EXECUTION VERSION
Dated May 7, 2008
GENESIS LEASE LIMITED
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
SUPPLEMENTAL AGREEMENT No. 1
in relation to
the Deposit Agreement dated as of December 19, 2006
concerning
American Depositary Receipts
in respect of common shares of
GENESIS LEASE LIMITED
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THIS SUPPLEMENTAL AGREEMENT No. 1, dated as of May 7, 2008 (this
"Agreement"), is entered into, between Genesis Lease Limited, a company
incorporated and existing under the laws of Bermuda (the "Company") and Deutsche
Bank Trust Company Americas, a New York banking corporation and an indirect
wholly-owned subsidiary of Deutsche Bank AG, in its capacity as depositary (the
"Depositary").
W I T N E S S E T H T H A T:
WHEREAS, the Company and the Depositary are party to a Deposit Agreement
dated as of December 19, 2006 (the "Deposit Agreement") which was entered into
for the purposes set forth therein; and
WHEREAS, the Company and the Depositary wish to amend and supplement the
terms of the Deposit Agreement and the form of Receipt, in accordance with
Section 6.1 of the Deposit Agreement and Condition 20 of the form of Receipt to
reflect the amendment of the voting provisions.
NOW, THEREFORE, the Company and the Depositary hereby amend and supplement
the Receipts, the Deposit Agreement and the form of Receipt, effective 30 days
after notice of the amendment and supplement effectuated by this Agreement shall
have been given to Holders of Receipts outstanding as of the Effective Date (as
defined below), as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions Generally. Unless otherwise defined in this
Agreement, terms used herein (including in the preamble and the recitals hereto)
and defined in the Deposit Agreement are used herein as so defined.
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ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
Section 2.01 All references in the Deposit Agreement to the "Deposit
Agreement" shall hereby mean the Deposit Agreement, as amended and supplemented
by this Agreement and as further amended and supplemented from time to time.
Section 2.02 The Deposit Agreement is hereby amended and supplemented by
replacing Section 4.8 with the following:
SECTION 4.8 Voting of Deposited Securities. Subject to the
next sentence, as soon as practicable upon receipt of timely
notice of any meeting at which the holders of Shares are entitled
to vote, or of solicitation of consents or proxies from holders
of Shares or other Deposited Securities, the Depositary shall fix
the ADS Record Date in respect of such meeting or solicitation of
consent or proxy. 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 30 days prior to
the date of such vote or meeting) and at the Company's expense
and provided no U.S. legal prohibitions exist, mail by regular,
ordinary mail delivery (or by electronic mail or as otherwise may
be agreed between the Company and the Depositary in writing from
time to time) or otherwise distribute to Holders as of the ADS
Record Date: (a) such information as is contained in such notice
of meeting (or solicitation of consent or proxy) received by the
Depositary from the Company, (b) a statement that the Holders as
of the ADS Record Date will be entitled, insofar as practicable
and permitted under applicable law, the terms of this Deposit
Agreement, the terms and conditions of the Deposited Securities,
and of the Bye-Laws of the Company (and subject to such other
requirements as the Company shall notify the Depositary), to
instruct the Depositary as to the exercise of the voting rights
(or deemed exercise of voting rights), if any, pertaining to the
amount of Shares or other Deposited Securities represented by
their respective ADSs, and (c) a statement as to the manner in
which such instructions may be given or may be deemed to have
been given in accordance with the second paragraph of this
Section 4.8 if no validly-completed instructions are received by
the Depositary from a Holder of ADSs by the ADS voting cut off
date set by the Depositary for such purpose. Upon the written
request of a Holder as of such ADS Record Date, received on or
before the ADS voting cut off date established by the Depositary
for such purpose, the Depositary shall endeavor, insofar as
practicable, to vote or cause to be voted the amount of Shares or
other Deposited Securities represented by the ADSs evidenced by
such Receipt(s) in accordance with the instructions set forth in
such request. Instructions in respect of any ADS shall be deemed
to have been received only if received in accordance with the
terms of this Deposit Agreement.
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To the extent no such instructions are received by the
Depositary on or before the ADS voting cut off date established
by the Depositary for such purpose from holders of a sufficient
number of Shares so as to enable the Company to meet its quorum
requirements with respect to any such meeting of shareholders,
the Depositary shall, upon the written request of the Company and
at all times subject to applicable law, the terms of the Deposit
Agreement, the terms and conditions of the Deposited Securities
and the Company's Bye-Laws, deem such Holder to: (A) have
instructed the Depositary to take such action as is necessary to
cause the number of underlying Shares for which no voting
instructions have been received from Holders of ADSs so as to
meet applicable quorum requirements of the Company (currently 50%
of the Shares of the Company) to be counted for the purposes of
satisfying applicable quorum requirements; and (B) have given a
power of attorney to the Depositary or the Custodian, as its
nominee, to cause such equal number of Shares so counted under
(A) above being counted for the purposes of establishing a
quorum, with respect to any resolution proposed by the Board of
Directors of the Company within the agenda set for such meeting,
to be voted at any such meeting in proportion to the voting
instructions duly-received by the Depositary from Holders of ADSs
as of the ADS Record Date by the ADS voting cut off date set by
the Depositary for such purpose; provided, however that, except
to the extent the Company has provided the Depositary with at
least 30 days' written notice of any such meeting, the Shares
shall not be so counted and shall not be so voted
(proportionately to the voting instructions received by the
Depositary from Holders of ADSs as of the ADS Record Date by the
ADS voting cut off date set by the Depositary for such purpose)
with respect to any matter as to which the Depositary informs the
Company that the Depositary reasonably believes that with respect
to any such resolution: (i) substantial opposition exists or (ii)
it materially affects the rights of holders of Shares. For the
purposes of this Section 4.8, by way of example and not
limitation, it is agreed that routine matters, such as appointing
auditors and directors (except where a competing director or
slate of directors is proposed), and resolutions to approve the
public offering or private placement of securities, would not
materially affect the rights of holders of Shares.
For the avoidance of doubt, neither the Depositary nor the
Custodian shall, under any circumstances, exercise any discretion
as to voting, vote any number of Shares other than an integral
number thereof, or vote Shares in a manner that would be
inconsistent with any applicable law and the Company's Bye-Laws.
In the event that the Depositary, or the Custodian as its
nominee, shall be deemed to have been given a power of attorney
to vote the Deposited Shares in accordance with this Section 4.8,
the Depositary and the Custodian shall not be liable to the
Company or any Holder or any other person in respect of, or be
deemed responsible for, any acts or omissions of (or on behalf
of) the Depositary, the Custodian or any of its respective
directors, officers or employees.
There can be no assurance that Holders generally or any
Holder in particular will receive the notice described above with
sufficient time to enable such Holder to return voting
instructions to the Depositary by the ADS voting cut off date set
by the Depositary for such purpose. The Company agrees that it
will endeavor to provide at least 30 days' prior written notice
to the Depositary which will enable the timely notification of
Holders as to limitations on the ability of the Depositary to
vote a particular ADS according to the voting instructions
received in regard to such ADS.
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Shares which have been withdrawn from the depositary
facility and transferred on the Company's register of members to
a person other than the Depositary or its nominee may be voted by
the holders thereof in accordance with applicable law and the
Company's Bye-Laws. However, Holders or Beneficial Owners of ADSs
may not receive sufficient advance notice of shareholder meetings
to enable them to withdraw the Shares and vote at such meetings.
ARTICLE III
AMENDMENTS TO FORM OF RECEIPT
Section 3.01 The form of Receipt attached as Exhibit A to the Deposit
Agreement is amended and supplemented by replacing Condition (15) with the
following:
(15) Voting of Deposited Securities. As soon as practicable
after receipt of notice of any meeting at which the holders of
Shares are entitled to vote, or of solicitation of consents or
proxies from holders of Shares or other Deposited Securities, the
Depositary shall fix the ADS Record Date in respect of such
meeting or solicitation of such consent or proxy. 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 30 days prior to the date of such vote or meeting), at the
Company's expense and provided no U.S. legal prohibitions exist,
mail by ordinary, regular mail delivery or by electronic
transmission (if agreed by the Company and the Depositary),
unless otherwise agreed in writing by the Company and the
Depositary, to Holders as of the ADS Record Date: (a) such
information as is contained in such notice of meeting (or
solicitation of consent or proxy) received by the Depositary from
the Company, (b) a statement that the Holders of Receipts as of
the ADS Record Date will be entitled, insofar as practicable and
permitted under applicable law, the terms of the Deposit
Agreement and of the Bye-Laws of the Company, to instruct the
Depositary as to the exercise of the voting rights (or right to
consent to or to grant a proxy), if any, pertaining to the amount
of Shares or other Deposited Securities represented by their
respective ADSs, and (c) a statement as to the manner in which
such instructions may be given or may be deemed to have been
given in accordance with the second paragraph of this Article 15
if no validly-completed instructions are received by the
Depositary from a Holder of ADSs by the ADS voting cut off date
set by the Depositary for such purpose. Upon the written request
of a Holder as of such ADS Record Date, received on or before the
ADS voting cut off date established by the Depositary for such
purpose, the Depositary shall endeavor, insofar as practicable,
to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by the ADSs evidenced by such
Receipt(s) in accordance with the instructions set forth in such
request. Instructions in respect of any ADS shall be deemed to
have been received only if received in accordance with the terms
of this Deposit Agreement.
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To the extent no such instructions are received by the
Depositary on or before the ADS voting cut off date established
by the Depositary for such purpose from holders of a sufficient
number of Shares so as to enable the Company to meet its quorum
requirements with respect to any such meeting of shareholders,
the Depositary shall, upon the written request of the Company and
at all times subject to applicable law, the terms of the Deposit
Agreement, the terms and conditions of the Deposited Securities
and the Company's Bye-Laws, deem such Holder to: (A) have
instructed the Depositary to take such action as is necessary to
cause the number of underlying Shares for which no voting
instructions have been received from Holders of ADSs so as to
meet applicable quorum requirements of the Company (currently 50%
of the Shares of the Company) to be counted for the purposes of
satisfying applicable quorum requirements; and (B) have given a
power of attorney to the Depositary or the Custodian, as its
nominee, to cause such equal number of Shares so counted under
(A) above being counted for the purposes of establishing a
quorum, with respect to any resolutions proposed by the Board of
Directors of the Company within the agenda set for such meeting,
to be voted at any such meeting in proportion to the voting
instructions duly-received by the Depositary from Holders of ADSs
as of the ADS Record Date by the ADS voting cut off date set by
the Depositary for such purpose; provided, however that, except
to the extent the Company has provided the Depositary with at
least 30 days' written notice of any such meeting, the Shares
shall not be so counted and shall not be so voted
(proportionately to the voting instructions received by the
Depositary from Holders of ADSs as of the ADS Record Date by the
ADS voting cut off date set by the Depositary for such purpose)
with respect to any matter as to which the Depositary informs the
Company that the Depositary reasonably believes that with respect
to any such resolution: (i) substantial opposition exists or (ii)
it materially affects the rights of holders of Shares. For the
purposes of this Article 15 and Section 4.8 to the Deposit
Agreement, by way of example and not limitation, it is agreed
that routine matters, such as appointing auditors and directors
(except where a competing director or slate of directors is
proposed), and resolutions to approve the public offering or
private placement of securities, would not materially affect the
rights of holders of Shares.
For the avoidance of doubt, neither the Depositary nor the
Custodian shall, under any circumstances, exercise any discretion
as to voting, vote any number of Shares other than an integral
number thereof, or vote Shares in a manner that would be
inconsistent with any applicable law and the Company's Bye-Laws.
In the event that the Depositary, or the Custodian as its
nominee, shall be deemed to have been given a power of attorney
to vote the Deposited Shares in accordance with this Article 15
and Section 4.8 of the Deposit Agreement, the Depositary and the
Custodian shall not be liable to the Company or any Holder or any
other person in respect of, or be deemed responsible for, any
acts or omissions of (or on behalf of) the Depositary, the
Custodian or any of its respective directors, officers or
employees.
There can be no assurance that Holders generally or any
Holder in particular will receive the notice described above with
sufficient time to enable such Holder to return voting
instructions to the Depositary by the ADS voting cut off date set
by the Depositary for such purpose. The Company agrees that it
will endeavor to provide at least 30 days' prior written notice
to the Depositary which will enable the timely notification of
Holders
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as to limitations on the ability of the Depositary to vote a
particular ADS according to the voting instructions received in
regard to such ADS.
Shares which have been withdrawn from the depositary
facility and transferred on the Company's register of members to
a person other than the Depositary or its nominee may be voted by
the holders thereof in accordance with applicable law and the
Company's Bye-Laws. However, Holders or Beneficial Owners of ADSs
may not receive sufficient advance notice of shareholder meetings
to enable them to withdraw the Shares and vote at such meetings.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties. The Company and the Depositary
mutually represent and warrant to each other that this Agreement, when executed
and delivered by each of the Company and the Depositary, and the Deposit
Agreement, as amended and supplemented by this Agreement, and all other
documentation executed and delivered by the Company and the Depositary in
connection therewith, will be duly and validly authorized, executed and
delivered by the Company and the Depositary, and constitute the legal, valid and
binding obligations of the Company and the Depositary, enforceable against the
Company and the Depositary in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
ARTICLE V
MISCELLANEOUS
Section 5.01 Effective Date. This Agreement is dated as of the date first
set forth above and shall be effective on the date on which the U.S. Securities
and Exchange Commission declares effective the amendment to the Registration
Statement on Post-Effective Amendment No.1 to Form F-6 to be filed by the
Depositary, on behalf of the legal entity created by the Deposit Agreement, as
amended and
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supplemented by this Agreement (the "Effective Date"). From and after the
Effective Date, all references in the Deposit Agreement and the form of Receipt
shall be deemed to be references to the Deposit Agreement and form of Receipt,
as amended and supplemented by this Agreement.
Section 5.02 Outstanding Receipts. Receipts issued prior to the Effective
Date hereof, which do not reflect the changes to the Receipts effected hereby,
do not need to be called in for exchange and may remain outstanding until such
time as the Holders thereof choose to surrender them for any reason under the
Deposit Agreement, as amended and supplemented by this Agreement. The Depositary
is authorized and directed to take any and all actions deemed necessary to
effect the foregoing.
The Company hereby instructs the Depositary to promptly (i) send notice of
the amendment of the Deposit Agreement by this Agreement to all Holders of
Receipts outstanding under the Deposit Agreement as of the Effective Date; (ii)
inform Holders of Receipts outstanding under the Deposit Agreement as of the
Effective Date that they have the opportunity, but are not required, to exchange
their Receipts for one or more Receipts issued pursuant to the Deposit
Agreement, as amended and supplemented by this Agreement; and (iii) inform
Holders of Receipts outstanding as of the Effective Date that from and after 30
days after notice of the amendment and supplement effectuated by this Agreement
shall have been given to such Holders they shall be deemed Holders of Receipts
issued pursuant and subject to all of the terms and conditions of the Deposit
Agreement, as amended and supplemented by this Agreement.
Section 5.03 Indemnification. The parties hereto shall be entitled to the
benefits of the indemnification provisions of Section 5.8 of the Deposit
Agreement, as amended by this Agreement, in connection with any and all
liability it or they may incur as a result of the terms of this Agreement and
the transactions contemplated herein.
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Section 5.04 Governing Law. This Agreement and the rights and obligations
of the parties hereunder shall be construed in accordance with and governed by
the law of the state of New York. Except as set forth in the following paragraph
of this Section 6.05, 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 this Agreement and the Deposit
Agreement and, for such purposes, each irrevocably submits to the non-exclusive
jurisdiction of such courts.
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 this Agreement or the Deposit Agreement or (c)
against both the Company and the Depositary, 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.
Each of the Depositary and 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 6.05, 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.
The provisions of this Section 6.05 shall survive any termination of this
Agreement or the Deposit Agreement, in whole or in part.
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Section 5.05 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Agreement to be executed by their respective representatives thereunto duly
authorized as of the date first set forth above.
GENESIS LEASE LIMITED
By: /s/ Xxxx XxXxxxx
Name: Xxxx XxXxxxx
Title: Chief Executive Officer
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Depositary
By: /s/ Xxxxxxxxxxx Xxxxxxxxx
Name: Xxxxxxxxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
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