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SAPPI LIMITED
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Amended and Restated Deposit Agreement
Dated as of October 23, 1998
As Amended and Restated as of November 4, 1998
As Further Amended and Restated as of October 26, 1999
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ARTICLE 1. DEFINITIONS I
SECTION 1.01. AMERICAN DEPOSITARY SHARES I
SECTION 1.02. COMMISSION ......................................................... 1
SECTION 1.03. COMPANY ............................................................ 2
SECTION 1.04. CUSTODIAN .......................................................... 2
SECTION 1.05. DEPOSIT AGREEMENT .................................................. 2
SECTION 1.06. DEPOSITARY; CORPORATE TRUST OFFICE ................................. 2
SECTION 1.07. DEPOSITED SECURITIES ............................................... 2
SECTION 1.08. DOLLARS; RAND ...................................................... 2
SECTION 1.09. ELIGIBLE OWNER ..................................................... 3
SECTION 1.10. OWNER .............................................................. 3
SECTION 1.11. RECEIPT ............................................................ 3
SECTION 1.12. REGISTRAR .......................................................... 3
SECTION 1.13. RESTRICTED SECURITIES .............................................. 4
SECTION 1.14. SECURITIES ACT OF 1933 ............................................. 4
SECTION 1.15. SHARES ............................................................. 4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS ................................................. 4
SECTION 2.01. FORM AND TRANSFERABILITY OF RECEIPTS ............................... 4
SECTION 2.02. DEPOSIT OF SHARES .................................................. 5
SECTION 2.03. EXECUTION AND DELIVERY OF RECEIPTS ................................. 6
SECTION 2.04. TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS ......... 7
SECTION 2.05. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES ..................... 8
SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY.
TRANSFER AND SURRENDER OF RECEIPTS ................................. 9
SECTION 2.07. LOST RECEIPTS, ETC ................................................ 10
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS .............. 10
SECTION 2.09. PRE-RELEASE OF RECEIPTS ........................................... 10
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS ............................ 11
SECTION 3.01. PROVIDING PROOFS, CERTIFICATES AND OTHER INFORMATION .............. 11
SECTION 3.02. LIABILITY OF OWNER FOR TAXES ...................................... 12
SECTION 3.03. WARRANTIES ON DEPOSIT OF SHARES ................................... 12
SECTION 3.04. COMPLIANCE WITH LAW ............................................... 13
SECTION 3.05. DISCLOSURE OF BENEFICIAL OWNERSHIP OF RECEIPTS .................... 13
ARTICLE 4. THE DEPOSITED SECURITIES ............................................. 13
SECTION 4.01. CASH DISTRIBUTIONS ................................................ 13
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS ................... 14
SECTION 4.03. DISTRIBUTIONS IN SHARES ........................................... 15
SECTION 4.04. RIGHTS DISTRIBUTIONS .............................................. 15
SECTION 4.05. CONVERSION OF FOREIGN CURRENCY .................................... 17
SECTION 4.06. FIXING OF RECORD DATE ............................................. 18
SECTION 4.07. VOTING OF DEPOSITED SECURITIES .................................... 19
SECTION 4.08. CHANGES AFFECTING DEPOSITED SECURITIES ............................ 20
SECTION 4.09. REPORTS ........................................................... 20
SECTION 4.10. LISTS OF OWNERS ................................................... 20
SECTION 4.11. WITHHOLDING ....................................................... 21
SECTION 4.12. DIVIDENDS IN CASH OR SHARES ....................................... 21
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY ........................ 22
SECTION 5.01. MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE DEPOSITARY ........ 22
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY OR THE COMPANY
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY ...... 23
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY;
APPOINTMENT OF SUCCESSOR DEPOSITARY ............................... 25
SECTION 5.05. THE CUSTODIAN ..................................................... 26
SECTION 5.06. NOTICES AND REPORTS ............................................... 27
SECTION 5.07. ISSUANCE OR DEPOSIT OF ADDITIONAL SHARES, ETC ..................... 27
SECTION 5.08. INDEMNIFICATION ................................................... 28
SECTION 5.09. CHARGES OF DEPOSITARY ............................................. 30
SECTION 5.10. RETENTION OF DEPOSITARY DOCUMENTS ................................. 31
SECTION 5.11. EXCLUSIVITY ....................................................... 31
ARTICLE 6. AMENDMENT AND TERMINATION ............................................ 31
SECTION 6.01. AMENDMENT ......................................................... 31
SECTION 6.02. TERMINATION ....................................................... 32
ARTICLE 7. MISCELLANEOUS ........................................................ 33
SECTION 7.01. COUNTERPARTS ...................................................... 33
SECTION 7.02. NO THIRD PARTY BENEFICIARIES ...................................... 33
SECTION 7.03. SEVERABILITY ...................................................... 33
SECTION 7.04. OWNERS AND HOLDERS AS PARTIES; BINDING EFFECT ..................... 33
SECTION 7.05. NOTICES ........................................................... 33
SECTION 7.06. GOVERNING LAW ..................................................... 34
SECTION 7.07. COMPLIANCE WITH U.S. SECURITIES LAW ............................... 35
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AMENDED AND RESTATED
DEPOSIT AGREEMENT
AMENDED AND RESTATED
DEPOSIT AGREEMENT dated as of October 23, 1998, as
amended and restated as of November 4, 1998, as further amended and restated
as of October 26, 1999, among SAPPI LIMITED, incorporated under the laws of
The Republic of South Africa (herein called the "Company"), THE BANK OF
NEW
YORK, a
New York banking corporation (herein called the "Depositary"), and
all owners from time to time of American Depositary Receipts issued hereunder.
WITNESSETH:
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WHEREAS, the Company desires to provide for the deposit of Shares (as
hereinafter defined) from time to time with the Depositary or with the
Custodian (as hereinafter defined), as agent of the Depositary for the
purposes of this
Deposit Agreement, for the creation of American Depositary
Shares representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts evidencing the American Depositary
Shares;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
among the parties hereto as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this
Deposit Agreement:
SECTION 1.01. AMERICAN DEPOSITARY SHARES.
The term "American Depositary Shares" shall mean the securities
created hereby representing interests in the Deposited Securities evidenced
by the Receipts issued hereunder and all rights of ownership associated
therewith. Each American Depositary Share shall represent one (1) Share until
there shall occur a distribution upon Deposited Securities covered by Section
4.03 or a change or other event with respect to Deposited Securities covered
by Section 4.08 with respect to which additional Receipts are not executed
and delivered, and thereafter each American Depositary Share shall represent
the type and amount of Deposited Securities specified in such Sections.
SECTION 1.02. COMMISSION.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States of America or any successor governmental
agency in the United States of America.
SECTION 1.03. COMPANY.
The term "Company" shall mean Sappi Limited, incorporated under the
laws of the Republic of South Africa, and its successors.
SECTION 1.04. CUSTODIAN.
The term "Custodian" shall mean the Johannesburg, South Africa
offices of First National Bank of Southern Africa, Limited, French Bank of
South Africa Limited, Nedbank Limited, Societe Generale of South Africa Ltd.
and The Standard Bank of South Africa, Limited, each as agent of the
Depositary for the purposes of this
Deposit Agreement, and any other firm or
corporation which may hereafter be appointed by the Depositary pursuant to
the terms of Section 5.05 as agent of the Depositary for the purposes of this
Deposit Agreement or as substitute or additional custodian or custodians
hereunder, as the context shall require, and the term "Custodians" shall mean
all of them, collectively.
SECTION 1.05.
DEPOSIT AGREEMENT.
The term "
Deposit Agreement" shall mean this agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
SECTION 1.06. DEPOSITARY; CORPORATE TRUST OFFICE.
The term "Depositary" shall mean The Bank of
New York, a
New York
banking corporation, and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall
mean the office of the Depositary which, at the date of this Deposit
Agreement, is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
SECTION 1.07. DEPOSITED SECURITIES.
The term "Deposited Securities" as of any time shall mean the
Shares at such time deposited or deemed to be deposited under this Deposit
Agreement and any and all other securities, property and cash received by the
Depositary or the Custodian in respect thereof and at such time held
hereunder, subject as to cash to the provisions of Section 4.05.
SECTION 1.08. DOLLARS: RAND.
The term "Dollars" shall mean United States dollars. The term
"Rand" shall mean South African Rand or any other lawful currency of the
Republic of South Africa.
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SECTION 1.09. ELIGIBLE OWNER.
The term "Eligible Owner" as of any time shall mean an Owner who,
as of such time, is holding a Receipt as beneficial owner thereof and not for
the benefit of, on behalf of, or for the account of, any other person.
SECTION 1.10. OWNER.
The term "Owner" shall mean the person or persons in whose name or
names a Receipt is registered on the books of the Depositary maintained for
such purpose.
SECTION 1.11. RECEIPT.
The term "Receipt" shall mean each American Depositary Receipt
issued hereunder evidencing American Depositary Shares, in substantially the
form of Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions as hereinafter provided in this Deposit Agreement.
SECTION 1.12. REGISTRAR.
The term "Registrar" shall mean, subject to any applicable rules or
regulations of any securities exchange upon which the American Depositary
Shares may be listed or traded, any bank or trust company having an office in
the Borough of Manhattan, The City of
New York, which shall be appointed as
agent of the Depositary for the purposes of this Deposit Agreement, upon
prior request and with the approval of the Company, to register Receipts and
transfers of Receipts as herein provided.
SECTION 1.13. RESTRICTED SECURITIES.
The term "Restricted Securities" shall mean Shares (or Receipts
evidencing such Shares) which are acquired directly or indirectly from the
Company or its affiliates (as defined in Rule 144 under the Securities Act of
1933) in a transaction or chain of transactions not involving any public
offering (whether or not within the United States) or which are subject to
resale limitations under the Securities Act of 1933 or both, or which are
held by an officer, director (or persons performing similar functions) or
other affiliate of the Company or which would require registration under the
Securities Act of 1933 in connection with the public offer and sale thereof
in the United States of America, or which are subject to other restrictions
on sale or deposit under the laws of the United States of America or, the
Republic of South Africa, the Memorandum or Articles of Association of the
Company or under any agreement.
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SECTION 1.14. SECURITIES ACT OF 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.15. SHARES.
The term "Shares" shall mean the Ordinary Shares of the Company in
registered form, nominal value one Rand each, heretofore validly issued and
outstanding and fully paid and non-assessable or hereafter validly issued and
outstanding and fully paid and non-assessable; PROVIDED, HOWEVER, that if
there shall occur any change in par value, split-up, consolidation or other
reclassification or, upon the occurrence of any other event described in
Section 4.08, an exchange or conversion in respect of the Shares, the term
"Shares" shall thereafter mean the successor securities resulting from such
change in par value, split-up, consolidation or other reclassification or
such exchange or conversion. References to Shares shall include evidence of
rights to receive Shares, whether or not stated in the particular instance;
PROVIDED, HOWEVER, that in no event shall Shares include evidence of rights
to receive Shares with respect to which the full purchase price has not been
paid.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS.
SECTION 2.01. FORM AND TRANSFERABILITY OF RECEIPTS.
Definitive Receipts shall be engraved or printed or lithographed
and shall be executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; PROVIDED, HOWEVER, that such
signature may be a facsimile if a Registrar for the Receipts shall have been
appointed, such Registrar not to be deemed an agent of the Company and such
Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement, or be valid or enforceable for any purpose, unless
such Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized signatory of the Depositary or, if a Registrar
for the Receipts shall have been appointed and the Depositary shall have
signed by facsimile signature, countersigned by the manual signature of a
duly authorized officer of the Registrar. The Depositary shall maintain books
on which each Receipt so executed and delivered as hereinafter provided and
the transfer of each such Receipt shall be registered; PROVIDED, HOWEVER,
that if a Registrar has been appointed then such books shall be maintained by
the Registrar. Receipts bearing the facsimile signature of a duly authorized
signatory of the Depositary who was at any time a proper signatory of the
Depositary shall bind the Depositary, notwithstanding that such signatory of
the Depositary has ceased to hold such office prior
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to the execution of such Receipts by the Registrar and their delivery or did
not hold such office at the date of such Receipts.
The Receipts may, with the prior written consent of the Company,
and at the request of the Company shall be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Deposit Agreement or with any provision of the
Company's Memorandum or Articles of Association or the laws of the Republic
of South Africa as may be reasonably required by the Depositary or required
to comply with any applicable law or regulations or with the rules and
regulations of any securities exchange upon which American Depositary Shares
may be listed or traded or to conform with any usage with respect thereto, or
to indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the, laws of the State of
New York;
PROVIDED, HOWEVER, that the Depositary, notwithstanding any notice to the
contrary, may treat the Owner thereof as the absolute owner thereof for the
purpose of determining the person entitled to any distribution of dividends
or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes, and neither the Depositary nor the
Company shall have any obligation or be subject to any liability under this
Deposit Agreement to any holder of a Receipt unless such holder is the Owner
thereof.
SECTION 2.02. DEPOSIT OF SHARES.
Subject to the terms and conditions of this Deposit Agreement,
Shares may be deposited under this Deposit Agreement by delivery thereof to
any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form reasonably satisfactory to
the Custodian, together with all such certifications, documents, other
information and payments as may be required by the Depositary or the
Custodian in accordance with the provisions of this Deposit Agreement, and,
if the Depositary requires, together with a written order directing the
Depositary to execute and deliver to, or upon the written order of, the
person or persons stated in such order, a Receipt or Receipts for the number
of American Depositary Shares representing such Deposited Shares. In
addition, subject to the terms of Section 5.07, the Depositary and any
Custodian may accept Shares for deposit from or on behalf of the Company or
an affiliate of the Company, in the case of any distribution of Shares
pursuant to Section 4.02, 4.03 or 4.08 of this Deposit Agreement, in each
case when such deposit is made by delivery to such Custodian of certificates
therefor, accompanied by any appropriate instrument or instruments of
transfer or endorsement, in form satisfactory to the Custodian, or delivery
to such Custodian of evidence satisfactory to the Custodian that
- 5 -
irrevocable instructions have been given to cause such Shares to be
transferred to such account. No Share shall be accepted for deposit unless
accompanied by evidence satisfactory to the Depositary, if any is required by
the Depositary, that all conditions to such deposit have been satisfied by
the person depositing such Shares under South African laws and regulations,
and that any necessary approval has been granted by the governmental
authority or body in the Republic of South Africa, if any, which is then
performing the function of the regulation of currency exchange or any other
function which requires approval for the deposit of Shares. If required by
the Depositary, Shares presented for deposit at any time, whether or not the
transfer books of the Company or the Foreign Registrar, if applicable, are
closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for
additional Shares or to receive other property which any person in whose name
the Shares are or have been recorded may thereafter receive upon or in
respect of such deposited Shares, or in lieu thereof, such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary, and
if the Shares are registered in the name of the person on whose behalf they
are presented for deposit, a proxy or proxies entitling the Custodian to vote
such deposited Shares for any and all purpose until the Shares are registered
in the name of the Depositary or its nominee or the Custodian or its nominee.
At the request, risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
and payments herein specified, for the purpose of forwarding such Share
certificates to the Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates
for Shares to be deposited hereunder, together with the other documents and
payments specified above, such Custodian shall, as soon as transfer and
recordation can be accomplished, present such certificate or certificates to
the Company or the appointed agent of the Company for transfer and
registration of Shares, which may but need not be the Foreign Registrar, if
applicable, for transfer and recordation of the Shares being deposited in the
name of the Depositary or its nominee or such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or, with the
prior written consent of the Company, at such other place or places as the
Depositary shall determine.
SECTION 2.03. EXECUTION AND DELIVERY OF RECEIPTS.
Upon receipt by any Custodian of any deposit of Shares pursuant to
Section 2.02, together with the other documents required as specified herein,
such Custodian shall promptly notify the Depositary of such deposit and the
person or persons
- 6 -
to whom or upon whose written order a Receipt or Receipts are deliverable in
respect thereof and the number of American Depositary Shares to be evidenced
thereby. Such notification shall be made by mail or, at the request, risk and
expense of the person making the deposit, by air courier, cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement (including, but not limited to the
terms and conditions contained in Section 2.02), shall execute and deliver at
its Corporate Trust Office, to or upon the order of the person or persons named
in the notice delivered to the Depositary or requested by the person depositing
such Shares with the Depositary, a Receipt or Receipts, registered in such name
or names and evidencing any authorized number of American Depositary Shares
requested by such person or persons, but only upon payment to the Depositary of
the fee of the Depositary for the execution and delivery of such Receipt or
Receipts, and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the deposited Shares.
SECTION 2.04. TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers on its transfer books from time to time of
any Receipt, upon surrender, by the Owner in person or by a duly authorized
attorney, of such Receipt properly endorsed or accompanied by proper instruments
of transfer, and duly stamped, as may be required by the laws of the State of
New York and of the United States of America. Thereupon, the Depositary shall
execute a new Receipt or Receipts evidencing the same aggregate number of
American Depositary Shares as were evidenced by the Receipt surrendered and
deliver the same to or upon the order of the person entitled thereto, subject to
receipt of all certificates, if any, as the Depositary or the Company may
require in order to comply with any applicable laws.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall, upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver, subject to receipt of all certificates, if any, as the Depositary or
the Company may require in order to comply with any applicable laws, a new
Receipt or Receipts for any authorized number of American Depositary Shares
requested, evidencing the same aggregate number of American Depositary Shares as
were evidenced by the Receipt or Receipts surrendered.
The Depositary, at its expense, may appoint one or more co-transfer
agents with the approval of the Company (which approval shall not be
unreasonably withheld) for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws
- 7 -
and other requirements by Owners or holders of Receipts or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary.
SECTION 2.05. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of a whole number of Deposited Securities
represented thereby, and upon payment of the fee of the Depositary for the
cancellation of Receipts and subject to the terms and conditions of this Deposit
Agreement, the Company's Memorandum or Articles of Association and the Deposited
Securities, the Owner of such Receipt shall be entitled to delivery of the whole
number of Shares and the number of any other Deposited Securities represented by
the American Depositary Shares evidenced thereby and so withdrawn to an account
designated by such Owner and to delivery at the Corporate Trust Office of the
Depositary of a new Receipt evidencing any fractional Deposited Securities
represented thereby and the Shares and other Deposited Securities not withdrawn.
Such delivery shall be made, as hereinafter provided, without unreasonable
delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to an account
designated by such Owner. Thereupon the Depositary shall, in its discretion,
subject to Sections 2.06, 3.01 and 3.02, and to the other terms and conditions
of this Deposit Agreement, effect, or direct one (or more) of the Custodians, to
effect, such delivery, except that the Depositary may make delivery to such
person or persons at the Corporate Trust Office of the Depositary of any
dividends or distributions upon such Deposited Securities, or of any proceeds of
sale of any such dividends or distributions, which may at the time be held by
the Depositary.
At the request, risk and expense of any Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward proper documents of title (if available) for any such
Deposited Securities to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by mail or, at the
request, risk and expense of such Owner, by air courier, cable, telex or
facsimile transmission.
Neither the Depositary nor the Custodian shall deliver Shares (other
than to the Company or its agent as contemplated by Section 4.08), or otherwise
permit Shares to be withdrawn from the facility created hereby, except upon the
receipt and cancellation of Receipts.
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SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender of any Receipt, the delivery of
any distribution thereon, or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require payment from the presenter of the
Receipt or the depositor of the Shares of a sum sufficient to reimburse it for
any tax or other governmental charge and any stock transfer, registration or
conversion fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or Deposited Securities being withdrawn)
and payment of any applicable fees as herein provided, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with such regulations, if any, as the
Depositary may establish consistent with the provisions of this Deposit
Agreement, including, without limitation, Section 7.07.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended and the transfer of
Receipts in particular instances may be refused or the registration of transfer
of outstanding Receipts generally may be suspended during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary, after consultation with the Company to
the extent practicable (to the extent it is not practicable for the Depositary
to consult with the Company, the Depositary will notify the Company as promptly
as practicable after taking such action and explain its reasons for doing so),
or the Company at any time or from time to time because of any requirement of
law or of any government or governmental or regulatory body or commission or
following receipt of notification from the Company of the suspension of the
quotation of the Shares in the Republic of South Africa, or under any provision
of this Deposit Agreement or the Memorandum or Articles of Association of the
Company, or for any other reason, subject to Section 7.07 of this Deposit
Agreement. The surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges and (iii)
compliance with any United States or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities. The
Depositary and the Custodian will comply with reasonable written instructions
from the Company requesting that the Depositary and the Custodian not accept for
deposit hereunder any Shares identified in such instructions in order to
facilitate the Company's compliance with United States federal securities laws,
any provision of the Company's Memorandum or Articles of Association or the laws
of the Republic of South Africa. Without limitation of the foregoing, neither
the Depositary nor the Custodian shall accept for deposit under this
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Deposit Agreement any Shares (i) which, to the actual knowledge of the
Depositary, are required to be registered under the Securities Act of 1933 prior
to public sale in the United States, unless a registration statement is in
effect as to such Shares or (ii) the deposit of which would, to the actual
knowledge of the Depositary, infringe any provisions of the laws of the Republic
of South Africa.
SECTION 2.07. LOST RECEIPTS, ETC.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor, in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed or lost or stolen Receipt, upon
the Owner thereof filing with the Depositary (a) a request for such execution
and delivery before the Depositary has notice that the Receipt has been acquired
by a bona fide purchaser and (b) a sufficient indemnity bond, and satisfying any
other reasonable requirements imposed by the Depositary.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. Cancelled Receipts shall not be entitled to any benefits under this
Deposit Agreement or be valid or enforceable for any purpose, and the Depositary
shall destroy Receipts so canceled and inform the Company. The Depositary shall
keep such records of all Receipts outstanding, and of their payment,
cancellation and destruction, as are required under applicable Stock Transfer
Association rules.
SECTION 2.09. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the Company to cease doing so,
notwithstanding Section 2.03 hereof, the Depositary may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02 ("Pre-Release
of Receipts") and may deliver Shares prior to the receipt and cancellation of
Receipts if the person to whom such Shares are to be delivered is a banking
institution organized pursuant to the laws of South Africa ("South African
Bank") ("Pre-Release of Shares") (Pre-Release of Receipts and Pre-Release of
Shares are collectively referred to herein as "Pre-Release"). The Depositary
may, pursuant to Section 2.05, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation and agreement from the person to whom
Receipts or Shares are to be delivered ("Pre-Releasee") that such Pre-Releasee,
or its customer, (i) owns the Shares or Receipts to be remitted, as the case may
be, and (ii) assigns all beneficial right, title
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and interest in such Shares or Receipts, as the case may be, to the Depositary
in its capacity as such and for the benefit of the Owners and (iii) will not
take any action with respect to such Shares or Receipts, as the case may be,
that is inconsistent with the transfer of beneficial ownership (including,
without the consent of the Depositary, disposing of such Shares or Receipts, as
the case may be, other than in satisfaction of such Pre-Release), (b) at all
times fully collateralized with cash or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security and, in connection with the Pre-Release of Shares preceded or
accompanied by an unconditional guaranty by the Pre-Releasee to deliver Receipts
for cancellation on the same calendar day on which such Shares are delivered to
the Pre-Releasee (or, if such Receipts are not so delivered, to return the
Shares), (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-Releases will not normally
exceed thirty percent (30%) of the Shares deposited hereunder; provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate, and may, with the prior written
consent of the Company, change such limit for purposes of general application.
The Depositary will also set dollar limits with respect to Pre-Release
transactions to be entered into hereunder with any particular Pre-Releasee on a
case by case basis as the Depositary deems appropriate. For purposes of enabling
the Depositary to fulfill its obligations to the Owners under the Deposit
Agreement, the collateral referred to in clause (b) above shall be held by the
Depositary as security for the performance of the Pre-Releasee's obligations to
the Depositary in connection with a Pre-Release transaction, including the
Pre-Releasee's obligation to deliver Shares or Receipts upon termination of a
Pre-Release transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.01. PROVIDING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner may be required
from time to time to provide such proof of (a) citizenship, residence, exchange
control approval or payment of taxes and other governmental charges and
compliance with all applicable laws and regulations governing Deposited
Securities and the terms of this Deposit Agreement and (b) the identity of any
person legally or beneficially interested in the Receipt and Shares and the
nature of such interest, such information relating to the registration of the
Shares presented for deposit on the books of the Company (or the appointed agent
of the Company for transfer and registration of Shares) or to provide
- 11 -
such other information, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company reasonably may require by written request to the Depositary or
any Custodian. The Depositary may and shall, if reasonably requested by the
Company, withhold the delivery or registration of transfer of any Receipt, the
distribution of any dividend or other distribution or sale of rights or of the
proceeds thereof, or the delivery of any Deposited Securities until such proof
or other information is provided, such certificates are executed or such
representations and warranties are made pertaining to such Receipt to the
satisfaction of the Company and the Depositary.
The Depositary shall provide the Company, upon the Company's request
and in a timely manner, with copies of any information or other material which
it receives pursuant to this Section 3.01.
SECTION 3.02. Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented by any Receipt,
such tax or other governmental charge shall be payable by the Owner of such
Receipt to the Depositary. The Depositary may refuse to effect registration of
transfer of all or part of such Receipt or any withdrawal of Deposited
Securities represented thereby until such payment is made, and may withhold any
dividends or other distributions or, after attempting by reasonable means
to-notify such Owner, may sell for the account of the Owner thereof any part or
all of the Deposited Securities represented by such Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale to payment of
such tax or other governmental charge, the Owner of such Receipt remaining
liable for any deficiency.
SECTION 3.03. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under this Deposit Agreement, including
every person depositing Shares on behalf of an owner of Shares, shall be deemed
thereby to represent and warrant that (i) such Shares are validly issued, fully
paid and non-assessable, (ii) the person making such deposit is duly authorized
so to do, (iii) such Shares are not Restricted Securities, (iv) such Shares are
free and clear of any lien, encumbrance, security interest, charge, mortgage,
pledge or restriction on transfer, (v) such Shares are free of any pre-emptive
rights of the holders of outstanding Shares, and (vi) such Shares include all
rights to receive dividends thereon. Such representations and warranties shall
survive the deposit of such Shares and issuance of Receipts in respect thereof.
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SECTION 3.04. COMPLIANCE WITH LAW.
The rights of each Owner will be subject to the Memorandum or Articles
of Association of the Company as if such Owner were a holder of Shares and to
all applicable provisions of the laws of the Republic of South Africa and the
Memorandum or Articles of Association of the Company with regard to notification
to the Company and any governmental or stock exchange authorities of such
Owner's interest in Shares.Failure by such Owner to provide on a timely basis
any such required notification of such Owner's interest in Shares may result in
the withholding of certain rights in respect of such Owner's American Depositary
Shares including, without limitation, the right to give voting instructions and
the right to receive dividends or other payments in respect of the Shares
represented by such American Depositary Shares.
SECTION 3.05. DISCLOSURE OF BENEFICIAL OWNERSHIP OF RECEIPTS.
The Company and the Depositary may from time to time request Owners to
provide information as to the capacity in which they hold Receipts and regarding
the identity of any other persons then or previously interested in such Receipts
and various other matters. Each such Owner agrees to provide any such
information reasonably requested by the Company or the Depositary pursuant to
this Section and such agreement shall survive any disposition of such Owner's
interest in Shares or Receipts. The Depositary agrees to comply with reasonable
written instructions received from the Company requesting that the Depositary
forward any such requests to such Owners and to forward to the Company any
responses to such requests received by the Depositary, and to use its reasonable
efforts, at the Company's request, to assist the Company in obtaining such
information with respect to the American Depositary Shares, provided that
nothing herein shall be interpreted as obligating the Depositary to provide or
obtain any such information not provided to the Depositary by such Owners.
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.01. CASH DISTRIBUTIONS.
Whenever the Depositary or the Custodian shall receive any cash
dividend or other cash distribution on any Deposited Securities, the Depositary
shall, after any necessary conversion of such distribution into Dollars pursuant
to Section 4.05 and after fixing a record date pursuant to Section 4.06, as
promptly as practicable, but in any event within five business days, distribute
the amount thus received to the Owners of Receipts entitled thereto in
proportion to the number of American Depositary Shares held by them
respectively; PROVIDED, HOWEVER, that the Depositary shall make appropriate
adjustments in the amounts so distributed in respect of any amounts withheld or
requested to be withheld by the Company, the Custodian or the Depositary from
any such distribution on account of (i) taxes or other governmental charges
including, but not limited to,
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withholding taxes referred to in Section 4.11, or (ii) reasonable expenses of
the Depositary in the conversion of foreign currency into Dollars pursuant to
Section 4.05 and any other charges of the Depositary pursuant to Section 5.09.
The Depositary shall distribute only such amount, however, as can be distributed
without distributing to any Owner a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Owners
entitled thereto.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS.
Subject to the provisions of Sections 4.11 and 5.09, whenever the
Depositary or the Custodian shall receive any distribution other than cash,
Shares or rights upon any Deposited Securities, the Depositary shall cause the
securities or property received by it to be distributed to the Owners, as of the
record date fixed pursuant to Section 4.06, of Receipts entitled thereto in
proportion to the number of American Depositary Shares held by them as of such
date in any manner that the Depositary may, following consultation with the
Company, reasonably deem equitable and practicable for accomplishing such
distribution; PROVIDED, HOWEVER, that if the Company shall so direct or if, in
the reasonable opinion of the Depositary such distribution cannot be made
proportionately among such Owners, or if for any other reason (including but not
limited to any requirement that the Company or the Depositary withhold an amount
on account of taxes or other governmental charges or that such securities must
be registered under the Securities Act of 1933 in order to be distributed to
Owners) the Depositary, in its reasonable opinion, deems such distribution not
to be feasible, the Depositary may, following consultation with the Company,
adopt such method as it may deem lawful, equitable and practicable for the
purpose of effecting such distribution, including the public or private sale of
the securities or other property thus received, or any part thereof, and the net
proceeds of any such sale (net of the fees and expenses of the Depositary as
provided in Section 5.09) shall be as promptly as practicable distributed by the
Depositary to the Owners entitled thereto as in the case of a distribution
received in cash; PROVIDED, HOWEVER, that any unsold balance of such securities
or property shall be distributed by the Depositary to the Owners entitled
thereto, if such distribution is feasible without withholding for or on account
of any taxes or other governmental charges and without registration under the
Securities Act of 1933, in accordance with such lawful, equitable and
practicable method as the Depositary may have adopted; PROVIDED, FURTHER,
HOWEVER, that no distribution to Owners shall be unreasonably delayed by any
action of the Depositary or any of its agents. To the extent such securities or
other property, or the net proceeds thereof, is not effectively distributed to
Owners as provided herein, the same shall constitute Deposited Securities and
each American Depositary Share shall thereafter also represent its proportionate
interest in such securities or other property or net proceeds.
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SECTION 4.03. DISTRIBUTIONS IN SHARES.
If any distribution upon any Deposited Securities consists of a
dividend in, or distribution without payment of any subscription price of,
Shares, including pursuant to any program under which holders of Deposited
Securities may elect to receive cash or Shares, the Depositary may, and shall if
the Company so requests, execute and deliver additional Receipts evidencing
American Depositary Shares representing the amount of Shares received as such
dividend or distribution and distribute to the Owners, as of the record date
fixed pursuant to Section 4.06, of Receipts entitled thereto in proportion to
the number of American Depositary Shares held by them as of such date, Receipts
evidencing additional American Depositary Shares, subject to the terms and
conditions of this Deposit Agreement with respect to the deposit of Shares and
the issuance of Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of fees of the
Depositary as provided in Section 5.09. The Depositary may withhold any such
distribution if it has not received adequate assurances from the Company that
such distribution does not require registration under the Securities Act of
1933. In lieu of delivering Receipts for fractional American Depositary Shares,
the Depositary shall sell the amount of Shares representing the aggregate of
such fractions and distribute the net proceeds, all in the manner and subject to
the conditions set forth in Section 4.01 or take such other action, with the
approval of the Company, as may be appropriate. Notwithstanding the foregoing,
if the Company shall so direct or if in the reasonable opinion of the Depositary
such distribution cannot be made or if for any reason (including, but not
limited to, any requirement that the Company, the Custodian or the Depositary
withhold an amount on account for taxes or other governmental charges or that
such Shares must be registered under the Securities Act of 1933 in order to be
distributed to Owner) the Depositary, in its reasonable opinion, determines that
a distribution in Shares is not feasible or may not be legally made to some or
all Owners, the Depositary may, following consultation with the Company, adopt
such method as it may deem lawful, equitable and practicable for the purpose of
effecting such distribution, all in the manner and subject to the conditions set
forth in Section 4.02, or take such other action, with the approval of the
Company, as may be appropriate. If additional Receipts are not so distributed,
each American Depositary Share shall thenceforth also represent the additional
Shares distributed with respect to the Deposited Securities represented thereby.
SECTION 4.04. RIGHTS DISTRIBUTIONS.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall (after
consultation with the Company as to the procedure to be followed) make such
rights available to any Owners, including the distribution of warrants or other
instruments therefor in such form as it deems appropriate, or dispose of such
rights on behalf of any Owners and distribute the net
- 15 -
proceeds in Dollars to such Owners. If, by the terms of such rights offering or
by reason of applicable law, the Depositary may neither make such rights
available to any Owners, nor dispose of such rights and distribute the net
proceeds to such Owners, then the Depositary shall allow the rights to lapse.
If, at the time of the offering of any rights the Depositary determines,
following consultation with the Company, that it is lawful and feasible to make
such rights available to certain Owners but not to other Owners, (i) the
Depositary shall distribute to every Owner with respect to whom it determines
the distribution to be lawful and feasible, in proportion to the number of
American Depositary Shares held by such Owner, warrants or other instruments
therefor in such form as it deems appropriate and (ii) in respect of Owners to
whom the Depositary determines the distribution not to be lawful or feasible,
the Depositary shall use reasonable efforts to sell the rights, warrants or
other instruments in proportion to the number of American Depositary Shares held
by such Owners and distribute the net proceeds of such sales (net of the fees of
the Depositary as provided in Section 5.09 and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of this Deposit Agreement) to such Owners upon an averaged or other
fair and practicable basis without regard to any distinctions among such Owners
resulting from exchange restrictions, the date of delivery of any Receipt or
otherwise. In the event that rights and the securities to which such rights
relate are not registered under the Securities Act of 1933, the Depositary shall
not be responsible for any failure to determine that it may be lawful or
feasible to make such rights available to Owners in general or to any Owner in
particular.
In circumstances in which rights would not otherwise be distributed,if
an Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable in respect of American Depositary Shares of such
Owner hereunder, the Depositary will make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b) the
Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law. Upon instruction
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares or
other securities to be received upon the exercise of the rights, and upon
payment of the fees of the Depositary as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase such Shares or other securities, and the Company shall cause the
Shares or other securities so purchased to be delivered to the Depositary on
behalf of such Owner. As agent for such Owner, the Depositary will cause the
Shares so purchased to be deposited pursuant to Section 2.02 of this Deposit
Agreement, and shall, pursuant to Section 2.03 of this Deposit Agreement,
execute and deliver Receipts to such Owner. In the case of a distribution
pursuant to the second paragraph of this section, such Receipts shall be
legended, if required, in
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accordance with applicable U.S. laws, and shall be subject to the appropriate
restrictions on sale, deposit, cancellation, and transfer under such laws.
Except as otherwise provided in the preceding paragraph, the Company
and the Depositary will not offer rights to Owners unless a registration
statement is in effect with respect both to such rights and any securities to be
received upon exercise of such rights under the Securities Act of 1933 or unless
the offering and sale of such securities to such Owners are exempt from
registration under the Securities Act of 1933. Nothing in this Deposit Agreement
shall create any obligation on the part of the Company to file a registration
statement in respect of any rights or securities for any purpose or to endeavor
to have such a registration statement declared effective.
SECTION 4.05. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive currency
other than Dollars ("foreign currency"), by way of dividends or other
distributions or as the net proceeds from the sale of securities, property or
rights, and if at the time of the receipt thereof the foreign currency so
received can in the reasonable judgment of the Depositary be converted on a
reasonable basis into Dollars and transferred to the United States, the
Depositary shall, subject to any restrictions imposed by applicable law,
regulations or permits, convert or cause to be converted, by sale or in any
other manner that it may determine, such foreign currency into Dollars, and
such Dollars shall be distributed, as promptly as practicable, net of any
reasonable and customary out-of-pocket expenses incurred by the Depositary in
connection with the conversion of currency pursuant to this Section 4.05, to
the Owners entitled thereto as of the record date fixed pursuant to Section
4.06 in accordance with any applicable provisions of Sections 4.01, 4.02,
4.03 and 4.04. Such distribution may be made upon an averaged or other fair
and practicable basis without regard to any distinctions among Owners
resulting from exchange restrictions or otherwise. Upon the request of the
Company, the Depositary shall inform the Company of the exchange rate at
which foreign currency conversion has been carried out.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file as promptly as practicable such application for approval or license, if
any, as it may deem desirable; PROVIDED, HOWEVER, that if such application
involves or refers to or is made on behalf of the Company, such application
shall not be filed unless approved by the Company, which approval shall not be
unreasonably withheld or delayed.
If at any time the Depositary shall determine, following consultation
with the Company, that in its reasonable judgment any foreign currency received
by the Depositary or the Custodian is not, pursuant to applicable law or
otherwise, convertible on a reasonable basis into Dollars transferable to the
United States, or if any approval or
- 17 -
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary, following consultation
with the Company, is not obtainable, or if any such approval or license is not
obtained within a reasonable period as determined by the Depositary, the
Depositary may distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary or the Custodian to, or in its discretion, following consultation
with the Company, may hold such foreign currency proceeds uninvested for the
respective accounts of, the Owners entitled to receive the same, without
liability for interest thereon.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some Owners entitled thereto, the
Depositary may in its discretion, following consultation with the Company, make
such conversion and distribution in Dollars to the extent permissible to the
Owners entitled thereto for whom such conversion and distribution is practicable
and may distribute the balance of the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary or the Custodian to, or hold such balance uninvested and without
liability for the respective accounts of, the Owners entitled thereto for whom
such conversion and distribution is not practicable.
SECTION 4.06. FIXING OF RECORD DATE.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason there occurs a change in the number or type of Deposited Securities that
are represented by each American Depositary Share, or whenever the Depositary
shall receive notice of any meeting of, or solicitation of consents or proxies
from, holders of Shares or other Deposited Securities or whenever the Company or
the Depositary finds it necessary or convenient in respect of any matter, the
Depositary shall fix a record date (which, to the extent practicable, shall be
the same as any corresponding record date set by the Company with respect to
Shares, and after consultation with the Company if such date is to be different
from any such record date established by the Company in respect of the Shares)
for the determination of the Owners who shall be entitled to receive such
dividend, distribution or rights, or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting or in
respect of any such solicitation or to receive information as to any such
meeting or solicitation, or for fixing the date on or after which each American
Depositary Share will represent the changed number or type of Deposited
Securities, subject to the terms and conditions of this Deposit Agreement. If
the American Depositary Shares shall be listed on any stock exchange, then any
such record date shall be fixed in accordance with any applicable rules of such
stock exchange. The Depositary as promptly as practicable shall advise the
- 18 -
Company and, if the American Depositary Shares shall be listed on any stock
exchange, such stock exchange of any record date so fixed by the Depositary.
SECTION 4.07. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders, or solicitation of
consent or proxies from, of Shares or other Deposited Securities, unless
instructed otherwise in writing by the Company, the Depositary shall, as soon as
practicable thereafter, mail to the Owners a notice, in such form as approved by
the Company, which shall contain (a) such information as is contained in such
notice of meeting, or solicitation of consents or proxies, received by the
Depositary from the Company, (b) a statement that the Owners as of the close of
business on a specified record date established by the Depositary pursuant to
Section 4.06 will be entitled, subject to any applicable provisions of South
African law, of the Deposited Securities and this Deposit Agreement and of the
Memorandum and Articles of Association of the Company, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares, and (c) a statement as to the manner in which such
instructions may be given, including, when applicable, an express indication
that instructions may be given (or, if applicable, will be deemed given in
accordance with the second paragraph of this Section 4.07 if no instruction is
received) to the Depositary to give a discretionary proxy to a person designated
by the Company. Upon the written (or deemed) request of an Owner on such record
date, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor, insofar as practicable, to vote or cause
to be voted (or to grant a discretionary proxy to a person designated by the
Company to vote) the amount of Shares or other Deposited Securities the right to
receive which is represented by the American Depositary Shares evidenced by such
Owner's Receipt in accordance with any instructions set forth in such request.
The Depositary shall not, and the Depositary shall ensure that each Custodian or
any of its nominees shall not, vote or attempt to exercise the right to vote
that attaches to the Shares or other Deposited Securities, other than in
accordance with such instructions.
If the Depositary does not receive instructions from an Owner on or
before the date established by the Depositary for such purpose, such Owner shall
be deemed, and the Depositary shall deem such Owner, to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company
to vote the underlying Shares, PROVIDED that no such discretionary proxy shall
be deemed given with respect to any matter as to which the Company informs the
Depositary in writing at the time notice of any meeting or solicitation of
consents or proxies is received by the Custodian to the effect that the Company
does not wish such proxy given.
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SECTION 4.08. CHANGES AFFECTING DEPOSITED SECURITIES.
Upon any change in nominal value, split-up, consolidation or 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 securities which shall be received by the Depositary
or any Custodian in exchange for, conversion of, replacement or otherwise in
respect of Deposited Securities shall, subject to the terms of this Deposit
Agreement and applicable law, including any applicable provisions of the
Securities Act of 1933, be treated as new Deposited Securities under this
Deposit Agreement, and each American Depositary Share shall, subject to the
terms of this Deposit Agreement and applicable law, including any applicable
provisions of the Securities Act of 1933, thenceforth represent an appropriately
adjusted proportional interest in the Deposited Securities so received in
exchange or conversion or replacement or otherwise, unless additional or new
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, and shall if the Company shall so request, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities. Upon the occurrence of
any change or other event covered by this Section with respect to the Deposited
Securities, the Depositary shall give notice thereof in writing to all Owners.
SECTION 4.09. REPORTS.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports, notices and other communications, including
any proxy solicitation material, received from the Company which are both (a)
received by the Depositary, the Custodian, or a nominee of either as the holder
of the Deposited Securities and (b) made generally available to the holders of
such Deposited Securities by the Company. The Depositary shall also, promptly
upon receipt from the Company, send to the Owners copies of reports, notices and
communications furnished by the Company pursuant to Section 5.06. Such materials
will be furnished in English or English language versions or summaries in
English will be prepared when so required pursuant to any regulations of the
Commission.
SECTION 4.10. LISTS OF OWNERS.
As promptly as practicable upon request by the Company, the Depositary
shall furnish the Company with a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names Receipts are registered on the transfer books of the Depositary and of all
such persons who received such Receipts pursuant to a Pre-Release under
Section 2.09 hereof.
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SECTION 4.11. WITHHOLDING.
In connection with any dividend or other distribution to Owners, the
Company or its agent will remit to the appropriate governmental authority or
agency all amounts (if any) required under applicable law to be withheld and
remitted by the Company or such agent and owing to such governmental authority
or agency by the Company or such agent; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required under applicable law to be withheld and remitted by the Depositary
or the Custodian and owing to such authority or agency by the Depositary or the
Custodian. Either the Company or the Depositary may file with any governmental
agency any reports necessary to obtain benefits under any applicable tax
treaties for the Owners. The Depositary shall forward to the Company or its
agent such information from its records in relation to withholding from a
dividend or other distribution on Deposited Securities as the Company may
reasonably request to enable the Company or its agent to file necessary reports
with governmental authorities or agencies, and the Company and its agent shall
forward to the Depositary such information from its records in relation to
withholding from a dividend or other distribution on Deposited Securities as the
Depositary may reasonably request to enable the Depositary to file necessary
reports with governmental authorities or agencies. In the event that the
Depositary determines that any dividend or other distribution in property other
than cash (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may (after consultation with the Company) by public or private
sale dispose of all or a portion of such property (including Shares and rights
to subscribe therefor) in such amounts and in such manner as the Depositary
deems necessary and practicable to withhold any such taxes or charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto in proportion to the number
of American Depositary Shares held by them respectively, all in accordance with
applicable provisions of this Deposit Agreement.
SECTION 4.12. DIVIDENDS IN CASH OR SHARES.
Whenever the Depositary shall receive notice from the Company of the
declaration of a dividend or other distribution without payment of any
subscription price on Deposited Securities payable in Shares or cash at the
election of each holder of Shares or, if no such election is made, payable in
Shares or in cash as provided in the instruments governing such dividend or
other distribution, the Depositary shall mail to the Owners a notice, the form
of which shall be in the reasonable discretion of the Depositary, which shall
contain (a) such information as is contained in the notice received by the
Depositary from the Company and (b) a statement that each of the Owners as of
the close of business on a specified date will be entitled, subject to any
applicable provisions of the laws of the Republic of South Africa, the
Memorandum or Articles of Association of the Company or the instruments
governing such dividend or distribution, to instruct the Depositary as
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to the manner in which such Owner elects to receive such dividend or
distribution. Upon the written request of an Owner on such record date, received
on or before the date established by the Depositary for such purpose, the
Depositary shall use reasonable efforts to make the election in accordance with
the instructions set forth in such request, and to distribute cash or Shares, as
the case may be, in accordance with the terms of Section 4.01 or Section 4.03,
respectively, to the Owners entitled thereto. If the Depositary does not receive
timely instructions from any Owner as to such Owner's election, the Depositary
shall make no election with respect to the Deposited Securities represented by
such Owner's American Depositary Shares and shall distribute such Shares or cash
as it receives, if any, in respect of such Deposited Securities in accordance
with the preceding sentence.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.
SECTION 5.01. MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE DEPOSITARY.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep in such
New York City facilities books for
the registration of Receipts and transfers of Receipts which at all reasonable
times shall be open for inspection by the Company and the Owners; PROVIDED,
HOWEVER, that such inspection shall not be for the purpose of communicating with
Owners in the interest of a business or object other than the business of the
Company or a matter related to this Deposit Agreement or the Receipts. The
Depositary may close the transfer books at any time or from time to time when
transfer agents located in The City of New York generally close their transfer
books, and at any other time, following consultation with the Company to the
extent practical, or otherwise with prompt notice to the Company when deemed
expedient by the Depositary in connection with the performance of its duties
hereunder or at the request of the Company.
If any Receipts or the American Depositary Shares evidenced thereby
are listed or traded on one or more stock exchanges in the United States, the
Depositary shall act as Registrar or, with the prior written consent of the
Company, which consent shall not unreasonably be withheld, appoint a Registrar
or, one or more co-registrars for registry of such Receipts in accordance with
any requirements of such exchange or exchanges and to keep books for the
registration of Receipts and transfers of Receipts as provided in this Section
5.01. Such Registrar or co-registrars may be removed and a substitute or
substitutes appointed by the Depositary upon the request or with the approval of
the Company. The Depositary shall cause each Registrar or co-registrar
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appointed under this Section 5.01 to give notice in writing to the Depositary
and the Company accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement.
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY OR THE
COMPANY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or beneficial owner of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States or any other country,
or of any governmental or regulatory authority or stock exchange, or by reason
of any provision, present or future, of the Memorandum or Articles of
Association of the Company, or by reason of any provision of any securities
issued or distributed by the Company, or any offering or distribution thereof,
or by reason of any act of God or war or other circumstances beyond its control,
the Depositary or the Company shall be prevented, delayed or forbidden from, or
be subject to any civil or criminal penalty on account of, doing or performing
any act or thing which by the terms of this Deposit Agreement or Deposited
Securities it is provided shall be done or performed; nor shall the Depositary
or the Company or any of their respective directors, employees, agents or
affiliates incur any liability to any Owner or beneficial owner of any Receipt
by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of this Deposit Agreement it
is provided shall or may be done or performed, or by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement.
Where, by the terms of a dividend or other distribution pursuant to Section
4.01, 4.02, or 4.03 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.04 of the Deposit Agreement, or for any other reason, such
dividend or other distribution or offering may not be made available to Owners,
and the Depositary may not dispose of such dividend or other distribution or
offering on behalf of such Owners and make the net proceeds available to such
Owners, then the Depositary shall not make such dividend or other distribution
or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.03.OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.
Each of the Company and its agents and their respective officers,
directors, employees and affiliates assumes no obligation nor shall it be
subject to any liability under this Deposit Agreement or the Receipts to Owners
or beneficial owners of Receipts or any other persons other than the Depositary
and the Custodian (including, without limitation, liability with respect to the
validity or worth of the Deposited Securities), except that it agrees to perform
its obligations specifically set forth in this Deposit Agreement without
negligence, willful misconduct or bad faith.
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Each of the Company and its agents and their respective officers,
directors, employees and affiliates assumes no obligation nor shall it be
subject to any liability under this Deposit Agreement to the Custodian or any
agent of the Depositary or the Custodian, except under Section 5.08 of this
Deposit Agreement.
Each of the Depositary and its agents and their respective officers,
directors, employees and affiliates assumes no obligation nor shall it be
subject to any liability under this Deposit Agreement or the Receipts to any
Owner or beneficial owner of a Receipt or any other persons other than the
Depositary and the Custodian (including, without limitation, liability with
respect to the validity or worth of the Deposited Securities), except that it
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence, willful misconduct or bad faith.
The Depositary, the Custodian and the Company undertake to perform
such duties and only such duties as are specifically set forth in this Deposit
Agreement, and no implied covenants or obligations shall be read into this
Deposit Agreement against the Depositary, the Custodian or the Company or their
respective agents.
Without limiting the foregoing, neither the Depositary or its agents
nor the Company or its agents shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
None of the Depositary or its agents or the Company or its agents
shall be liable for any action or nonaction by it or them in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Owner or holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
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, willful misconduct or bad faith while it acted
as Depositary.
The Depositary shall not be responsible for the manner in which any
vote of any Deposited Securities is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith and in accordance
with this Deposit Agreement.
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Except as otherwise provided in this Deposit Agreement, the Depositary
will not release any information regarding the Company without prior written
approval from the Company; PROVIDED, HOWEVER, that the Depositary may release,
without prior approval from the Company, information made publicly available by
the Company if the form and substance of such information has not been altered
or modified in any way other than by the Company.
The Depositary agrees with the Company not to establish any
unsponsored American depositary receipt program representing Shares so long as
the Depositary is acting hereunder.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written
notice of such removal delivered to the Depositary effective upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, satisfactory in form and substance
to the Company, and thereupon such successor depositary, without any further act
or deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor; however, such predecessor, upon payment of all
sums due to it from the Company and on the written request of the Company, shall
execute and deliver an instrument satisfactory in form and substance to the
Company transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Deposited Securities to such successor, and shall deliver to such
successor all materials necessary and useful to enable the successor depositary
to carry out the responsibilities of the Depositary hereunder, including, but
not limited to, a list of the Owners of all outstanding Receipts. Any such
successor depositary shall promptly mail notice of its appointment to the
Owners. Notwithstanding the foregoing, any resignation or removal
- 25 -
and appointment of a successor Depositary shall not relieve the prior depositary
or the Company from its obligations and liabilities pursuant to Section 5.08.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act, it being understood that the Company
shall be informed in writing of such an event.
SECTION 5.05. THE CUSTODIAN.
The Custodian or its successors, which shall be an accredited
intermediary acting through a specified office located in South Africa, in
acting hereunder shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. If the
Depositary receives notice of the resignation of the Custodian and, upon the
effectiveness of such resignation there would be no Custodian acting hereunder,
the Depositary shall, promptly after receiving such notice, appoint a substitute
custodian or custodians, each of which shall be an accredited intermediary
acting through a specified office located in South Africa, and each of which
shall thereafter be a Custodian hereunder. Except as provided in the preceding
sentence, whenever the Depositary in its discretion determines, with the prior
written consent of the Company, that it is in the best interest of the Owners to
do so it may appoint a substitute or additional custodian or custodians, which
shall be an accredited intermediary acting through a specified office located in
South Africa, each of which shall thereafter be one of the Custodians hereunder.
Any Custodian ceasing to act as Custodian hereunder shall deliver all Deposited
Securities held by it and all other books and records maintained by it with
respect to its function as a Custodian hereunder to a Custodian continuing to
act upon the instruction of the Depositary. Upon demand of the Depositary, any
Custodian shall transfer such of the Deposited Securities held by it and all
other books and records maintained by it with respect to its function as a
Custodian hereunder as are requested of it to any other Custodian or such
substitute or additional custodian. The Depositary shall cause each substitute
or additional custodian, forthwith upon its appointment, to deliver to the
Depositary and the Company an acceptance of such appointment in form and
substance satisfactory to the Depositary. Promptly upon any such change, the
Depositary shall give notice in writing to all Owners and to each other
Custodian of the name, the address and the appointment of any Custodian not
named in Receipts.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of any
Custodian hereunder, but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian or as required by the laws
of the Republic of South Africa, execute and deliver to such Custodian, with a
copy to the Company, all such instruments as may be proper to
- 26 -
give to such Custodian full and complete power and authority as agent hereunder
of such successor depositary.
SECTION 5.06. NOTICES AND REPORTS.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian, as
soon as practicable, a copy of the notice thereof in English, but otherwise in
the form given or to be given to holders of Shares or other Deposited
Securities.
The Company shall furnish to the Depositary in English annual reports
(including audited consolidated financial statements), semi-annual reports
(including unaudited interim consolidated financial information), and copies or
summaries in English of any other reports and communications that are made
generally available by the Company to holders of Deposited Securities. The
Depositary will arrange for the mailing of copies of such annual and semi-annual
reports and, at the written request of the Company, any other such reports and
copies or summaries to all Owners. The Company will timely provide the
Depositary with such quantity of such reports and summaries as shall be
requested by the Depositary from time to time in order for the Depositary to
effect such mailings.
The Company has delivered to the Depositary and the Custodian a copy
(in English or with an English translation) of the Memorandum and Articles of
Association of the Company. Promptly upon any change in such Memorandum or
Articles of Association, the Company shall deliver to the Depositary and the
Custodian a copy (in English or with an English translation) of such Memorandum
or Articles of Association, as so changed. The Depositary and its agents may
rely on the copy of such Memorandum or Articles of Association as so delivered
for all purposes of this Deposit Agreement.
SECTION 5.07. ISSUANCE OR DEPOSIT OF ADDITIONAL SHARES, ETC.
The Company agrees that in the event of any issuance or distribution
of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities (each a
"Distribution"), the Company will promptly notify the Depositary of such
distribution and, upon request of the Depositary, will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Company, which counsel
shall be reasonably satisfactory to the Depositary, stating whether or not the
Distribution requires a registration statement under the Securities Act of 1933
to be in effect prior to making such Distribution available to
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Owners entitled thereto. If in the opinion of such counsel a Registration
Statement is required, such counsel shall furnish to the Depositary a written
opinion as to whether or not there is a Registration Statement in effect which
will cover such Distribution.
The Company agrees with the Depositary that neither the Company nor
any company controlled by the Company will at any time deposit any Shares,
either originally issued or previously issued and reacquired by the Company or
any such company, unless a registration statement is in effect as to such Shares
under the Securities Act of 1933.
Nothing in this Section 5.07 or elsewhere in this Deposit Agreement
shall create any obligation on the part of the Company or the Depositary to file
a registration statement in respect of any such securities or rights or to
endeavor to have such a registration statement declared effective. To the extent
the Company in its discretion deems it necessary or advisable in order to avoid
any requirement to register such additional securities under the Securities Act
of 1933, it may prevent Owners in the United States from purchasing any such
additional securities (whether pursuant to preemptive rights or otherwise) and
direct the Depositary not to accept certain Shares for deposit for such period
of time following the issuance of such additional securities and to adopt such
other specific measures as the Company may reasonably request in writing.
SECTION 5.08. INDEMNIFICATION.
The Company agrees to indemnify the Depositary and any Custodian and
any agent of the Depositary or the Custodian appointed hereunder and the
respective officers, directors, and employees (the "indemnified persons")
against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted in accordance with the
provisions of this Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by such indemnified
persons except for any liability or expense arising out of the negligence,
willful misconduct or bad faith of any of them, or (ii) by the Company or any of
its agents (other than the indemnified persons), and their respective officers,
directors and employees authorized to act on their behalf.
The indemnities contained in the preceding paragraph shall not extend
to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09) of a Receipt or Receipts or of a Share
or Shares in accordance with Section 2.09 and which would not otherwise have
arisen had such Receipt or Receipts or of a Share or Shares not been the subject
of a Pre-Release pursuant to Section 2.09; PROVIDED, HOWEVER, that the
indemnities provided in the preceding paragraph shall apply to any liability or
expense (i) to the extent that such liability or expense would have arisen had a
Receipt or Receipts or Share or Shares not been the subject of a Pre-Release,
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or (ii) which may arise out of any misstatement or alleged misstatement or
omission or alleged omission in any registration statement, proxy statement,
prospectus (or placement memorandum), or preliminary prospectus (or preliminary
placement memorandum) relating to the offer or sale of American Depositary
Shares, except to the extent any such liability or expense arises out of (a)
information relating to the Depositary or any Custodian (other than the
Company), as applicable, furnished in writing and not materially changed or
altered by the Company expressly for use in any of the foregoing documents, or,
(b) if such information is provided, the failure to state a material fact
necessary to make the information provided not misleading.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates against and hold them harmless from any
liability or expense (including but not limited to the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary or any Registrar or Custodian or their respective directors,
employees, agents and affiliates due to their respective negligence, willful
misconduct or bad faith.
If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall as promptly as practicable (and in no event more than twenty (20) days
after receipt of notice of such Proceeding) notify in writing the party
obligated to provide such indemnification (the "Indemnitor") of such Proceeding.
The failure of the Indemnitee to so notify the Indemnitor shall not impair the
Indemnitee's ability to seek indemnification from the Indemnitor (but only for
costs, expenses and liabilities incurred after such notice) unless such failure
adversely effects the Indemnitor's ability to adequately oppose or defend such
Proceeding. Upon receipt of such notice from the Indemnitee, the Indemnitor
shall be entitled to participate in such Proceeding and, to the extent that it
shall so desire and provided no conflict of interest exists as described in
subclause (b) below, or there are no other defenses available to Indemnitee as
specified in subclause (b) below, to assume the defense thereof with counsel
reasonably satisfactory to the Indemnitee (in which case all attorney's fees and
expenses shall be borne by the Indemnitor and the Indemnitor shall in good faith
defend the Indemnitee). The Indemnitee shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be borne by the Indemnitee unless
(a) the Indemnitor agrees in writing to pay such fees and expenses, (b) the
Indemnitee shall have reasonably and in good faith concluded that there is a
conflict of interest between the Indemnitor and the Indemnitee in the conduct of
the defense of such action, including but not limited to that there may be legal
defenses available to the Indemnitee that are different from or in addition to
those available to the Indemnitor, or (c) the Indemnitor fails, within ten (10)
days prior to the date the first response or appearance is required to be made
in such Proceeding, to assume
- 29 -
the defense of such Proceeding with counsel reasonably satisfactory to the
Indemnitee. No compromise or settlement of such Proceeding may be effected by
either party without the other party's consent unless (i) there is no finding or
admission of any violation of law and no material adverse effect on any other
claims that may be made against such other party and (ii) the sole relief
provided is monetary damages that are paid in full by the party seeking the
compromise or settlement. Neither party shall have any liability with respect to
any compromise or settlement effected without its consent, which shall not be
unreasonably withheld. The Indemnitor shall have no obligation to indemnify and
hold harmless the Indemnitee from any loss, expense or liability incurred by the
Indemnitee as a result of a default judgment entered against the Indemnitee
unless such judgment was entered after the Indemnitor agreed, in writing, to
assume the defense of such Proceeding.
The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
SECTION 5.09. CHARGES OF DEPOSITARY.
The Company will not pay any fees, expenses or other charges of the
Depositary or of any Registrar except in accordance with agreements in writing
entered into between the Depositary and the Company from time to time. The
Depositary shall present its statement for such charges and expenses to the
Company once every three months. The fees, charges and expenses of the Custodian
are for the sole account of the Depositary.
The following charges, to the extent permitted by applicable law and
stock exchange regulations shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03), whichever applicable: (1) taxes and other governmental charges,
(2) such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the Share register of the
Company (or the appointed agent of the Company for transfer and registration of
the Shares) and accordingly applicable to transfers of Shares to the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement to be
at the expense of persons depositing Shares or Owners, (4) such reasonable
out-of-pocket expenses as are incurred by the Depositary in the conversion of
Foreign Currency pursuant to Section 4.05 (5) a fee not in excess of $5.00 per
100 American Depositary Shares (or portion thereof) for the execution and
delivery of Receipts pursuant to Section 2.03, the execution and delivery of
Receipts pursuant to Section 4.03, and the surrender of Receipts pursuant to
Section 2.05, (6) a fee not in excess of $.02 per American Depositary Share (or
portion thereof) for any cash
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distribution made pursuant to the Deposit Agreement including, but not limited
to Sections 4.01 through 4.04 hereof, except for distributions of cash
dividends, and (7) a fee for the distribution of proceeds of sales of securities
or rights pursuant to Sections 4.02 or 4.04, respectively, such fee (which may
be deducted from such proceeds) being in an amount equal to the lesser of (i)
the fee for the issuance of American Depositary Shares referred to above which
would have been charged as a result of the deposit by Owners of securities (for
purposes of this clause (7) treating all such securities as if they were Shares)
or Shares received in exercise of rights distributed to them pursuant to
Sections 4.02 or 4.04, respectively, but which securities or rights are instead
sold by the Depositary, and the net proceeds distributed and (ii) the amount of
such proceeds.
The Depositary, subject to compliance with all applicable laws, rules
and regulations and subject to Section 2.09 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10. RETENTION OF DEPOSITORY DOCUMENTS.
The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless the
Company requests that such papers be turned over to the Company or to a
successor depositary.
SECTION 5.11. EXCLUSIVITY.
Subject to the provisions of Section 5.04, the Company agrees not to
appoint any other depositary for issuance of depositary receipts so long as The
Bank of New York is acting as Depositary hereunder.
ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.01. AMENDMENT.
The form of the Receipts and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement in writing between
the Company and the Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose or increase any fees or charges
(other than taxes and other governmental charges, registration fees, cable,
telex or facsimile transmission costs, delivery costs or other such expenses),
or which shall otherwise prejudice any substantial existing right of Owners,
shall, however, not become effective as to outstanding Receipts until the
expiration of 30 days after written notice of such amendment shall have been
mailed to the Owners of outstanding Receipts. Every Owner at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended
- 31 -
thereby. In no event shall any amendment impair the right of the Owner of any
Receipt to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except to comply with mandatory provisions of applicable
law.
SECTION 6.02. TERMINATION.
The Depositary shall at any time at the direction of the Company
terminate this Deposit Agreement by mailing notices of such termination to the
Owners of all Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate this
Deposit Agreement (upon 30 days' prior written notice of such termination to the
Company and the Owners of all Receipts then outstanding) if at any time 90 days
after the Depositary shall have delivered to the Company a written notice of its
resignation sent by registered mail, return receipt requested, a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.04. The Depositary shall mail notice of such termination
to the Owners of all Receipts then outstanding at least 30 days prior to the
date fixed in such notice for such termination. On and after the date of
termination, each Owner shall, upon (i) surrender of each of its Receipts at the
Depositary's Corporate Trust Office, (ii) payment of the fees of the Depositary
for the surrender of Receipts provided herein and (iii) payment of any
applicable taxes and governmental charges, be entitled to delivery, to him or
upon his order, of the whole number of Deposited Securities represented by the
American Depositary Shares evidenced by such Receipts and to the net proceeds of
the sale of any fractional Deposited Securities represented thereby. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof shall not accept
deposits of Shares (and shall instruct each Custodian to act accordingly), and
shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
property and rights and convert Deposited Securities into cash as provided in
this Deposit Agreement, and shall continue to deliver Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of this Deposit Agreement, and any applicable taxes or governmental charges).
At any time after the expiration of one year from the date of
termination, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, unsegregated and without
liability for interest, for the pro rata benefit of the Owners which have not
theretofore surrendered their Receipts, such Owners
- 32 -
thereupon becoming general creditors of the Depositary with respect to such net
proceeds. After making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges) and except
for its obligations under Section 5.08 hereof. Upon the termination of this
Deposit Agreement, the Company shall be discharged from all obligations under
this Deposit Agreement except for its obligations to the Depositary under
Sections 5.08 and 5.09 hereof.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.01. COUNTERPARTS.
This Deposit Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodian and shall be open to inspection
by any Owner during business hours.
SECTION 7.02. NO THIRD PARTY BENEFICIARIES.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
SECTION 7.03. SEVERABILITY.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04. OWNERS AND HOLDERS AS PARTIES BINDING EFFECT.
The Owners and holders of Receipts from time to time shall be parties
to this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance thereof.
SECTION 7.05. NOTICES.
Any and all notices to be given to the Company shall be deemed to have
been duly given if personally delivered or sent by air courier or facsimile
transmission
- 33 -
confirmed by letter addressed to Xxxxx X'Xxxxxx, Sappi Limited, 00 Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxx 0000, Xxxxxxxxxxxx, Republic of South Africa, or any other
place of which the Company has notified 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 air courier or facsimile
transmission confirmed by letter, addressed to The Bank of New York at its
Corporate Trust Office located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: ADR Department, 22 West, or any other place to which the Depositary
has moved its Corporate Trust Office. The Depositary will give notice to the
Company and the Owners of any change in the location of its Corporate Trust
Office.
Any and all notices to be given to any Owner shall be deemed to have
been duly given if personally delivered or sent by mail or by cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail (other than registered mail) or by
cable, telex or facsimile transmission shall be deemed to be effected at the
time when a duly addressed letter containing the same (or a confirmation thereof
in the case of a cable, telex or facsimile transmission) is deposited, postage
prepaid, in a post office letter box. Notices sent by registered mail or
personally delivered will be deemed to have been duly given on the date on which
signed for on behalf of the addressee. The Depositary or the Company may,
however, act upon any cable, telex or facsimile transmission received by it from
the other or from any Owner, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.06. GOVERNING LAW.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York without regard to the principles
of conflicts of laws thereof. It is understood that, notwithstanding any present
or future provision of the laws of the State of New York, the rights of holders
of Shares and other Deposited Securities and the obligations and duties of the
Company in respect of such holders, as such, shall be governed by the laws of
the Republic of South Africa (or, if applicable, such other law as may govern
Deposited Securities).
- 34 -
SECTION 7.07. COMPLIANCE WITH U.S. SECURITIES LAW.
Notwithstanding anything in this Deposit Agreement to the contrary,
the Company and the Depositary each agrees that it will not exercise any rights
it has under this Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate United States securities
laws, including but not limited to Section I A(1) of the General Instructions to
the Registration Statement on Form F-6, as amended from time to time, under the
Securities Act of 1933.
- 35 -
IN WITNESS WHEREOF, SAPPI LIMITED and THE BANK OF NEW YORK have duly
executed this agreement as of the day and year first set forth above and all
Owners and holders of Receipts shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof.
SAPPI LIMITED
By:
-------------------------
Name:
Title:
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxxx X. XxXxxxxxxx
Title: Vice-President
- 36 -
IN WITNESS WHEREOF, SAPPI LIMITED and THE BANK OF NEW YORK have duly
executed this agreement as of the day and year first set forth above and all
Owners and holders of Receipts shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof.
SAPPI LIMITED
By: /s/ Xxxxxx Xxxx Xxxxxx
----------------------
Name: Xxxxxx Xxxx Xxxxxx
Title: Executive Director-
Finance
THE BANK OF NEW YORK
By:
------------------------
Name:
Title:
Exhibit A to Deposit Agreement
NO. ______________________________
AMERICAN DEPOSITARY SHARES
(EACH AMERICAN DEPOSITARY
SHARE REPRESENTS ONE (1)
DEPOSITED SHARE)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF THE NOMINAL VALUE
OF ONE RAND EACH
OF
SAPPI LIMITED
(INCORPORATED UNDER THE LAWS OF
THE REPUBLIC OF SOUTH AFRICA)
The Bank of New York, as depositary (hereinafter called the "Depositary"),
hereby certifies that ______________________________________, or registered
assigns, IS THE OWNER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited Ordinary Shares of the Nominal Value of One Rand each
(herein called "Shares") of Sappi Limited, a company organized under the laws of
the Republic of South Africa (herein called the "Company"). At the date hereof,
each American Depositary Share represents one (1) Share which is either
deposited or subject to deposit under the Deposit Agreement (as such term is
hereinafter defined) at the Johannesburg, South Africa offices of First National
Bank of Southern Africa, Limited, French Bank of South Africa Limited, Nedbank
Limited, Societe Generale of South Africa Ltd. and The Standard Bank of South
Africa, Limited (each herein called the "Custodian"). The Depositary's Corporate
Trust Office is located at a different address than its principal executive
office. Its Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
X.X. 00000, and its principal executive office is located at Xxx Xxxx Xxxxxx,
Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (the "Receipts"), all
issued and to be issued upon the terms and conditions set forth in the Amended
and Restated Deposit Agreement, dated as of October 23, 1998, as amended and
restated as of November 4, 1998, as further amended and restated as of October
26, 1999, as it may be amended from time to time (the "Deposit Agreement"),
among the Company, the Depositary and all holders from time to time in whose
name a Receipt is registered on the books of the Depositary ("Owners"), each of
whom by accepting a Receipt agrees to become a party thereto and becomes bound
by all the terms and provisions thereof and hereof. The Deposit Agreement sets
forth the rights and obligations of Owners of Receipts and the rights and duties
of the Depositary in respect of the Shares deposited thereunder and any and all
other securities, property and cash from time to time received in respect
thereof and held under the Deposit Agreement (such Shares, securities, property
and cash are herein called the "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Corporate Trust Office of the Depositary in The
City of New York and the office of the Custodian and at any other designated
transfer offices. The statements made on the face and the reverse of this
Receipt are summaries of certain provisions of the Deposit Agreement and are
qualified by and subject to the detailed provisions thereof, to which reference
is hereby made. Capitalized terms not defined herein shall have the meanings set
forth in the Deposit Agreement.
The Depositary makes no representation or warranty as to the validity or
worth of the Deposited Securities.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt for the purpose of withdrawal of a whole number of Deposited Securities
represented hereby, and upon payment of the fee of the Depositary for the
cancellation of Receipts provided for in Article (9) of this Receipt, and
subject to the terms and conditions of the Deposit Agreement, the Company's
Memorandum or Articles of Association and the Deposited Securities, the Owner
hereof is entitled to the delivery of the whole number of Shares and the number
of any other Deposited Securities represented by the American Depositary Shares
evidenced hereby and so withdrawn to an account designated by such Owner and to
delivery at the Corporate Trust Office of the Depositary of a new Receipt
evidencing any fractional Deposited Securities represented hereby and the Shares
and other Deposited Securities not withdrawn. Such delivery will be made without
unreasonable delay. A Receipt surrendered for such purposes may be required by
the Depositary to be properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary requires, the Owner
thereof shall execute and deliver to the Depositary a written order directing
the Depositary to cause the Deposited Securities being withdrawn to be delivered
to an account designated by such Owner.
-2-
3. TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS.
Subject to the terms and conditions of the Deposit Agreement, the transfer
of this Receipt is registrable on the books of the Depositary upon surrender by
the Owner hereof, in person or by duly authorized attorney, at any designated
transfer office, of this Receipt properly endorsed or accompanied by proper
instruments of transfer and duly stamped as may be required by the laws of the
State of New York and of the United States of America. Subject to the terms and
conditions of the Deposit Agreement, this Receipt may be split into other
Receipts or may be combined with other Receipts into one Receipt evidencing the
same aggregate number of American Depositary Shares as were evidenced by the
Receipt surrendered and deliver the same to or upon the order of the person
entitled thereto, subject to receipt of all certificates, if any, as the
Depositary or the Company may require in order to comply with any applicable
laws.
The Depositary, subject to the terms and conditions of the Deposit
Agreement, shall, upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver, subject to receipt of all certificates, if any, as the Depositary or
the Company may require in order to comply with any applicable laws a new
Receipt or Receipts for any authorized number of American Depositary Shares
requested, evidencing the same aggregate number of American Depositary Shares as
were evidenced by the Receipt or Receipts surrendered.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require payment from the presenter of the
Receipt or the depositor of the Shares of a sum sufficient to reimburse it for
any tax or other governmental charges and any stock transfer, registration or
conversion fee with respect thereto (including any such tax or charges and fee
with respect to Shares being deposited or Deposited Securities being withdrawn)
and payment of any applicable fee as provided in Article (9) of this Receipt,
may require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary may establish consistent with the
provisions of the Deposit Agreement or this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended and the transfer of Receipts in
particular instances may be refused or the registration of transfer of
outstanding Receipts generally may be suspended during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary, after consultation with the Company to
the extent practicable (to the extent it is not practicable for the Depositary
to consult with the Company, the Depositary will notify the Company as
-3-
promptly as practicable after taking such action and explain its reasons for
doing so), or the Company at any time or from time to time because of any
requirement of law or of any government or governmental or regulatory body or
commission, or following receipt of notification from the Company of the
suspension of the quotation of the Shares in South Africa, or under any
provision of the Deposit Agreement, the Memorandum or Articles of Association,
or for any reason subject to Article (24) hereof. The surrender of outstanding
Receipts and withdrawal of Deposited Securities may not be suspended subject
only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with voting at
a shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. The Depositary and the Custodian will comply with
reasonable written instructions from the Company requesting that the Depositary
and the Custodian not accept for deposit under the Deposit Agreement any Shares
identified in such instructions in order to facilitate the Company's compliance
with United States federal securities laws, any provision of the Company's
Memorandum or Articles of Association or the laws of the Republic of South
Africa.
Without limitation of the foregoing, neither the Depositary nor the
Custodian shall accept for deposit under the Deposit Agreement any Shares (i)
which, to the actual knowledge of the Depositary, are required to be registered
under the Securities Act of 1933 prior to public sale in the United States,
unless a registration statement is in effect as to such Shares or (ii) the
deposit of which would, to the actual knowledge of the Depositary, infringe any
provisions of the laws of the Republic of South Africa.
4. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner may be required from
time to time to provide such proof of (a) citizenship, residence, exchange
control approval or payment of taxes and other governmental charges and
compliance with all applicable laws and regulations governing Deposited
Securities and the terms of the Deposit Agreement and (b) the identity of any
person legally or beneficially interested in the Receipt and Shares and the
nature of such interest, such information relating to the registration of the
Shares presented for deposit on the books of the Company (or the appointed agent
of the Company for transfer and registration of Shares) or to provide such other
information, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the Company
reasonably may require by written request to the Depositary or any Custodian.
The Depositary may and shall, if reasonably requested by the Company, withhold
the delivery or registration of transfer of any Receipt, the distribution of any
dividend or other distribution or sale of rights or of the proceeds thereof, or
the delivery of any Deposited Securities until such proof or other information
is provided, such certificates are executed or such representations and
warranties are made pertaining to such Receipt to the
-4-
satisfaction of the Company and the Depositary. No Share shall be accepted for
deposit unless accompanied by evidence satisfactory to the Depositary, if any is
required by the Depositary, that all conditions to such deposit have been
satisfied by the person depositing such Shares under South African laws and
regulations, and that any necessary approval has been granted by the
governmental authority or body in the Republic of South Africa, if any, which is
then performing the function of the regulation of currency exchange or any other
function which requires approval for the deposit of Shares.
5. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to this Receipt or any Deposited Securities represented by this Receipt, such
tax or other governmental charge shall be payable by the Owner hereof to the
Depositary. The Depositary may refuse to effect registration of transfer of all
or part of this Receipt or any withdrawal of Deposited Securities represented by
this Receipt until such payment is made, and may withhold any dividends or other
distributions or, after attempting by reasonable means to notify such Owner, may
sell for the account of the Owner hereof any part or all of the Deposited
Securities evidenced by this Receipt, and may apply such dividends or other
distributions or the proceeds of any such sale to payment of such tax or other
governmental charge, the Owner hereof remaining liable for any deficiency.
6. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement, including every
person depositing Shares on behalf of an owner of Shares, shall be deemed
thereby to represent and warrant that (i) such Shares are validly issued, fully
paid and non-assessable, (ii) the person making such deposit is duly authorized
so to do, (iii) such Shares are not Restricted Securities, (iv) such Shares are
free and clear of any lien, encumbrance, security interest, charge, mortgage,
pledge or restriction on transfer, (v) such Shares are free of any pre-emptive
rights of the holders of outstanding Shares, and (vi) such Shares include all
rights to receive dividends thereon. Such representations and warranties shall
survive the deposit of such Shares and issuance of Receipts in respect thereof.
7. COMPLIANCE WITH LAW.
The rights of each Owner will be subject to the Memorandum or Articles of
Association of the Company as if such Owner were a holder of Shares and to all
applicable provisions of the laws of the Republic of South Africa and the
Memorandum or Articles of Association of the Company with regard to notification
to the Company and any governmental or stock exchange authorities of such
Owner's interest in Shares. Failure by such Owner to provide on a timely basis
any such required notification of such Owner's interest in Shares may result in
the withholding of certain rights in respect of such Owner's American Depositary
Shares including, without limitation, the right to give
-5-
voting instructions and the right to receive dividends or other payments in
respect of the Shares represented by such American Depositary Shares.
8. DISCLOSURE OF BENEFICIAL OWNERSHIP OF RECEIPTS.
The Company and the Depositary may from time to time request Owners to
provide information as to the capacity in which they hold Receipts and regarding
the identity of any other persons then or previously interested in such Receipts
and various other matters. Each such Owner agrees to provide any such
information reasonably requested by the Company or the Depositary pursuant to
this Article (8) and such agreement shall survive any disposition of such
Owner's interest in Shares or Receipts. The Depositary agrees to comply with
reasonable written instructions received from the Company requesting that the
Depositary forward any such requests to such Owners and to forward to the
Company any responses to such requests received by the Depositary, and to use
its reasonable efforts, at the Company's request, to assist the Company in
obtaining such information with respect to the American Depositary Shares,
provided that nothing herein shall be interpreted as obligating the Depositary
to provide or obtain any such information not provided to the Depositary by such
Owners.
9. CHARGES OF DEPOSITARY.
The Company will not pay any fees, expenses or other charges of the
Depositary or of any Registrar except in accordance with agreements in writing
entered into between the Depositary and the Company from time to time. The
Depositary shall present its statement for such charges and expenses to the
Company once every three months. The fees, charges and expenses of the Custodian
are for the sole account of the Depositary.
The following charges, to the extent permitted by applicable law and stock
exchange regulations shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or stock
split declared by the Company or an exchange of stock regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.03 of
the Deposit Agreement), whichever applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the Share register of the
Company (or the appointed agent of the Company for transfer and registration of
the Shares) and accordingly applicable to transfers of Shares to the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals under the Deposit Agreement, (3) such cable, telex and
facsimile transmission expenses as are expressly provided in the Deposit
Agreement to be at the expense of persons depositing Shares or Owners, (4) such
reasonable out-of-pocket expenses as are incurred by the Depositary in the
conversion of Foreign Currency pursuant to Section 4.05 of the Deposit
Agreement, (5) a fee not in excess of $5.00 per 100 American Depositary Shares
-6-
(or portion thereof) for the execution and delivery of Receipts pursuant to
Section 2.03 of the Deposit Agreement, the execution and delivery of Receipts
pursuant to Section 4.03 of the Deposit Agreement, and the surrender of Receipts
pursuant to Section 2.05 of the Deposit Agreement, (6) a fee not in excess of
$.02 per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to the Deposit Agreement including, but not limited
to Sections 4.01 through 4.04 thereof, except for distributions of cash
dividends, and (7) a fee for the distribution of proceeds of sales of securities
or rights pursuant to Sections 4.02 of the Deposit Agreement or Section 4.04 of
the Deposit Agreement, respectively, such fee (which may be deducted from such
proceeds) being in an amount equal to the lesser of (i) the fee for the issuance
of American Depositary Shares referred to above which would have been charged as
a result of the deposit by Owners of securities (for purposes of this clause (7)
treating all such securities as if they were Shares) or Shares received in
exercise of rights distributed to them pursuant to Sections 4.02 or 4.04 of the
Deposit Agreement, respectively, but which securities or rights are instead sold
by the Depositary, and the net proceeds distributed and (ii) the amount of such
proceeds.
The Depositary, subject to compliance with all applicable laws, rules and
regulations and subject to Section 2.09 of the Deposit Agreement, may own and
deal in any class of securities of the Company and its affiliates and in
Receipts.
10. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the Company to cease doing so,
notwithstanding Section 2.03 of the Deposit Agreement, the Depositary may
execute and deliver Receipts prior to the receipt of Shares pursuant to Section
2.02 thereof ("Pre-Release of Receipts") and may deliver Shares prior to the
receipt and cancellation of Receipts if the person to whom such Shares are to be
delivered is a banking institution organized pursuant to the laws of the
Republic of South Africa ("South African Bank") ("Pre-Release of Shares").
(Pre-Release of Receipts and Pre-Release of Shares are collectively referred to
herein as "Pre-Release"). The Depositary may, pursuant to Section 2.05 of the
Deposit Agreement, deliver Shares upon the receipt and cancellation of Receipts
which have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation and agreement from the person to whom
Receipts or Shares are to be delivered ("Pre-Releasee") that such Pre-Releasee,
or its customer, (i) owns the Shares or Receipts to be remitted, as the case may
be and (ii) assigns all beneficial right, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be, other
-7-
than in satisfaction of such Pre-Release), (b) at all times fully collateralized
with cash or such other collateral as the Depositary determines, in good faith,
will provide substantially similar liquidity and security and, in connection
with the Pre-Release of Shares, preceded or accompanied by an unconditional
guaranty by the Pre-Releasee to deliver Receipts for cancellation on the same
calendar day on which such Shares are delivered to the Pre-Releasee (or, if such
Receipts are not so delivered, to return the Shares), (c) terminable by the
Depositary on not more than five (5) business days notice, and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The number of American Depositary Shares which are outstanding at
any time as a result of Pre-Releases will not normally exceed thirty percent
(30%) of the Shares deposited under the Deposit Agreement; PROVIDED, HOWEVER,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate, and may, with the prior written consent of
the Company, change such limit for purposes of general application. The
Depositary will also set dollar limits with respect to Pre-Release transactions
to be entered into under the Deposit Agreement with any particular Pre-Releasee
on a case by case basis as the Depositary deems appropriate. For purposes of
enabling the Depositary to fulfill its obligations to the Owners under the
Deposit Agreement, the collateral referred to in clause (b) above shall be held
by the Depositary as security for the performance of the Pre-Releasee's
obligations to the Depositary in connection with a Pre-Release transaction,
including the Pre-Releasee's obligation to deliver Shares or Receipts upon
termination of a Pre-Release transaction (and shall not, for the avoidance of
doubt, constitute Deposited Securities under the Deposit Agreement).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
11. TITLE TO RECEIPTS.
It is a condition of this Receipt, and every successive Owner hereof by
accepting or holding the same consents and agrees, that title to this Receipt
(and to the American Depositary Shares evidenced hereby), when properly endorsed
or accompanied by proper instruments of transfer, is transferable by delivery
with the same effect as in the case of a negotiable instrument under the laws of
the State of New York; PROVIDED, HOWEVER, that the Depositary, notwithstanding
any notice to the contrary, may treat the Owner of this Receipt as the absolute
owner hereof for the purpose of determining the person entitled to distribution
of dividends or other distributions or to any notice provided for in the Deposit
Agreement and for all other purposes, and neither the Depositary nor the Company
shall have any obligation or be subject to any liability under the Deposit
Agreement to any holder of this Receipt unless such holder is the Owner hereof.
-8-
12. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose, unless this Receipt has
been executed by the Depositary by the manual signature of a duly authorized
signatory of the Depositary or, if a Registrar for the Receipts shall have been
appointed and the Depositary shall have signed by facsimile signature,
countersigned by the manual signature of a duly authorized officer of the
Registrar.
-9-
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
13. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary or Custodian shall receive any cash dividend or
other cash distribution on any Deposited Securities, the Depositary will, after
any necessary conversion of such distribution into Dollars pursuant to Section
4.05 of the Deposit Agreement and after fixing a record date pursuant to Section
4.06 of the Deposit Agreement, as promptly as practicable, but in any event
within five business days, distribute the amount thus received to the Owners of
Receipts entitled thereto in proportion to the number of American Depositary
Shares held by them respectively; PROVIDED, HOWEVER, that the Depositary shall
make appropriate adjustments in the amounts so distributed in respect of any
amounts withheld or requested to be withheld by the Company, the Custodian or
the Depositary from any such distribution on account of (i) taxes or other
governmental charges including, but not limited to, withholding taxes referred
to in Section 4.11 of the Deposit Agreement, or (ii) reasonable expenses of the
Depositary in the conversion of foreign currency into Dollars pursuant to
Section 4.05 of the Deposit Agreement and any other charges of the Depositary
pursuant to Section 5.09 of the Deposit Agreement.
Subject to the provisions of Sections 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary or the Custodian shall receive any
distribution other than cash, Shares or rights upon any Deposited Securities,
the Depositary shall cause the securities or property received by it to be
distributed to the Owners, as of the record date fixed pursuant to Section 4.06
of the Deposit Agreement, of Receipts entitled thereto in proportion to the
number of American Depositary Shares held by them as of such date in any manner
that the Depositary may following consultation with the Company, reasonably deem
equitable and, in its reasonable opinion, practicable for accomplishing such
distribution; PROVIDED, HOWEVER, that if the Company shall so direct or if, in
the reasonable opinion of the Depositary such distribution cannot be made
proportionally among such Owners, or if for any other reason (including but not
limited to any requirement that the Company or the Depositary withhold an amount
on account of taxes or other governmental charges or that such securities must
be registered under the Securities Act of 1933 in order to be distributed to
Owners) the Depositary, it its reasonable opinion, deems such distribution not
to be feasible, the Depositary may, following consultation with the Company,
adopt such method as it may deem lawful, equitable and practicable for the
purpose of effecting such distribution, including the public or private sale of
the securities or other property thus received, or any part thereof, and the net
proceeds of any such sale (net of the fees and expenses of the Depositary as
provided in Section 5.09 of the Deposit Agreement) shall as promptly as
practicable be distributed by the Depositary to the Owners entitled thereto as
in the case of a distribution
-10-
received in cash; PROVIDED, HOWEVER, that any unsold balance of such securities
or property shall be distributed by the Depositary to the Owners entitled
thereto, if such distribution is feasible without withholding for or on account
of any taxes or other governmental charges and without registration under the
Securities Act of 1933, in accordance with such lawful, equitable and
practicable method as the Depositary may have adopted; PROVIDED, FURTHER,
HOWEVER, that no distribution to Owners shall be unreasonably delayed by any
action of the Depositary or any of its agents. To the extent such securities or
other property, or the net proceeds thereof, is not effectively distributed to
Owners as provided herein, the same shall constitute Deposited Securities and
each American Depositary Share shall thereafter also represent its proportionate
interest in such securities or other property or net proceeds.
If any distribution upon any Deposited Securities consists of a dividend
in, or distribution without payment of any subscription price of, Shares,
including pursuant to any program under which holders of Deposited Securities
may elect to receive cash or Shares, the Depositary may, and shall if the
Company so requests, execute and deliver additional Receipts evidencing American
Depositary Shares representing the amount of Shares received as such dividend or
distribution and distribute to the Owners, as of the record date fixed pursuant
to Section 4.06 of the Deposit Agreement, of Receipts entitled thereto in
proportion to the number of American Depositary Shares held by them as of such
date, Receipts evidencing additional American Depositary Shares, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of Receipts, including the withholding of any tax or
other governmental charge as provided in Section 4.11 of the Deposit Agreement
and the payment of fees of the Depositary as provided in Section 5.09 of the
Deposit Agreement. The Depositary may withhold any such distribution if it has
not received adequate assurances from the Company that such distribution does
not require registration under the Securities Act of 1933. In lieu of delivering
Receipts for fractional American Depositary Shares, the Depositary shall sell
the amount of Shares representing the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions set forth in
Section 4.01 of the Deposit Agreement or take such other action, with the
approval of the Company, as may be appropriate.
Notwithstanding the foregoing, if the Company shall so direct or if in the
reasonable opinion of the Depositary such distribution cannot be made or if for
any reason (including, but not limited to, any requirement that the Company, the
Custodian or the Depositary withhold an amount on account for taxes or other
governmental charges or that such Shares must be registered under the Securities
Act of 1933 in order to be distributed to Owner) the Depositary, in its
reasonable opinion, determines that a distribution in Shares is not feasible or
may not be legally made to some or all Owners, the Depositary may, following
consultation with the Company, adopt such method as it may deem lawful,
equitable and practicable for the purpose of effecting such distribution, all in
the manner and subject to the conditions set forth in Section 4.02 of the
Deposit
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Agreement, or take such other action, with the approval of the Company, as may
be appropriate. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed with respect to the Deposited Securities represented thereby.
If any distribution upon any Deposited Securities consists of a dividend
in, or distribution without payment of any subscription price of, Shares,
including pursuant to any program under which holders of Deposited Securities
may elect to receive cash or Shares, the Depositary may and shall if the Company
so requests, execute and deliver additional Receipts evidencing American
Depositary Shares representing the amount of Shares received as such dividend or
distribution and distribute to the Owners, as of the record date fixed pursuant
to Section 4.06 of the Deposit Agreement, of Receipts entitled thereto in
proportion to the number of American Depositary Shares held by them as of such
date, Receipts evidencing additional American Depositary Shares, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of Receipts, including the withholding of any tax or
other governmental charge as provided in Section 4.11 of the Deposit Agreement
and the payment of fees of the Depositary as provided in Section 5.09 of the
Deposit Agreement. The Depositary may withhold any such distribution if it has
not received adequate assurances from the Company that such distribution does
not require registration under the Securities Act of 1933. In lieu of delivering
Receipts for fractional American Depositary Shares, the Depositary shall sell
the amount of Shares representing the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions described in
Section 4.01 of the Deposit Agreement or take such other action with the
approval of the Company as may be appropriate.
In connection with any dividend or other distribution to Owners, the
Company or its agent will remit to the appropriate governmental authority or
agency all amounts (if any) required under applicable law to be withheld and
remitted by the Company or such agent and owing to such governmental authority
or agency by the Company or such agent; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required under applicable law to be withheld and remitted by the Depositary
or the Custodian and owing to such authority or agency by the Depositary or the
Custodian. Either the Company or the Depositary may file with any governmental
agency any reports necessary to obtain benefits under any applicable tax
treaties for the Owners. The Depositary shall forward to the Company or its
agent such information from its records in relation to withholding from a
dividend or other distribution on Deposited Securities as the Company may
reasonably request to enable the Company or its agent to file necessary reports
with governmental authorities or agencies, and the Company and its agent shall
forward to the Depositary such information from its records in relation to
withholding from a dividend or other distribution on Deposited Securities as the
Depositary may reasonably request to enable the Depositary to file necessary
reports with governmental authorities or xxxxxxxx.Xx the event that the
-12-
Depositary determines that any dividend or other distribution in property other
than cash (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may (after consultation with the Company) by public or private
sale dispose of all or a portion of such property (including Shares and rights
to subscribe therefor) in such amounts and in such manner as the Depositary
deems necessary and practicable to withhold any such taxes or charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto.
Whenever the Depositary shall receive notice from the Company of the
declaration of a dividend or other distribution without payment of any
subscription price on Deposited Securities payable in Shares or cash at the
election of each holder of Shares or, if no such election is made, payable in
Shares or in cash as provided in the instruments governing such dividend or
other distribution, the Depositary shall mail to the Owners a notice, the form
of which shall be in the reasonable discretion of the Depositary, which shall
contain (a) such information as is contained in the notice received by the
Depositary from the Company and (b) a statement that each of the Owners as of
the close of business on a specified date will be entitled, subject to any
applicable provisions of the laws of the Republic of South Africa, the Articles
of Association or By-laws of the Company or the instruments governing such
dividend or distribution, to instruct the Depositary as to the manner in which
such Owner elects to receive such dividend or distribution. Upon the written
request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall use
reasonable efforts to make the election in accordance with the instructions set
forth in such request, and to distribute cash or Shares, as the case may be, in
accordance with the terms of Section 4.01 or Section 4.03 of the Deposit
Agreement, respectively, to the Owners entitled thereto. If the Depositary does
not receive timely instructions from any Owner as to such Owner's election, the
Depositary shall make no election with respect to the Deposited Securities
represented by such Owner's American Depositary Shares and shall distribute such
Shares or cash as it receives, if any, in respect of such Deposited Securities
in accordance with the preceding sentence.
14. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall (after
consultation with the Company as to the procedure to be followed) make such
rights available to any Owners, including the distribution of warrants or other
instruments therefor in such form as it deems appropriate, or dispose of such
rights on behalf of any Owners and distribute the net proceeds in Dollars to
such Owners. If, by the terms of such rights offering or by reason of applicable
law, the Depositary may not either make such rights available to any Owners or
dispose of such rights and distribute the net proceeds to such Owners, then the
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Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the Depositary determines, following consultation with the Company,
that it is lawful and feasible to make such rights available to certain Owners
but not to other Owners, (i) the Depositary shall distribute to every Owner with
respect to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it deems appropriate and
(ii) in respect of Owners to whom the Depositary determines the distribution not
to be lawful or feasible, the Depositary shall use reasonable efforts to sell
the rights, warrants or other instruments in proportion to the number of
American Depositary Shares held by such Owners and distribute the net proceeds
of such sales (net of the fees of the Depositary as provided in Section 5.09 of
the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) to such Owners upon an averaged or other fair and practicable
basis without regard to any distinctions among such Owners resulting from
exchange restrictions, the date of delivery of any Receipt or otherwise. In the
event that rights and the securities to which such rights relate are not
registered under the Securities Act of 1933, the Depositary shall not be
responsible for any failure to determine that it may be lawful or feasible to
make such rights available to Owners in general or to any Owner in particular.
In circumstances in which rights would not otherwise be distributed, if an
Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable in respect of American Depositary Shares of such
Owner under the Deposit Agreement, the Depositary will make such rights
available to such Owner upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) the Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
Upon instruction pursuant to such warrants or other instruments to the
Depositary from such Owner to exercise such rights, upon payment by such Owner
to the Depositary for the account of such Owner of an amount equal to the
purchase price of the Shares or other securities to be received upon the
exercise of the rights, and upon payment of the fees of the Depositary as set
forth in such warrants or other instruments, the Depositary shall, on behalf of
such Owner, exercise the rights and purchase such Shares or other securities and
the Company shall cause the Shares or other securities so purchased to be
delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of
the Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this Article (14), such
Receipts shall be legended, if required, in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
-14-
Except as otherwise provided in the preceding paragraph, the Company and
the Depositary will not offer rights to Owners unless a registration statement
is in effect with respect both to such rights and any securities to be received
upon exercise of such rights under the Securities Act of 1933 or unless the
offering and sale of such securities to such Owners are exempt from registration
under the Securities Act of 1933. Nothing in the Deposit Agreement shall create
any obligation on the part of the Company to file a registration statement in
respect of any rights or securities for any purpose or to endeavor to have such
a registration statement declared effective.
15. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive Currency other than
dollars ("foreign currency"), by way of dividends or other distributions or as
the net proceeds from the sale of securities, property or rights, and if at the
time of the receipt thereof the foreign currency so received can in the
reasonable judgment of the Depositary be converted on a reasonable basis into
Dollars and transferred to the United States, the Depositary shall, subject to
any restrictions imposed by applicable law, regulations or permits, convert or
cause to be converted, by sale or in any other manner that it may determine,
such foreign currency into Dollars, and such Dollars shall be distributed, as
promptly as practicable, net of any reasonable and customary out-of-pocket
expenses incurred by the Depositary in connection with the conversion of
currency pursuant to Section 4.05 of the Deposit Agreement, to the Owners
entitled thereto as of the record date fixed pursuant to Section 4.06 of the
Deposit Agreement in accordance with any applicable provisions of Sections 4.01,
4.02, 4.03 and 4.04 of the Deposit Agreement. Such distribution may be made upon
an averaged or other fair and practicable basis without regard to any
distinctions among Owners resulting from exchange restrictions or otherwise.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file as
promptly as practicable such application for approval or license, if any, as it
may deem desirable; PROVIDED, HOWEVER, that if such application involves or
refers to or is made on behalf of the Company, such application shall not be
filed unless approved by the Company, which approval shall not be unreasonably
withheld or delayed.
If at any time the Depositary shall determine, following consultation with
the Company, that in its reasonable judgment any foreign currency received by
the Depositary or the Custodian is not, pursuant to applicable law or otherwise,
convertible on a reasonable basis into Dollars transferable to the United
States, or if any approval or license of any government or agency thereof which
is required for such conversion is denied or in the opinion of the Depositary,
following consultation with the Company, is not obtainable, or if any such
approval or license is not obtained within a reasonable period as determined by
the Depositary, the Depositary may distribute the foreign
-15-
currency (or an appropriate document evidencing the right to receive such
foreign currency) received by the Depositary or the Custodian to, or in its
discretion, following consultation with the Company, may hold such foreign
currency proceeds uninvested for the respective accounts of, the Owners entitled
to receive the same, without liability for interest thereon.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some Owners entitled thereto, the Depositary may in
its discretion, following consultation with the Company, make such conversion
and distribution in Dollars to the extent permissible to the Owners entitled
thereto for whom such conversion and distribution is practicable and may
distribute the balance of the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary or the Custodian to, or hold, such balance uninvested and without
liability for the respective accounts of, the Owners entitled thereto for whom
such conversion and distribution is not practicable.
16. FIXING OF RECORD DATE.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason
there occurs a change in the number or type of Deposited Securities that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of, or solicitation of consents or proxies from,
holders of Shares or other Deposited Securities or whenever the Company or the
Depositary finds it necessary or convenient in respect of any matter, the
Depositary shall fix a record date (which, to the extent practicable, shall be
the same as any corresponding record date set by the Company with respect to
Shares, and after consultation with the Company if such date is to be different
from any such record date established by the Company in respect of the Shares)
for the determination of the Owners who shall be entitled to receive such
dividend, distribution or rights, or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting or in
respect of any such solicitation or to receive information as to any such
meeting or solicitation, or for fixing the date on or after which each American
Depositary Share will represent the changed number or type of Deposited
Securities, subject to the terms and conditions of the Deposit Agreement. If the
American Depositary Shares shall be listed on any stock exchange, then any such
record date shall be fixed in accordance with any applicable rules of such stock
exchange.
17. VOTING OF SHARES.
Upon receipt of notice of any meeting of holders, or solicitation of
consent or proxies from, of Shares or other Deposited Securities, unless
instructed otherwise in writing by the Company, the Depositary shall, as soon as
practicable thereafter, mail to
-16-
the Owners a notice, in such form as approved by the Company, which shall
contain (a) such information as is contained in such notice of meeting, or
solicitation of consents or proxies, received by the Depositary from the
Company, (b) a statement that the Owners as of the close of business on a
specified record date established by the Depositary pursuant to Section 4.06 of
the Deposit Agreement will be entitled, subject to any applicable provisions of
South African law, of the Deposited Securities and the Deposit Agreement and of
the Memorandum and Articles of Association of the Company, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares, and (c) a statement as to the manner in which such
instructions may be given, including, when applicable, an express indication
that instructions may be given (or, if applicable, will be deemed given in
accordance with the second paragraph of Section 4.07 of the Deposit Agreement if
no instruction is received) to the Depositary to give a discretionary proxy to a
person designated by the Company. Upon the written (or deemed) request of an
Owner on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable, to vote or cause to be voted (or to grant a discretionary proxy to
a person designated by the Company to vote) the amount of Shares or other
Deposited Securities the right to receive which is represented by the American
Depositary Shares evidenced by such Owner's Receipt in accordance with any
instructions set forth in such request. The Depositary shall not, and the
Depositary shall ensure that each Custodian or any of its nominees shall not,
vote or attempt to exercise the right to vote that attaches to the Shares or
other Deposited Securities, other than in accordance with such instructions.
If the Depositary does not receive instructions from an Owner on or before
the date established by the Depositary for such purpose, such Owner shall be
deemed, and the Depositary shall deem such Owner, to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company
to vote the underlying Shares, PROVIDED that no such discretionary proxy shall
be deemed given with respect to any matter as to which the Company informs the
Depositary in writing at the time notice of any meeting or solicitation of
consents or proxies is received by the Custodian to the effect that the Company
does not wish such proxy given.
18. CHANGES AFFECTING DEPOSITED SECURITIES.
Upon any change in nominal value, split-up, consolidation or 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 securities which shall be received by the Depositary
or any Custodian in exchange for, conversion of, replacement or otherwise in
respect of Deposited Securities shall, subject to the terms of
-17-
the Deposit Agreement and applicable law, including any applicable provisions of
the Securities Act of 1933, be treated as new Deposited Securities under the
Deposit Agreement, and each American Depositary Share shall, subject to the
terms of the Deposit Agreement and applicable law, including any applicable
provisions of the Securities Act of 1933, thenceforth represent an appropriately
adjusted proportional interest in the Deposited Securities so received in
exchange or conversion or replacement or otherwise, unless additional or new
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, and shall if the Company shall so request, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities. Upon the occurrence of
any change or other event covered by this Article with respect to the Deposited
Securities, the Depositary shall give notice thereof in writing to all Owners.
19. REPORTS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Securities and Exchange Commission (hereinafter called the "Commission"). Such
reports and communications will be available for inspection and copying at the
public reference facilities maintained by the Commission located at 000 Xxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request, send to the Owners of Receipts
copies of such reports furnished by the Company pursuant to the Deposit
Agreement.
The Depositary will keep in such New York City facilities books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts. The Depositary may
close the transfer books at any time or from time to time when transfer agents
located in The City of New York generally close their transfer books, and at any
other time, following consultation with the Company to the extent practical, or
otherwise with prompt notice to the Company when deemed expedient by the
Depositary in connection with the performance of its duties under the Deposit
Agreement or at the request of the Company
20. LIABILITY OF THE COMPANY AND THE DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or beneficial owner
-18-
of any Receipt, if by reason of any provision of any present or future law or
regulation of the United States or any other country, or of any governmental or
regulatory authority or stock exchange, or by reason of any provision, present
or future, of the Memorandum or Articles of Association of the Company, or by
reason of any provision of any securities issued or distributed by the Company,
or any offering or distribution thereof, or by reason of any act of God or war
or other circumstances beyond its control, the Depositary or the Company shall
be prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the terms
of the Deposit Agreement or Deposited Securities it is provided shall be done or
performed; nor shall the Depositary or the Company or any of their respective
directors, employees, agents or affiliates incur any liability to any Owner or
beneficial owner of any Receipt by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement. Where, by the terms of a dividend or other distribution
pursuant to Section 4.01, 4.02, or 4.03 of the Deposit Agreement, or an offering
or distribution pursuant to Section 4.04 of the Deposit Agreement, or for any
other reason, such dividend or other distribution or offering may not be made
available to Owners, and the Depositary may not dispose of such dividend or
other distribution or offering on behalf of such Owners and make the net
proceeds available to such Owners, then the Depositary shall not make such
dividend or other distribution or offering, and shall allow any rights, if
applicable, to lapse.
Each of the Company and its agents and their respective officers,
directors, employees and affiliates assumes no obligation nor shall it be
subject to any liability under the Deposit Agreement or the Receipts to Owners
or beneficial owners of Receipts or any other persons other than the Depositary
and the Custodian (including, without limitation, liability with respect to the
validity or worth of the Deposited Securities), except that it agrees to perform
its obligations specifically set forth in the Deposit Agreement without
negligence, willful misconduct or bad faith. Each of the Company and its agents
and their respective officers, directors, employees and affiliates assumes no
obligation nor shall it be subject to any liability under the Deposit Agreement
to the Custodian or any agent of the Depositary or the Custodian, except under
Section 5.08 of the Deposit Agreement.
Each of the Depositary and its agents and their respective officers,
directors, employees and affiliates assumes no obligation nor shall it be
subject to any liability under the Deposit Agreement to the Custodian or any
agent of the Depositary or the Custodian, except under Section 5.08 of the
Deposit Agreement. The Depositary, the Custodian and the Company undertake to
perform such duties and only such duties as are specifically set forth in the
Deposit Agreement, and no implied covenants or obligations shall be read into
the Deposit Agreement against the Depositary, the Custodian or the Company or
their respective agents. Without limiting the foregoing, neither the
-19-
Depositary or its agents nor the Company or its agents shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability shall be furnished as often
as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary.
None of the Depositary or its agents or the Company or its agents shall be
liable for any action or nonaction by it or them in reliance upon the advice of
or information from legal counsel, accountants, any person presenting Shares for
deposit, any Owner or holder of a Receipt or any other person believed by it in
good faith to be competent to give such advice or information.
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, willful misconduct or bad faith while it acted
as Depositary.
The Depositary shall not be responsible for the manner in which any vote of
any Deposited Securities is cast or the effect of any such vote, provided that
any such action or nonaction is in good faith and in accordance with the Deposit
Agreement. Except as otherwise provided in the Deposit Agreement, the Depositary
will not release any information regarding the Company without prior written
approval from the Company; PROVIDED, HOWEVER, that the Depositary may release,
without prior approval from the Company, information made publicly available by
the Company if the form and substance of such information has not been altered
or modified in any way other than by the Company. The Depositary agrees with the
Company not to establish any unsponsored American depositary receipt program
representing Shares so long as the Depositary is acting under the Deposit
Agreement.
The Company agrees to indemnify the Depositary and any Custodian and any
agent of the Depositary or the Custodian appointed under the Deposit Agreement
and the respective officers, directors, and employees (the "indemnified
persons") against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted in accordance with the
provisions of the Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by such indemnified
persons except for any liability or expense arising out of the negligence,
willful misconduct or bad faith of any of them, or (ii) by the Company or any of
its agents
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(other than the indemnified persons), and their respective officers, directors
and employees authorized to act on their behalf.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which may arise out of any Pre-Release (as defined in
Section 2.09 of the Deposit Agreement) except to the extent any such liability
or expense would have arisen even if the Receipts or Shares involved would not
have been subject to a Pre-Release. However, for the avoidance of doubt, the
indemnities provided in the preceding paragraph shall apply to any such
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer of sale of American
Depositary Shares, except to the extent any such liability or expense arises out
of (a) information relating to the Depositary or any Custodian (other than the
Company), as applicable, furnished to the Company in writing, and not materially
changed or altered by the Company, expressly for use in any of the foregoing
documents, or, (b) if such information is provided to the Company, the failure
to state a material fact necessary to make the information provided not
misleading.
The Depositary agrees to indemnify the Company, its directors, employees,
agents and affiliates against and hold them harmless from any liability or
expense (including but not limited to the reasonable fees and expenses of
counsel) which may arise out of acts performed or omitted by the Depositary or
any Registrar or Custodian or their respective directors, employees, agents and
affiliates due to their respective negligence, willful misconduct or bad faith.
If an action, proceeding (including, but not limited to, any governmental
investigation), claim or dispute (collectively, a "Proceeding") in respect of
which indemnity may be sought by either party is brought or asserted against the
other party, the party seeking indemnification (the "Indemnitee") shall as
promptly as practicable (and in no event more than twenty (20) days after
receipt of notice of such Proceeding) notify in writing the party obligated to
provide such indemnification (the "Indemnitor") of such Proceeding. The failure
of the Indemnitee to so notify the Indemnitor shall not impair the Indemnitee's
ability to seek indemnification from the Indemnitor (but only for costs,
expenses and liabilities incurred after such notice) unless such failure
adversely effects the Indemnitor's ability to adequately oppose or defend such
Proceeding. Upon receipt of such notice from the Indemnitee, the Indemnitor
shall be entitled to participate in such Proceeding and, to the extent that it
shall so desire and, (i) provided no conflict of interest exists as specified in
subclause (b) below, and (ii) there are no other defenses available to
Indemnitee, as specified in subclause (b) below, to assume the defense thereof
with counsel reasonably satisfactory to the Indemnitee (in which case all
attorney's fees and expenses shall be borne by the Indemnitor and the Indemnitor
shall in good faith defend the Indemnitee). The Indemnitee shall have the right
to employ separate counsel in any
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such Proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be borne by the Indemnitee unless (a) the
Indemnitor agrees in writing to pay such fees and expenses, (b) the Indemnitee
shall have reasonably and in good faith concluded that there is a conflict of
interest between the Indemnitor and the Indemnitee in the conduct of the defense
of such action, including but not limited to that there may be legal defenses
available to the Indemnitee that are different from or in addition to those
available to the Indemnitor, or (c) the Indemnitor fails, within ten (10) days
prior to the date the first response or appearance is required to be made in
such Proceeding, to assume the defense of such Proceeding with counsel
reasonable satisfactory to the Indemnitee. No compromise or settlement of such
Proceeding may be effected by either party without the other party's consent
unless (i) there is no finding or admission of any violation of law and no
material adverse effect on any other claims that may be made against such other
party and (ii) the sole relief provided is monetary damages that are paid in
full by the party seeking the compromise or settlement. Neither party shall have
any liability with respect to any compromise or settlement effected without its
consent, which shall not be unreasonably withheld. The Indemnitor shall have no
obligation to indemnify and hold harmless the Indemnitee from any loss, expense
or liability incurred by the Indemnitee as a result of a default judgment
entered against the Indemnitee unless such judgment was entered after the
Indemnitor agreed, in writing, to assume the defense of such Proceeding.
The obligations set forth in Section 5.08 of the Deposit Agreement shall
survive the termination of the Deposit Agreement and the succession or
substitution of any indemnified person.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of the Deposit Agreement.
21. RESIGNATION AND REMOVAL OF THE DEPOSITARY; SUBSTITUTION AND ADDITION OF
CUSTODIAN.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal delivered to the Depositary effective upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. Except as provided in the preceding sentence, whenever the
Depositary in its discretion determines, with the prior written consent of the
Company, that it is in the best interest of the Owners to do so, it may appoint
a substitute or additional custodian or custodians approved by the Company,
which shall be an accredited intermediary acting through a specified office
located in South Africa, and the term "Custodian" shall also refer to each such
substitute or additional Custodian.
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22. AMENDMENT OF THE DEPOSIT AGREEMENT AND RECEIPTS.
The form of the Receipts and the Deposit Agreement may at any time and from
time to time be amended by agreement in writing between the Company and the
Depositary in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission charges, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners, shall, however,
not become effective as to outstanding Receipts until the expiration of 30 days
after written notice of such amendment shall have been mailed to the Owners of
outstanding Receipts. Every Owner at the time any such amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Owner hereof to
surrender this Receipt and receive therefor the Deposited Securities represented
hereby, except to comply with mandatory provisions of applicable law.
23. TERMINATION OF THE DEPOSIT AGREEMENT.
The Depositary will at any time at the direction of the Company terminate
the Deposit Agreement by mailing notices of such termination to the Owners of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement (upon 30 days' prior written notice of such termination to the Company
and the Owners of all Receipts then outstanding) if at any time 90 days after
the Depositary shall have delivered to the Company a written notice of its
resignation sent by registered mail, return receipt requested, a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.04 of the Deposit Agreement. The Depositary shall mail
notice of such termination to the Owners of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. On
and after the date of termination, each Owner shall, upon (i) surrender of each
of its Receipts at the Depositary's Corporate Trust Office, (ii) payment of the
fees of the Depositary for the surrender of Receipts as provided in Article (9)
of this Receipt and (iii) payment of any applicable taxes and governmental
charges, be entitled to delivery, to him or upon his order, of the whole number
of Deposited Securities represented by the American Depositary Shares evidenced
by such Receipts and to the net proceeds of the sale of any fractional Deposited
Securities represented thereby. If any Receipts shall remain outstanding after
the date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, shall not accept deposits of Shares (and shall
instruct each Custodian to act accordingly) and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell property and rights and
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convert Deposited Securities as provided in the Deposit Agreement and shall
continue to deliver Deposited Securities together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). At any time after the expiration of
one year from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it under the Deposit Agreement, unsegregated and without liability for
interest, for the PRO RATA benefit of the Owners which have not theretofore
surrendered their Receipts, such Owners thereupon becoming general creditors of
the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash (after deducting, in each
case, the fee of the Depositary for the surrender of a Receipt, any expenses for
the account of the Owner of such Receipt in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or governmental
charges) and except for its obligations under Section 5.08 of the Deposit
Agreement.
24. COMPLIANCE WITH U.S. SECURITIES LAW.
Notwithstanding anything in the Deposit Agreement to the contrary, the
Company and the Depositary each agrees that it will not exercise any rights it
has under the Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate U.S. securities laws,
including but not limited to Section I.A(1) of the General Instructions to the
Registration Statement of Form F-6, as amended from time to time, under the
Securities Act of 1933.
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