
the applicable ADRs, of the Deposit Agreement and of applicable law, in each case as in effect at
the time thereof.
(b) Combination & Split-Up. The Registrar shall register the split-up or
combination of ADRs (and of the ADSs represented thereby) on the books maintained for such
purpose and the Depositary shall (x) cancel such ADRs and execute new ADRs for the number
of ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced by the
ADRs canceled by the Depositary, (y) cause the Registrar to countersign such new ADRs and
(z) Deliver such new ADRs to or upon the order of the Holder thereof, if each of the following
conditions has been satisfied: (i) the ADRs have been duly Delivered by the Holder (or by a
duly authorized attorney of the Holder) to the Depositary at its Principal Office for the purpose
of effecting a split-up or combination thereof, and (ii) all applicable fees and charges of, and
expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are
set forth in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in each case, to
the terms and conditions of the applicable ADRs, of the Deposit Agreement and of applicable
law, in each case as in effect at the time thereof.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities.The
Holder of ADSs shall be entitled to Delivery (at the Custodianβs designated office) of the
Deposited Securities at the time represented by the ADSs upon satisfaction of each of the
following conditions: (i) the Holder (or a duly-authorized attorney of the Holder) has duly
Delivered ADSs to the Depositary at its Principal Office (and if applicable, the ADRs evidencing
such ADSs) for the purpose of withdrawal of the Deposited Securities represented thereby, (ii) if
applicable and so required by the Depositary, the ADRs Delivered to the Depositary for such
purpose have been properly endorsed in blank or are accompanied by proper instruments of
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transfer in blank (including signature guarantees in accordance with standard securities industry
practice), (iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered 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 the person(s)
designated in such order, and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9
and Exhibit B) have been paid, subject, however, in each case, to the terms and conditions of the
ADRs evidencing the surrendered ADSs, of the Deposit Agreement, of the Companyβs Articles
of Association and of any applicable laws and the rules of CREST, and to any provisions of or
governing the Deposited Securities, in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the Depositary (i) shall
cancel the ADSs Delivered to it (and, if applicable, the ADR(s) evidencing the ADSs so
Delivered), (ii) shall direct the Registrar to record the cancellation of the ADSs so Delivered on
the books maintained for such purpose, and (iii) shall direct the Custodian to Deliver, or cause
the Delivery of, in each case, without unreasonable delay, the Deposited Securities represented
by the ADSs so canceled together with any certificate or other document of title for the
Deposited Securities, or evidence of the electronic transfer thereof (if available), as the case may
be, to or upon the written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and conditions of the
Deposit Agreement, of the ADRs evidencing the ADSs so canceled, of the Articles of
Association of the Company, of any applicable laws and of the rules of CREST, and to the terms
and conditions of or governing the Deposited Securities, in each case as in effect at the time
thereof.
The Depositary shall not accept for surrender ADSs representing less than one (1) Share.
In the case of Delivery to it of ADSs representing a number other than a whole number of
Shares, the Depositary shall cause ownership of the appropriate whole number of Shares to be
Delivered in accordance with the terms hereof, and shall, at the discretion of the Depositary,
either (i) return to the person surrendering such ADSs the number of ADSs representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional Share represented by the
ADSs so surrendered and remit the proceeds of such sale (net of (a) applicable fees and charges
of, and expenses incurred by, the Depositary and (b) applicable taxes withheld) to the person
surrendering the ADSs.
Notwithstanding anything else contained in any ADR or the Deposit Agreement, the
Depositary may make delivery at the Principal Office of the Depositary of Deposited Property
consisting of (i) any cash dividends or cash distributions, or (ii) any proceeds from the sale of
any non-cash distributions, which are at the time held by the Depositary in respect of the
Deposited Securities represented by the ADSs surrendered for cancellation and withdrawal. At
the request, risk and expense of any Holder so surrendering ADSs, and for the account of such
Holder, the Depositary shall direct the Custodian to forward (to the extent permitted by law) any
Deposited Property (other than Deposited Securities) held by the Custodian in respect of such
ADSs to the Depositary for delivery at the Principal Office of the Depositary. Such direction
shall be given by letter or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.
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Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of ADSs;
Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and
delivery, the registration of issuance, transfer, split-up, combination or surrender, of any ADS,
the delivery of any distribution thereon, or the withdrawal of any Deposited Property, the
Depositary or the Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other governmental charge
and any stock transfer or registration fee with respect thereto (including any such tax or charge
and fee with respect to Shares being deposited or withdrawn) and payment of any applicable fees
and charges of the Depositary as provided in Section 5.9 and Exhibit B, (ii) the production of
proof satisfactory to it as to the identity and genuineness of any signature or any other matter
contemplated by Section 3.1, and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of ADRs or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of the representative ADR, if applicable, the Deposit Agreement
and applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of Shares
generally or against deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of ADSs in particular instances may be
refused, or the registration of transfers of ADSs generally may be suspended, during any period
when the transfer books of the Company, the Depositary, a Registrar or 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 regulation,
any government or governmental body or commission or any securities exchange on which the
ADSs or Shares are listed, or under any provision of the Deposit Agreement or the representative
ADR(s), if applicable, or under any provision of, or governing, the Deposited Securities, or
because of a meeting of shareholders of the Company or for any other reason, subject, in all
cases, to Section 7.8.
(c) Regulatory Restrictions. Notwithstanding any provision of the Deposit
Agreement or any ADR(s) to the contrary, Holders are entitled to surrender outstanding ADSs to
withdraw the Deposited Securities associated herewith at any time subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholdersβ meeting or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the ADSs or to the withdrawal of the Deposited Securities,
and (iv) other circumstances specifically contemplated by Instruction I.A.(l) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time to time).
Section 2.9 Lost ADRs, etc. In case any ADR shall be mutilated, destroyed, lost, or
stolen, the Depositary shall execute and deliver a new ADR of like tenor at the expense of the
Holder (a) in the case of a mutilated ADR, in exchange of and substitution for such mutilated
ADR upon cancellation thereof, or (b) in the case of a destroyed, lost or stolen ADR, in lieu of
and in substitution for such destroyed, lost, or stolen ADR, after the Holder thereof (i) has
submitted to the Depositary a written request for such exchange and substitution before the
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Depositary has notice that the ADR has been acquired by a bona fide purchaser, (ii) has provided
such security or indemnity (including an indemnity bond) as may be required by the Depositary
to save it and any of its agents harmless, and (iii) has satisfied any other reasonable requirements
imposed by the Depositary, including, without limitation, evidence satisfactory to the Depositary
of such destruction, loss or theft of such ADR, the authenticity thereof and the Holderβs
ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance of
Records. All ADRs surrendered to the Depositary shall be canceled by the Depositary.
Canceled ADRs shall not be entitled to any benefits under the Deposit Agreement or be valid or
enforceable against the Depositary for any purpose. The Depositary is authorized to destroy
ADRs so canceled, provided the Depositary maintains a record of all destroyed ADRs. Any
ADSs held in book-entry form (e.g., through accounts at DTC) shall be deemed canceled when
the Depositary causes the number of ADSs evidenced by the Balance Certificate to be reduced
by the number of ADSs surrendered (without the need to physically destroy the Balance
Certificate).
Section 2.11 Escheatment. In the event any unclaimed property relating to the ADSs,
for any reason, is in the possession of Depositary and has not been claimed by the Holder thereof
or cannot be delivered to the Holder thereof through usual channels, the Depositary shall, upon
expiration of any applicable statutory period relating to abandoned property laws, escheat such
unclaimed property to the relevant authorities in accordance with the laws of each of the relevant
States of the United States.
Section 2.12 Partial Entitlement ADSs. In the event any Shares are deposited which
(i) entitle the holders thereof to receive a per-share distribution or other entitlement in an amount
different from the Shares then on deposit or (ii) are not fully fungible (including, without
limitation, as to settlement or trading) with the Shares then on deposit (the Shares then on deposit
collectively, βFull Entitlement Sharesβ and the Shares with different entitlement, βPartial
Entitlement Sharesβ), the Depositary shall (i) cause the Custodian to hold Partial Entitlement
Shares separate and distinct from Full Entitlement Shares, and (ii) subject to the terms of the
Deposit Agreement, issue ADSs representing Partial Entitlement Shares which are separate and
distinct from the ADSs representing Full Entitlement Shares, by means of separate CUSIP
numbering and legending (if necessary) and, if applicable, by issuing ADRs evidencing such
ADSs with applicable notations thereon (βPartial Entitlement ADSs/ADRsβ and βFull
Entitlement ADSs/ADRsβ, respectively). If and when Partial Entitlement Shares become Full
Entitlement Shares, the Depositary shall (a) give notice thereof to Holders of Partial Entitlement
ADSs and give Holders of Partial Entitlement ADRs the opportunity to exchange such Partial
Entitlement ADRs for Full Entitlement ADRs, (b) cause the Custodian to transfer the Partial
Entitlement Shares into the account of the Full Entitlement Shares, and (c) take such actions as
are necessary to remove the distinctions between (i) the Partial Entitlement ADRs and ADSs, on
the one hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and Beneficial
Owners of Partial Entitlement ADSs shall only be entitled to the entitlements of Partial
Entitlement Shares. Holders and Beneficial Owners of Full Entitlement ADSs shall be entitled
only to the entitlements of Full Entitlement Shares. All provisions and conditions of the Deposit
Agreement shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full
Entitlement ADRs and ADSs, except as contemplated by this Section 2.12. The Depositary is
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authorized to take any and all other actions as may be necessary (including, without limitation,
making the necessary notations on ADRs) to give effect to the terms of this Section 2.12. The
Company agrees to give timely written notice to the Depositary if any Shares issued or to be
issued are Partial Entitlement Shares and shall assist the Depositary with the establishment of
procedures enabling the identification of Partial Entitlement Shares upon Delivery to the
Custodian.
Section 2.13 Certificated/Uncertificated ADSs. Notwithstanding any other provision
of the Deposit Agreement, the Depositary may, at any time and from time to time, issue ADSs
that are not evidenced by ADRs (such ADSs, the βUncertificated ADS(s)β and the ADS(s)
evidenced by ADR(s), the βCertificated ADS(s)β). When issuing and maintaining Uncertificated
ADS(s) under the Deposit Agreement, the Depositary shall at all times be subject to (i) the
standards applicable to registrars and transfer agents maintaining direct registration systems for
equity securities in New York and issuing uncertificated securities under New York law, and
(ii) the terms of New York law applicable to uncertificated equity securities. Uncertificated
ADSs shall not be represented by any instruments but shall be evidenced by registration in the
books of the Depositary maintained for such purpose. Holders of Uncertificated ADSs, that are
not subject to any registered pledges, liens, restrictions or adverse claims of which the
Depositary has notice at such time, shall at all times have the right to exchange the
Uncertificated ADS(s) for Certificated ADS(s) of the same type and class, subject in each case to
(x) applicable laws and any rules and regulations the Depositary may have established in respect
of the Uncertificated ADSs, and (y) the continued availability of Certificated ADSs in the U.S.
Holders of Certificated ADSs shall, if the Depositary maintains a direct registration system for
the ADSs, have the right to exchange the Certificated ADSs for Uncertificated ADSs upon (i) the
due surrender of the Certificated ADS(s) to the Depositary for such purpose and (ii) the
presentation of a written request to that effect to the Depositary, subject in each case to (a) all
liens and restrictions noted on the ADR evidencing the Certificated ADS(s) and all adverse
claims of which the Depositary then has notice, (b) the terms of the Deposit Agreement and the
rules and regulations that the Depositary may establish for such purposes hereunder,
(c) applicable law, and (d) payment of the Depositary fees and expenses applicable to such
exchange of Certificated ADS(s) for Uncertificated ADS(s). Uncertificated ADSs shall in all
material respects be identical to Certificated ADS(s) of the same type and class, except that (i) no
ADR(s) shall be, or shall need to be, issued to evidence Uncertificated ADS(s),
(ii) Uncertificated ADS(s) shall, subject to the terms of the Deposit Agreement, be transferable
upon the same terms and conditions as uncertificated securities under New York law, (iii) the
ownership of Uncertificated ADS(s) shall be recorded on the books of the Depositary maintained
for such purpose and evidence of such ownership shall be reflected in periodic statements
provided by the Depositary to the Holder(s) in accordance with applicable New York law,
(iv) the Depositary may from time to time, upon notice to the Holders of Uncertificated ADSs
affected thereby, establish rules and regulations, and amend or supplement existing rules and
regulations, as may be deemed reasonably necessary to maintain Uncertificated ADS(s) on
behalf of Holders, provided that (a) such rules and regulations do not conflict with the terms of
the Deposit Agreement and applicable law, and (b) the terms of such rules and regulations are
readily available to Holders upon request, (v) the Uncertificated ADS(s) shall not be entitled to
any benefits under the Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company unless such Uncertificated ADS(s) is/are registered on the books of
the Depositary maintained for such purpose, (vi) the Depositary may, in connection with any
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deposit of Shares resulting in the issuance of Uncertificated ADSs and with any transfer, pledge,
release and cancellation of Uncertificated ADSs, require the prior receipt of such documentation
as the Depositary may deem reasonably appropriate, and (vii) upon termination of the Deposit
Agreement, the Depositary shall not require Holders of Uncertificated ADSs to affirmatively
instruct the Depositary before remitting proceeds from the sale of the Deposited Property
represented by such Holders' Uncertificated ADSs under the terms of Section 6.2 of the Deposit
Agreement. When issuing ADSs under the terms of the Deposit Agreement, including, without
limitation, issuances pursuant to Sections 2.5, 4.2, 4.3, 4.4, 4.5 and 4.11, the Depositary may in
its discretion determine to issue Uncertificated ADSs rather than Certificated ADSs, unless
otherwise specifically instructed by the applicable Holder to issue Certificated ADSs. All
provisions and conditions of the Deposit Agreement shall apply to Uncertificated ADSs to the
same extent as to Certificated ADSs, except as contemplated by this Section 2.13. The
Depositary is authorized and directed to take any and all actions and establish any and all
procedures deemed reasonably necessary to give effect to the terms of this Section 2.13. Any
references in the Deposit Agreement or any ADR(s) to the terms βAmerican Depositary
Share(s)β or βADS(s)β shall, unless the context otherwise requires, include Certificated ADS(s)
and Uncertificated ADS(s). Except as set forth in this Section 2.13 and except as required by
applicable law, the Uncertificated ADSs shall be treated as ADSs issued and outstanding under
the terms of the Deposit Agreement. In the event that, in determining the rights and obligations
of parties hereto with respect to any Uncertificated ADSs, any conflict arises between (a) the
terms of the Deposit Agreement (other than this Section 2.13) and (b) the terms of this Section
2.13, the terms and conditions set forth in this Section 2.13 shall be controlling and shall govern
the rights and obligations of the parties to the Deposit Agreement pertaining to the Uncertificated
ADSs.
Section 2.14 Restricted ADSs. The Depositary shall, at the request and expense of the
Company, establish procedures enabling the deposit hereunder of Shares that are Restricted
Securities in order to enable the holder of such Shares to hold its ownership interests in such
Restricted Securities in the form of ADSs issued under the terms hereof (such Shares,
βRestricted Sharesβ). Upon receipt of a written request from the Company to accept Restricted
Shares for deposit hereunder, the Depositary agrees to establish procedures permitting the
deposit of such Restricted Shares and the issuance of ADSs representing the right to receive,
subject to the terms of the Deposit Agreement and the applicable ADR (if issued as a Certificated
ADS), such deposited Restricted Shares (such ADSs, the βRestricted ADSs,β and the ADRs
evidencing such Restricted ADSs, the βRestricted ADRsβ). Notwithstanding anything contained
in this Section 2.14, the Depositary and the Company may, to the extent not prohibited by law,
agree to issue the Restricted ADSs in uncertificated form (βUncertificated Restricted ADSsβ)
upon such terms and conditions as the Company and the Depositary may deem necessary and
appropriate. The Company shall assist the Depositary in the establishment of such procedures
and agrees that it shall take all steps necessary and satisfactory to the Depositary to ensure that
the establishment of such procedures does not violate the provisions of the Securities Act or any
other applicable laws. The depositors of such Restricted Shares and the Holders of the Restricted
ADSs may be required prior to the deposit of such Restricted Shares, the transfer of the
Restricted ADRs and Restricted ADSs or the withdrawal of the Restricted Shares represented by
Restricted ADSs to provide such written certifications or agreements as the Depositary or the
Company may require. The Company shall provide to the Depositary in writing the legend(s) to
be affixed to the Restricted ADRs (if the Restricted ADSs are to be issued as Certificated ADSs),
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or to be included in the statements issued from time to time to Holders of Uncertificated ADSs
(if issued as Uncertificated Restricted ADSs), which legends shall (i) be in a form reasonably
satisfactory to the Depositary and (ii) contain the specific circumstances under which the
Restricted ADSs, and, if applicable, the Restricted ADRs evidencing the Restricted ADSs, may
be transferred or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit
of Restricted Shares shall be separately identified on the books of the Depositary and the
Restricted Shares so deposited shall, to the extent required by law, be held separate and distinct
from the other Deposited Securities held hereunder. The Restricted Shares and the Restricted
ADSs shall not be eligible for Pre-Release Transactions. The Restricted ADSs shall not be
eligible for inclusion in any book-entry settlement system, including, without limitation, DTC,
and shall not in any way be fungible with the ADSs issued under the terms hereof that are not
Restricted ADSs. The Restricted ADSs, and, if applicable, the Restricted ADRs evidencing the
Restricted ADSs, shall be transferable only by the Holder thereof upon delivery to the
Depositary of (i) all documentation otherwise contemplated by the Deposit Agreement and (ii)
an opinion of counsel satisfactory to the Depositary setting forth, inter alia, the conditions upon
which the Restricted ADSs presented, and, if applicable, the Restricted ADRs evidencing the
Restricted ADSs, are transferable by the Holder thereof under applicable securities laws and the
transfer restrictions contained in the legend applicable to the Restricted ADSs presented for
transfer. Except as set forth in this Section 2.14 and except as required by applicable law, the
Restricted ADSs and the Restricted ADRs evidencing Restricted ADSs shall be treated as ADSs
and ADRs issued and outstanding under the terms of the Deposit Agreement. In the event that,
in determining the rights and obligations of parties hereto with respect to any Restricted ADSs,
any conflict arises between (a) the terms of the Deposit Agreement (other than this Section 2.14)
and (b) the terms of (i) this Section 2.14 or (ii) the applicable Restricted ADR, the terms and
conditions set forth in this Section 2.14 and of the Restricted ADR shall be controlling and shall
govern the rights and obligations of the parties to the Deposit Agreement pertaining to the
deposited Restricted Shares, the Restricted ADSs and Restricted ADRs.
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares cease to be
Restricted Securities, the Depositary, upon receipt of (x) an opinion of counsel satisfactory to the
Depositary setting forth, inter alia, that the Restricted ADRs, the Restricted ADSs and the
Restricted Shares are not as of such time Restricted Securities, and (y) instructions from the
Company to remove the restrictions applicable to the Restricted ADRs, the Restricted ADSs and
the Restricted Shares, shall (i) eliminate the distinctions and separations that may have been
established between the applicable Restricted Shares held on deposit under this Section 2.14 and
the other Shares held on deposit under the terms of the Deposit Agreement that are not Restricted
Shares, (ii) treat the newly unrestricted ADRs and ADSs on the same terms as, and fully fungible
with, the other ADRs and ADSs issued and outstanding under the terms of the Deposit
Agreement that are not Restricted ADRs or Restricted ADSs, and (iii) take all actions necessary
to remove any distinctions, limitations and restrictions previously existing under this Section
2.14 between the applicable Restricted ADRs and Restricted ADSs, respectively, on the one
hand, and the other ADRs and ADSs that are not Restricted ADRs or Restricted ADSs,
respectively, on the other hand, including, without limitation, by making the newly-unrestricted
ADSs eligible for Pre-Release Transactions and for inclusion in the applicable book-entry
settlement systems.
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information. Any person presenting
Shares for deposit, any Holder and any Beneficial Owner may be required, and every Holder and
Beneficial Owner agrees, from time to time to provide to the Depositary and the Custodian such
proof of citizenship or residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership of ADSs and
Deposited Property, compliance with applicable laws, the terms of the Deposit Agreement or the
ADR(s) evidencing the ADSs and the provisions of, or governing, the Deposited Property, to
execute such certifications and to make such representations and warranties, and to provide such
other information and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the Company or of the
Share Registrar) as the Depositary or the Custodian may deem necessary or proper or as the
Company may reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement and the applicable ADR(s). The Depositary and the
Registrar, as applicable, may withhold the execution or delivery or registration of transfer of any
ADR or ADS or the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof or, to the extent not limited by the terms of Section 7.8, the delivery of any
Deposited Property until such proof or other information is filed or such certifications are
executed, or such representations and warranties are made, or such other documentation or
information provided, in each case to the Depositaryβs, the Registrarβs and the Companyβs
satisfaction. The Depositary shall provide the Company, in a timely manner, with copies or
originals if necessary and appropriate of (i) any such proofs of citizenship or residence, taxpayer
status, or exchange control approval or copies of written representations and warranties which it
receives from Holders and Beneficial Owners, and (ii) any other information or documents
which the Company may reasonably request and which the Depositary shall request and receive
from any Holder or Beneficial Owner or any person presenting Shares for deposit or ADSs for
cancellation, transfer or withdrawal. Nothing herein shall obligate the Depositary to (i) obtain
any information for the Company if not provided by the Holders or Beneficial Owners, or (ii)
verify or vouch for the accuracy of the information so provided by the Holders or Beneficial
Owners.
Section 3.2 Liability for Taxes and Other Charges. Any tax or other governmental
charge payable by the Custodian or by the Depositary with respect to any Deposited Property,
ADSs or ADRs shall be payable by the Holders and Beneficial Owners to the Depositary. The
Company, the Custodian and/or the Depositary may withhold or deduct from any distributions
made in respect of Deposited Property, and may sell for the account of a Holder and/or
Beneficial Owner any or all of the Deposited Property and apply such distributions and sale
proceeds in payment of, any taxes (including applicable interest and penalties) or charges that are
or may be payable by Holders or Beneficial Owners in respect of the ADSs, Deposited Property
and ADRs, the Holder and the Beneficial Owner remaining liable for any deficiency. The
Custodian may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to
deliver ADRs, register the transfer of ADSs, register the split-up or combination of ADRs and
(subject to Section 7.8) the withdrawal of Deposited Property until payment in full of such tax,
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charge, penalty or interest is received. Every Holder and Beneficial Owner agrees to indemnify
the Depositary, the Company, the Custodian, and any of their agents, officers, employees and
Affiliates for, and to hold each of them harmless from, any claims with respect to taxes
(including applicable interest and penalties thereon) arising from any tax benefit obtained for
such Holder and/or Beneficial Owner. The obligations of Holders and Beneficial Owners under
this Section 3.2 shall survive any transfer of ADSs, any cancellation of ADSs and withdrawal of
Deposited Securities, and the termination of the Deposit Agreement.
Section 3.3 Representations and Warranties on Deposit of Shares. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares and the certificates therefor are duly authorized, validly allotted and
issued, fully paid, not subject to any call for the payment of further capital and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect to such Shares have
been validly waived, disapplied or exercised, (iii) the person making such deposit is duly
authorized so to do, (iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim, (v) the Shares presented for
deposit are not, and the ADSs issuable upon such deposit will not be, Restricted Securities
(except as contemplated in Section 2.14), and (vi) the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and warranties shall survive the
deposit and withdrawal of Shares, the issuance and cancellation of ADSs in respect thereof and
the transfer of such ADSs. 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 necessary to correct the consequences thereof.
Section 3.4 Compliance with Information Requests. Notwithstanding any other
provision of the Deposit Agreement or any ADR(s), each Holder and Beneficial Owner agrees to
comply with requests from the Company pursuant to applicable law, the rules and requirements
of The NASDAQ Global Market and any other stock exchange on which the Shares or ADSs
are, or will be, registered, traded or listed or the Articles of Association of the Company, which
are made to provide information, inter alia, as to the capacity in which such Holder or Beneficial
Owner owns ADSs (and Shares as the case may be) and regarding the identity of any other
person(s) interested in such ADSs and the nature of such interest and various other matters,
whether or not they are Holders and/or Beneficial Owners at the time of such request. The
Depositary agrees to use its reasonable efforts to forward, upon the request of the Company and
at the Companyβs expense, any such request from the Company to the Holders and to forward to
the Company any such responses to such requests received by the Depositary.
Section 3.5 Ownership Restrictions. Notwithstanding any other provision in the
Deposit Agreement or any ADR, the Company may restrict transfers of the Shares where such
transfer might result in ownership of Shares exceeding limits imposed by applicable law or the
Articles of Association of the Company. The Company may also restrict, in such manner as it
deems appropriate, transfers of the ADSs where such transfer may result in the total number of
Shares represented by the ADSs owned by a single Holder or Beneficial Owner to exceed any
such limits. The Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder or Beneficial
Owner in excess of the limits set forth in the preceding sentence, including, but not limited to,
the imposition of restrictions on the transfer of ADSs, the removal or limitation of voting rights
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or mandatory sale or disposition on behalf of a Holder or Beneficial Owner of the Shares
represented by the ADSs held by such Holder or Beneficial Owner in excess of such limitations,
if and to the extent such disposition is permitted by applicable law and the Articles of
Association of the Company. Nothing herein shall be interpreted as obligating the Depositary or
the Company to ensure compliance with the ownership restrictions described in this Section 3.5.
Section 3.6 Reporting Obligations and Regulatory Approvals. Applicable laws
and regulations may require holders and beneficial owners of Shares, including the Holders and
Beneficial Owners of ADSs, to satisfy reporting requirements and obtain regulatory approvals in
certain circumstances. Holders and Beneficial Owners of ADSs are solely responsible for
determining and complying with such reporting requirements and obtaining such approvals.
Each Holder and each Beneficial Owner hereby agrees to make such determination, file such
reports, and obtain such approvals to the extent and in the form required by applicable laws and
regulations as in effect from time to time. Neither the Depositary, the Custodian, the Company
or any of their respective agents or affiliates shall be required to take any actions whatsoever on
behalf of Holders or Beneficial Owners to determine or satisfy such reporting requirements or
obtain such regulatory approvals under applicable laws and regulations.
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Company intends to make a
distribution of a cash dividend or other cash distribution in respect of any Deposited Securities,
the Company shall give notice thereof to the Depositary at least twenty (20) days (or such other
number of days as mutually agreed to in writing by the Depositary and the Company) prior to the
proposed distribution specifying, inter alia, the record date applicable for determining the
holders of Deposited Securities entitled to receive such distribution. Upon the timely receipt of
such notice, the Depositary shall establish the ADS Record Date upon the terms described in
Section 4.9. Upon receipt of confirmation of the receipt of (x) any cash dividend or other cash
distribution on any Deposited Securities, or (y) proceeds from the sale of any Deposited Property
held in respect of the ADSs under the terms hereof, the Depositary will (i) if at the time of
receipt thereof any amounts received in a Foreign Currency can, in the judgment of the
Depositary (pursuant to Section 4.8), be converted on a practicable basis into Dollars transferable
to the United States, promptly convert or cause to be converted such cash dividend, distribution
or proceeds into Dollars (on the terms described in Section 4.8), (ii) if applicable and unless
previously established, establish the ADS Record Date upon the terms described in Section 4.9,
and (iii) distribute promptly the amount thus received (net of (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) applicable taxes withheld) to the Holders
entitled thereto as of the ADS Record Date in proportion to the number of ADSs held as of the
ADS Record Date. 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
distributed 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 ADSs outstanding at the time of the next distribution. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities, or from any cash proceeds from the sales of
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Deposited Property, an amount on account of taxes, duties or other governmental charges, the
amount distributed to Holders on the ADSs shall be reduced accordingly. Such withheld
amounts shall be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be forwarded by the
Company to the Depositary upon request. The Depositary will hold any cash amounts it is
unable to distribute in a non-interest bearing account for the benefit of the applicable Holders
and Beneficial Owners of ADSs until the distribution can be effected or the funds that the
Depositary holds must be escheated as unclaimed property in accordance with the laws of the
relevant states of the United States. Notwithstanding anything contained in the Deposit
Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of
the proposed distribution provided for in this Section 4.1, the Depositary agrees to use
commercially reasonable efforts to perform the actions contemplated in this Section 4.1, and the
Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall have no
liability for the Depositaryβs failure to perform the actions contemplated in this Section 4.1
where such notice has not been so timely given, other than its failure to use commercially
reasonable efforts, as provided herein.
Section 4.2 Distribution in Shares. Whenever the Company intends to make a
distribution that consists of a dividend in, or free distribution of, Shares, the Company shall give
notice thereof to the Depositary at least twenty (20) days (or such other number of days as
mutually agreed to in writing by the Depositary and the Company) prior to the proposed
distribution, specifying, inter alia, the record date applicable to holders of Deposited Securities
entitled to receive such distribution. Upon the timely receipt of such notice from the Company,
the Depositary shall establish the ADS Record Date upon the terms described in Section 4.9.
Upon receipt of confirmation from the Custodian of the receipt of the Shares so distributed by
the Company, the Depositary shall either (i) subject to Section 5.9, distribute to the Holders as of
the ADS Record Date in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in the aggregate the number of Shares received as such
dividend, or free distribution, subject to the other terms of the Deposit Agreement (including,
without limitation, (a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) applicable taxes), or (ii) if additional ADSs are not so distributed, take all
actions necessary so that each ADS issued and outstanding after the ADS Record Date shall, to
the extent permissible by law, thenceforth also represent rights and interests in the additional
integral number of Shares distributed upon the Deposited Securities represented thereby (net of
(a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b)
applicable taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the number of
Shares or ADSs, as the case may be, represented by the aggregate of such fractions and distribute
the net proceeds upon the terms described in Section 4.1. In the event that the Depositary
determines that any distribution in property (including Shares) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, or, if the Company in the
fulfillment of its obligation under Section 5.7, 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 (and no such registration statement has been declared effective), 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, and the Depositary shall distribute the net
proceeds of any such sale (after deduction of (a) applicable taxes and (b) fees and charges of, and
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expenses incurred by, the Depositary) to Holders entitled thereto upon the terms described in
Section 4.1. The Depositary shall hold and/or distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement. Notwithstanding anything contained
in the Deposit Agreement to the contrary, in the event the Company fails to give the Depositary
timely notice of the proposed distribution provided for in this Section 4.2, the Depositary agrees
to use commercially reasonable efforts to perform the actions contemplated in this Section 4.2,
and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall
have no liability for the Depositaryβs failure to perform the actions contemplated in this Section
4.2 where such notice has not been so timely given, other than its failure to use commercially
reasonable efforts, as provided herein.
Section 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to make a distribution payable at the election of the holders of Deposited Securities in
cash or in additional Shares, the Company shall give notice thereof to the Depositary at least
sixty (60) days (or such other number of days as mutually agreed to in writing by the Depositary
and the Company) prior to the proposed distribution specifying, inter alia, the record date
applicable to holders of Deposited Securities entitled to receive such elective distribution and
whether or not it wishes such elective distribution to be made available to Holders of ADSs.
Upon the timely receipt of a notice indicating that the Company wishes such elective distribution
to be made available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination, whether it is lawful
and reasonably practicable to make such elective distribution available to the Holders of ADSs.
The Depositary shall make such elective distribution available to Holders only if (i) the
Company shall have timely requested that the elective distribution be made available to Holders,
(ii) the Depositary shall have determined that such distribution is reasonably practicable and (iii)
the Depositary shall have received satisfactory documentation within the terms of Section 5.7. If
the above conditions are not satisfied or if the Company requests such elective distribution not to
be made available to Holders of ADSs, the Depositary shall establish the ADS Record Date on
the terms described in Section 4.9 and, to the extent permitted by law, distribute to the Holders,
on the basis of the same determination as is made in England and Wales in respect of the Shares
for which no election is made, either (X) cash upon the terms described in Section 4.1 or (Y)
additional ADSs representing such additional Shares upon the terms described in Section 4.2. If
the above conditions are satisfied, the Depositary shall establish an ADS Record Date on the
terms described in Section 4.9 and establish procedures to enable Holders to elect the receipt of
the proposed distribution in cash or in additional ADSs. The Company shall assist the
Depositary in establishing such procedures to the extent necessary. If a Holder elects to receive
the proposed distribution (X) in cash, the distribution shall be made upon the terms described in
Section 4.1, or (Y) in ADSs, the distribution shall be made upon the terms described in Section
4.2. Nothing herein shall obligate the Depositary to make available to Holders a method to
receive the elective distribution in Shares (rather than ADSs). There can be no assurance that
Holders generally, or any Holder in particular, will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares. Notwithstanding
anything contained in the Deposit Agreement to the contrary, in the event the Company fails to
give the Depositary timely notice of the proposed distribution provided for in this Section 4.3,
the Depositary agrees to use commercially reasonable efforts to perform the actions
contemplated in this Section 4.3, and the Company, the Holders and the Beneficial Owners
acknowledge that the Depositary shall have no liability for the Depositaryβs failure to perform
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the actions contemplated in this Section 4.3 where such notice has not been so timely given,
other than its failure to use commercially reasonable efforts, as provided herein.
Section 4.4 Distribution of Rights to Purchase Additional ADSs.
(a) Distribution to ADS Holders. Whenever the Company intends to distribute to
the holders of the Deposited Securities rights to subscribe for additional Shares, the Company
shall give notice thereof to the Depositary at least sixty (60) days (or such other number of days
as mutually agreed to in writing by the Depositary and the Company) prior to the proposed
distribution specifying, inter alia, the record date applicable to holders of Deposited Securities
entitled to receive such distribution and whether or not it wishes such rights to be made available
to Holders of ADSs. Upon the timely receipt of a notice indicating that the Company wishes
such rights to be made available to Holders of ADSs, the Depositary shall consult with the
Company to determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such rights available to the Holders. The
Depositary shall make such rights available to Holders only if (i) the Company shall have timely
requested that such rights be made available to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7, and (iii) the Depositary shall have
determined that such distribution of rights is reasonably practicable. In the event any of the
conditions set forth above are not satisfied or if the Company requests that the rights not be made
available to Holders of ADSs, the Depositary shall proceed with the sale of the rights as
contemplated in Section 4.4(b) below. In the event all conditions set forth above are satisfied,
the Depositary shall establish the ADS Record Date (upon the terms described in Section 4.9)
and establish procedures to (x) distribute rights to purchase additional ADSs (by means of
warrants or otherwise), (y) enable the Holders to exercise such rights (upon payment of the
subscription price and of the applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes), and (z) deliver ADSs upon the valid exercise of such rights. The
Company shall assist the Depositary to the extent necessary in establishing such procedures.
Nothing herein shall obligate the Depositary to make available to the Holders a method to
exercise rights to subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the Depositary to
make the rights available to Holders or requests that the rights not be made available to Holders,
(ii) the Depositary fails to receive satisfactory documentation within the terms of Section 5.7, or
determines it is not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the Depositary shall
determine whether it is lawful and reasonably practicable to sell such rights, in a riskless
principal capacity, at such place and upon such terms (including public or private sale) as it may
deem practicable. The Company shall assist the Depositary to the extent necessary to determine
such legality and practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) upon the terms set forth in Section 4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights available to
Holders upon the terms described in Section 4.4(a) or to arrange for the sale of the rights upon
the terms described in Section 4.4(b), the Depositary shall allow such rights to lapse.
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The Depositary shall not be liable for (i) any failure to accurately determine whether it
may be lawful or practicable to make such rights available to Holders in general or any Holders
in particular, (ii) any foreign exchange exposure or loss incurred in connection with such sale, or
exercise, or (iii) the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if registration (under the
Securities Act or any other applicable law) of the rights or 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 distribute such rights
to the Holders (i) unless and until a registration statement under the Securities Act (or other
applicable law) 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, in each case
satisfactory to the Depositary, to the effect that the offering and sale of such securities to Holders
and Beneficial Owners are exempt from, or do not require registration under, the provisions of
the Securities Act or any other applicable laws.
In the event that the Company, the Depositary or the Custodian shall be required to
withhold and does withhold from any distribution of Deposited Property (including rights) an
amount on account of taxes or other governmental charges, the amount distributed to the Holders
of ADSs shall be reduced accordingly. In the event that the Depositary determines that any
distribution of Deposited Property (including Shares and rights to subscribe therefor) is subject
to any tax or other governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such Deposited 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.
There can be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive or exercise rights on the same terms and conditions as the
holders of Shares or be able to exercise such rights. Nothing herein shall obligate the Company
to file any registration statement in respect of any rights or Shares or other securities to be
acquired upon the exercise of such rights.
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares.
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional Shares, the Company
shall give timely notice thereof to the Depositary and shall indicate whether or not it wishes such
distribution to be made to Holders of ADSs. Upon receipt of a notice indicating that the
Company wishes such distribution to be made to Holders of ADSs, the Depositary shall consult
with the Company, and the Company shall assist the Depositary, to determine whether such
distribution to Holders is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make such
distribution to Holders, (ii) the Depositary shall have received satisfactory documentation within
the terms of Section 5.7, and (iii) the Depositary shall have determined that such distribution is
reasonably practicable.
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(b) Upon receipt of satisfactory documentation and the request of the Company to
distribute property to Holders of ADSs and after making the requisite determinations set forth in
(a) above, the Depositary shall distribute the property so received to the Holders of record, as of
the ADS Record Date, in proportion to the number of ADSs held by them respectively and in
such manner as the Depositary may deem practicable for accomplishing such distribution (i)
upon receipt of payment or net of the applicable fees and charges of, and expenses incurred by,
the Depositary, and (ii) net of any applicable taxes withheld. The Depositary may dispose of all
or a portion of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or necessary to satisfy
any taxes (including applicable interest and penalties) or other governmental charges applicable
to the distribution.
(c) If (i) the Company does not request the Depositary to make such distribution to
Holders or requests the Depositary not to make such distribution to Holders, (ii) the Depositary
does not receive satisfactory documentation within the terms of Section 5.7, or (iii) the
Depositary determines that all or a portion of such distribution is not reasonably practicable, the
Depositary shall sell or cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem practicable and shall (i) cause the proceeds of such
sale, if any, to be converted into Dollars and (ii) distribute the proceeds of such conversion
received by the Depositary (net of applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes) to the Holders as of the ADS Record Date upon the terms of
Section 4.1. If the Depositary is unable to sell such property, the Depositary may dispose of such
property for the account of the Holders in any way it deems reasonably practicable under the
circumstances.
(d) Neither the Depositary nor the Company shall be liable for (i) any failure to
accurately determine whether it is lawful or practicable to make the property described in this
Section 4.5 available to Holders in general or any Holders in particular, nor (ii) any loss incurred
in connection with the sale or disposal of such property.
Section 4.6 Distributions with Respect to Deposited Securities in Bearer Form.
Subject to the terms of this Article IV, distributions in respect of Deposited Securities that are
held by the Depositary or the Custodian in bearer form shall be made to the Depositary for the
account of the respective Holders of ADS(s) with respect to which any such distribution is made
upon due presentation by the Depositary or the Custodian to the Company of any relevant
coupons, talons, or certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such coupons, talons or
certificates, as the case may be, in connection with any such distribution.
Section 4.7 Redemption. If the Company intends to exercise any right of redemption
in respect of any of the Deposited Securities, the Company shall give notice thereof to the
Depositary at least sixty (60) days (or such other number of days as mutually agreed to in writing
by the Depositary and the Company) prior to the intended date of redemption which notice shall
set forth the particulars of the proposed redemption. Upon timely receipt of (i) such notice and
(ii) satisfactory documentation given by the Company to the Depositary within the terms of
Section 5.7, and only if the Depositary shall have determined that such proposed redemption is
practicable, the Depositary shall provide to each Holder a notice setting forth the intended
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exercise by the Company of the redemption rights and any other particulars set forth in the
Companyβs notice to the Depositary. The Depositary shall instruct the Custodian to present to
the Company the Deposited Securities in respect of which redemption rights are being exercised
against payment of the applicable redemption price. Upon receipt of confirmation from the
Custodian that the redemption has taken place and that funds representing the redemption price
have been received, the Depositary shall convert, transfer, and distribute the proceeds (net of
applicable (a) fees and charges of, and the expenses incurred by, the Depositary, and (b) taxes),
retire ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by Holders thereof and
the terms set forth in Sections 4.1 and 6.2. If less than all outstanding Deposited Securities are
redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis, as may be
determined by the Depositary. The redemption price per ADS shall be the dollar equivalent of
the per share amount received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s)
ratio) upon the redemption of the Deposited Securities represented by ADSs (subject to the terms
of Section 4.8 and the applicable fees and charges of, and expenses incurred by, the Depositary,
and applicable taxes) multiplied by the number of Deposited Securities represented by each ADS
redeemed.
Notwithstanding anything contained in the Deposit Agreement to the contrary, in the
event the Company fails to give the Depositary timely notice of the proposed redemption
provided for in this Section 4.7, the Depositary agrees to use commercially reasonable efforts to
perform the actions contemplated in this Section 4.7, and the Company, the Holders and the
Beneficial Owners acknowledge that the Depositary shall have no liability for the Depositaryβs
failure to perform the actions contemplated in this Section 4.7 where such notice has not been so
timely given, other than its failure to use commercially reasonable efforts, as provided herein.
Section 4.8 Conversion of Foreign Currency. Whenever the Depositary or the
Custodian shall receive Foreign Currency, by way of dividends or other distributions or the net
proceeds from the sale of Deposited Property, which in the judgment of the Depositary can at
such time be converted on a practicable basis, by sale or in any other manner that it may
determine in accordance with applicable law, into Dollars transferable to the United States and
distributable to the Holders entitled thereto, the Depositary shall convert or cause to be
converted, by sale or in any other manner that it may determine, such Foreign Currency into
Dollars, and shall distribute such Dollars (net of any applicable fees, any reasonable and
customary expenses incurred in such conversion and any expenses incurred on behalf of the
Holders in complying with currency exchange control or other governmental requirements) in
accordance with the terms of the applicable sections of the Deposit Agreement. If the Depositary
shall have distributed warrants or other instruments that entitle the holders thereof to such
Dollars, the Depositary shall distribute such Dollars to the holders of such warrants and/or
instruments upon surrender thereof for cancellation, in either case without liability for interest
thereon. Such distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of exchange restrictions
or otherwise.
If such conversion or distribution generally or with regard to a particular Holder can be
effected only with the approval or license of any government or agency thereof, the Depositary
shall have authority to file such application for approval or license, if any, as it may deem
desirable. In no event, however, shall the Depositary be obligated to make such a filing.
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If at any time the Depositary shall determine that in its judgment the conversion of any
Foreign Currency and the transfer and distribution of proceeds of such conversion received by
the Depositary is not practicable or lawful, or if any approval or license of any governmental
authority or agency thereof that is required for such conversion, transfer and distribution is
denied or, in the opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion, (i) make such conversion and
distribution in Dollars to the Holders for whom such conversion, transfer and distribution is
lawful and practicable, (ii) distribute the Foreign Currency (or an appropriate document
evidencing the right to receive such Foreign Currency) to Holders for whom this is lawful and
practicable, or (iii) hold (or cause the Custodian to hold) such Foreign Currency (without liability
for interest thereon) for the respective accounts of the Holders entitled to receive the same.
Section 4.9 Fixing of ADS 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 distribution (whether in cash, Shares, rights, or other
distribution), or whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive notice of any
meeting of, or solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, 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
the record date (the βADS Record Dateβ) for the determination of the Holders of ADS(s) who
shall be entitled to receive such distribution, to give instructions for the exercise of voting rights
at any such meeting, to give or withhold such consent, 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 ADS. The Depositary shall make reasonable efforts to establish
the ADS Record Date as closely as practicable to the applicable record date for the Deposited
Securities (if any) set by the Company in England and Wales and shall not announce the
establishment of any ADS Record Date prior to the relevant corporate action having been made
public by the Company (if such corporate action affects the Deposited Securities). Subject to
applicable law and the provisions of Section 4.1 through 4.8 and to the other terms and
conditions of the Deposit Agreement, only the Holders of ADSs at the close of business in New
York on such ADS Record Date shall be entitled to receive such distribution, to give such voting
instructions, to receive such notice or solicitation, or otherwise take action.
Section 4.10 Voting of Deposited Securities. As soon as practicable after receipt of
notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of
solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix
the ADS Record Date in respect of such meeting or solicitation of consent or proxy in
accordance with Section 4.9. The Depositary shall, if requested by the Company in writing in a
timely manner (the Depositary having no obligation to take any further action if the request shall
not have been received by the Depositary at least thirty (30) days prior to the date of such vote or
meeting), at the Companyβs expense and provided no U.S. legal prohibitions exist, distribute to
Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or
proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be
entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Articles of
Association of the Company and the provisions of or governing the Deposited Securities (which
provisions, if any, shall be summarized in pertinent part by the Company), to instruct the
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Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities
represented by such Holderβs ADSs, and (c) a brief statement as to the manner in which such
voting instructions may be given to the Depositary or in which voting instructions may be
deemed to have been given in accordance with this Section 4.10 if no instructions are received
prior to the deadline set for such purposes to the Depositary to give a discretionary proxy to a
person designated by the Company.
Notwithstanding anything contained in the Deposit Agreement or any ADR, with the
Companyβs prior consent, the Depositary may, to the extent not prohibited by law or regulations,
or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution
of the materials provided to the Depositary in connection with any meeting of, or solicitation of
consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that
provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such
materials or receive such materials upon request (e.g., by reference to a website containing the
materials for retrieval or a contact for requesting copies of the materials).
The Depositary has been advised by the Company that under the Articles of Association
of the Company as in effect on the date of the Deposit Agreement, voting at any meeting of
shareholders of the Company is by show of hands unless (before or upon the declaration of the
result of the show of hands) a poll is demanded. The Depositary will not join in demanding a
poll, whether or not requested to do so by Holders of ADSs. Under the Articles of Association
of the Company as in effect on the date of the Deposit Agreement, a poll may be demanded by
(a) the chairman of the Companyβs board of directors, (b) not fewer than five shareholders
present in person or by proxy and having the right to vote at the meeting, (c) any shareholder(s)
present in person or by proxy and representing not less than 10% of the total voting rights of all
the shareholders having the right to vote on the resolution (excluding any shares held in
treasury), or (d) any shareholder(s) present in person or by proxy and holding shares in the
Company conferring a right to vote on the resolution being shares on which an aggregate sum
has been paid up equal to not less than 10% of the total sum paid up on all the shares conferring
that right (excluding any shares held in treasury).
Voting instructions may be given only in respect of a number of ADSs representing an
integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of
the ADS Record Date of voting instructions in the manner specified by the Depositary, the
Depositary shall endeavor, insofar as practicable and permitted under applicable law, the
provisions of the Deposit Agreement, Articles of Association of the Company and the provisions
of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in
person or by proxy) represented by such Holderβs ADSs as follows: (a) in the event voting takes
place at a shareholdersβ meeting by a show of hands, the Depositary will instruct the Custodian
to vote all Deposited Securities in accordance with the voting instructions received from a
majority of Holders of ADSs who provided voting instructions, and (b) in the event voting takes
place at a shareholdersβ meeting by poll, the Depositary will instruct the Custodian to vote the
Deposited Securities in accordance with the voting instructions received from the Holders of
ADSs. If voting is by poll and the Depositary does not receive voting instructions from a Holder
as of the ADS Record Date on or before the date established by the Depositary for such purpose,
such Holder shall be deemed, and the Depositary shall deem such Holder, to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company to vote the
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Deposited Securities; provided, however, that no such discretionary proxy shall be given by the
Depositary with respect to any matter to be voted upon as to which the Company informs the
Depositary that (a) the Company does not wish such proxy to be given, (b) substantial opposition
exists, or (c) the rights of holders of Deposited Securities may be adversely affected.
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 Deposited Securities represented by ADSs, except pursuant to and in accordance
with the voting instructions timely received from Holders or as otherwise contemplated herein.
If the Depositary timely receives voting instructions from a Holder which fail to specify the
manner in which the Depositary is to vote the Deposited Securities represented by such Holderβs
ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed
to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting
instructions. Deposited Securities represented by ADSs for which no timely voting instructions
are received by the Depositary from the Holder shall not be voted (except (a) in the case voting is
by show of hands, in which case the Depositary will instruct the Custodian to vote all Deposited
Securities in accordance with the voting instructions received from a majority of Holders of
ADSs who provided voting instructions, and (b) as contemplated in this Section 4.10).
Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing
by the Company, represent all Deposited Securities (whether or not voting instructions have been
received in respect of such Deposited Securities from Holders as of the ADS Record Date) for
the sole purpose of establishing quorum at a meeting of shareholders.
Notwithstanding anything else contained in the Deposit Agreement or any ADR, the
Depositary shall not have any obligation to take any action with respect to any meeting, or
solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action
would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary
and as permitted by the laws of England and Wales to enable Holders and Beneficial Owners to
exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an
opinion of U.S. counsel addressing any actions requested to be taken if so requested by the
Depositary.
There can be no assurance that Holders generally or any Holder in particular will receive
the notice described above with sufficient time to enable the Holder to return voting instructions
to the Depositary in a timely manner.
Section 4.11 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, consolidation or sale of assets
affecting the Company or to which it is a party, any property which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of, or replacement of, or otherwise
in respect of, such Deposited Securities shall, to the extent permitted by law, be treated as new
Deposited Property under the Deposit Agreement, and the ADSs shall, subject to the provisions
of the Deposit Agreement, any ADR(s) evidencing such ADSs and applicable law, represent the
right to receive such additional or replacement Deposited Property. In giving effect to such
change, split-up, cancellation, consolidation or other reclassification of Deposited Securities,
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recapitalization, reorganization, merger, consolidation or sale of assets, the Depositary may, with
the Companyβs approval, and shall, if the Company shall so request, subject to the terms of the
Deposit Agreement (including, without limitation, (a) the applicable fees and charges of, and
expenses incurred by, the Depositary, and (b) applicable taxes) and receipt of an opinion of
counsel to the Company satisfactory to the Depositary that such actions are not in violation of
any applicable laws or regulations, (i) issue and deliver additional ADSs as in the case of a stock
dividend on the Shares, (ii) amend the Deposit Agreement and the applicable ADRs, (iii) amend
the applicable Registration Statement(s) on Form F-6 as filed with the Commission in respect of
the ADSs, (iv) call for the surrender of outstanding ADRs to be exchanged for new ADRs, and
(v) take such other actions as are appropriate to reflect the transaction with respect to the ADSs.
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 form of ADRs.
Notwithstanding the foregoing, in the event that any Deposited Property so received may not be
lawfully distributed to some or all Holders, the Depositary may, with the Companyβs approval,
and shall, if the Company requests, subject to receipt of an opinion of Companyβs counsel
satisfactory to the Depositary that such action is not in violation of any applicable laws or
regulations, sell such Deposited Property 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 (net of
applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) for
the account of the Holders otherwise entitled to such Deposited Property 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 4.1. The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such Deposited Property available to Holders in
general or to any Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such Deposited Property.
Section 4.12 Available Information.
The Company is subject to the periodic reporting requirements of the Exchange Act and,
accordingly, is required to file or furnish certain reports with the Commission. These reports can
be retrieved from the Commission's website (xxx.xxx.xxx) and can be inspected and copied at
the public reference facilities maintained by the Commission located (as of the date of the
Deposit Agreement) at 000 X Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000.
Section 4.13 Reports. The Depositary shall make available for inspection by Holders
at its Principal Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Property and (b) made generally
available to the holders of such Deposited Property by the Company. The Depositary shall also
provide or make available to Holders copies of such reports when furnished by the Company
pursuant to Section 5.6.
Section 4.14 List of Holders. Promptly upon written request by the Company, the
Depositary shall furnish to it a list, as of a recent date, of the names, addresses and holdings of
ADSs of all Holders.
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Section 4.15 Taxation. The Depositary will, and will instruct the Custodian to,
forward to the Company or its agents such information from its records as the Company may
reasonably request to enable the Company or its agents to file the necessary tax reports with
governmental authorities or agencies. The Depositary, the Custodian or the Company and its
agents may file such reports as are necessary to reduce or eliminate applicable taxes on dividends
and on other distributions in respect of Deposited Property under applicable tax treaties or laws
for the Holders and Beneficial Owners. In accordance with instructions from the Company and
to the extent practicable, the Depositary or the Custodian will take reasonable administrative
actions to obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and other distributions on
the Deposited Property. As a condition to receiving such benefits, Holders and Beneficial
Owners of ADSs may be required from time to time, and in a timely manner, to file such proof
of taxpayer status, residence and beneficial ownership (as applicable), to execute such
certificates and to make such representations and warranties, or to provide any other information
or documents, as the Depositary or the Custodian may deem necessary or proper to fulfill the
Depositaryβs or the Custodianβs obligations under applicable law. The Depositary and the
Company shall have no obligation or liability to any person if any Holder or Beneficial Owner
fails to provide such information or if such information does not reach the relevant tax
authorities in time for any Holder or Beneficial Owner to obtain the benefits of any tax
treatment. The Holders and Beneficial Owners 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 taxes, reduced rate of
withholding at source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any amount on
account of taxes or governmental charges, or pays any other tax in respect of such distribution
(e.g., stamp duty tax, capital gains or other similar tax), the Company shall (and shall cause such
agent to) remit promptly to the Depositary information about such taxes or governmental charges
withheld or paid, and, if so requested, the tax receipt (or other proof of payment to the applicable
governmental authority) therefor, in each case, in a form satisfactory to the Depositary. The
Depositary shall, to the extent required by U.S. law, report to Holders any taxes withheld by it or
the Custodian, and, if such information is provided to it by the Company, any taxes withheld by
the Company. The Depositary and the Custodian shall not be required to provide the Holders
with any evidence of the remittance by the Company (or its agents) of any taxes withheld, or of
the payment of taxes by the Company, except to the extent the evidence is provided by the
Company to the Depositary or the Custodian, as applicable. Neither the Depositary nor the
Custodian shall be liable for the failure by any Holder or Beneficial Owner to obtain the benefits
of credits on the basis of non-U.S. tax paid against such Holderβs or Beneficial Ownerβs income
tax liability.
The Depositary is under no obligation to provide the Holders and Beneficial Owners with
any information about the tax status of the Company. The Depositary shall not incur any
liability for any tax consequences that may be incurred by Holders and Beneficial Owners on
account of their ownership of the ADSs, including without limitation, tax consequences resulting
from the Company (or any of its subsidiaries) being treated as a βPassive Foreign Investment
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Companyβ (in each case as defined in the U.S. Internal Revenue Code and the regulations issued
thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar. Until
termination of the Deposit Agreement in accordance with its terms, the Registrar shall maintain
in the Borough of Manhattan, the City of New York, an office and facilities for the issuance and
delivery of ADSs, the acceptance for surrender of ADS(s) for the purpose of withdrawal of
Deposited Securities, the registration of issuances, cancellations, transfers, combinations and
split-ups of ADS(s) and, if applicable, to countersign ADRs evidencing the ADSs so issued,
transferred, combined or split-up, in each case in accordance with the provisions of the Deposit
Agreement.
The Registrar shall keep books for the registration of ADSs which at all reasonable times
shall be open for inspection by the Company and by the Holders of such ADSs, provided that
such inspection shall not be, to the Registrarβs knowledge, for the purpose of communicating
with Holders of such ADSs in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, 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 subject,
in all cases, to Section 7.8.
If any ADSs are listed on one or more stock exchanges or automated quotation systems in
the United States, the Depositary shall act as Registrar or appoint a Registrar or one or more
co-registrars for registration of issuances, cancellations, transfers, combinations and split-ups of
ADSs and, if applicable, to countersign ADRs evidencing the ADSs so issued, transferred,
combined or split-up, in accordance with any requirements of such exchanges or systems. Such
Registrar or co-registrars may be removed and a substitute or substitutes appointed by the
Depositary.
Section 5.2 Exoneration. Notwithstanding anything contained in the Deposit
Agreement or any ADR, neither the Depositary nor the Company shall be obligated to do or
perform any act which is inconsistent with the provisions of the Deposit Agreement or incur any
liability (i) if the Depositary or the Company shall be prevented or forbidden from, or delayed in,
doing or performing any act or thing required by the terms of the Deposit Agreement, by reason
of any provision of any present or future law or regulation of the United States, England and
Wales or any other country, or of any other governmental authority or regulatory authority or
stock exchange, or on account of potential criminal or civil penalties or restraint, or by reason of
any provision, present or future, of the Articles of Association of the Company or any provision
of or governing any Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, acts of terrorism, revolutions,
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rebellions, explosions and computer failure), (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement or in the Articles of Association
of the Company or provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be competent to give
such advice or information, (iv) for the inability by a Holder or Beneficial Owner to benefit from
any distribution, offering, right or other benefit which is made available to holders of Deposited
Securities but is not, under the terms of the Deposit Agreement, made available to Holders of
ADSs, or (v) for any consequential or punitive damages (including lost profits) for any breach of
the terms of the Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and the Company, its
controlling persons and its agents may rely and shall be protected in acting upon any written
notice, request or other document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any provision of the
Deposit Agreement.
Section 5.3 Standard of Care. The Company and the Depositary assume no
obligation and shall not be subject to any liability under the Deposit Agreement or any ADRs to
any Holder(s) or Beneficial Owner(s), except that the Company and the Depositary agree to
perform their respective obligations specifically set forth in the Deposit Agreement or the
applicable ADRs without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, or agents, shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any Deposited Property or
in respect of the ADSs, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense (including fees and disbursements of counsel) and
liability be furnished as often as may be required (and no Custodian shall be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary).
The Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which any vote is cast
or the effect of any vote, provided that any such action or omission is in good faith and without
negligence and in accordance with the terms of the Deposit Agreement. The Depositary shall not
incur any liability for any failure to accurately determine that any distribution or action may be
lawful or reasonably practicable, for the content of any information submitted to it by the
Company for distribution to the Holders or for any inaccuracy of any translation thereof, for any
investment risk associated with acquiring an interest in the Deposited Property, for the validity or
worth of the Deposited Property or for any tax consequences that may result from the ownership
of ADSs, Shares or other Deposited Property, for the credit-worthiness of any third party, for
allowing any rights to lapse upon the terms of the Deposit Agreement, for the failure or
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timeliness of any notice from the Company, or for any action of or failure to act by, or any
information provided or not provided by, DTC or any DTC Participant.
The Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the Depositary or in
connection with any matter arising wholly after the removal or resignation of the Depositary,
provided that in connection with the issue out of which such potential liability arises the
Depositary performed its obligations without negligence or bad faith while it acted as
Depositary.
The Depositary shall not be liable for any acts or omissions made by a predecessor
depositary whether in connection with an act or omission of the Depositary or in connection with
any matter arising wholly prior to the appointment of the Depositary or after the removal or
resignation of the Depositary, provided that in connection with the issue out of which such
potential liability arises the Depositary performed its obligations without negligence or bad faith
while it acted as Depositary.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary hereunder by
written notice of resignation delivered to the Company, such resignation to be effective on the
earlier of (i) the 90th day after delivery thereof to the Company (whereupon the Depositary shall
be entitled to take the actions contemplated in Section 6.2), or (ii) the appointment by the
Company of a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written notice of such
removal, which removal shall be effective on the later of (i) the 90th day after delivery thereof to
the Depositary (whereupon the Depositary shall be entitled to take the actions contemplated in
Section 6.2), or (ii) upon the appointment by the Company of a successor depositary and its
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its 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 be required by the Company to 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 (except as required by applicable law),
shall become fully vested with all the rights, powers, duties and obligations of its predecessor
(other than as contemplated in Sections 5.8 and 5.9). The predecessor depositary, 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
(other than as contemplated in Sections 5.8 and 5.9), (ii) duly assign, transfer and deliver all of
the Depositaryβs right, title and interest to the Deposited Property to such successor, and (iii)
deliver to such successor a list of the Holders of all outstanding ADSs and such other
information relating to ADSs and Holders thereof as the successor may reasonably request. Any
such successor depositary shall promptly provide notice of its appointment to such Holders.
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Any entity into or with which the Depositary may be merged or consolidated shall be the
successor of the Depositary without the execution or filing of any document or any further act.
Section 5.5 The Custodian. The Depositary has initially appointed Citibank N.A.,
London Branch, as Custodian for the purpose of the Deposit Agreement. The Custodian or its
successors in acting hereunder shall be subject at all times and in all respects to the direction of
the Depositary for the Deposited Property for which the Custodian acts as custodian and shall be
responsible solely to it. If any Custodian resigns or is discharged from its duties hereunder with
respect to any Deposited Property and no other Custodian has previously been appointed
hereunder, the Depositary shall promptly appoint a substitute custodian. The Depositary shall
require such resigning or discharged Custodian to Deliver, or cause the Delivery of, the
Deposited Property held by it, together with all such records maintained by it as Custodian with
respect to such Deposited Property as the Depositary may request, to the Custodian designated
by the Depositary. Whenever the Depositary determines, in its discretion, that it is appropriate to
do so, it may appoint an additional custodian with respect to any Deposited Property, or
discharge the Custodian with respect to any Deposited Property and appoint a substitute
custodian, which shall thereafter be Custodian hereunder with respect to the Deposited Property.
Immediately upon any such change, the Depositary shall give notice thereof in writing to all
Holders of ADSs, each other Custodian and the Company.
Citibank, N.A. may at any time act as Custodian of the Deposited Property pursuant to
the Deposit Agreement, in which case any reference to Custodian shall mean Citibank, N.A.
solely in its capacity as Custodian pursuant to the Deposit Agreement. Notwithstanding anything
contained in the Deposit Agreement or any ADR, the Depositary shall not be obligated to give
notice to the Company, any Holders of ADSs or any other Custodian of its acting as Custodian
pursuant to the Deposit Agreement.
Upon the appointment of any successor depositary, any Custodian then acting hereunder
shall, unless otherwise instructed by the Depositary, continue to be the Custodian of the
Deposited Property without any further act or writing, and shall be subject to the direction of the
successor depositary. The successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such instruments as may be
proper to give to such Custodian full and complete power and authority to act on the direction of
such successor depositary.
Section 5.6 Notices and Reports. On or before the first date on which the Company
gives notice, by publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any action by such
holders other than at a meeting, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the English language
but otherwise in the form given or to be given to holders of Shares or other Deposited Securities.
The Company shall also furnish to the Custodian and the Depositary a summary, in English, of
any applicable provisions or proposed provisions of the Articles of Association of the Company
that may be relevant or pertain to such notice of meeting or be the subject of a vote thereat.
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The Company will also transmit to the Depositary (a) an English language version of the
other notices, reports and communications which are made generally available by the Company
to holders of its Shares or other Deposited Securities and (b) the English-language versions of
the Companyβs annual and semi-annual reports prepared in accordance with the applicable
requirements of the Commission. The Depositary shall arrange, at the request of the Company
and at the Companyβs expense, to provide copies thereof to all Holders or 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 or as 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
Companyβs Articles of Association along with the provisions of or governing the Shares and any
other Deposited Securities issued by the Company in connection with such Shares, and promptly
upon any amendment thereto or change therein, the Company shall deliver to the Depositary and
the Custodian a copy of such amendment thereto or change therein. The Depositary may rely
upon such copy for all purposes of the Deposit Agreement.
The Depositary will, at the expense of the Company, make available a copy of any such
notices, reports or communications issued by the Company and delivered to the Depositary for
inspection by the Holders of the ADSs at the Depositaryβs Principal Office, at the office of the
Custodian and at any other designated transfer office.
Section 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees that in
the event it or any of its Affiliates proposes (i) an issuance, sale or distribution of additional
Shares, (ii) an offering of rights to subscribe for Shares or other Deposited Securities, (iii) an
issuance or assumption of securities convertible into or exchangeable for Shares, (iv) an issuance
of rights to subscribe for securities convertible into or exchangeable for Shares, (v) an elective
dividend of cash or Shares, (vi) a redemption of Deposited Securities, (vii) a meeting of holders
of Deposited Securities, or solicitation of consents or proxies, relating to any reclassification of
securities, merger or consolidation or transfer of assets, (viii) any assumption, reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which affects the
Deposited Securities, or (ix) a distribution of securities other than Shares, it will obtain U.S. legal
advice and take all steps necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions of the Securities Act,
or any other applicable laws (including, without limitation, the Investment Company Act of
1940, as amended, the Exchange Act and the securities laws of the states of the U.S.). In support
of the foregoing, the Company will furnish to the Depositary (a) a written opinion of U.S.
counsel (reasonably satisfactory to the Depositary) stating whether such transaction (1) requires a
registration statement under the Securities Act to be in effect or (2) is exempt from the
registration requirements of the Securities Act and (b) an opinion of English counsel stating that
(1) making the transaction available to Holders and Beneficial Owners does not violate the laws
or regulations of England and Wales and (2) all requisite regulatory consents and approvals have
been obtained in England and Wales. If the filing of a registration statement is required, the
Depositary shall not have any obligation to proceed with the transaction unless it shall have
received evidence reasonably satisfactory to it that such registration statement has been declared
effective. If, being advised by counsel, the Company determines that a transaction is required to
be registered under the Securities Act, the Company will either (i) register such transaction to the
extent necessary, (ii) alter the terms of the transaction to avoid the registration requirements of
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the Securities Act or (iii) direct the Depositary to take specific measures, in each case as
contemplated in the Deposit Agreement, to prevent such transaction from violating the
registration requirements of the Securities Act. The Company agrees with the Depositary that
neither the Company nor any of its Affiliates will at any time (i) deposit any Shares or other
Deposited Securities, either upon original issuance or upon a sale of Shares or other Deposited
Securities previously issued and reacquired by the Company or by any such Affiliate, or (ii) issue
additional Shares, rights to subscribe for such Shares, securities convertible into or exchangeable
for Shares or rights to subscribe for such securities or distribute securities other than Shares,
unless such transaction and the securities issuable in such transaction do not violate the
registration provisions of the Securities Act, or any other applicable laws (including, without
limitation, the Investment Company Act of 1940, as amended, the Exchange Act and the
securities laws of the states of the U.S.).
Notwithstanding anything else contained in the Deposit Agreement, nothing in the
Deposit Agreement shall be deemed to obligate the Company to file any registration statement in
respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the Company and
its directors, officers, employees, agents and Affiliates against, and hold each of them harmless
from, any direct loss, liability, tax, 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 under the terms hereof due to the negligence or bad faith of the
Depositary.
The Company agrees to indemnify the Depositary, the Custodian and any of their
respective directors, officers, employees, agents and Affiliates against, and hold each of them
harmless from, any direct 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
ADRs, ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of, or as a
result of, any offering documents in respect thereof or (c) 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, any ancillary or
supplemental agreement entered into between the Company and the Depositary, the ADRs, the
ADSs, the Shares, or any Deposited Property, in any such case (i) by the Depositary, the
Custodian or any of their respective directors, officers, employees, agents and Affiliates, except
to the extent such loss, liability, tax, charge or expense is due to the negligence or bad faith of
any of them, or (ii) by the Company or any of its directors, officers, employees, agents and
Affiliates. The Company shall not indemnify the Depositary or the Custodian (for so long as the
Custodian is a branch of Citibank, N.A.) against any liability or expense arising out of
information relating to the Depositary or such Custodian, as the case may be, furnished in a
signed writing to the Company, executed by the Depositary expressly for use in any registration
statement, prospectus or preliminary prospectus relating to any Deposited Securities represented
by the ADSs.
The obligations set forth in this Section shall survive the termination of the Deposit
Agreement and the succession or substitution of any party hereto.
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Any person seeking indemnification hereunder (an βindemnified personβ) shall notify the
person from whom it is seeking indemnification (the βindemnifying personβ) 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 personβs rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult in good faith with
the indemnifying person as to the conduct of the defense of such action or claim that may give
rise to an indemnity hereunder, which defense shall be reasonable in the circumstances. No
indemnified person shall compromise or settle any action or claim that may give rise to an
indemnity hereunder without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
Section 5.9 ADS Fees and Charges. The Company, the Holders, the Beneficial
Owners, and persons receiving ADSs upon issuance or whose ADSs are being cancelled shall be
required to pay the ADS fees and charges identified as payable by them respectively in the ADS
fee schedule attached hereto as Exhibit B. All ADS fees and charges so payable may be
deducted from distributions or must be remitted to the Depositary, or its designee, may be
waived by the Depositary in full or in part with respect to some or all ADSs upon such terms,
and subject to such conditions, as the Depositary may determine and may, at any time and from
time to time, be changed by agreement between the Depositary and the Company, but, in the
case of ADS fees and charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a copy of its latest
ADS fee schedule to anyone upon request.
ADS fees and charges payable upon (i) the issuance of ADSs and (ii) the cancellation of
ADSs will be payable by the person to whom the ADSs are so issued by the Depositary (in the
case of ADS issuances) and by the person whose ADSs are being cancelled (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or presented to the
Depositary via DTC, the ADS issuance and cancellation fees and charges will be payable by the
DTC Participant(s) receiving the ADSs from the Depositary or the DTC Participant(s) holding
the ADSs being cancelled, as the case may be, on behalf of the Beneficial Owner(s) and will be
charged by the DTC Participant(s) to the account(s) of the applicable Beneficial Owner(s) in
accordance with the procedures and practices of the DTC participant(s) as in effect at the time.
ADS fees and charges in respect of distributions and the ADS service fee are payable by Holders
as of the applicable ADS Record Date established by the Depositary. In the case of distributions
of cash, the amount of the applicable ADS fees and charges is deducted from the funds being
distributed. In the case of (i) distributions other than cash and (ii) the ADS service fee, the
applicable Holders as of the ADS Record Date established by the Depositary will be invoiced for
the amount of the ADS fees and charges and such ADS fees may be deducted from distributions
made to Holders. For ADSs held through DTC, the ADS fees and charges for distributions other
than cash and the ADS service fee may be deducted from distributions made through DTC, and
may be charged to the DTC Participants in accordance with the procedures and practices
prescribed by DTC from time to time and the DTC Participants in turn charge the amount of
such ADS fees and charges to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by the
Company in respect of the ADR program established pursuant to the Deposit Agreement, by
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making available a portion of the ADS fees charged in respect of the ADR program or otherwise,
upon such terms and conditions as the Company and the Depositary agree from time to time.
The Company shall pay to the Depositary such fees and charges, and reimburse the Depositary
for such out-of-pocket expenses, as the Depositary and the Company may agree from time to
time. Responsibility for payment of such fees, charges and reimbursements may from time to
time be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its statement for such fees, charges and reimbursements to
the Company once every three months. The charges and expenses of the Custodian are for the
sole account of the Depositary.
The obligations of Holders and Beneficial Owners to pay ADS fees and charges shall
survive the termination of the Deposit Agreement. As to any Depositary, upon the resignation or
removal of such Depositary as described in Section 5.4, the right to collect ADS fees and charges
shall extend for those ADS fees and charges incurred prior to the effectiveness of such
resignation or removal.
Section 5.10 Pre-Release Transactions. Subject to the further terms and provisions of
this Section 5.10, the Depositary, its Affiliates and their agents, on their own behalf, may own
and deal in any class of securities of the Company and its Affiliates and in ADSs. In its capacity
as Depositary, the Depositary shall not lend Shares or ADSs; provided, however, that the
Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 and (ii)
deliver Shares prior to the receipt of ADSs for withdrawal of Deposited Securities pursuant to
Section 2.7, including ADSs which were issued under (i) above but for which Shares may not
have been received (each such transaction a βPre-Release Transactionβ). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) subject to a written agreement whereby
the person or entity (the βApplicantβ) to whom ADSs 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
ADSs 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 ADSs in its records and to hold such Shares
or ADSs in trust for the Depositary until such Shares or ADSs are delivered to the Depositary or
the Custodian, (y) unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (z) agrees to any additional restrictions or requirements
that the Depositary deems appropriate, (b) at all times fully collateralized with cash, U.S.
government securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business daysβ notice and (d) subject to
such further indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs 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 ADSs 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 held for the benefit of the Holders (other than the Applicant).
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Section 5.11 Restricted Securities Owners. The Company agrees to advise in writing
each of the persons or entities who, to the knowledge of the Company, holds Restricted
Securities that such Restricted Securities are ineligible for deposit hereunder (except under the
circumstances contemplated in Section 2.14) and, to the extent practicable, shall require each of
such persons to represent in writing that such person will not deposit Restricted Securities
hereunder (except under the circumstances contemplated in Section 2.14).
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. Subject to the terms and conditions of this
Section 6.1 and applicable law, the ADRs outstanding at any time, the provisions of the Deposit
Agreement and the form of ADR attached hereto and to be issued under the terms hereof 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 prior written consent of the Holders or Beneficial Owners. Any amendment or supplement
which shall impose or increase any fees or charges (other than charges in connection with
foreign exchange control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any substantial existing right
of Holders or Beneficial Owners, shall not, however, become effective as to outstanding ADSs
until the expiration of thirty (30) days after notice of such amendment or supplement shall have
been given to the Holders of outstanding ADSs. Notice of any amendment to the Deposit
Agreement or any ADR shall not need to describe in detail the specific amendments effectuated
thereby, and failure to describe the specific amendments in any such notice shall not render such
notice invalid, provided, however, that, in each such case, the notice given to the Holders
identifies a means for Holders and Beneficial Owners to retrieve or receive the text of such
amendment (e.g., upon retrieval from the Commissionβs, the Depositaryβs or the Companyβs
website or upon request from the Depositary). 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 ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs
to be settled 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 materially 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 ADSs, to consent and agree to such amendment or supplement and to be bound by the
Deposit Agreement and the ADR, if applicable, as amended or supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to surrender such ADS
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 an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and any ADRs at any time in
accordance with such changed laws, rules or regulations. Such amendment or supplement to the
Deposit Agreement and any ADRs 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 with such laws, rules or regulations.
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Section 6.2 Termination. The Depositary shall, at any time at the written direction of
the Company, terminate the Deposit Agreement by distributing notice of such termination to the
Holders of all ADSs then outstanding at least thirty (30) days prior to the date fixed in such
notice for such termination. If ninety (90) 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 Section 5.4 of the Deposit Agreement, the Depositary may terminate the Deposit
Agreement by distributing notice of such termination to the Holders of all ADSs then
outstanding at least thirty (30) days prior to the date fixed in such notice for such termination.
The date so fixed for termination of the Deposit Agreement in any termination notice so
distributed by the Depositary to the Holders of ADSs is referred to as the βTermination Dateβ.
Until the Termination Date, the Depositary shall continue to perform all of its obligations under
the Deposit Agreement, and the Holders and Beneficial Owners will be entitled to all of their
rights under the Deposit Agreement.
If any ADSs shall remain outstanding after the Termination Date, the Registrar and the
Depositary shall not, after the Termination Date, have any obligation to perform any further acts
under the Deposit Agreement, except that the Depositary shall, subject, in each case, to the terms
and conditions of the Deposit Agreement, continue to (i) collect dividends and other distributions
pertaining to Deposited Securities, (ii) sell Deposited Property received in respect of Deposited
Securities, (iii) deliver Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any other Deposited Property, in
exchange for ADSs surrendered to the Depositary (after deducting, or charging, as the case may
be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all
applicable taxes or governmental charges for the account of the Holders and Beneficial Owners,
in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (iv) take such
actions as may be required under applicable law in connection with its role as Depositary under
the Deposit Agreement.
At any time after the Termination Date, the Depositary may sell the Deposited Property
then held under the Deposit Agreement and shall after such sale hold un-invested the net
proceeds of such sale, together with any other cash then held by it under the Deposit Agreement,
in an un-segregated account and without liability for interest, for the pro rata benefit of the
Holders whose ADSs have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement except (i) to
account for such net proceeds and other cash (after deducting, or charging, as the case may be, in
each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable
taxes or governmental charges for the account of the Holders and Beneficial Owners, in each
case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (ii) as may be
required at law in connection with the termination of the Deposit Agreement. After the
Termination Date, the Company shall be discharged from all obligations under the Deposit
Agreement, except for its obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the
Deposit Agreement. The obligations under the terms of the Deposit Agreement of Holders and
Beneficial Owners of ADSs outstanding as of the Termination Date shall survive the
Termination Date and shall be discharged only when the applicable ADSs are presented by their
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Holders to the Depositary for cancellation under the terms of the Deposit Agreement (except as
specifically provided in the Deposit Agreement).
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. The Deposit Agreement may be executed in any number
of counterparts, each of which shall be deemed an original and all of such counterparts together
shall constitute one and the same agreement. Copies of the Deposit Agreement shall be
maintained with the Depositary and shall be open to inspection by any Holder during business
hours.
Section 7.2 No Third-Party Beneficiaries. The Deposit Agreement is for the
exclusive benefit of the parties hereto (and their successors) and shall not be deemed to give any
legal or equitable right, remedy or claim whatsoever to any other person, except to the extent
specifically set forth in the Deposit Agreement. Nothing in the Deposit Agreement shall be
deemed to give rise to a partnership or joint venture among the parties nor establish a fiduciary
or similar relationship among the parties. The parties hereto acknowledge and agree that (i)
Citibank and its Affiliates may at any time have multiple banking relationships with the
Company, the Holders, the Beneficial Owners, and their respective Affiliates, (ii) Citibank and
its Affiliates may be engaged at any time in transactions in which parties adverse to the
Company, the Holders, the Beneficial Owners or their respective Affiliates may have interests,
(iii) the Depositary and its Affiliates may from time to time have on their possession non-public
information about the Company, the Holders, the Beneficial Owners, and their respective
Affiliates, (iv) nothing contained in the Deposit Agreement shall (a) preclude Citibank or any of
its Affiliates from engaging in such transactions or establishing or maintaining such
relationships, (b) obligate Citibank or any of its Affiliates to disclose such information,
transactions or relationships, or to account for any profit made or payment received in such
transactions or relationships, and (v) the Depositary shall not be deemed to have knowledge of
any information any other division of Citibank or any of its Affiliates may have about the
Company, the Holders, the Beneficial Owners, or any of their respective Affiliates.
Section 7.3 Severability. In case any one or more of the provisions contained in the
Deposit Agreement or in the ADRs should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of ADSs issued hereunder shall be parties to
the Deposit Agreement and shall be bound by all of the terms and conditions hereof and of any
ADR evidencing their ADSs by acceptance thereof or any beneficial interest therein.
Section 7.5 Notices. Any and all notices to be given to the Company shall be deemed
to have been duly given if personally delivered or sent by mail, air courier or cable, telex or
facsimile transmission, confirmed by letter personally delivered or sent by mail or air courier,
addressed to Verona Pharma plc, 3 More Xxxxxx Xxxxxxxxx, Xxxxxx XX0 0XX UK, Attention:
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Legal Counsel, or to any other address which the Company may specify in writing to the
Depositary.
Any and all notices to be given to the Depositary shall be deemed to have been duly
given if personally delivered or sent by mail, air courier or cable, telex or facsimile transmission,
confirmed by letter personally delivered or sent by mail or air courier, addressed to Citibank,
N.A., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, U.S.A., Attention: Depositary
Receipts Department, or to any other address which the Depositary may specify in writing to the
Company.
Any and all notices to be given to any Holder shall be deemed to have been duly given
(a) if personally delivered or sent by mail or cable, telex or facsimile transmission, confirmed by
letter, addressed to such Holder at the address of such Holder as it appears on the books of the
Depositary or, if such Holder shall have filed with the Depositary a request that notices intended
for such Holder be mailed to some other address, at the address specified in such request, or
(b) if a Holder shall have designated such means of notification as an acceptable means of
notification under the terms of the Deposit Agreement, by means of electronic messaging
addressed for delivery to the e-mail address designated by the Holder for such purpose. Notice
to Holders shall be deemed to be notice to Beneficial Owners for all purposes of the Deposit
Agreement. Failure to notify a Holder or any defect in the notification to a Holder shall not
affect the sufficiency of notification to other Holders or to the Beneficial Owners of ADSs held
by such other Holders. Any notices given to DTC under the terms of the Deposit Agreement
shall (unless otherwise specified by the Depositary) constitute notice to the DTC Participants
who hold as the ADSs in their DTC accounts and to the Beneficial Owners of such ADSs.
Delivery of a notice sent by mail, air courier or cable, telex or facsimile transmission
shall be deemed to be effective at the time when a duly addressed letter containing the same (or a
confirmation thereof in the case of a cable, telex or facsimile transmission) is deposited, postage
prepaid, in a post-office letter box or delivered to an air courier service, without regard for the
actual receipt or time of actual receipt thereof by a Holder. The Depositary or the Company
may, however, act upon any cable, telex or facsimile transmission received by it from any
Holder, the Custodian, the Depositary, or the Company, notwithstanding that such cable, telex or
facsimile transmission shall not be subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to be effective at
the time of the initiation of the transmission by the sender (as shown on the senderβs records),
notwithstanding that the intended recipient retrieves the message at a later date, fails to retrieve
such message, or fails to receive such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address or for any other reason.
Section 7.6 Governing Law and Jurisdiction. The Deposit Agreement and the
ADRs shall be interpreted in accordance with, and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by, the laws of the State of New York applicable
to contracts made and to be wholly performed in that State. Notwithstanding anything contained
in the Deposit Agreement, any ADR or any present or future provisions of the laws of the State
of New York, the rights of holders of Shares and of any other Deposited Securities and the
obligations and duties of the Company in respect of the holders of Shares and other Deposited
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44
Securities, as such, shall be governed by the laws of England and Wales (or, if applicable, such
other laws as may govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.6, the Company and the
Depositary agree that the federal or state courts in the City of New York shall have jurisdiction
to hear and determine any suit, action or proceeding and to settle any dispute between them that
may arise out of or in connection with the Deposit Agreement and, for such purposes, each
irrevocably submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers National Corporate Research, Ltd. (the βAgentβ)
now at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent to
receive and accept for and on its behalf, and on behalf of its properties, assets and revenues,
service by mail of any and all legal process, summons, notices and documents that may be served
in any suit, action or proceeding brought against the Company in any federal or state court as
described in the preceding sentence or in the next paragraph of this Section 7.6. If for any reason
the Agent shall cease to be available to act as such, the Company agrees to designate a new agent
in New York on the terms and for the purposes of this Section 7.6 reasonably satisfactory to the
Depositary. The Company further hereby irrevocably consents and agrees to the service of any
and all legal process, summons, notices and documents in any suit, action or proceeding against
the Company, by service by mail of a copy thereof upon the Agent (whether or not the
appointment of such Agent shall for any reason prove to be ineffective or such Agent shall fail to
accept or acknowledge such service), with a copy mailed to the Company by registered or
certified air mail, postage prepaid, to its address provided in Section 7.5. The Company agrees
that the failure of the Agent to give any notice of such service to it shall not impair or affect in
any way the validity of such service or any judgment rendered in any action or proceeding based
thereon.
Notwithstanding the foregoing, the Depositary and the Company unconditionally agree
that in the event that a Holder or Beneficial Owner brings a suit, action or proceeding against (a)
the Company, (b) the Depositary in its capacity as Depositary under the Deposit Agreement or
(c) against both the Company and the Depositary, in any such case, in any state or federal court
of the United States, and the Depositary or the Company have any claim, for indemnification or
otherwise, against each other arising out of the subject matter of such suit, action or proceeding,
then the Company and the Depositary may pursue such claim against each other in the state or
federal court in the United States in which such suit, action, or proceeding is pending and, for
such purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the Agent in the
manner set forth in the preceding paragraph shall be effective service upon it for any suit, action
or proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of venue of any actions, suits
or proceedings brought in any court as provided in this Section 7.6, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
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45
The Company irrevocably and unconditionally waives, to the fullest extent permitted by
law, and agrees not to plead or claim, any right of immunity from legal action, suit or
proceeding, from setoff or counterclaim, from the jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid of execution or
judgment, from execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to such relief and
enforcement against it, its assets and its revenues in any jurisdiction, in each case with respect to
any matter arising out of, or in connection with, the Deposit Agreement, any ADR or the
Deposited Property.
EACH OF THE PARTIES TO THE DEPOSIT AGREEMENT (INCLUDING,
WITHOUT LIMITATION, EACH HOLDER AND BENEFICIAL OWNER)
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY ARISING
OUT OF, OR RELATING TO, THE DEPOSIT AGREEMENT, ANY ADR AND ANY
TRANSACTIONS CONTEMPLATED THEREIN (WHETHER BASED ON
CONTRACT, TORT, COMMON LAW OR OTHERWISE).
No disclaimer of liability under the Securities Act is intended by any provision of the
Deposit Agreement. The provisions of this Section 7.6 shall survive any termination of the
Deposit Agreement, in whole or in part.
Section 7.7 Assignment. Subject to the provisions of Section 5.4, the Deposit
Agreement may not be assigned by either the Company or the Depositary.
Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding anything in 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 Form F-6 Registration Statement, as amended from time to
time, under the Securities Act.
Section 7.9 England and Wales Law References. Any summary of laws and
regulations of England and Wales and of the terms of the Companyβs Articles of Association set
forth in the Deposit Agreement have been provided by the Company solely for the convenience
of Holders, Beneficial Owners and the Depositary. While such summaries are believed by the
Company to be accurate as of the date of the Deposit Agreement, (i) they are summaries and as
such may not include all aspects of the materials summarized applicable to a Holder or
Beneficial Owner, and (ii) these laws and regulations and the Companyβs Articles of Association
may change after the date of the Deposit Agreement. Neither the Depositary nor the Company
has any obligation under the terms of the Deposit Agreement to update any such summaries.
Section 7.10 Titles and References.
(a) Deposit Agreement. All references in the Deposit Agreement to exhibits,
articles, sections, subsections, and other subdivisions refer to the exhibits, articles, sections,
subsections and other subdivisions of the Deposit Agreement unless expressly provided
Β
46
otherwise. The words βthe Deposit Agreementβ, βhereinβ, βhereofβ, βherebyβ, βhereunderβ, and
words of similar import refer to the Deposit Agreement as a whole as in effect at the relevant
time between the Company, the Depositary and the Holders and Beneficial Owners of ADSs and
not to any particular subdivision unless expressly so limited. Pronouns in masculine, feminine
and neuter gender shall be construed to include any other gender, and words in the singular form
shall be construed to include the plural and vice versa unless the context otherwise requires.
Titles to sections of the Deposit Agreement are included for convenience only and shall be
disregarded in construing the language contained in the Deposit Agreement. References to
βapplicable laws and regulationsβ shall refer to laws and regulations applicable to ADRs, ADSs
or Deposited Property as in effect at the relevant time of determination, unless otherwise
required by law or regulation.
(b) ADRs. All references in any ADR(s) to paragraphs, exhibits, articles, sections,
subsections, and other subdivisions refer to the paragraphs, exhibits, articles, sections,
subsections and other subdivisions of the ADR(s) in question unless expressly provided
otherwise. The words βthe Receiptβ, βthe ADRβ, βhereinβ, βhereofβ, βherebyβ, βhereunderβ, and
words of similar import used in any ADR refer to the ADR as a whole and as in effect at the
relevant time, and not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender in any ADR shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural and vice versa
unless the context otherwise requires. Titles to paragraphs of any ADR are included for
convenience only and shall be disregarded in construing the language contained in the ADR.
References to βapplicable laws and regulationsβ shall refer to laws and regulations applicable to
ADRs, ADSs or Deposited Property as in effect at the relevant time of determination, unless
otherwise required by law or regulation.
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47
IN WITNESS WHEREOF, VERONA PHARMA PLC and CITIBANK, N.A. have duly
executed the Deposit Agreement as of the day and year first above set forth and all Holders and
Beneficial Owners shall become parties hereto upon acceptance by them of ADSs issued in
accordance with the terms hereof, or upon acquisition of any beneficial interest therein.
VERONA PHARMA PLC
By: ___/s/ Jan-Xxxxxx Xxxxxxxx, Ph.D.___
Name: Jan-Xxxxxx Xxxxxxxx, Ph.D.
Title: Chief Executive Officer
CITIBANK, N.A.
By: __/s/ Xxxxx Xxxxx _________
Name: Xxxxx Xxxxx
Title: Vice President
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A-1
EXHIBIT A
[FORM OF ADR]
Number CUSIP NUMBER: _______
_____________
American Depositary Shares (each
American Depositary Share
representing the right to receive eight
(8) fully paid ordinary shares)
AMERICAN DEPOSITARY RECEIPT
for
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
VERONA PHARMA PLC
(Incorporated under the laws of England and Wales)
CITIBANK, N.A., a national banking association organized and existing under the laws
of the United States of America, as depositary (the βDepositaryβ), hereby certifies that
_____________is the owner of ______________ American Depositary Shares (hereinafter
βADSβ) representing deposited ordinary shares, including evidence of rights to receive such
ordinary shares (the βSharesβ), of Verona Pharma plc, a public limited company incorporated
under the laws of England and Wales (the βCompanyβ). As of the date of issuance of this ADR,
each ADS represents the right to receive eight (8) Shares deposited under the Deposit Agreement
(as hereinafter defined) with the Custodian, which at the date of execution of the Deposit
Agreement is Citibank, N.A. London Branch (the βCustodianβ). The ADS(s)-to-Share(s) ratio is
subject to amendment as provided in Articles IV and VI of the Deposit Agreement. The
Depositaryβs Principal Office is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of an issue of
American Depositary Receipts (βADRsβ), all issued and to be issued upon the terms and
conditions set forth in the Deposit Agreement, dated as of May 2, 2017 (as amended and
supplemented from time to time, the βDeposit Agreementβ), by and among the Company, the
Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.
The Deposit Agreement sets forth the rights and obligations of Holders and Beneficial Owners of
ADSs and the rights and duties of the Depositary in respect of the Shares deposited thereunder
and any and all other Deposited Property (as defined in the Deposit Agreement) from time to
time received and held on deposit in respect of the ADSs. Copies of the Deposit Agreement are
on file at the Principal Office of the Depositary and with the Custodian. Each Holder and each
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A-2
Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued in accordance
with the terms and conditions of the Deposit Agreement, shall be deemed for all purposes to (a)
be a party to and bound by the terms of the Deposit Agreement and the applicable ADR(s), and
(b) appoint the Depositary its attorney-in-fact, with full power to delegate, to act on its behalf
and to take any and all actions contemplated in the Deposit Agreement and the applicable
ADR(s), to adopt any and all procedures necessary to comply with applicable law and to take
such action as the Depositary in its sole discretion may deem necessary or appropriate to carry
out the purposes of the Deposit Agreement and the applicable ADR(s), the taking of such actions
to be the conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of certain
provisions of the Deposit Agreement and the Articles of Association of the Company (as in
effect on the date of the signing of the Deposit Agreement) and are qualified by and subject to
the detailed provisions of the Deposit Agreement and the Articles of Association, to which
reference is hereby made.
All capitalized terms not 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 Property. The Depositary has made arrangements for the acceptance of the ADSs into
DTC. Each Beneficial Owner of ADSs held through DTC must rely on the procedures of DTC
and the DTC Participants to exercise and be entitled to any rights attributable to such ADSs. The
Depositary may issue Uncertificated ADSs subject, however, to the terms and conditions of
Section 2.13 of the Deposit Agreement.
(2) Surrender of ADSs and Withdrawal of Deposited Securities. The Holder of
this ADR (and of the ADSs evidenced hereby) shall be entitled to Delivery (at the Custodianβs
designated office) of the Deposited Securities at the time represented by the ADSs evidenced
hereby upon satisfaction of each of the following conditions: (i) the Holder (or a duly-authorized
attorney of the Holder) has duly Delivered ADSs to the Depositary at its Principal Office the
ADSs evidenced hereby (and if applicable, this ADR evidencing such ADSs) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if applicable and so required by
the Depositary, this ADR Delivered to the Depositary for such purpose has been properly
endorsed in blank or is accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice), (iii) if so required
by the Depositary, the Holder of the ADSs has executed and delivered 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 the person(s) designated in such order, and (iv) all
applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes
and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the Deposit
Agreement) have been paid, subject, however, in each case, to the terms and conditions of this
ADR evidencing the surrendered ADSs, of the Deposit Agreement, of the Companyβs Articles of
Association and of any applicable laws and the rules of CREST, and to any provisions of or
governing the Deposited Securities, in each case as in effect at the time thereof.
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Upon satisfaction of each of the conditions specified above, the Depositary (i) shall
cancel the ADSs Delivered to it (and, if applicable, the ADR(s) evidencing the ADSs so
Delivered), (ii) shall direct the Registrar to record the cancellation of the ADSs so Delivered on
the books maintained for such purpose, and (iii) shall direct the Custodian to Deliver, or cause
the Delivery of, in each case, without unreasonable delay, the Deposited Securities represented
by the ADSs so canceled together with any certificate or other document of title for the
Deposited Securities, or evidence of the electronic transfer thereof (if available), as the case may
be, to or upon the written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and conditions of the
Deposit Agreement, of this ADR evidencing the ADSs so canceled, of the Articles of
Association of the Company, of any applicable laws and of the rules of CREST, and to the terms
and conditions of or governing the Deposited Securities, in each case as in effect at the time
thereof.
The Depositary shall not accept for surrender ADSs representing less than one (1) Share.
In the case of Delivery to it of ADSs representing a number other than a whole number of
Shares, the Depositary shall cause ownership of the appropriate whole number of Shares to be
Delivered in accordance with the terms hereof, and shall, at the discretion of the Depositary,
either (i) return to the person surrendering such ADSs the number of ADSs representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional Share represented by the
ADSs so surrendered and remit the proceeds of such sale (net of (a) applicable fees and charges
of, and expenses incurred by, the Depositary and (b) applicable taxes withheld) to the person
surrendering the ADSs.
Notwithstanding anything else contained in this ADR or the Deposit Agreement, the
Depositary may make delivery at the Principal Office of the Depositary of Deposited Property
consisting of (i) any cash dividends or cash distributions, or (ii) any proceeds from the sale of
any non-cash distributions, which are at the time held by the Depositary in respect of the
Deposited Securities represented by the ADSs surrendered for cancellation and withdrawal. At
the request, risk and expense of any Holder so surrendering ADSs represented by this ADR, and
for the account of such Holder, the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any Deposited Property (other than Deposited Securities) held by the
Custodian in respect of such ADSs to the Depositary for delivery at the Principal Office of the
Depositary. Such direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-up of ADRs. The Registrar shall register the
transfer of this ADR (and of the ADSs represented hereby) on the books maintained for such
purpose and the Depositary shall (x) cancel this ADR and execute new ADRs evidencing the
same aggregate number of ADSs as those evidenced by this ADR when canceled by the
Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver such new
ADRs to or upon the order of the person entitled thereto, if each of the following conditions has
been satisfied: (i) this ADR has been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a
transfer thereof, (ii) this surrendered ADR has been properly endorsed or is accompanied by
proper instruments of transfer (including signature guarantees in accordance with standard
Β
A-4
securities industry practice), (iii) this surrendered ADR has been duly stamped (if required by the
laws of the State of New York or of the United States), and (iv) all applicable fees and charges
of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid,
subject, however, in each case, to the terms and conditions of this ADR, of the Deposit
Agreement and of applicable law, in each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of this ADR (and of the ADSs
represented hereby) on the books maintained for such purpose and the Depositary shall
(x) cancel this ADR and execute new ADRs for the number of ADSs requested, but in the
aggregate not exceeding the number of ADSs evidenced by this ADR canceled by the
Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver such new
ADRs to or upon the order of the Holder thereof, if each of the following conditions has been
satisfied: (i) this ADR has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of effecting a split-up or
combination thereof, and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 of,
and Exhibit B to, the Deposit Agreement) have been paid, subject, however, in each case, to the
terms and conditions of this ADR, of the Deposit Agreement and of applicable law, in each case
as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition precedent to the
execution and delivery, the registration of issuance, transfer, split-up, combination or surrender,
of any ADS, the delivery of any distribution thereon, or the withdrawal of any Deposited
Property, the Depositary or the Custodian may require (i) payment from the depositor of Shares
or presenter of ADSs or of this ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect thereto (including
any such tax or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees and charges of the Depositary as provided in Section 5.9 and
Exhibit B to the Deposit Agreement and in this ADR, (ii) the production of proof satisfactory to
it as to the identity and genuineness of any signature or any other matter contemplated by Section
3.1 of the Deposit Agreement, and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of this ADR or ADSs or to the withdrawal of
Deposited Securities and (B) such reasonable regulations as the Depositary and the Company
may establish consistent with the provisions of this ADR, if applicable, the Deposit Agreement
and applicable law.
The issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the deposit of particular Shares may be refused, or the
registration of transfer of ADSs in particular instances may be refused, or the registration of
transfers of ADSs generally may be suspended, during any period when the transfer books of the
Company, the Depositary, a Registrar or 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 regulation, any government or
governmental body or commission or any securities exchange on which the ADSs or Shares are
listed, or under any provision of the Deposit Agreement or this ADR, if applicable, or under any
provision of, or governing, the Deposited Securities, or because of a meeting of shareholders of
Β
A-5
the Company or for any other reason, subject, in all cases, to paragraph (25) of this ADR and
Section 7.8 of the Deposit Agreement. Notwithstanding any provision of the Deposit Agreement
or this ADR to the contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities associated herewith at any time subject only to (i) temporary delays caused
by closing the transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholdersβ meeting or the payment of dividends, (ii) the payment
of fees, taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the ADSs or to the withdrawal of the Deposited Securities,
and (iv) other circumstances specifically contemplated by Instruction I.A.(l) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time to time).
(5) Compliance with Information Requests. Notwithstanding any other provision
of the Deposit Agreement or this ADR, each Holder and Beneficial Owner of the ADSs
represented hereby agrees to comply with requests from the Company pursuant to applicable
law, the rules and requirements of The NASDAQ Global Market and any other stock exchange
on which the Shares or ADSs are, or will be, registered, traded or listed or the Articles of
Association of the Company, which are made to provide information, inter alia, as to the
capacity in which such Holder or Beneficial Owner owns ADSs (and the Shares represented by
such ADSs, as the case may be) and regarding the identity of any other person(s) interested in
such ADSs (and the Shares represented by such ADSs, as the case may be) and the nature of
such interest and various other matters, whether or not they are Holders and/or Beneficial
Owners at the time of such request. The Depositary agrees to use its reasonable efforts to
forward, upon the request of the Company and at the Companyβs expense, any such request from
the Company to the Holders and to forward to the Company any such responses to such requests
received by the Depositary.
(6) Ownership Restrictions. Notwithstanding any other provision of this ADR or of
the Deposit Agreement or any ADR, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by applicable law or
the Articles of Association of the Company. The Company may also restrict, in such manner as
it deems appropriate, transfers of the ADSs where such transfer may result in the total number of
Shares represented by the ADSs owned by a single Holder or Beneficial Owner to exceed any
such limits. The Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder or Beneficial
Owner in excess of the limits set forth in the preceding sentence, including, but not limited to,
the imposition of restrictions on the transfer of ADSs, the removal or limitation of voting rights
or mandatory sale or disposition on behalf of a Holder or Beneficial Owner of the Shares
represented by the ADSs held by such Holder or Beneficial Owner in excess of such limitations,
if and to the extent such disposition is permitted by applicable law and the Articles of
Association of the Company. Nothing herein or in the Deposit Agreement shall be interpreted as
obligating the Depositary or the Company to ensure compliance with the ownership restrictions
described herein or in Section 3.5 of the Deposit Agreement.
(7) Reporting Obligations and Regulatory Approvals. Applicable laws and
regulations may require holders and beneficial owners of Shares, including the Holders and
Beneficial Owners of ADSs, to satisfy reporting requirements and obtain regulatory approvals in
certain circumstances. Holders and Beneficial Owners of ADSs are solely responsible for
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determining and complying with such reporting requirements and obtaining such approvals.
Each Holder and each Beneficial Owner hereby agrees to make such determination, file such
reports, and obtain such approvals to the extent and in the form required by applicable laws and
regulations as in effect from time to time. Neither the Depositary, the Custodian, the Company
or any of their respective agents or affiliates shall be required to take any actions whatsoever on
behalf of Holders or Beneficial Owners to determine or satisfy such reporting requirements or
obtain such regulatory approvals under applicable laws and regulations.
(8) Liability for Taxes and Other Charges. Any tax or other governmental charge
payable by the Custodian or by the Depositary with respect to any Deposited Property, ADSs or
this ADR shall be payable by the Holders and Beneficial Owners to the Depositary. The
Company, the Custodian and/or the Depositary may withhold or deduct from any distributions
made in respect of Deposited Property, and may sell for the account of a Holder and/or
Beneficial Owner any or all of the Deposited Property and apply such distributions and sale
proceeds in payment of, any taxes (including applicable interest and penalties) or charges that are
or may be payable by Holders or Beneficial Owners in respect of the ADSs, Deposited Property
and this ADR, the Holder and the Beneficial Owner hereof remaining liable for any deficiency.
The Custodian may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to
deliver ADRs, register the transfer of ADSs, register the split-up or combination of ADRs and
(subject to paragraph (25) of this ADR and Section 7.8 of the Deposit Agreement) the
withdrawal of Deposited Property until payment in full of such tax, charge, penalty or interest is
received. Every Holder and Beneficial Owner agrees to indemnify the Depositary, the Company,
the Custodian, and any of their agents, officers, employees and Affiliates for, and to hold each of
them harmless from, any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial Owner. The
obligations of Holders and Beneficial Owners under Section 3.2 of the Deposit Agreement shall
survive any transfer of ADSs, any cancellation of ADSs and withdrawal of Deposited Securities,
and the termination of the Deposit Agreement.
(9) Representations and Warranties on Deposit of Shares. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and warrant that (i)
such Shares and the certificates therefor are duly authorized, validly allotted and issued, fully
paid, not subject to any call for the payment of further capital and legally obtained by such
person, (ii) all preemptive (and similar) rights, if any, with respect to such Shares have been
validly waived, disapplied or exercised, (iii) the person making such deposit is duly authorized
so to do, (iv) the Shares presented for deposit are free and clear of any lien, encumbrance,
security interest, charge, mortgage or adverse claim, (v) the Shares presented for deposit are not,
and the ADSs issuable upon such deposit will not be, Restricted Securities (except as
contemplated in Section 2.14 of the Deposit Agreement), and (vi) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such representations and warranties
shall survive the deposit and withdrawal of Shares, the issuance and cancellation of ADSs in
respect thereof and the transfer of such ADSs. 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 necessary to correct the consequences
thereof.
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(10) Proofs, Certificates and Other Information. Any person presenting Shares for
deposit, any Holder and any Beneficial Owner may be required, and every Holder and Beneficial
Owner agrees, from time to time to provide to the Depositary and the Custodian such proof of
citizenship or residence, taxpayer status, payment of all applicable taxes or other governmental
charges, exchange control approval, legal or beneficial ownership of ADSs and Deposited
Property, compliance with applicable laws, the terms of the Deposit Agreement or this ADR
evidencing the ADSs and the provisions of, or governing, the Deposited Property, to execute
such certifications and to make such representations and warranties, and to provide such other
information and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the Company or of the
Share Registrar) as the Depositary or the Custodian may deem necessary or proper or as the
Company may reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement and this ADR. The Depositary and the Registrar, as
applicable, may withhold the execution or delivery or registration of transfer of any ADR or
ADS or the distribution or sale of any dividend or distribution of rights or of the proceeds thereof
or, to the extent not limited by paragraph (25) and the terms of Section 7.8 of the Deposit
Agreement, the delivery of any Deposited Property until such proof or other information is filed
or such certifications are executed, or such representations and warranties are made, or such
other documentation or information provided, in each case to the Depositaryβs, the Registrarβs
and the Companyβs satisfaction. The Depositary shall provide the Company, in a timely manner,
with copies or originals if necessary and appropriate of (i) any such proofs of citizenship or
residence, taxpayer status, or exchange control approval or copies of written representations and
warranties which it receives from Holders and Beneficial Owners, and (ii) any other information
or documents which the Company may reasonably request and which the Depositary shall
request and receive from any Holder or Beneficial Owner or any person presenting Shares for
deposit or ADSs for cancellation, transfer or withdrawal. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if not provided by the Holders or
Beneficial Owners, or (ii) verify or vouch for the accuracy of the information so provided by the
Holders or Beneficial Owners.
(11) ADS Fees and Charges. The following ADS fees are payable under the terms of
the Deposit Agreement:
(i) ADS Issuance Fee: by any person to whom the ADSs are issued (e.g., an
issuance of ADSs upon a deposit of Shares, upon a change in the ADS(s)-
to-Share(s) ratio, or for any other reason), excluding ADS issuances as a
result of distributions described in paragraph (iv) below, a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) issued under the
terms of the Deposit Agreement;
(ii) ADS Cancellation Fee: by any person whose ADSs are being cancelled
(e.g., a cancellation of ADSs for delivery of Deposited Shares, upon a
change in the ADS(s)-to-Share(s) ratio, or for any other reason), a fee not
in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) cancelled;
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(iii) Cash Distribution Fee: by any Holder of ADSs, a fee not in excess of U.S.
$5.00 per 100 ADSs (or fraction thereof) held for the distribution of cash
dividends or other cash distributions (e.g., upon sale of rights and other
entitlements);
(iv) Stock Distribution /Rights Exercise Fee: by any Holder of ADS(s), a fee
not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for
(a) the distribution of stock dividends or other free stock distributions or
(b) the exercise of rights to purchase additional ADSs;
(v) Other Distribution Fee: by any Holder of ADS(s), a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of
securities other than ADSs or rights to purchase additional ADSs (e.g.,
spin-off shares); and
(vi) Depositary Services Fee: by any Holder of ADS(s), a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) held on the applicable
record date(s) established by the Depositary.
The Company, Holders, Beneficial Owners, persons receiving ADSs upon issuance, and
persons whose ADSs are being cancelled shall be responsible for the following ADS charges
under the terms of the Deposit Agreement:
(a) taxes (including applicable interest and penalties) and other governmental
charges;
(b) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
(c) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing Shares or withdrawing Deposited Securities or of the
Holders and Beneficial Owners of ADSs;
(d) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
(e) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
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(f) the fees and expenses incurred by the Depositary, the Custodian, or any
nominee in connection with the delivery or servicing of Deposited
Property.
All ADS fees and charges so payable may be deducted from distributions or must be
remitted to the Depositary, or its designee, may be waived by the Depositary in full or in part
with respect to some or all ADSs upon such terms, and subject to such conditions, as the
Depositary may determine and may, at any time and from time to time, be changed by agreement
between the Depositary and the Company, but, in the case of ADS fees and charges payable by
Holders and Beneficial Owners, only in the manner contemplated by paragraph (23) of this ADR
and as contemplated in Section 6.1 of the Deposit Agreement. The Depositary shall provide,
without charge, a copy of its latest ADS fee schedule to anyone upon request.
ADS fees and charges payable upon (i) the issuance of ADSs and (ii) the cancellation of
ADSs will be payable by the person to whom the ADSs are so issued by the Depositary (in the
case of ADS issuances) and by the person whose ADSs are being cancelled (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or presented to the
Depositary via DTC, the ADS issuance and cancellation fees and charges will be payable by the
DTC Participant(s) receiving the ADSs from the Depositary or the DTC Participant(s) holding
the ADSs being cancelled, as the case may be, on behalf of the Beneficial Owner(s) and will be
charged by the DTC Participant(s) to the account(s) of the applicable Beneficial Owner(s) in
accordance with the procedures and practices of the DTC participant(s) as in effect at the time.
ADS fees and charges in respect of distributions and the ADS service fee are payable by Holders
as of the applicable ADS Record Date established by the Depositary. In the case of distributions
of cash, the amount of the applicable ADS fees and charges is deducted from the funds being
distributed. In the case of (i) distributions other than cash and (ii) the ADS service fee, the
applicable Holders as of the ADS Record Date established by the Depositary will be invoiced for
the amount of the ADS fees and charges and such ADS fees may be deducted from distributions
made to Holders. For ADSs held through DTC, the ADS fees and charges for distributions other
than cash and the ADS service fee may be deducted from distributions made through DTC, and
may be charged to the DTC Participants in accordance with the procedures and practices
prescribed by DTC from time to time and the DTC Participants in turn charge the amount of
such ADS fees and charges to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by the
Company in respect of the ADR program established pursuant to the Deposit Agreement, by
making available a portion of the ADS fees charged in respect of the ADR program or otherwise,
upon such terms and conditions as the Company and the Depositary agree from time to time.
The Company shall pay to the Depositary such fees and charges, and reimburse the Depositary
for such out-of-pocket expenses, as the Depositary and the Company may agree from time to
time. Responsibility for payment of such fees, charges and reimbursements may from time to
time be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its statement for such fees, charges and reimbursements to
the Company once every three months. The charges and expenses of the Custodian are for the
sole account of the Depositary.
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The obligations of Holders and Beneficial Owners to pay ADS fees and charges shall
survive the termination of the Deposit Agreement. As to any Depositary, upon the resignation or
removal of such Depositary as described in Section 5.4 of the Deposit Agreement, the right to
collect ADS fees and charges shall extend for those ADS fees and charges incurred prior to the
effectiveness of such resignation or removal.
(12) Title to ADRs. Subject to the limitations contained in the Deposit Agreement
and in this ADR, it is a condition of this ADR, and every successive Holder of this ADR by
accepting or holding the same consents and agrees, that title to this ADR (and to each
Certificated ADS evidenced hereby) shall be transferable upon the same terms as a certificated
security under the laws of the State of New York, provided that, in the case of Certificated
ADSs, this ADR has been properly endorsed or is accompanied by proper instruments of
transfer. Notwithstanding any notice to the contrary, the Depositary and the Company may deem
and treat the Holder of this ADR (that is, the person in whose name this ADR is registered on the
books of the Depositary) as the absolute owner thereof for all purposes. Neither the Depositary
nor the Company shall have any obligation nor be subject to any liability under the Deposit
Agreement or this ADR to any holder of this ADR or any Beneficial Owner unless, in the case of
a holder of ADSs, such holder is the Holder of this ADR registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner, or the Beneficial
Ownerβs representative, is the Holder registered on the books of the Depositary.
(13) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented hereby)
shall not be entitled to any benefits under the Deposit Agreement or be valid or enforceable for
any purpose against the Depositary or the Company unless this ADR has been (i) dated, (ii)
signed by the manual or facsimile signature of a duly-authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly-authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the registration of
issuances and transfers of ADRs. An ADR bearing the facsimile signature of a duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature was a duly authorized
signatory of the Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized prior to the delivery
of such ADR by the Depositary.
(14) Available Information; Reports; Inspection of Transfer Books. The Company
is subject to the periodic reporting requirements of the Exchange Act and, accordingly, is
required to file or furnish certain reports with the Commission. These reports can be retrieved
from the Commission's website (xxx.xxx.xxx) and can be inspected and copied at the public
reference facilities maintained by the Commission located (as of the date of the Deposit
Agreement) at 000 X Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000.
The Depositary shall make available for inspection by Holders at its Principal Office any
reports and communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the nominee of either
of them as the holder of the Deposited Property and (b) made generally available to the holders
of such Deposited Property by the Company. The Depositary shall also provide or make
available to Holders copies of such reports when furnished by the Company pursuant to Section
5.6 of the Deposit Agreement.
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Until termination of the Deposit Agreement in accordance with its terms, the Registrar
shall maintain in the Borough of Manhattan, the City of New York, an office and facilities for
the issuance and delivery of ADSs, the acceptance for surrender of ADS(s) for the purpose of
withdrawal of Deposited Securities, the registration of issuances, cancellations, transfers,
combinations and split-ups of ADS(s) and, if applicable, to countersign ADRs evidencing the
ADSs so issued, transferred, combined or split-up, in each case in accordance with the provisions
of the Deposit Agreement.
The Registrar shall keep books for the registration of ADSs which at all reasonable times
shall be open for inspection by the Company and by the Holders of such ADSs, provided that
such inspection shall not be, to the Registrarβs knowledge, for the purpose of communicating
with Holders of such ADSs in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, 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 subject,
in all cases, to Section 7.8 of the Deposit Agreement.
Dated:
CITIBANK, N.A.
Transfer Agent and Registrar
CITIBANK, N.A.
as Depositary
By: __________________________________ By: __________________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
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[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(15) Dividends and Distributions in Cash, Shares, etc. (a) Cash Distributions:
Whenever the Company intends to make a distribution of a cash dividend or other cash
distribution in respect of any Deposited Securities, the Company shall give notice thereof to the
Depositary at least twenty (20) days (or such other number of days as mutually agreed to in
writing by the Depositary and the Company) prior to the proposed distribution specifying, inter
alia, the record date applicable for determining the holders of Deposited Securities entitled to
receive such distribution. Upon the timely receipt of such notice, the Depositary shall establish
the ADS Record Date upon the terms described in Section 4.9 of the Deposit Agreement. Upon
receipt of confirmation of the receipt of (x) any cash dividend or other cash distribution on any
Deposited Securities, or (y) proceeds from the sale of any Deposited Property held in respect of
the ADSs under the terms of the Deposit Agreement, the Depositary will (i) if at the time of
receipt thereof any amounts received in a Foreign Currency can, in the judgment of the
Depositary (pursuant to Section 4.8 of the Deposit Agreement), be converted on a practicable
basis into Dollars transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (on the terms described in Section 4.8
of the Deposit Agreement), (ii) if applicable and unless previously established, establish the ADS
Record Date upon the terms described in Section 4.9 of the Deposit Agreement, and
(iii) distribute promptly the amount thus received (net of (a) the applicable fees and charges of,
and expenses incurred by, the Depositary and (b) applicable taxes withheld) to the Holders
entitled thereto as of the ADS Record Date in proportion to the number of ADSs held as of the
ADS Record Date. 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
distributed 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 ADSs outstanding at the time of the next distribution. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities, or from any cash proceeds from the sales of
Deposited Property, an amount on account of taxes, duties or other governmental charges, the
amount distributed to Holders on the ADSs shall be reduced accordingly. Such withheld
amounts shall be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be forwarded by the
Company to the Depositary upon request. The Depositary will hold any cash amounts it is
unable to distribute in a non-interest bearing account for the benefit of the applicable Holders
and Beneficial Owners of ADSs until the distribution can be effected or the funds that the
Depositary holds must be escheated as unclaimed property in accordance with the laws of the
relevant states of the United States. Notwithstanding anything contained in the Deposit
Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of
the proposed distribution provided for in Section 4.1 of the Deposit Agreement, the Depositary
agrees to use commercially reasonable efforts to perform the actions contemplated in Section 4.1
of the Deposit Agreement, and the Company, the Holders and the Beneficial Owners
acknowledge that the Depositary shall have no liability for the Depositaryβs failure to perform
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the actions contemplated in Section 4.1 of the Deposit Agreement where such notice has not
been so timely given, other than its failure to use commercially reasonable efforts, as provided
herein.
(b) Share Distributions: Whenever the Company intends to make a distribution that
consists of a dividend in, or free distribution of, Shares, the Company shall give notice thereof to
the Depositary at least twenty (20) days (or such other number of days as mutually agreed to in
writing by the Depositary and the Company) prior to the proposed distribution, specifying, inter
alia, the record date applicable to holders of Deposited Securities entitled to receive such
distribution. Upon the timely receipt of such notice from the Company, the Depositary shall
establish the ADS Record Date upon the terms described in Section 4.9 of the Deposit
Agreement. Upon receipt of confirmation from the Custodian of the receipt of the Shares so
distributed by the Company, the Depositary shall either (i) subject to Section 5.9 of the Deposit
Agreement, distribute to the Holders as of the ADS Record Date in proportion to the number of
ADSs held as of the ADS Record Date, additional ADSs, which represent in the aggregate the
number of Shares received as such dividend, or free distribution, subject to the other terms of the
Deposit Agreement (including, without limitation, (a) the applicable fees and charges of, and
expenses incurred by, the Depositary and (b) applicable taxes), or (ii) if additional ADSs are not
so distributed, take all actions necessary so that each ADS issued and outstanding after the ADS
Record Date shall, to the extent permissible by law, thenceforth also represent rights and
interests in the additional integral number of Shares distributed upon the Deposited Securities
represented thereby (net of (a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) applicable taxes). In lieu of delivering fractional ADSs, the Depositary shall
sell the number of Shares or ADSs, as the case may be, represented by the aggregate of such
fractions and distribute the net proceeds upon the terms described in Section 4.1 of the Deposit
Agreement. In the event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, if the Company in the fulfillment of its obligation under Section 5.7 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 (and no
such registration statement has been declared effective), 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, and the Depositary shall distribute the net proceeds of any such sale (after deduction
of (a) applicable taxes and (b) fees and charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms described in Section 4.1 of the Deposit Agreement. The
Depositary shall hold and/or distribute any unsold balance of such property in accordance with
the provisions of the Deposit Agreement. Notwithstanding anything contained in the Deposit
Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of
the proposed distribution provided for above, the Depositary agrees to use commercially
reasonable efforts to perform the actions contemplated in Section 4.2 of the Deposit Agreement,
and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall
have no liability for the Depositaryβs failure to perform the actions contemplated in Section 4.2
of the Deposit Agreement where such notice has not been so timely given, other than its failure
to use commercially reasonable efforts, as provided herein.
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(c) Elective Distributions in Cash or Shares: Whenever the Company intends to
make a distribution payable at the election of the holders of Deposited Securities in cash or in
additional Shares, the Company shall give notice thereof to the Depositary at least sixty (60)
days (or such other number of days as mutually agreed to in writing by the Depositary and the
Company) prior to the proposed distribution specifying, inter alia, the record date applicable to
holders of Deposited Securities entitled to receive such elective distribution and whether or not it
wishes such elective distribution to be made available to Holders of ADSs. Upon the timely
receipt of a notice indicating that the Company wishes such elective distribution to be made
available to Holders of ADSs, the Depositary shall consult with the Company to determine, and
the Company shall assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such elective distribution available to the Holders of ADSs. The Depositary
shall make such elective distribution available to Holders only if (i) the Company shall have
timely requested that the elective distribution be made available to Holders, (ii) the Depositary
shall have determined that such distribution is reasonably practicable and (iii) the Depositary
shall have received satisfactory documentation within the terms of Section 5.7 of the Deposit
Agreement. If the above conditions are not satisfied or if the Company requests such elective
distribution not to be made available to Holders of ADSs, the Depositary shall establish the ADS
Record Date on the terms described in Section 4.9 of the Deposit Agreement and, to the extent
permitted by law, distribute to the Holders, on the basis of the same determination as is made in
England and Wales in respect of the Shares for which no election is made, either (X) cash upon
the terms described in Section 4.1 of the Deposit Agreement or (Y) additional ADSs representing
such additional Shares upon the terms described in Section 4.2 of the Deposit Agreement. If the
above conditions are satisfied, the Depositary shall establish an ADS Record Date on the terms
described in Section 4.9 of the Deposit Agreement and establish procedures to enable Holders to
elect the receipt of the proposed distribution in cash or in additional ADSs. The Company shall
assist the Depositary in establishing such procedures to the extent necessary. If a Holder elects
to receive the proposed distribution (X) in cash, the distribution shall be made upon the terms
described in Section 4.1 of the Deposit Agreement, or (Y) in ADSs, the distribution shall be
made upon the terms described in Section 4.2 of the Deposit Agreement. Nothing herein shall
obligate the Depositary to make available to Holders a method to receive the elective distribution
in Shares (rather than ADSs). There can be no assurance that Holders generally, or any Holder
in particular, will be given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares. Notwithstanding anything contained in the Deposit
Agreement to the contrary, in the event the Company fails to give the Depositary timely notice of
the proposed distribution provided for in Section 4.3 of the Deposit Agreement, the Depositary
agrees to use commercially reasonable efforts to perform the actions contemplated in Section 4.3
of the Deposit Agreement, and the Company, the Holders and the Beneficial Owners
acknowledge that the Depositary shall have no liability for the Depositaryβs failure to perform
the actions contemplated in Section 4.3 of the Deposit Agreement where such notice has not
been so timely given, other than its failure to use commercially reasonable efforts, as provided
herein.
(d) Distribution of Rights to Purchase Additional ADSs: Whenever the Company
intends to distribute to the holders of the Deposited Securities rights to subscribe for additional
Shares, the Company shall give notice thereof to the Depositary at least sixty (60) days (or such
other number of days as mutually agreed to in writing by the Depositary and the Company) prior
to the proposed distribution specifying, inter alia, the record date applicable to holders of
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Deposited Securities entitled to receive such distribution and whether or not it wishes such rights
to be made available to Holders of ADSs. Upon the timely receipt of a notice indicating that the
Company wishes such rights to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and reasonably practicable to make such rights available to
the Holders. The Depositary shall make such rights available to Holders only if (i) the Company
shall have timely requested that such rights be made available to Holders, (ii) the Depositary
shall have received satisfactory documentation within the terms of Section 5.7 of the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution of rights is
reasonably practicable. In the event any of the conditions set forth above are not satisfied or if
the Company requests that the rights not be made available to Holders of ADSs, the Depositary
shall proceed with the sale of the rights as contemplated in Section 4.4(b) of the Deposit
Agreement. In the event all conditions set forth above are satisfied, the Depositary shall
establish the ADS Record Date (upon the terms described in Section 4.9 of the Deposit
Agreement) and establish procedures to (x) distribute rights to purchase additional ADSs (by
means of warrants or otherwise), (y) enable the Holders to exercise such rights (upon payment of
the subscription price and of the applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes), and (z) deliver ADSs upon the valid exercise of such rights. The
Company shall assist the Depositary to the extent necessary in establishing such procedures.
Nothing herein shall obligate the Depositary to make available to the Holders a method to
exercise rights to subscribe for Shares (rather than ADSs).
If (i) the Company does not timely request the Depositary to make the rights available to
Holders or requests that the rights not be made available to Holders, (ii) the Depositary fails to
receive satisfactory documentation within the terms of Section 5.7 of the Deposit Agreement, or
determines it is not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the Depositary shall
determine whether it is lawful and reasonably practicable to sell such rights, in a riskless
principal capacity, at such place and upon such terms (including public or private sale) as it may
deem practicable. The Company shall assist the Depositary to the extent necessary to determine
such legality and practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) upon the terms set forth in Section 4.1 of the Deposit Agreement.
If the Depositary is unable to make any rights available to Holders upon the terms
described in Section 4.4(a) of the Deposit Agreement or to arrange for the sale of the rights upon
the terms described in Section 4.4(b) of the Deposit Agreement, the Depositary shall allow such
rights to lapse.
The Depositary shall not be liable for (i) any failure to accurately determine whether it
may be lawful or practicable to make such rights available to Holders in general or any Holders
in particular, (ii) any foreign exchange exposure or loss incurred in connection with such sale, or
exercise, or (iii) the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding anything to the contrary in Section 4.4 of the Deposit Agreement, if
registration (under the Securities Act or any other applicable law) of the rights or the securities to
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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
distribute such rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) 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, in each case satisfactory to the Depositary, to the effect that the offering and sale of
such securities to Holders and Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws.
In the event that the Company, the Depositary or the Custodian shall be required to
withhold and does withhold from any distribution of Deposited Property (including rights) an
amount on account of taxes or other governmental charges, the amount distributed to the Holders
of ADSs shall be reduced accordingly. In the event that the Depositary determines that any
distribution of Deposited Property (including Shares and rights to subscribe therefor) is subject
to any tax or other governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such Deposited 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.
There can be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive or exercise rights on the same terms and conditions as the
holders of Shares or be able to exercise such rights. Nothing herein shall obligate the Company
to file any registration statement in respect of any rights or Shares or other securities to be
acquired upon the exercise of such rights.
(e) Distributions Other Than Cash, Shares or Rights to Purchase Shares:
Whenever the Company intends to distribute to the holders of Deposited Securities property
other than cash, Shares or rights to purchase additional Shares, the Company shall give timely
notice thereof to the Depositary and shall indicate whether or not it wishes such distribution to be
made to Holders of ADSs. Upon receipt of a notice indicating that the Company wishes such
distribution to be made to Holders of ADSs, the Depositary shall consult with the Company, and
the Company shall assist the Depositary, to determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such distribution unless (i) the
Company shall have requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received satisfactory documentation within the terms of Section 5.7 of the
Deposit Agreement, and (iii) the Depositary shall have determined that such distribution is
reasonably practicable.
Upon receipt of satisfactory documentation and the request of the Company to distribute
property to Holders of ADSs and after making the requisite determinations set forth in (a) above,
the Depositary shall distribute the property so received to the Holders of record, as of the ADS
Record Date, in proportion to the number of ADSs held by them respectively and in such manner
as the Depositary may deem practicable for accomplishing such distribution (i) upon receipt of
payment or net of the applicable fees and charges of, and expenses incurred by, the Depositary,
and (ii) net of any applicable taxes withheld. The Depositary may dispose of all or a portion of
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the property so distributed and deposited, in such amounts and in such manner (including public
or private sale) as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges applicable to the
distribution.
If (i) the Company does not request the Depositary to make such distribution to Holders
or requests the Depositary not to make such distribution to Holders, (ii) the Depositary does not
receive satisfactory documentation within the terms of Section 5.7 of the Deposit Agreement, or
(iii) the Depositary determines that all or a portion of such distribution is not reasonably
practicable, the Depositary shall sell or cause such property to be sold in a public or private sale,
at such place or places and upon such terms as it may deem practicable and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute the proceeds of such
conversion received by the Depositary (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) to the Holders as of the ADS Record Date upon the
terms of Section 4.1 of the Deposit Agreement. If the Depositary is unable to sell such property,
the Depositary may dispose of such property for the account of the Holders in any way it deems
reasonably practicable under the circumstances.
Neither the Depositary nor the Company shall be liable for (i) any failure to accurately
determine whether it is lawful or practicable to make the property described in Section 4.5 of the
Deposit Agreement available to Holders in general or any Holders in particular, nor (ii) any loss
incurred in connection with the sale or disposal of such property.
(16) Redemption. If the Company intends to exercise any right of redemption in
respect of any of the Deposited Securities, the Company shall give notice thereof to the
Depositary at least sixty (60) days (or such other number of days as mutually agreed to in writing
by the Depositary and the Company) prior to the intended date of redemption which notice shall
set forth the particulars of the proposed redemption. Upon timely receipt of (i) such notice and
(ii) satisfactory documentation given by the Company to the Depositary within the terms of
Section 5.7 of the Deposit Agreement, and only if the Depositary shall have determined that such
proposed redemption is practicable, the Depositary shall provide to each Holder a notice setting
forth the intended exercise by the Company of the redemption rights and any other particulars set
forth in the Companyβs notice to the Depositary. The Depositary shall instruct the Custodian to
present to the Company the Deposited Securities in respect of which redemption rights are being
exercised against payment of the applicable redemption price. Upon receipt of confirmation
from the Custodian that the redemption has taken place and that funds representing the
redemption price have been received, the Depositary shall convert, transfer, and distribute the
proceeds (net of applicable (a) fees and charges of, and the expenses incurred by, the Depositary,
and (b) taxes), retire ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by
Holders thereof and the terms set forth in Sections 4.1 and 6.2 of the Deposit Agreement. If less
than all outstanding Deposited Securities are redeemed, the ADSs to be retired will be selected
by lot or on a pro rata basis, as may be determined by the Depositary. The redemption price per
ADS shall be the dollar equivalent of the per share amount received by the Depositary (adjusted
to reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited Securities
represented by ADSs (subject to the terms of Section 4.8 of the Deposit Agreement and the
applicable fees and charges of, and expenses incurred by, the Depositary, and applicable taxes)
multiplied by the number of Deposited Securities represented by each ADS redeemed.
Β
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Notwithstanding anything contained in the Deposit Agreement to the contrary, in the
event the Company fails to give the Depositary timely notice of the proposed redemption
provided for in Section 4.7 of the Deposit Agreement, the Depositary agrees to use commercially
reasonable efforts to perform the actions contemplated in Section 4.7 of the Deposit Agreement,
and the Company, the Holders and the Beneficial Owners acknowledge that the Depositary shall
have no liability for the Depositaryβs failure to perform the actions contemplated in Section 4.7
of the Deposit Agreement where such notice has not been so timely given, other than its failure
to use commercially reasonable efforts, as provided herein.
(17) Fixing of ADS 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 distribution (whether in cash, Shares, rights, or other
distribution), or whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive notice of any
meeting of, or solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, 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
the record date (the βADS Record Dateβ) for the determination of the Holders of ADS(s) who
shall be entitled to receive such distribution, to give instructions for the exercise of voting rights
at any such meeting, to give or withhold such consent, 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 ADS. The Depositary shall make reasonable efforts to establish
the ADS Record Date as closely as practicable to the applicable record date for the Deposited
Securities (if any) set by the Company in England and Wales and shall not announce the
establishment of any ADS Record Date prior to the relevant corporate action having been made
public by the Company (if such corporate action affects the Deposited Securities). Subject to
applicable law and the provisions of Section 4.1 through 4.8 of the Deposit Agreement and to the
other terms and conditions of the Deposit Agreement, only the Holders of ADSs at the close of
business in New York on such ADS Record Date shall be entitled to receive such distribution, to
give such voting instructions, to receive such notice or solicitation, or otherwise take action.
(18) Voting of Deposited Securities. As soon as practicable after receipt of notice of
any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of
consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS
Record Date in respect of such meeting or solicitation of consent or proxy in accordance with
Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in
writing in a timely manner (the Depositary having no obligation to take any further action if the
request shall not have been received by the Depositary at least thirty (30) days prior to the date of
such vote or meeting), at the Companyβs expense and provided no U.S. legal prohibitions exist,
distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of
consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record
Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the
Articles of Association of the Company and the provisions of or governing the 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 Deposited
Securities represented by such Holderβs ADSs, and (c) a brief statement as to the manner in
which such voting instructions may be given to the Depositary or in which voting instructions
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A-19
may be deemed to have been given in accordance with this Section 4.10 if no instructions are
received prior to the deadline set for such purposes to the Depositary to give a discretionary
proxy to a person designated by the Company.
Notwithstanding anything contained in the Deposit Agreement or any ADR, with the
Companyβs prior written consent, the Depositary may, to the extent not prohibited by law or
regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of
distribution of the materials provided to the Depositary in connection with any meeting of, or
solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders
a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to
retrieve such materials or receive such materials upon request (e.g., by reference to a website
containing the materials for retrieval or a contact for requesting copies of the materials).
The Depositary has been advised by the Company that under the Articles of Association
of the Company as in effect on the date of the Deposit Agreement, voting at any meeting of
shareholders of the Company is by show of hands unless (before or upon the declaration of the
result of the show of hands) a poll is demanded. The Depositary will not join in demanding a
poll, whether or not requested to do so by Holders of ADSs. Under the Articles of Association
of the Company as in effect on the date of the Deposit Agreement, a poll may be demanded by
(a) the chairman of the Companyβs board of directors, (b) not fewer than five shareholders
present in person or by proxy and having the right to vote at the meeting, (c) any shareholder(s)
present in person or by proxy and representing not less than 10% of the total voting rights of all
the shareholders having the right to vote on the resolution (excluding any shares held in
treasury), or (d) any shareholder(s) present in person or by proxy and holding shares in the
Company conferring a right to vote on the resolution being shares on which an aggregate sum
has been paid up equal to not less than 10% of the total sum paid up on all the shares conferring
that right (excluding any shares held in treasury).
Voting instructions may be given only in respect of a number of ADSs representing an
integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of
the ADS Record Date of voting instructions in the manner specified by the Depositary, the
Depositary shall endeavor, insofar as practicable and permitted under applicable law, the
provisions of the Deposit Agreement, Articles of Association of the Company and the provisions
of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in
person or by proxy) represented by such Holderβs ADSs as follows: (a) in the event voting takes
place at a shareholdersβ meeting by a show of hands, the Depositary will instruct the Custodian
to vote all Deposited Securities in accordance with the voting instructions received from a
majority of Holders of ADSs who provided voting instructions, and (b) in the event voting takes
place at a shareholdersβ meeting by poll, the Depositary will instruct the Custodian to vote the
Deposited Securities in accordance with the voting instructions received from the Holders of
ADSs. If voting is by poll and the Depositary does not receive voting instructions from a Holder
as of the ADS Record Date on or before the date established by the Depositary for such purpose,
such Holder shall be deemed, and the Depositary shall deem such Holder, to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company to vote the
Deposited Securities; provided, however, that no such discretionary proxy shall be given by the
Depositary with respect to any matter to be voted upon as to which the Company informs the
Β
A-20
Depositary that (a) the Company does not wish such proxy to be given, (b) substantial opposition
exists, or (c) the rights of holders of Deposited Securities may be adversely affected.
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 Deposited Securities represented by ADSs, except pursuant to and in accordance
with the voting instructions timely received from Holders or as otherwise contemplated in the
Deposit Agreement. If the Depositary timely receives voting instructions from a Holder which
fail to specify the manner in which the Depositary is to vote the Deposited Securities represented
by such Holderβs ADSs, the Depositary will deem such Holder (unless otherwise specified in the
notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set
forth in such voting instructions. Deposited Securities represented by ADSs for which no timely
voting instructions are received by the Depositary from the Holder shall not be voted (except (a)
in the case voting is by show of hands, in which case the Depositary will instruct the Custodian
to vote all Deposited Securities in accordance with the voting instructions received from a
majority of Holders of ADSs who provided voting instructions, and (b) as contemplated in
Section 4.10 of the Deposit Agreement). Notwithstanding anything else contained herein, the
Depositary shall, if so requested in writing by the Company, represent all Deposited Securities
(whether or not voting instructions have been received in respect of such Deposited Securities
from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a
meeting of shareholders.
Notwithstanding anything else contained in the Deposit Agreement or any ADR, the
Depositary shall not have any obligation to take any action with respect to any meeting, or
solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action
would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary
and as permitted by the laws of England and Wales to enable Holders and Beneficial Owners to
exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an
opinion of U.S. counsel addressing any actions requested to be taken if so requested by the
Depositary.
There can be no assurance that Holders generally or any Holder in particular will receive
the notice described above with sufficient time to enable the Holder to return voting instructions
to the Depositary in a timely manner.
(19) 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, consolidation or sale of assets affecting the
Company or to which it is a party, any property which shall be received by the Depositary or the
Custodian in exchange for, or in conversion of, or replacement of, or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as new Deposited
Property under the Deposit Agreement, and the ADSs shall, subject to the provisions of the
Deposit Agreement, any ADR(s) evidencing such ADSs and applicable law, represent the right
to receive such additional or replacement Deposited Property. In giving effect to such change,
split-up, cancellation, consolidation or other reclassification of Deposited Securities,
recapitalization, reorganization, merger, consolidation or sale of assets, the Depositary may, with
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A-21
the Companyβs approval, and shall, if the Company shall so request, subject to the terms of the
Deposit Agreement (including, without limitation, (a) the applicable fees and charges of, and
expenses incurred by, the Depositary, and (b) applicable taxes) and receipt of an opinion of
counsel to the Company satisfactory to the Depositary that such actions are not in violation of
any applicable laws or regulations, (i) issue and deliver additional ADSs as in the case of a stock
dividend on the Shares, (ii) amend the Deposit Agreement and the applicable ADRs, (iii) amend
the applicable Registration Statement(s) on Form F-6 as filed with the Commission in respect of
the ADSs, (iv) call for the surrender of outstanding ADRs to be exchanged for new ADRs, and
(v) take such other actions as are appropriate to reflect the transaction with respect to the ADSs.
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 form of ADRs.
Notwithstanding the foregoing, in the event that any Deposited Property so received may not be
lawfully distributed to some or all Holders, the Depositary may, with the Companyβs approval,
and shall, if the Company requests, subject to receipt of an opinion of Companyβs counsel
satisfactory to the Depositary that such action is not in violation of any applicable laws or
regulations, sell such Deposited Property 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 (net of
applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes) for
the account of the Holders otherwise entitled to such Deposited Property 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 4.1 of the Deposit Agreement. The Depositary shall not be responsible for
(i) any failure to determine that it may be lawful or practicable to make such Deposited Property
available to Holders in general or to any Holder in particular, (ii) any foreign exchange exposure
or loss incurred in connection with such sale, or (iii) any liability to the purchaser of such
Deposited Property.
(20) Exoneration. Notwithstanding anything contained in the Deposit Agreement or
any ADR, neither the Depositary nor the Company shall be obligated to do or perform any act
which is inconsistent with the provisions of the Deposit Agreement or incur any liability (i) if the
Depositary or the Company shall be prevented or forbidden from, or delayed in, doing or
performing any act or thing required by the terms of the Deposit Agreement, by reason of any
provision of any present or future law or regulation of the United States, England and Wales or
any other country, or of any other governmental authority or regulatory authority or stock
exchange, or on account of potential criminal or civil penalties or restraint, or by reason of any
provision, present or future, of the Articles of Association of the Company or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, acts of terrorism, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement or in the Articles of Association
of the Company or provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be competent to give
such advice or information, (iv) for the inability by a Holder or Beneficial Owner to benefit from
any distribution, offering, right or other benefit which is made available to holders of Deposited
Β
A-22
Securities but is not, under the terms of the Deposit Agreement, made available to Holders of
ADSs, or (v) for any consequential or punitive damages (including lost profits) for any breach of
the terms of the Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and the Company, its
controlling persons and its agents may rely and shall be protected in acting upon any written
notice, request or other document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any provision of the
Deposit Agreement.
(21) Standard of Care. The Company and the Depositary assume no obligation and
shall not be subject to any liability under the Deposit Agreement or any ADRs to any Holder(s)
or Beneficial Owner(s), except that the Company and the Depositary agree to perform their
respective obligations specifically set forth in the Deposit Agreement or the applicable ADRs
without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, or agents, shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any Deposited Property or
in respect of the ADSs, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense (including fees and disbursements of counsel) and
liability be furnished as often as may be required (and no Custodian shall be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary).
The Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which any vote is cast
or the effect of any vote, provided that any such action or omission is in good faith and without
negligence and in accordance with the terms of the Deposit Agreement. The Depositary shall not
incur any liability for any failure to accurately determine that any distribution or action may be
lawful or reasonably practicable, for the content of any information submitted to it by the
Company for distribution to the Holders or for any inaccuracy of any translation thereof, for any
investment risk associated with acquiring an interest in the Deposited Property, for the validity or
worth of the Deposited Property or for any tax consequences that may result from the ownership
of ADSs, Shares or other Deposited Property, for the credit-worthiness of any third party, for
allowing any rights to lapse upon the terms of the Deposit Agreement, for the failure or
timeliness of any notice from the Company, or for any action of or failure to act by, or any
information provided or not provided by, DTC or any DTC Participant.
The Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the Depositary or in
connection with any matter arising wholly after the removal or resignation of the Depositary,
provided that in connection with the issue out of which such potential liability arises the
Β
A-23
Depositary performed its obligations without negligence or bad faith while it acted as
Depositary.
The Depositary shall not be liable for any acts or omissions made by a predecessor
depositary whether in connection with an act or omission of the Depositary or in connection with
any matter arising wholly prior to the appointment of the Depositary or after the removal or
resignation of the Depositary, provided that in connection with the issue out of which such
potential liability arises the Depositary performed its obligations without negligence or bad faith
while it acted as Depositary.
(22) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary hereunder by written notice
of resignation delivered to the Company, such resignation to be effective on the earlier of (i) the
90th day after delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii) the appointment
by the Company of a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written notice of such
removal, which removal shall be effective on the later of (i) the 90th day after delivery thereof to
the Depositary (whereupon the Depositary shall be entitled to take the actions contemplated in
Section 6.2 of the Deposit Agreement), or (ii) upon the appointment by the Company of a
successor depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its 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 be required by the Company to 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 (except as required by applicable law),
shall become fully vested with all the rights, powers, duties and obligations of its predecessor
(other than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement). The predecessor
depositary, 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 (other than as contemplated in Sections 5.8 and 5.9 of the Deposit
Agreement), (ii) duly assign, transfer and deliver all of the Depositaryβs right, title and interest to
the Deposited Property to such successor, and (iii) deliver to such successor a list of the Holders
of all outstanding ADSs and such other information relating to ADSs and Holders thereof as the
successor may reasonably request. Any such successor depositary shall promptly provide notice
of its appointment to such Holders.
Any entity 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.
Β
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(23) Amendment/Supplement. Subject to the terms and conditions of Section 6.1 of
the Deposit Agreement and applicable law, the ADRs outstanding at any time, the provisions of
the Deposit Agreement and the form of ADR attached hereto and to be issued under the terms
hereof 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 prior written consent of the Holders or Beneficial Owners. Any
amendment or supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall otherwise materially
prejudice any substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding ADSs until the expiration of thirty (30) days after notice of
such amendment or supplement shall have been given to the Holders of outstanding ADSs.
Notice of any amendment to the Deposit Agreement or any ADR shall not need to describe in
detail the specific amendments effectuated thereby, and failure to describe the specific
amendments in any such notice shall not render such notice invalid, provided, however, that, in
each such case, the notice given to the Holders identifies a means for Holders and Beneficial
Owners to retrieve or receive the text of such amendment (e.g., upon retrieval from the
Commissionβs, the Depositaryβs or the Companyβs website or upon request from the Depositary).
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 ADSs to be registered on
Form F-6 under the Securities Act or (b) the ADSs to be settled 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 materially 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 ADSs, to consent
and agree to such amendment or supplement and to be bound by the Deposit Agreement and the
ADR, if applicable, as amended or supplemented thereby. In no event shall any amendment or
supplement impair the right of the Holder to surrender such ADS 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 an amendment of, or supplement to, the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and any ADRs at any time in accordance with such changed
laws, rules or regulations. Such amendment or supplement to the Deposit Agreement and any
ADRs 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
with such laws, rules or regulations.
(24) Termination. The Depositary shall, at any time at the written direction of the
Company, terminate the Deposit Agreement by distributing notice of such termination to the
Holders of all ADSs then outstanding at least thirty (30) days prior to the date fixed in such
notice for such termination. If ninety (90) 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 Section 5.4 of the Deposit Agreement of the Deposit Agreement, the Depositary may
terminate the Deposit Agreement by distributing notice of such termination to the Holders of all
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ADSs then outstanding at least thirty (30) days prior to the date fixed in such notice for such
termination. The date so fixed for termination of the Deposit Agreement in any termination
notice so distributed by the Depositary to the Holders of ADSs is referred to as the βTermination
Dateβ. Until the Termination Date, the Depositary shall continue to perform all of its obligations
under the Deposit Agreement, and the Holders and Beneficial Owners will be entitled to all of
their rights under the Deposit Agreement.
If any ADSs shall remain outstanding after the Termination Date, the Registrar and the
Depositary shall not, after the Termination Date, have any obligation to perform any further acts
under the Deposit Agreement, except that the Depositary shall, subject, in each case, to the terms
and conditions of the Deposit Agreement, continue to (i) collect dividends and other distributions
pertaining to Deposited Securities, (ii) sell Deposited Property received in respect of Deposited
Securities, (iii) deliver Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any other Deposited Property, in
exchange for ADSs surrendered to the Depositary (after deducting, or charging, as the case may
be, in each case, the fees and charges of, and expenses incurred by, the Depositary, and all
applicable taxes or governmental charges for the account of the Holders and Beneficial Owners,
in each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (iv) take such
actions as may be required under applicable law in connection with its role as Depositary under
the Deposit Agreement.
At any time after the Termination Date, the Depositary may sell the Deposited Property
then held under the Deposit Agreement and shall after such sale hold un-invested the net
proceeds of such sale, together with any other cash then held by it under the Deposit Agreement,
in an un-segregated account and without liability for interest, for the pro rata benefit of the
Holders whose ADSs have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement except (i) to
account for such net proceeds and other cash (after deducting, or charging, as the case may be, in
each case, the fees and charges of, and expenses incurred by, the Depositary, and all applicable
taxes or governmental charges for the account of the Holders and Beneficial Owners, in each
case upon the terms set forth in Section 5.9 of the Deposit Agreement), and (ii) as may be
required at law in connection with the termination of the Deposit Agreement. After the
Termination Date, the Company shall be discharged from all obligations under the Deposit
Agreement, except for its obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the
Deposit Agreement. The obligations under the terms of the Deposit Agreement of Holders and
Beneficial Owners of ADSs outstanding as of the Termination Date shall survive the
Termination Date and shall be discharged only when the applicable ADSs are presented by their
Holders to the Depositary for cancellation under the terms of the Deposit Agreement (except as
specifically provided in the Deposit Agreement).
(25) Compliance with U.S. Securities Laws. Notwithstanding anything in 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 Form F-6 Registration Statement, as amended from time to
time, under the Securities Act.
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(26) Pre-Release Transactions. Subject to the further terms and provisions of Section
5.10 of the Deposit Agreement, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its Affiliates and in
ADSs. In its capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided,
however, that the Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to
Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the receipt of ADSs for
withdrawal of Deposited Securities pursuant to Section 2.7 of the Deposit Agreement, including
ADSs which were issued under (i) above but for which Shares may not have been received (each
such transaction a βPre-Release Transactionβ). The Depositary may receive ADSs in lieu of
Shares under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such Pre-
Release Transaction will be (a) subject to a written agreement whereby the person or entity (the
βApplicantβ) to whom ADSs 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 ADSs 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 ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such Shares or ADSs are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (z) agrees to any additional restrictions or requirements
that the Depositary deems appropriate, (b) at all times fully collateralized with cash, U.S.
government securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business daysβ notice and (d) subject to
such further indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs 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 ADSs 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 held for the benefit of the Holders (other than the Applicant).
(27) Governing Law and Jurisdiction. The Deposit Agreement and the ADRs shall
be interpreted in accordance with, and all rights hereunder and thereunder and provisions hereof
and thereof shall be governed by, the laws of the State of New York applicable to contracts made
and to be wholly performed in that State. Notwithstanding anything contained in the Deposit
Agreement, any ADR or any present or future provisions of the laws of the State of New York,
the rights of holders of Shares and of any other Deposited Securities and the obligations and
duties of the Company in respect of the holders of Shares and other Deposited Securities, as
such, shall be governed by the laws of England and Wales (or, if applicable, such other laws as
may govern the Deposited Securities).
EACH OF THE PARTIES TO THE DEPOSIT AGREEMENT (INCLUDING,
WITHOUT LIMITATION, EACH HOLDER AND BENEFICIAL OWNER)
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
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APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY ARISING
OUT OF, OR RELATING TO, THE DEPOSIT AGREEMENT, ANY ADR AND ANY
TRANSACTIONS CONTEMPLATED THEREIN (WHETHER BASED ON
CONTRACT, TORT, COMMON LAW OR OTHERWISE).
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(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 ADR and all rights thereunder, hereby irrevocably constituting and appointing
________________________ attorney-in-fact to transfer said ADR 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/her
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 ADR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs must be
guaranteed by a member of a Medallion Signature
Program approved by the Securities Transfer
Association, Inc.
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares shall bear the
following legend on the face of the ADR: βThis ADR evidences ADSs representing 'partial
entitlement' Shares of [Company] and as such do not entitle the holders thereof to the same per-
share entitlement as other Shares (which are 'full entitlement' Shares) issued and outstanding at
such time. The ADSs represented by this ADR shall entitle holders to distributions and
entitlements identical to other ADSs when the Shares represented by such ADSs become 'full
entitlement' Shares.β]
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9494552v.9
EXHIBIT B
FEE SCHEDULE
ADS FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the meaning given to such
terms in the Deposit Agreement.
I. ADS Fees
The following ADS fees are payable under the terms of the Deposit Agreement:
Service Rate By Whom Paid
(1) Issuance of ADSs (e.g.,
an issuance upon a deposit of
Shares, upon a change in the
ADS(s)-to-Share(s) ratio, or
for any other reason),
excluding issuances as a
result of distributions
described in paragraph (4)
below.
Up to U.S. $5.00 per 100
ADSs (or fraction thereof)
issued.
Person receiving ADSs.
(2) Cancellation of ADSs
(e.g., a cancellation of ADSs
for delivery of deposited
Shares, upon a change in the
ADS(s)-to-Share(s) ratio, or
for any other reason).
Up to U.S. $5.00 per 100
ADSs (or fraction thereof)
cancelled.
Person whose ADSs are being
cancelled.
(3) Distribution of cash
dividends or other cash
distributions (e.g., upon a sale
of rights and other
entitlements).
Up to U.S. $5.00 per 100
ADSs (or fraction thereof)
held.
Person to whom the
distribution is made.
(4) Distribution of ADSs
pursuant to (i) stock dividends
or other free stock
distributions, or (ii) an
exercise of rights to purchase
additional ADSs.
Up to U.S. $5.00 per 100
ADSs (or fraction thereof)
held.
Person to whom the
distribution is made.
(5) Distribution of securities
other than ADSs or rights to
purchase additional ADSs
(e.g., spin-off shares).
Up to U.S. $5.00 per 100
ADSs (or fraction thereof)
held.
Person to whom the
distribution is made.
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9494552v.9
6) ADS Services. Up to U.S. $5.00 per 100
ADSs (or fraction thereof)
held on the applicable record
date(s) established by the
Depositary.
Person holding ADSs on the
applicable record date(s)
established by the Depositary.
II. Charges
The Company, Holders, Beneficial Owners, persons receiving ADSs upon issuance and persons
whose ADSs are being cancelled shall be responsible for the following ADS charges under the
terms of the Deposit Agreement:
(i) taxes (including applicable interest and penalties) and other governmental charges;
(ii) such registration fees as may from time to time be in effect for the registration of Shares
or other Deposited Securities on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as are expressly
provided in the Deposit Agreement to be at the expense of the person depositing Shares
or withdrawing Deposited Securities or of the Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion of foreign
currency;
(v) such fees and expenses as are incurred by the Depositary in connection with compliance
with exchange control regulations and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary, the Custodian, or any nominee in
connection with the servicing or delivery of Deposited Property.
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