Xxxxxxxx Chance US LLP
ABSA GROUP LIMITED
and
THE BANK OF NEW YORK
As Depositary
and
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
---------------------------------------------------------------
DEPOSIT AGREEMENT
---------------------------------------------------------------
Dated as of _______, 2003
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS...........................................................................1
Section 1.01. "Affiliate"...........................................................................1
Section 1.02. "American Depositary Receipt".........................................................1
Section 1.03. "American Depositary Shares"..........................................................1
Section 1.04. "Beneficial Owner"....................................................................1
Section 1.05. "Business Day"........................................................................1
Section 1.06. "Commission"..........................................................................1
Section 1.07. "Company".............................................................................2
Section 1.08. "Corporate Trust Office"..............................................................2
Section 1.09. "Custodian"...........................................................................2
Section 1.10. "Deliver".............................................................................2
Section 1.11. "Deposit Agreement"...................................................................2
Section 1.12. "Depositary"..........................................................................2
Section 1.13. "Deposited Securities"................................................................2
Section 1.14. "Dollars".............................................................................2
Section 1.15. "Foreign Registrar"...................................................................2
Section 1.16. "Owner"...............................................................................2
Section 1.17. "Registrar"...........................................................................2
Section 1.18. "Restricted Securities"...............................................................3
Section 1.19. "Securities Act"......................................................................3
Section 1.20. "Securities Exchange Act".............................................................3
Section 1.21. "Shares"..............................................................................3
Section 1.22. "South Africa"........................................................................3
Section 1.23. "United States".......................................................................3
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS..........................................3
Section 2.01. Form and Transferability of Receipts..................................................3
Section 2.02. Deposit of Shares.....................................................................4
Section 2.03. Execution and Delivery of Receipts....................................................5
Section 2.04. Transfer of Receipts..................................................................6
Section 2.05. Combinations and Split-ups of Receipts................................................6
Section 2.06. Surrender of Receipts and Withdrawal of Shares........................................6
Section 2.07. Limitations on Execution and Delivery, Registration of Transfer and
Surrender of Receipts.................................................................7
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TABLE OF CONTENTS
(continued)
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Section 2.08. Lost Receipts, etc....................................................................8
Section 2.09. Cancellation and Destruction of Surrendered Receipts..................................8
Section 2.10. Pre-Release of Shares and Receipts....................................................8
Section 2.11. Maintenance of Records................................................................9
ARTICLE III CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL
OWNERS OF RECEIPTS....................................................................9
Section 3.01. Filing Proofs, Certificates and Other Information.....................................9
Section 3.02. Liability of Owner or Beneficial Owner for Taxes and Other Charges....................9
Section 3.03. Representations and Warranties on Deposit of Shares..................................10
Section 3.04. Disclosure of Interests..............................................................10
Section 3.05. Ownership Restrictions...............................................................10
ARTICLE IV THE DEPOSITED SECURITIES.............................................................11
Section 4.01. Cash Distributions...................................................................11
Section 4.02. Distribution Other Than Cash, Shares or Rights.......................................11
Section 4.03. Distribution in Shares...............................................................12
Section 4.04. Rights...............................................................................12
Section 4.05. Conversion of Foreign Currency.......................................................13
Section 4.06. Fixing of Record Date................................................................14
Section 4.07. Voting of Deposited Securities.......................................................14
Section 4.08. Changes Affecting Deposited Securities, Reclassification,
Recapitalizations, etc...............................................................15
Section 4.09. Statutory Reports....................................................................15
Section 4.10. List of Owners.......................................................................15
Section 4.11. Withholding..........................................................................15
Section 4.12. Reports..............................................................................16
Section 4.13. Distributions in Cash or Shares......................................................16
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY........................................16
Section 5.01. Maintenance of Offices and Transfer Books by the Depositary..........................16
Section 5.02. Prevention or Delay in Performance by the Depositary, the Custodian or
the Company..........................................................................17
Section 5.03. Obligations of the Depositary, the Custodian and the Company.........................17
Section 5.04. Resignation and Removal of the Depositary; Appointment of Successor
Depositary...........................................................................18
Section 5.05. The Custodian........................................................................19
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TABLE OF CONTENTS
(continued)
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Section 5.06. Notices and Reports..................................................................19
Section 5.07. Distribution of Additional Shares, Rights, etc.......................................20
Section 5.08. Indemnification......................................................................20
Section 5.09. Charges of Depositary................................................................21
Section 5.10. Retention of Depositary Documents....................................................21
Section 5.11. Exclusivity..........................................................................21
Section 5.12. List of Restricted Securities Owners.................................................21
ARTICLE VI AMENDMENT AND TERMINATION............................................................22
Section 6.01. Amendment............................................................................22
Section 6.02. Termination..........................................................................22
ARTICLE VII MISCELLANEOUS........................................................................23
Section 7.01. Counterparts.........................................................................23
Section 7.02. Agreement for Exclusive Benefit of Parties...........................................23
Section 7.03. Severability.........................................................................23
Section 7.04. Notices..............................................................................23
Section 7.05. Owners and Beneficial Owners of Receipts are Parties.................................24
Section 7.06. Governing Law........................................................................24
Section 7.07. Compliance with U.S. Securities Laws.................................................24
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EXHIBIT A FORM OF AMERICAN DEPOSITARY RECEIPT
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of _______________ 2003, among ABSA GROUP
LIMITED, a company incorporated under the laws of the Republic of South Africa,
THE BANK OF NEW YORK, a New York banking corporation, as Depositary, and all
Owners and Beneficial Owners from time to time of American Depositary Receipts
issued hereunder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares of the Company from time to time
with the Depositary or with the Custodian as agent of the Depositary for the
purposes set forth in this Deposit Agreement and 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; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE I
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. "Affiliate" shall have the meaning assigned to it under Rule
144 under the Securities Act.
Section 1.02. "American Depositary Receipt" or "Receipt" means a receipt
issued pursuant to this Deposit Agreement in substantially the form of Exhibit A
hereto evidencing American Depositary Shares representing Deposited Securities.
Section 1.03. "American Depositary Shares" means the securities
representing the rights and interests in the Deposited Securities and evidenced
by the Receipts issued hereunder. Each American Depositary Share shall represent
two Shares until there shall occur a distribution upon Deposited Securities
covered by Section 4.03 or a change in Deposited Securities covered by Section
4.08 with respect to which additional Receipts are not executed and delivered,
and thereafter American Depositary Shares shall represent the amount of Shares
or Deposited Securities specified in such Sections.
Section 1.04. "Beneficial Owner" means any person who has a beneficial
interest in any American Depositary Shares evidenced by any Receipt.
Section 1.05. "Business Day" means any day on which banks in both New York
and South Africa are not required or authorized by law to close.
Section 1.06. "Commission" means the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
Section 1.07. "Company" means ABSA Group Limited, a company incorporated
and existing under the laws of the Republic of South Africa having its
registered office at 3rd Floor, ABSA Towers East, 000 Xxxx Xxxxxx, Xxxxxxxxxxxx,
0000 Xxxxx Xxxxxx and its successors.
Section 1.08. "Corporate Trust Office" when used with respect to the
Depositary, means the office of the Depositary at which its corporate trust
business shall, at any particular time, be principally administered, which
office is, at the date of this Agreement, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
Section 1.09. "Custodian" means, at the date of this Agreement, FirstRand
Bank Limited, Societe Generale Ltd, Standard Bank of South Africa, and any other
firm or corporation which may be appointed by the Depositary, with notice to the
Company, as a substitute or additional custodian hereunder pursuant to the terms
of Section 5.05 and shall also mean all of them collectively.
Section 1.10. "Deliver" or "delivery" means, when used in respect of
American Depositary Shares, Receipts, Deposited Securities and Shares, either
the physical delivery of the certificate representing such security or the
electronic delivery of such security by means of book-entry transfer.
Section 1.11. "Deposit Agreement" means this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
Section 1.12. "Depositary" means The Bank of New York, a New York banking
corporation, and any successor as depositary hereunder pursuant to the terms of
Section 5.04.
Section 1.13. "Deposited Securities" as of any time means Shares at such
time deposited or deemed to be deposited (including any Shares deposited
pursuant to Section 2.10 hereof) under this Deposit Agreement and any and all
other securities, property and cash received by the Depositary or the Custodian
in respect or in lieu of such Shares deposited or deemed to be deposited and at
such time held hereunder, subject with respect to cash to the provisions of
Section 4.05 and except for any such securities, property or cash as shall have
been distributed to Owners pursuant to sections 4.01, 4.02, 4.03, 4.04 or 4.05.
Section 1.14. "Dollars" or "$" means United States Dollars or such other
currency which is legal tender in the United States of America; "Rand" or
"Cents" and the currency symbol "R" means the lawful currency of the Republic of
South Africa.
Section 1.15. "Foreign Registrar" means the entity that presently carries
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Company for the transfer and
registration of the Shares.
Section 1.16. "Owner" means the person in whose name a Receipt is
registered on the books of the Depositary or the Registrar, if any, maintained
for such purpose.
Section 1.17. "Registrar" means the Depositary or any bank or trust company
having an office in the Borough of Manhattan, The City of New York, appointed by
the Depositary, subject to the approval by the Company, such approval not to be
unreasonably withheld, to register Receipts and transfers of Receipts as herein
provided, and shall include any co-registrar appointed by the Depositary, upon
the request or with the approval of the Company, for such purposes. Registrars
(other than the Depositary) may be removed and substitutes appointed by the
Depositary upon the request or with the approval of the Company. Each Registrar
(other than the Depositary) appointed pursuant to this Deposit
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Agreement shall give notice in writing to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
Section 1.18. "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company or its Affiliates in a transaction or chain of transactions not
involving a public offering or that are subject to resale limitations under
Regulation D under the Securities Act, 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 in
connection with the offer and sale thereof in the United States, or which are
subject to other restrictions on sale or deposit under the laws of the United
States or the Republic of South Africa, or under a shareholder agreement or the
Memorandum and Articles of Association of the Company or under the regulations
of an applicable securities exchange.
Section 1.19. "Securities Act" means the United States Securities Act of
1933, as from time to time amended.
Section 1.20. "Securities Exchange Act" means the United States Securities
Exchange Act of 1934, as from time to time amended.
Section 1.21. "Shares" means the ordinary shares in registered form of the
Company, nominal value R2 each, heretofore validly issued and outstanding and
fully paid, nonassessable and free of any preemptive rights of the holders of
outstanding Shares or hereafter validly issued and outstanding and fully paid,
nonassessable and free of any preemptive rights of the holders of outstanding
Shares or interim certificates representing such Shares; provided that if there
shall occur any change in par or nominal value, a split-up or consolidation or
any other reclassification or, upon the occurrence of any event described in
Section 4.08, an exchange or conversion in respect of the Shares, the term
"Shares" shall thereafter represent the successor securities resulting from such
change in par or nominal value, split-up, consolidation or such 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 or Shares as to which preemptive rights have theretofore
not been validly waived or exercised.
Section 1.22. "South Africa" means the Republic of South Africa.
Section 1.23. "United States" shall have the meaning assigned to it under
Regulation S under the Securities Act.
In this Deposit Agreement a word importing the singular includes the plural
and vice versa.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS
Section 2.01. Form and Transferability of Receipts. (a) American Depositary
Shares shall be evidenced by definitive Receipts which shall be printed or
lithographed or shall be in such other form as may be agreed upon by the Company
and the Depositary, and in any event shall be substantially in the form set
forth in Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided. Receipts may be issued in denominations
of any number of American Depositary
3
Shares. No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory 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; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar. The Depositary shall maintain books, as hereinafter
provided, on which each Receipt so executed and delivered and the transfer of
each such Receipt shall be registered. Receipts bearing the manual or 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 has ceased to hold such office prior to the execution and
delivery of such Receipts by the Registrar or did not hold such office at the
date of issuance of such Receipts.
(b) Receipts may, with the prior written consent of the Company (which
consent shall not be unreasonably withheld), and upon the written request of the
Company, shall be endorsed with or have incorporated in the text thereof such
legends or recitals or changes, including requirements with respect to
registration of transfer, not inconsistent with the provisions of this Deposit
Agreement as may be required by the Depositary or the Company to perform their
obligations hereunder or as may be required to comply with any applicable laws
or regulations or with the rules and regulations of any securities exchange upon
which the Receipts or the American Depositary Shares may be listed, 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 or manner of issuance of the underlying Deposited Securities
or otherwise.
(c) Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by a properly executed
instrument of transfer and transferred in accordance with the terms of this
Deposit Agreement, including, without limitation, Sections 2.04 and 2.07, 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
until a Receipt shall be transferred on the books of the Depositary as provided
in Section 2.04 hereof, the Company and the Depositary, notwithstanding any
notice to the contrary may treat the Owner thereof at such time as the absolute
owner thereof for the purpose of determining the person entitled to 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 Beneficial Owner or entity holding a Receipt unless
such Beneficial Owner or entity is the Owner thereof.
Section 2.02. Deposit of Shares. Subject to the terms and conditions of
this Deposit Agreement, Shares or evidence of rights to receive Shares may be
deposited by delivery thereof to any Custodian hereunder, accompanied by any
appropriate instrument or instruments of transfer, or endorsement, in form
satisfactory to the Custodian, together with all such certifications as may be
reasonably 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 deposit.
No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that any necessary approval has been granted by
or there has been compliance with the rules and regulations of any governmental
body in South Africa which is then regulating currency exchange and all
conditions satisfactory to the Depositary have been satisfied (unless and until
the Company provides the Depositary with evidence satisfactory to it that such
authorization or approval is no longer necessary). If required by the
Depositary, Shares presented for deposit at any time, including deposit by
electronic transfer, whether or not the transfer books of the Company or the
Foreign Registrar, if applicable, are closed, shall also be accompanied by (x)
an agreement or assignment, or other instrument satisfactory to the Depositary,
which
4
will provide for the prompt transfer to the Depositary, the Custodian or their
respective nominees of any dividend, or right to subscribe for additional Shares
or right 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.
The Depositary and the Custodian shall refuse to accept Shares for deposit
whenever notified, as hereinafter provided, that the Company has restricted
transfer of such Shares to comply with any ownership restrictions referred to in
Section 3.05 or under applicable laws. The Company shall notify the Depositary
and the Custodian in writing with respect to any such restrictions on transfer
of its Shares for deposit hereunder or transfer of Depositary Receipts to any
Owner.
At the request and 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, evidence that Shares have been
electronically transferred or that irrevocable instructions have been given to
cause the transfer of such Shares to the account of the Custodian, together with
the other instruments 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 or of evidence of rights to receive Shares to be deposited hereunder
together with the other documents above specified, such Custodian shall, as soon
as transfer and recordation can be accomplished, present such certificate or
certificates or evidence of rights to the Company or 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 at such other place or places
as the Depositary shall determine. The Depositary shall provide written notice
informing the Company of any such other place or places.
Section 2.03. Execution and Delivery of Receipts. Upon receipt by any
Custodian of any deposit in accordance with the provisions of Section 2.02
hereof (and, in addition, if the transfer books of the Company or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Company or the
Foreign Registrar, as the case may be, that any Deposited Securities have been
recorded upon the books of the Company or the Foreign Registrar, if applicable,
in the name of the Depositary or its nominee or such Custodian or its nominee),
together with the other documents required as specified above, such Custodian
shall notify the Depositary of such deposit and the name or names of the person
or persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof, the office of the Depositary at which such
Receipts are to be delivered and the number of American Depositary Shares to be
evidenced thereby. Such notification shall be made by letter or, at the request,
risk and expense of the person making the deposit, by cable, telex or facsimile
transmission.
Upon receiving such notice from such Custodian, or upon receipt of such
Shares by the Depositary, the Depositary, subject to the terms and conditions of
this Deposit Agreement, shall execute and deliver at its Corporate Trust Office
to or upon the order of the person or persons entitled thereto, a Receipt or
Receipts registered in such name or names as requested by such person or persons
entitled thereto evidencing the number of American Depositary Shares requested
by such person or persons but only upon payment to the Depositary of the fees of
the Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.09 hereof, and of all taxes and governmental charges and
fees payable in connection with such deposit and the transfer of the Deposited
Securities.
5
Section 2.04. Transfer of Receipts. Subject to the terms and conditions of
this Deposit Agreement, the Depositary or the Registrar, if any, shall promptly
register transfers of Receipts on its transfer books from time to time upon any
surrender at its designated transfer offices of a Receipt by the Owner thereof
in person or by a duly authorized attorney, properly endorsed or accompanied by
a properly executed instrument of transfer, and duly stamped as may be required
by the laws of the State of New York, of the United States of America and any
other applicable law. Thereupon the Depositary shall execute and, if the
Depositary's signature is by facsimile, the Registrar shall manually countersign
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto evidencing the same aggregate number of American
Depositary Shares as those evidenced by the Receipts surrendered.
The Depositary, upon the written request of the Company, shall, or with the
written approval not to be unreasonably withheld of the Company, may, appoint
one or more co-transfer agents for the purpose of effecting transfers (or
combinations and split-ups as under Section 2.05 hereof) 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 and other requirements by Owners, Beneficial Owners or
other persons entitled to Receipts and will be entitled to protection and
indemnity to the same extent as the Depositary.
Section 2.05. Combinations and Split-ups of Receipts. Upon surrender of a
Receipt or Receipts at the Depositary's designated transfer offices for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute and, if the Depositary's signature is by facsimile, the Registrar
shall manually countersign and deliver a new Receipt or Receipts for the number
of American Depositary Shares requested, evidencing the same aggregate number of
American Depositary Shares evidenced by the Receipt or Receipts surrendered.
Section 2.06. Surrender of Receipts and Withdrawal of Shares. Upon
surrender of Receipts at the Depositary's Corporate Trust Office, or at such
other offices as the Depositary may designate, for the purpose of withdrawal of
the Deposited Securities represented by the American Depositary Shares evidenced
thereby, and upon payment of the fees and expenses of the Depositary for the
cancellation of Receipts as provided in Section 5.09 hereof and payment of all
taxes and other governmental charges payable in connection with such surrender
and withdrawal of the Deposited Securities, and subject to the terms and
conditions of the Company's Memorandum and Articles of Association, the
Deposited Securities and this Deposit Agreement, and to any other restriction
applicable thereto, the Owner of such Receipts shall be entitled to delivery, to
him or upon his order, of the Shares and any other Deposited Securities at the
time represented by the American Depositary Shares evidenced by such Receipts.
Delivery of such Shares and other Deposited Securities may be made by (a) (i)
the delivery of certificates in the name of the Owner or as ordered by him
which, if required by law, shall be properly endorsed or accompanied by properly
executed instruments of transfer to such Owner or as ordered, by him or (ii)
book-entry transfer of Shares represented by the American Depositary Shares
evidenced by such Receipt to an account in the name of the Owner or as ordered
by him and (b) the delivery at the office of the Custodian of any other
securities, property and cash to which such Owner is then entitled in respect of
such Receipts to such Owner or as ordered by him. Such delivery shall be made,
as hereinafter provided, without unreasonable delay.
Receipts surrendered for such purposes may be required by the Depositary to
be properly endorsed in blank or accompanied by a properly executed instrument
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Shares and any other Deposited Securities being withdrawn to be
delivered to or upon the written order of a person or persons designated in such
order. Thereupon the Depositary shall direct the Custodian to deliver at the
Johannesburg, South Africa office of the Custodian,
6
subject to Sections 2.07, 3.01 and 3.02, and to the other terms and conditions
of this Deposit Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
amount of Shares and any other Deposited Securities represented by such Receipts
or evidence of the electronic transfer thereof (if available), as the case may
be, to or for the account of such person, except that the Depositary may make
delivery to such person or persons at its Corporate Trust Office or at such
other place as may have been designated for such purpose by the Depositary of
any dividends or distributions with respect to the Shares and any other
Deposited Securities represented by such Receipts, or of any proceeds of sale of
any such dividends, distributions or rights, which may at the time be held by
the Depositary. Such direction shall be given by letter or, at the risk and
expense of the Owner, by cable, telex or facsimile transmission.
Neither the Depositary nor the Custodian shall deliver Shares, by physical
delivery, book-entry or otherwise (other than to the Company or its agent as
contemplated by Section 4.08 hereof), or otherwise permit Shares to be withdrawn
from the facility created hereby, except upon the receipt and cancellation of
Receipts.
Only Receipts evidencing American Depositary Shares representing a whole
number of Shares may be transferred or be accepted by the Depositary for
surrender.
At the request and risk and expense of any Owner so surrendering Receipts,
and for the account of such Owner, the Depositary shall direct the Custodian to
forward any cash or other property (other than rights) and the certificate or
certificates and other proper documents of title for the amount of Shares and
any other Deposited Securities represented by such Receipts for delivery at its
Corporate Trust Office or at such other place as may be reasonably requested by
the Owner. Such direction shall be given by letter or, at the risk and expense
of such Owner, by cable, telex or facsimile transmission.
Section 2.07. Limitations on Execution and Delivery, Registration of
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 withdrawal of any
Deposited Securities, the Depositary, the Company, the Custodian and the Foreign
Registrar, if applicable, may require (a) payment from the depositor of Shares
or the presenter of the Receipt of a sum sufficient to pay for (i) any tax or
other governmental charge and any stock transfer or registration fees in respect
of Receipts, (ii) any tax or other governmental charge and any stock transfer or
registration fees in respect of registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any fees of the
Depositary as provided in Section 5.09 hereof; (b) the production of proof
satisfactory to it as to the identity and genuineness of any signature and as to
any other matter contemplated by Section 3.01 hereof; (c) compliance with the
provisions of the Company's Memorandum and Articles of Association in effect
from time to time and resolutions and regulations of the Company's Board of
Directors adopted pursuant to such Memorandum and Articles of Association and
(d) compliance with (i) any laws or governmental regulations relating to
Receipts or American Depositary Shares or to the withdrawal of Deposited
Securities and (ii) such reasonable regulations, if any, as the Depositary and
Company may establish consistent with the provisions of this Deposit Agreement.
After consultation with the Company, the delivery of Receipts against
deposits of Shares generally or against deposits of particular Shares may be
suspended, or the transfer of Receipts in particular instances may be refused,
or the registration of transfer of outstanding Receipts, or the combination or
split-up of Receipts, generally may be suspended, during any period when the
transfer books of the Depositary or any register for Shares or other Deposited
Securities are closed, or if any such action is deemed necessary or advisable by
the Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement, or for any other reason, subject
to the following
7
provisions. Notwithstanding any other provision of this Deposit Agreement or the
Receipts, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may be suspended only for (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, (iii) compliance with any
U.S. or foreign laws or governmental regulations relating to the Receipts or to
the withdrawal of the Deposited Securities or (iv) any other reason that may at
any time be specified in paragraph I(A)(1) of the General Instructions to Form
F-6 under the Securities Act, as such instructions may from time to time be in
effect, or any successor provision thereto. The Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares which are required to
be registered under the Securities Act unless a registration statement under the
Securities Act is in effect as to such Shares or any Shares the deposit of which
would violate the Company's Memorandum and Articles of Association.
Section 2.08. 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 form and tenor in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such
destroyed, lost or stolen Receipt, upon the Owner thereof (a) filing with the
Depositary (i) a request for such execution and delivery before the Depositary
has notice that any such Receipt has been acquired by a bona fide purchaser,
(ii) evidence satisfactory to the Depositary of such destruction or loss or
theft of such Receipt and the authenticity thereof and of the Owner's ownership
thereof, (b) furnishing the Depositary with a sufficient indemnity bond in
favour of, and reasonably satisfactory to, the Company and Depositary and (c)
satisfying any other reasonable requirements imposed by the Depositary.
Section 2.09. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy Receipts so cancelled.
Section 2.10. Pre-Release of Shares and Receipts. The Depositary may issue
Receipts against delivery by the Company (or any agent of the Company recording
Share ownership) of rights to receive Shares from the Company (or any such agent
of the Company). No such issue of Receipts will be deemed a "Pre-Release" that
is subject to the restrictions of the following paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.03 hereof, execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02
("Pre-Release"). The Depositary may, pursuant to Section 2.06, 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 are to be delivered (the
"Pre-Releasee") that the Pre-Releasee, or its customer, (i) owns the Shares or
Receipts to be remitted, as the case may be, (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 Share 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, U.S. government securities or such other
collateral as the Depositary determines, in good faith, will provide
substantially similar liquidity and security, (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 reasonably
appropriate. The number of Shares not deposited but represented by American
Depositary Shares outstanding at any time as a result of Pre-Releases will not
normally exceed thirty percent (30%) of the Shares deposited
8
hereunder; provided, however, that the Depositary reserves the right to
disregard such limit from time to time as it deems reasonably 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.
Section 2.11. Maintenance of Records. The Depositary agrees to maintain or
cause its agents to maintain records of all Receipts surrendered and Deposited
Securities withdrawn under Section 2.06, substitute Receipts delivered under
Section 2.08, and of cancelled or destroyed Receipts under Section 2.09, in
keeping with procedures ordinarily followed by stock transfer agents located in
the City of New York or as required by laws or regulations governing the
Depositary. The Depositary shall provide full access to such records to the
Company and its agents from time to time during normal business hours upon the
reasonable written request of the Company.
ARTICLE III
CERTAIN OBLIGATIONS OF OWNERS AND
BENEFICIAL OWNERS OF RECEIPTS
Section 3.01. Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit or any Owner or Beneficial Owner of a Receipt may
be required by the Depositary or the Company from time to time (i) to file with
the Depositary, the Company, or the Custodian such proof of citizenship or
residence, taxpayer status, exchange control approval, payment of applicable
taxes or other governmental charges, legal or beneficial ownership of Receipts,
Deposited Securities or other securities, compliance with all applicable laws or
regulations or terms of this Deposit Agreement or the Receipts, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, or any other information the Depositary or the
Company may deem necessary or appropriate to evidence compliance with all
applicable laws and regulations, and (ii) to execute such certificates and to
make such representations and warranties, as the Depositary may deem necessary
or proper or as the Company may reasonably request by written request to the
Depositary. The Depositary and the Registrar, as applicable, may, and at the
reasonable request of the Company, shall, withhold the delivery or registration
of transfer of any Receipt or the distribution of any dividend or distribution
of rights or of the sale proceeds thereof or the delivery of any Deposited
Securities until such proof or other information is filed or such certificates
are executed or such representations and warranties are made to the Company's
and the Depositary's satisfaction. The Depositary shall from time to time advise
the Company of the availability of any such proofs, certificates or other
information and shall provide the Company, in a timely manner, with copies
thereof upon written request by the Company, unless such disclosure is
prohibited by law.
Section 3.02. Liability of Owner or Beneficial Owner for Taxes and Other
Charges. If any tax or other governmental charge shall become payable with
respect to any Receipt or with respect to any Deposited Securities represented
by American Depositary Shares evidenced by any Receipt, such tax or other
governmental charge shall be payable by the Owner or Beneficial Owner of such
Receipt to the
9
Depositary. The Depositary may refuse, and the Company shall be under no
obligation, to effect any transfer of such Receipt or any combination or
split-up thereof or any withdrawal of Deposited Securities represented by
American Depositary Shares evidenced thereby until such payment is made, and may
withhold or deduct from any dividends or other distributions or may sell any
part or all of the Deposited Securities represented by American Depositary
Shares evidenced by such Receipt and may apply such dividends or other
distributions or the proceeds of any such sale in payment of such tax or other
governmental charge (and any taxes or expenses arising out of such sale), the
Owner or Beneficial Owner of such Receipt remaining liable for any deficiency.
Section 3.03. Representations and Warranties on Deposit of Shares. Every
person depositing Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares and, if applicable, each certificate
therefor are validly issued, fully paid, non-assessable and free of any
preemptive rights, if any, of the holders of outstanding Shares and that the
person making such deposit is duly authorized to do so. Every such person shall
also be deemed to represent that (i) such Shares presented for deposit are not,
and the Receipts evidencing the American Depositary Shares representing such
Shares would not be, Restricted Securities, and (ii) the deposit of such Shares
and the sale of Receipts evidencing American Depositary Shares representing such
Shares by that person are not otherwise restricted under the Securities Act.
Such representations and warranties shall survive the deposit of Shares and the
execution and delivery of Receipts in respect thereof.
Section 3.04. Disclosure of Interests. Notwithstanding any other provision
of this Agreement, each Owner or Beneficial Owner agrees to comply with requests
from the Company pursuant to South African law, the rules and requirements of
the Johannesburg Stock Exchange, and any other stock exchange on which the
Shares are, or will be, registered, traded or listed or the Memorandum and
Articles of Association of the Company, which are made to provide information,
inter alia, as to the capacity in which such Owner or Beneficial Owner owns
Receipts (and Shares as the case may be) and regarding the identity of any other
person interested in such Receipts and the nature of such interest and various
other matters, whether or not they are Owners at the time of such request. To
the extent that provisions of or governing any Deposited Securities including,
without limitation, the provisions of the Company's Memorandum and Articles of
Association as in effect from time to time and resolutions and regulations of
the Company's Board of Directors adopted pursuant to such Memorandum and
Articles of Association or any applicable laws or regulations in South Africa,
the United States or any other country, may require the disclosure of beneficial
or other ownership of Deposited Securities, other Shares and other securities of
the Company and may provide for blocking transfer and voting or other rights to
enforce such disclosure or limit such ownership, the Depositary shall use its
reasonable efforts to comply with Company instructions as to Receipts in respect
of any such enforcement or limitation and Owners shall comply with all such
disclosure requirements and ownership limitations and shall cooperate with the
Depositary's compliance with such Company instructions.
Section 3.05. Ownership Restrictions. The Company may restrict, in such
manner as it deems appropriate, transfers of Receipts where such transfers may
result in the total number of Shares represented by the American Depositary
Shares owned by a single Owner or Beneficial Owner exceeding the limits imposed
by applicable law or the Memorandum and Articles of Association of the Company.
The Company may instruct the Depositary to take action with respect to the
ownership interest of any Owner or Beneficial Owner in excess of the limitation
set forth in the preceding sentence, including but not limited to a mandatory
sale or disposition on behalf of an Owner or Beneficial Owner of the Shares
represented by the American Depositary Shares held by such Owner or Beneficial
Owner in excess of such limitations, if and to the extent such disposition is
permitted by applicable law.
10
ARTICLE IV
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, subject to the provisions of Section 4.05
hereof, if practicable in the opinion of the Depositary, give notice to the
Owners of its receipt of such payment, specifying the amount per Share payable
in respect of such dividend or distribution and the estimated date, as
determined by the Depositary, for such payment, and shall convert or cause to be
converted such dividend or distribution into Dollars and promptly distribute the
Dollars thereby received (net of the fees, expenses and charges of the
Depositary as provided in Section 5.09 hereof) to Owners of Receipts entitled
thereto on the record date fixed pursuant to Section 4.06 hereof in proportion
to the number of American Depositary Shares held by each of them, respectively;
provided, however, that in the event that any of the Deposited Securities is not
entitled, by reason of its date of issuance, or otherwise, to receive the full
amount of such cash dividend or distribution, the Depositary shall make
appropriate adjustments in the amounts distributed to the Owners of the Receipts
issued in respect of such Shares; and provided, further, that in the event that
the Company or the Depositary shall be required to withhold and does withhold
from any cash dividend or other cash distribution in respect of any Deposited
Securities an amount on account of taxes, the amount distributed on the Receipts
issued in respect of such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amounts, however, as can be distributed
without attributing to any Owner of a Receipt a fraction of one U.S. cent and
any balance not so distributable shall be retained by the Depositary. The
Company or its agent will remit to the appropriate governmental agency in South
Africa all amounts withheld and owing to such agency. The Depositary will
forward to the Company or its agent such information from its records as the
Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental agencies, and the Depositary or the Company
or its agent may file any such reports necessary to obtain benefits under the
applicable tax treaties for the Owners of Receipts.
Section 4.02. Distribution Other Than Cash, Shares or Rights. Whenever the
Depositary or the Custodian shall receive any distribution other than cash,
Shares or rights pursuant to Section 4.01, 4.03 or 4.04 hereof upon the
Deposited Securities, the Depositary shall cause such amount of the securities
or property received by it to be distributed to the Owners of Receipts on the
record date fixed pursuant to Section 4.06 hereof, in proportion to the number
of American Depositary Shares representing such Deposited Securities held by
each of them, respectively, in any manner that the Depositary may deem equitable
and practicable for accomplishing such distribution net of expenses of the
Depositary with the consent of the Company (which consent shall not be
unreasonably withheld); provided, however, that the Depositary shall give the
Company one business day's notice of any such proposed distribution and shall
not make the distribution if the Company reasonably objects, during such notice
period, to the manner of the proposed distribution; and provided, further, that
if in the opinion of the Depositary such distribution cannot be made among the
Owners of Receipts entitled thereto in proportion to the number of American
Depositary Shares held by them, 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 or other law in order to be
distributed to Owners) the Depositary deems such distribution not to be lawful
or feasible, the Depositary with the consent of the Company (which consent shall
not be unreasonably withheld) may adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including, but not
limited to, the sale, at public or private sale, of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it deems proper, and the net proceeds of any such sale (net of the fees,
expenses and charges of the Depositary as provided in Section 5.09 hereof) shall
be distributed by the Depositary to the Owners of Receipts entitled thereto as
in the case of a distribution
11
received in cash. If any distribution made by the Company with respect to the
Deposited Securities and received by the Depositary shall remain unclaimed at
the end of 12 years from the first date upon which such distribution is made
available to Owners and subject to any applicable laws, all rights of the Owners
to such distribution or the proceeds of the sale thereof shall be extinguished
and the Depositary shall return the same to the Company for its own use and
benefit (except for any distribution upon the liquidation of the Company when
the Depositary shall retain the same) and the Depositary shall have no
obligation therefor or liability with respect thereto.
Section 4.03. Distribution in Shares. If any distribution upon Deposited
Securities consists of a dividend in, or free distribution of, Shares, the
Depositary may, and shall if the Company so requests, distribute to the Owners
of Receipts on the record date fixed pursuant to Section 4.06 hereof, in
proportion to the number of American Depositary Shares held by each of them,
respectively, additional Receipts in the same form for an aggregate number of
American Depositary Shares representing the amount of Shares received as such
dividend or free distribution, subject to the terms and conditions of this
Deposit Agreement with respect to the deposit of Shares and the issuance of
American Depositary Shares evidenced by Receipts, including the withholding of
any tax or other governmental charge as provided in Section 4.11 hereof and the
payment of the fees, expenses and charges of the Depositary as provided in
Section 5.09 hereof. The Depositary may withhold any such distribution of
Receipts if it has not received reasonably satisfactory assurances from the
Company that such distribution does not require registration under the
Securities Act or is exempt from registration under the provisions of such Act.
In lieu of delivering Receipts for fractional American Depositary Shares, the
Depositary may, in its discretion, sell the amount of Shares represented by the
aggregate of such fractions, at public or private sale, at such place or places
and upon such terms as it may deem proper, and distribute the net proceeds of
any such sale in accordance with Section 4.01 hereof. If additional Receipts are
not so distributed (except as pursuant to the preceding sentence), each American
Depositary Share shall thenceforth also represent its proportionate interest in
the additional Shares so distributed upon such Deposited Securities.
Section 4.04. 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
have discretion as to the procedure to be followed in making such rights
available to any Owners entitled thereto or in disposing of such rights on
behalf of any Owners entitled thereto and making the net proceeds available to
such Owners or, if by the terms of such rights offering or for any other reason,
the Depositary may not either make such rights available to any Owners or
dispose of such rights and make the net proceeds available 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 in its reasonable discretion (after
consultation with the Company) that it is lawful and feasible to make such
rights available to all or certain Owners but not to other Owners, the
Depositary may, and at the request of the Company shall, distribute to any Owner
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.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the 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)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary to exercise such rights,
upon payment by such Owner to the Depositary for the account of
12
such Owner of an amount equal to the purchase price of the Shares or the
acquisition price of any other securities to be received upon the exercise of
the rights, and upon payment of the fees and expenses of the Depositary and any
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Owner, exercise the rights and purchase the 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 or other securities 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 in accordance
with applicable U.S. laws, and shall be subject to the appropriate restrictions
on sale, deposit, cancellation, and transfer under such laws.
If the Depositary determines in its reasonable discretion that it is not
lawful or feasible to make such rights available to all or certain Owners, it
may sell the rights, warrants or other instruments (either by public or private
sale and otherwise at its discretion subject to South African laws and
regulations) in proportion to the number of American Depositary Shares held by
the Owners to whom it has determined it may not lawfully or feasibly make such
rights available, and allocate the net proceeds of such sales (net of the fees,
expenses and charges of the Depositary as provided in Section 5.09 hereof and
all taxes and other governmental charges payable in connection with such rights,
and subject to the terms and conditions of this Deposit Agreement) for the
account of such Owners otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Owners on account of exchange restrictions or the date
of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act with respect to a distribution to all Owners or are
registered under the provisions of such Act; provided, that nothing in this
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement with respect to such rights or underlying securities
under the Securities Act or any applicable law or to endeavor to have such a
registration statement declared effective. If an Owner of Receipts requests the
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect such
distribution unless it has received an opinion from U.S. counsel for the Company
in accordance with Section 5.07 hereof upon which the Depositary may rely that
such distribution to such Owner is exempt from such registration; provided,
however, the Company shall have no obligation to cause its counsel to issue such
opinion at the request of such Owner.
The Depositary shall not be responsible for any reasonable failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
Section 4.05. Conversion of Foreign Currency. Whenever the Depositary or
the Custodian shall receive foreign currency, received by way of dividends or
other distributions or in the form of net proceeds from the sale of securities,
property or rights, and if, at the time, the foreign currency so received can,
in the judgment of the Depositary, be converted on a reasonable basis into
Dollars and the resulting Dollars transferred to the United States, the
Depositary shall promptly 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 promptly distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants or instruments upon surrender thereof for cancellation, in either case,
without liability for interest thereon. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise.
13
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall have
discretion and authority to file such application for approval or license, if
any, as it may deem desirable. In no event, however, shall the Depositary be
obligated to make such a filing, nor shall it be liable for failure to obtain
such permit or license.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not 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 is not obtainable,
or if such approval or license is not obtainable at a reasonable cost or within
a reasonable period as determined by the Depositary, the Depositary may in its
discretion, after notice to the Company, and subject to applicable laws and
regulations, either (i) distribute such foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) to the Owners of
Receipts entitled to receive the same, or (ii) hold such foreign currency,
without liability for interest thereon, for the respective accounts of such
persons, uninvested and without liability for interest.
If any such conversion of foreign currency, in whole or in part, can be
effected as aforesaid for distribution to some but not all of the Owners of
Receipts entitled thereto, the Depositary may in its discretion make such
conversion and distribution in Dollars, to the extent such currency shall be
convertible as aforesaid, to the Owners of Receipts entitled thereto and, with
respect to the balance of such foreign currency, shall in its discretion, after
consultation with the Company, and subject to any applicable law and
regulations, either (i) distribute or make available for distribution such
balance to the persons who were Owners of Receipts entitled thereto with respect
to whom such conversion could not then be effected, or (ii) hold such balance
for the respective accounts of such persons, uninvested and without liability
for interest.
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 the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall receive notice of any meeting of holders of Shares
or other Deposited Securities, the Depositary shall fix a record date (a) for
the determination of the Owners who shall be (i) entitled to receive such
dividend, distribution or rights or the net proceeds of the sale thereof or (ii)
entitled to give instructions for the exercise of voting rights at any such
meeting, or (b) on or after which each American Depositary Share will represent
the changed number of Shares. Such record date shall, to the extent practicable,
be the same record date as any corresponding record date set by the Company for
such purpose. Subject to the provisions of Sections 4.01 through 4.05 and to the
other terms and conditions of this Deposit Agreement, the Owners on such record
date shall be entitled, as the case may be, to receive the amount distributable
by the Depositary with respect to such dividend or other distribution or such
rights or the net proceeds of sale thereof in proportion to the number of
American Depositary Shares held by them, respectively, and to give voting
instructions and to act in respect of any other such matter.
Section 4.07. Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting of holders of Shares or other Deposited
Securities the Depositary shall, at the Company's expense, mail to the Owners of
Receipts a notice which shall contain (a) such information as is contained in
such notice of meeting, (b) a statement that such Owners of Receipts at the
close of business on a specified record date will be entitled, subject to any
applicable provision of South African law, of the Deposited Securities or 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 brief statement as to the manner in which
such instructions may be given, including an express indication that
14
the Depositary shall notify such instruction to the Chairman of the Company, or
such other director that the Chairman may designate, and appoint the Chairman or
that other person designated by the Chairman as representative of the Depositary
and the Owners to attend such meeting and vote the Deposited Securities in the
direction so instructed by such Owner.
The Depositary shall not, and the Depositary shall ensure that its
nominees, if any, shall not, vote or exercise any discretion in respect to any
resolution or otherwise attempt to exercise the right to vote which attaches to
the Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by such Owner's Receipt other than in accordance with this
Section 4.07. The Depositary shall not exercise any voting discretion over any
Deposited Securities. Always subject to applicable law and the Company's
Memorandum and Articles of Association, if no voting instructions are received
by the Depositary from any Owner with respect to any of the Deposited Securities
represented by American Depositary Shares evidenced by such Owner's Receipt on
or before the date established by the Depositary for such purpose, the
Depositary shall promptly advise the Company of the same and the Depositary
shall not (unless required by applicable law) vote in respect of such Deposited
Securities.
Section 4.08. Changes Affecting Deposited Securities, Reclassification,
Recapitalizations, etc. In circumstances where the provisions of Section 4.03
hereof do not apply, upon any change in par or nominal value, sub-division,
consolidation or any other reclassification of Deposited Securities, or upon any
reduction of capital, recapitalization, reorganization, merger, amalgamation or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for or on conversion of or in respect of Deposited Securities shall be
treated as new Deposited Securities under this Deposit Agreement, and American
Depositary Shares then outstanding shall thenceforth represent the new Deposited
Securities so received in exchange for or on conversion of or in respect of
Deposited Securities 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 dividend in Shares, or may call for the surrender of outstanding Receipts
to be exchanged for new Receipts specifically describing such new Deposited
Securities.
Section 4.09. Statutory Reports. The Depositary shall make available for
inspection by Owners at the Depositary's Corporate Trust Office any notices,
reports and other communications received from the Company which are both (a)
received by the Depositary, the Custodian or their respective nominees as the
holder of Deposited Securities and (b) made generally available to the holders
of Deposited Securities by the Company. Any such reports and communications,
including any proxy soliciting material, furnished to the Depositary by the
Company shall be furnished in English, to the extent such materials are required
to be translated into English pursuant to any rules or regulations of the
Commission.
Section 4.10. List of Owners. Promptly upon the written request of the
Company, the Depositary shall furnish to the Company 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 books of the Depositary.
Section 4.11. Withholding. In connection with any distribution to Owners,
the Company will remit to the appropriate governmental authority or agency any
amounts required to be withheld by the Company and owing to such authority or
agency by the Company, and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency any amounts required to be withheld
and owing to such authority or agency by the Depositary or the Custodian. In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charge which the Depositary is obligated to withhold, the
Depositary
15
may, 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 pay 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. The Depositary shall forward to the Company or its agent as
promptly as practicable such information received by the Depositary as the
Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental authorities or agencies or relevant stock
exchanges where any equity securities of the Company are listed.
Section 4.12. Reports. The Depositary shall make available for inspection
by Owners at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
send to Owners copies of such reports when furnished by the Company to the
Custodian pursuant to Section 5.06 hereof.
Section 4.13. Distributions in Cash or Shares. Whenever the Depositary
shall receive notice from the Company of the declaration of a dividend or other
distribution on Deposited Securities (a) payable in Shares or cash at the
election of each holder of Shares, or (b) if no such election is made, payable
in Shares or in cash as provided in the instruments governing such dividend or
other distribution, then the Depositary, after consultation with the Company,
and, if requested by the Depositary, after receiving an opinion of U.S. counsel
to the Company to the effect that such option to elect cash or Shares can
lawfully be made available to Owners and that the exercise of such option does
not require registration under the Securities Act, shall have discretion as to
the procedures to be followed in making such a dividend or distribution
available to any Owner. If at the time of such dividend or distribution, the
Depositary determines in its discretion that it is lawful and feasible to make
such dividend or distribution available to all or certain Owners, the
Depositary, after consultation with the Company, shall mail to the Owners, as
promptly as practicable, a notice, the form of which shall be in the sole
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 the record date
established pursuant to Section 4.06 hereof will be entitled, subject to any
applicable provisions of South African or United States law, the Memorandum and
Articles of Association 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 a Owner on such record date, received on or before the date
established for such purpose, the Depositary shall endeavor 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 4.02, 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 instrument governing the dividend or other distribution
and in accordance with Sections 4.01 and 4.02 hereof.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.01. Maintenance of Offices and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain, in the Borough of
16
Manhattan, The City of New York, facilities for the execution and delivery,
registration of transfer, combination and split-up of Receipts and surrender of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep a book or books for the transfer and registration
of Receipts which at all reasonable times shall be open for inspection by Owners
of Receipts; provided 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 books, at any time or from time to time,
when reasonably deemed expedient by it in connection with the performance of its
duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or appoint a Registrar or
one or more co-Registrars for registry of such Receipts in accordance with any
requirements of such exchange or exchanges.
Section 5.02. Prevention or Delay in Performance by the Depositary, the
Custodian or the Company. Neither the Depositary, the Custodian nor the Company
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, South Africa or of any other country, or of any other action of any
governmental or regulatory authority of the United States, South Africa or any
other country, or of any stock exchange, or by reason of any provision, present
or future, of the Memorandum and Articles of Association of the Company, or by
reason of any act of God or war or other circumstance beyond its control, the
Depositary, the Custodian or the Company, as the case may be, shall be delayed
in, prevented or forbidden from, or subjected to any civil or criminal penalty
on account of, doing or performing any act or thing which by the terms of this
Deposit Agreement it is provided shall be done or performed; nor shall the
Depositary, the Custodian or the Company, nor any of their respective directors,
officers, employees or agents, incur any liability to any Owner or Beneficial
Owner of a Receipt by reason of any non-performance 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 distribution pursuant to
Section 4.01, 4.02, or 4.03 of this Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of this Deposit Agreement, or for any
another reason, such distribution or offering may not be made available to
Owners, and the Depositary may not dispose of such distribution or offering on
behalf of such Owners and make the net proceeds available to such Owners, then
the Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
Section 5.03. Obligations of the Depositary, the Custodian and the Company.
Neither the Depositary, the Custodian nor the Company nor any of their
respective directors, officers, employees or agents, assumes any obligation or
shall be subject to any liability (including, without limitation, as to the
Depositary and Custodian, liability with respect to the validity or worth of the
Deposited Securities) under this Deposit Agreement to Owners or Beneficial
Owners of Receipts, other than that each of them agrees to perform its
obligations and duties specifically set forth in this Deposit Agreement without
negligence or bad faith.
Neither the Depositary nor the Company 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 expenses and liabilities be furnished as often as may be required,
and the Custodian shall not
17
be under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary.
Neither the Depositary, the Custodian nor the Company shall be liable for
any action or non-action by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Owner or Beneficial Owner of a Receipt, or any other person believed by it in
good faith to be competent to give such advice or information. The Depositary,
the Custodian and the Company may rely and shall be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
Neither the Depositary nor its agents shall be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner or effect of any such vote made either with or without request, or
for not exercising any right to vote, as long as any such action or non-action
is in good faith and in accordance with the terms of this Deposit Agreement.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
Section 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Company may terminate the appointment of the
Depositary under the Deposit Agreement by giving at least 90 days' notice in
writing to the Depositary and the Custodian, and the Depositary may resign as
Depositary by giving at least 90 days' notice in writing to the Company and the
Custodian, such termination of appointment or resignation to take effect upon
the later of: (i) the 90th day after giving delivery of notice and (ii) the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided. Within 90 days after the giving of such notice, notice
thereof shall be duly given by the Depositary to the Owners.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company, unless the Company shall desire the termination of this
Deposit Agreement as provided in Section 6.02 hereof, shall use all reasonable
efforts to appoint a successor depositary, which shall be a bank or trust
company having its principal office in the Borough of Manhattan, The City of New
York with effect from the date of termination or resignation specified in such
notice as soon as reasonably possible following notice of such termination or
resignation. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor; provided, however, that such
predecessor, upon payment of all sums due it and on the written request of the
Company, shall execute and deliver an instrument transferring to such successor
all rights and powers of such predecessor hereunder, shall duly assign, transfer
and deliver all right, title and interest in the Deposited Securities to such
successor and shall deliver to such successor a list of the Owners of all
outstanding Receipts and such other information relating to Receipts and Owners
thereof as the successor may reasonably request. The successor depositary shall
promptly mail notice of its appointment to the Owners of Receipts and the
Custodian.
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Any corporation into or with which the Depositary may be converted, merged
or consolidated shall be the successor of such Depositary without the execution
or filing of any document or any further act.
Section 5.05. The Custodian. The Depositary may appoint one or more agents
to act as its Custodian hereunder. The Depositary has initially appointed ABSA
Bank Limited as Custodian and agent of the Depositary for the purpose of this
Deposit Agreement. Any Custodian in acting hereunder shall be subject at all
times and in all respects to the directions of the Depositary, and shall be
responsible solely to it. Any Custodian may resign and be discharged from its
duties hereunder by notice of such resignation delivered to the Depositary at
least thirty (30) days prior to the date on which such resignation is to become
effective. If upon the effectiveness of such resignation there shall be no
Custodian acting hereunder, the Depositary shall, promptly after receiving such
notice, appoint a substitute custodian or custodians, each of which shall
thereafter be a Custodian hereunder. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners to do so, it may
appoint substitute or additional custodian or custodians, which shall thereafter
be one of the Custodians hereunder subject in each instance to the written
approval of the Company. Upon demand of the Depositary any previous Custodian
shall deliver the Deposited Securities held by it to any other Custodian or such
substitute or additional custodian or custodians as the Depositary shall
instruct. Each such substitute or additional custodian or custodians shall
deliver to the Depositary, forthwith upon its appointment an acceptance of such
appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, any 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; provided, however, that the successor depositary so
appointed shall, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority 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 a copy of the notice thereof in the form given
or to be given to holders of Shares or other Deposited Securities.
The Company will arrange for the translation into English, if not already
in English, to the extent required pursuant to any rules or regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian, of such notices and any other reports and communications, including
any proxy soliciting materials, which are made generally available by the
Company to holders of its Shares or other Deposited Securities. If requested in
writing by the Company, the Depositary will arrange for the mailing, at the
Company's expense, of copies of such notices, reports and communications that
are made generally available by the Company to holders of its Shares or other
Deposited Securities and/or, at the written request of the Company and at the
Company's expense, make such notices, reports and other communications available
to all Owners on a basis similar to that for holders of Shares or other
Deposited Securities, or on such other basis as the Company may advise the
Depositary is required or as the Depositary may be required by any applicable
law or regulation. The Company will timely provide the Depositary with the
quantity of such notices, reports and communications, including any proxy
soliciting materials, as reasonably requested by the Depositary from time to
time, in order for the Depositary to effect such mailings. The Depositary and
Custodian may rely upon such copies for all purposes of this Agreement. The
Depositary will, at the expense of the Company, make such copies and
19
such notices, reports and communications available for inspection by Owners at
the Depositary's Corporate Trust Office, at the office of the Custodian and at
any other designated transfer offices.
Section 5.07. Distribution of Additional Shares, Rights, 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 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 to be in effect prior to making such
Distribution available to 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.
To the extent the Company in its discretion deems it necessary or advisable
in order to avoid any requirement to register such securities under the
Securities Act, the Company may prevent Owners in the United States from
receiving any distribution and from purchasing any additional securities
(whether pursuant to preemptive rights or otherwise) pursuant thereto, and
direct the Depositary not to accept any Shares for deposit for such period of
time following such distribution and to adopt such other specific measures as
the Company and the Depositary may agree.
The Company agrees with the Depositary that neither the Company nor any
company controlled by, controlling or under common control with the Company will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Company or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act or an
exemption from the registration requirements of the Securities Act is available.
Section 5.08. Indemnification. The Company agrees to indemnify the
Depositary, its directors, employees, agents and affiliates and any Custodian
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 any registration with the Commission of Receipts,
American Depositary Shares or Deposited Securities or the offer or sale thereof
in the United States or 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 either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of any of them, or (ii) by the Company or any of its directors,
employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.10 hereof) of a Receipt or Receipts in
accordance with Section 2.10 hereof and which would not otherwise have arisen
had such Receipt or Receipts not been the subject of a Pre-Release pursuant to
Section 2.10 hereof; provided, however, that the indemnities provided in the
preceding paragraph shall apply to any such liability or expense (i) to the
extent that such liability or expense would have arisen had a Receipt or
Receipts not been the subject of a Pre-Release, 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 memorandum) relating to the offer or
sale of American Depositary Shares, except to the extent that any such liability
or expense arises out of (a) information relating to the Depositary or any
Custodian, 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.
20
The Depositary agrees to indemnify the Company, its directors, employees,
agents and affiliates and hold them harmless from any liability or expense which
may arise out of acts performed or omitted by the Depositary or its Custodian or
their respective directors, employees, agents and affiliates due to their
negligence or bad faith.
Section 5.09. Charges of Depositary. The Company agrees to pay the
reasonable fees, expenses and out-of-pocket charges of the Depositary and those
of any Registrar only 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 charges and expenses of the Custodian are for the sole account
of the Depositary.
The following charges 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), or by Owners, as 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 Foreign Registrar and applicable to transfers of Shares to or from
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, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.03, 4.03 or 4.04 and the surrender of Receipts
pursuant to Section 2.06 or 6.02, (6) a fee of $0.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
this Deposit Agreement, including, but not limited to Sections 4.01 through
4.04, (7) a fee for the distribution of securities pursuant to Section 4.02,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Owners, and (8) any other charge payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares or
other Deposited Securities (which charge shall be assessed against Owners as of
the date or dates set by the Depositary in accordance with Section 4.06 and
shall be payable at the sole discretion of the Depositary by billing such Owners
for such charge or by deducting such charge from one or more cash dividends or
other cash distributions).
The Depositary, subject to Section 2.10 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
Section 5.10. Retention of Depositary Documents. The Depositary is
authorized to destroy those documents, records, bills and other data compiled
during the term of this Deposit Agreement at the time permitted by the laws or
regulations governing the Depositary, unless the Company requests in writing
that such papers be retained for a longer period or turned over to the Company
or to a successor depositary.
Section 5.11. Exclusivity. Subject to Section 5.04, the Company agrees not
to appoint any other depositary for issuance of American Depositary Receipts so
long as The Bank of New York is acting as Depositary hereunder.
Section 5.12. List of Restricted Securities Owners. From time to time, the
Company shall provide to the Depositary a list setting forth, to the actual
knowledge of the Company, those persons or
21
entities who beneficially own Restricted Securities and the Company shall update
that list on a regular basis. The Company agrees to advise in writing each of
the persons or entities so listed that such Restricted Securities are ineligible
for deposit hereunder. The Depositary may rely on such a list or update but
shall not be liable for any action or omission made in reliance thereon.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
written agreement between the Company and the Depositary without the consent of
Owners or Beneficial Owners of Receipts in any respect which they may deem
necessary or desirable. Any amendment which shall impose or have the effect of
increasing any fees or charges payable by the Owners of Receipts (other than
taxes or other governmental charges, registration fees and cable, telex or
facsimile transmission and delivery expenses), or which shall otherwise
prejudice any substantial existing right of Owners of Receipts, shall not become
effective as to outstanding Receipts until the expiration of thirty (30) days
after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner of an outstanding Receipt 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 of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law. Notwithstanding the foregoing, if any
governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the Receipt at any time in accordance with such changed rules.
Such amendment or supplement to the Deposit Agreement in such circumstances may
become effective before a notice of such amendment or supplement is given to
Owners or within any other period of time as required for compliance.
Section 6.02. Termination.
The Depositary shall at any time, at the direction of the Company,
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 90 days prior to the date fixed
in such notice for such termination.
During the period beginning on the date of the giving of such notice by the
Depositary to the Owners and ending on the date on which such termination takes
effect, each Owner of a Receipt will, upon (a) surrender of such Receipt at the
Corporate Trust Office of the Depositary, (b) payment of the fee of the
Depositary for the surrender of Receipts referred to in Section 5.09, and (c)
payment of any applicable taxes or other governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt.
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, 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
rights and other property 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,
22
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 of Receipts which
have not theretofore been surrendered, 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 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 to the Company
under Section 5.08. 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 VII
MISCELLANEOUS
Section 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all such
counterparts shall constitute one and the same instrument. Copies of the Deposit
Agreement shall be filed with the Depositary and the Custodian, and shall be
open to inspection at the Depositary's Corporate Trust Office and the principal
office of the Custodian by any Owner of a Receipt during business hours.
Section 7.02. Agreement for Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, 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 the event that any one or more of the
provisions contained in this Deposit Agreement or in the Receipts shall 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. Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, or by
cable, telex or facsimile transmission confirmed by letter, addressed to: ABSA,
3rd Floor, ABSA Towers East, 000 Xxxx Xxxxxx, Xxxxxxxxxxxx, 0000, Xxxxx Xxxxxx,
Attention: The Group Secretary, or any other place to which the Company may have
transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if in English and personally delivered or sent by mail,
first-class airmail postage prepaid or by cable, telex or facsimile transmission
confirmed by letter, addressed to: The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: ADR Department, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to the Custodian shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by
23
letter, addressed to FirstRand Bank Ltd., Mezzanine Floor, 0 Xxxxx Xxxxx,
XxxxXxxx, Xxxxxxxxxxxx 0000, Xxxxx Xxxxxx, or to any other address which the
Custodian may specify in writing to the Company.
Any and all notices to be given to any Owner of a Receipt shall be deemed
to have been duly given if personally delivered or sent by mail, first-class
airmail postage prepaid, 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 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 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 cable or
telex or facsimile transmission message) is deposited, first-class airmail
postage prepaid, in a post-office letter box. The Depositary or the Company,
however, may act upon any cable, telex or facsimile transmission message
received by it from the other or from any Owner of a Receipt, notwithstanding
that such cable, telex, or facsimile transmission message shall not subsequently
be confirmed by letter as aforesaid.
Section 7.05. Owners and Beneficial Owners of Receipts are Parties. The
Owners and Beneficial Owners from time to 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 7.06. Governing Law. This Deposit Agreement and the Receipts shall
be governed by and construed in accordance with the laws of the State of New
York. Except as set forth in the following sentence, the Company and the
Depositary agree that the federal courts in the State of New York shall have
jurisdiction to hear and determine any suit, action or proceeding and to settle
any dispute between them that may arise out of or in connection with this
Deposit Agreement and, for such purposes, each irrevocably submits to the
non-exclusive jurisdiction of such courts. In addition, the Company and the
Depositary hereby agree that in the event that an Owner brings a suit, action or
proceeding against (a) the Depositary in its capacity as Depositary under this
Deposit Agreement or (b) against both the Company and the Depositary, in either
case, in any state or federal court of the United States, and the Depositary has
any claim for indemnification or otherwise, against the Company arising out of
the subject matter of such suit, action or proceeding, then the Depositary may
pursue such claim against the Company in the state or federal court in the
United States in which such suit, action or proceeding is pending and, for such
purposes, the Company irrevocably submits to the non-exclusive jurisdiction of
such courts.
Section 7.07. Compliance with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the Company and the
Depositary each agree 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 the United States securities laws, including,
but not limited to, Section IA(1) of the General Instructions to Form F-6
Registration Statement, as amended from time to time, under the Securities Act.
24
IN WITNESS WHEREOF, ABSA Group 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 Beneficial Owners of Receipts shall become parties hereto upon
acceptance by them of Receipts issued in accordance with the terms hereof.
ABSA GROUP LIMITED
By:
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
--------------------------------------
Name:
Title:
25
EXHIBIT A
FORM OF AMERICAN DEPOSITARY RECEIPT
CUSIP Number ____________
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents two deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
EVIDENCING AMERICAN DEPOSITARY SHARES
REPRESENTING ORDINARY SHARES OF
NOMINAL VALUE R2 EACH OF
ABSA GROUP 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 Shares of nominal value R2 each, or evidence of rights to
receive such shares (herein called "Shares") of ABSA Group Limited, incorporated
under the laws of South Africa (herein called the "Company"). At the date of the
Deposit Agreement, each American Depositary Share represents two Shares
deposited or subject to deposit under the Deposit Agreement (as such term is
hereinafter defined) at the principal office of FirstRand Bank Limited (herein
called the "Custodian"). The ratio of American Depositary shares to Shares is
subject to subsequent amendment as provided in Article IV of the Deposit
Agreement. The Depositary's Corporate Trust Office is located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, X.X. 00000.
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of _______ (herein called the "Deposit
Agreement"), by and among the Company, the Depositary, and all Owners and
Beneficial Owners from time to time of Receipts issued thereunder, each of whom
by accepting a Receipt agrees to become a party thereto and become bound by all
the terms and conditions thereof. The Deposit Agreement sets forth the rights of
Owners and Beneficial Owners of the 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 of such
Shares and held thereunder (such Shares, securities, property, and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Depositary's Corporate Trust Office in New York City and at the
office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
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2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender of this Receipt at the Depositary's Corporate Trust Office,
or at such other offices as the Depositary may designate, for the purpose of
withdrawal of the Deposited Securities represented by the American Depositary
Shares evidenced hereby, and upon payment of the fees and expenses of the
Depositary provided in this Receipt, and subject to the other terms and
conditions of the Deposit Agreement, the Owner hereof is entitled to delivery,
to him or upon his order, of the Deposited Securities at the time represented by
the American Depositary Shares evidenced by this Receipt. Delivery of such
Deposited Securities may be made by (a)(i) the delivery of certificates in the
name of the Owner hereof or as ordered by him, which, if required by law, shall
be properly endorsed or accompanied by properly executed instruments of transfer
to such Owner or as ordered by him or (ii) book-entry transfer of Shares
represented by the American Depositary Shares evidenced by such Receipt to an
account in the name of such Owner or as ordered by him and (b) the delivery at
the office of the Custodian of any other securities, property and cash to which
such Owner is then entitled in respect of this Receipt to such Owner or as
ordered by him. Such delivery will be made either at the Corporate Trust Office
of the Depositary or at such other place as may be reasonably requested by the
Owner, as provided in the Deposit Agreement; provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary or at such other place shall be at the
risk and expense of the Owner hereof.
3. TRANSFER OF RECEIPTS; COMBINATIONS AND SPLIT-UPS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
or the Registrar, if any, by the Owner hereof in person or by a duly authorized
attorney, upon surrender at the Depositary's designated transfer offices of this
Receipt, properly endorsed or accompanied by a properly executed instrument of
transfer and duly stamped as required by applicable law. This Receipt may be
split into other such Receipts, or may be combined with other such receipts into
one Receipt, evidencing the same aggregate number of American Depositary Shares
as 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 withdrawal of any Deposited Securities, the
Depositary, the Company, the Custodian, or Foreign Registrar may require (a)
payment from the depositor of the Shares or the presentor of the Receipt of a
sum sufficient to reimburse it for (i) any tax or other governmental charge and
any stock transfer or registration fees in respect of Receipts, (ii) any tax or
other governmental charge and any stock transfer or registration fees in respect
of registration of transfers of Shares or the Deposited Securities upon any
applicable register and (iii) any applicable fees as provided in this Receipt;
(b) the production of proof satisfactory to it as to the identity and
genuineness of any signature and as to any other matter contemplated by Section
3.01 of the Deposit Agreement; (c) compliance with the provisions of the
Company's Memorandum and Articles of Association in effect from time to time and
resolutions and regulations of the Company's Board of Directors adopted pursuant
to such Memorandum and Articles of Association; and (d) compliance with (i) any
laws or governmental regulations relating to Receipts or American Depositary
Shares or to the withdrawal of Deposited Securities and (ii) such reasonable
regulations the Depositary and Company may establish consistent with the
provisions of the Deposit Agreement or this Receipt, including, without
limitation, this Article 3.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts, or the combination or split-up of Receipts, generally may
be suspended, during any period when the transfer books of the Depositary or any
register for Shares or other Deposited Securities are closed, or if any such
action is deemed necessary or advisable by the
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Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of the Deposit Agreement or this Receipt, or for any other
reason, subject to the following provisions. Notwithstanding any other provision
of the Deposit Agreement or this Receipt, the surrender of outstanding Receipts
and withdrawal of Deposited Securities may be suspended only for (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, or
(iv) any other reason that may at any time be specified in paragraph I(A)(1) of
the General Instructions to Form F-6 under the Securities Act, as such
instructions may from time to time be in effect, or any successor provision
thereto. Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under the Deposit Agreement any Shares which are required to
be registered under the provisions of the Securities Act, unless a registration
statement is in effect as to such Shares.
4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES AND OTHER CHARGES.
If any tax or other governmental charge shall become payable with respect
to this Receipt or with respect to any Deposited Securities represented by
American Depositary Shares evidenced hereby, such tax or other governmental
charge shall be payable by the Owner or Beneficial Owner hereof to the
Depositary. The Depositary may refuse to effect any transfer of this Receipt or
any combination or split-up hereof or any withdrawal of Deposited Securities
represented by American Depositary Shares evidenced hereby until such payment is
made, and may withhold or deduct from any dividends or other distributions and
may sell any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge (and any taxes or expenses arising out of such sale),
the Owner or Beneficial Owner hereof remaining liable for any deficiency.
5. REPRESENTATIONS AND WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder and, if applicable, under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Shares and each certificate therefor are validly issued, fully paid,
non-assessable, and free of any preemptive rights, if any, of the holders of
outstanding Shares and that the person making such deposit is duly authorized to
do so. Every such person shall also be deemed to represent that (i) Shares
presented for deposit are not, and the Receipts evidencing the American
Depositary Shares representing such Shares would not be, Restricted Securities,
and (ii) the deposit of such Shares and the sale of Receipts evidencing American
Depositary Shares representing such Shares by that person are not otherwise
restricted under the Securities Act. Such representations and warranties shall
survive the deposit of Shares and the execution and delivery of Receipts in
respect thereof.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required by the Depositary from time to time (i) to file
with the Depositary, the Company or the Custodian such proof of citizenship or
residence, taxpayer status, exchange control approval, payment of applicable
taxes or other governmental charges, legal or beneficial ownership of Receipts,
Deposited Securities or other securities, compliance with all applicable laws or
regulations or terms of the Deposit Agreement or such Receipt, or such
information relating to the registration on the books of the Company
A-3
or the Foreign Registrar, if applicable, or any other information the Depositary
or the Company may deem necessary or appropriate to evidence compliance with all
applicable laws and regulations, and (ii) to execute such certificates and to
make such representations and warranties, as the Depositary and the Registrar,
as applicable, may deem necessary or proper or as the Company may reasonably
request by written request to the Depositary. The Depositary and the Registrar,
as applicable, may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or distribution of rights or of the
sale proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made to the Company's and the Depositary's
satisfaction. The Depositary shall from time to time advise the Company of the
availability of any such proofs, certificates or other information and shall
provide the Company, in a timely manner, with copies thereof upon written
request by the Company, unless such disclosure is prohibited by law.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the reasonable fees, expenses and out-of-pocket
charges of the Depositary and those of any Registrar only 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 charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges 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), or by Owners, as 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 Foreign Registrar and applicable to transfers
of Shares to or from 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
the Deposit Agreement, (4) such 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 of $5.00 or less per 100 American Depositary Shares (or
portion thereof) for the execution and delivery of Receipts pursuant to Section
2.03, 4.03 or 4.04 of the Deposit Agreement and the surrender of Receipts
pursuant to Section 2.06 or 6.02 of the Deposit Agreement, (6) a fee of $0.02 or
less 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 of the Deposit Agreement, (7) a fee for the
distribution of securities pursuant to Section 4.02 of the Deposit Agreement,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this Article 7
treating all such securities as if they were Shares) but which securities are
instead distributed by the Depositary to Owners, and (8) any other charge
payable by the Depositary, any of the Depositary's agents, including the
Custodian, or the agents of the Depositary's agents in connection with the
servicing of Shares or other Deposited Securities (which charge shall be
assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.06 of the Deposit Agreement and shall be payable at
the sole discretion of the Depositary by billing such Owners for such charge or
by deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.10 of the Deposit Agreement, may own
and deal in any class of securities of the Company and its affiliates and in
Receipts.
A-4
8. PRE-RELEASE OF SHARES AND RECEIPTS.
The Depositary may issue Receipts against delivery by the Company (or any
agent of the Company recording Share ownership) of rights to receive Shares from
the Company (or any such agent). No such issue of Receipts will be deemed a
"Pre-Release" subject to the restrictions of the following paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.03 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.02 of
the Deposit Agreement ("Pre-Release"). The Depositary may, subject to the
provisions of Section 2.06 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 (the
"Pre-Releasee") that the Pre-Releasee, or its customer, (i) owns the Shares or
Receipts to be remitted, as the case may be, (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 Share 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, U.S. government securities or such other
collateral as the Depositary determines, in good faith, will provide
substantially similar liquidity and security, (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 Shares not deposited but represented by American Depositary Shares
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
fulfil its obligations to the Owner under this Receipt and the Deposit
Agreement, the collateral referred to in clause (b) above shall be held by the
Depositary for the benefit of the Owner 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.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt, and every successive holder of this
Receipt by accepting or holding the same consents and agrees, that title to this
Receipt, when properly endorsed or accompanied by a properly executed instrument
of transfer and transferred in accordance with the terms of the Deposit
Agreement, 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 until this Receipt is transferred on the books of the Depositary
as provided in the Deposit Agreement, the Depositary and the Company,
notwithstanding any notice to the contrary, may treat the Owner hereof at such
time as the absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions
A-5
or to any notice provided for in the Deposit Agreement or for all other
purposes, and neither the Depositary nor the Company shall have any obligation
or be subject to any liability under this Receipt or the Deposit Agreement to
any Beneficial Owner or holder of a Receipt unless such Beneficial Owner or
holder is the Owner hereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company furnishes the Securities and Exchange Commission (hereinafter
called the "Commission") with certain public reports and documents required by
foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange Act.
Such reports and documents are available for inspection and copying by Owners at
the public reference facilities maintained by the Commission located at 000
Xxxxx Xxxxxx, X.X. (Xxxx 0000), Xxxxxxxxxx, X.X. 00000.
The Depositary shall make available for inspection by Owners of Receipts at
the Depositary's Corporate Trust Office any notices, reports and other
communications 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) generally available to the holders of such Deposited
Securities by the Company.
The Company will arrange for the translation into English, if not already
in English, to the extent required pursuant to any rules or regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian, of any notices, reports and other communications, including any proxy
soliciting materials, which are made generally available by the Company to
holders of its Shares or other Deposited Securities. If requested in writing by
the Company, the Depositary will arrange for the mailing, at the Company's
expense, of copies of such notices, reports and communications that are made
generally available by the Company to holders of its Shares or other Deposited
Securities and/or, at the written request of the Company and at the Company's
expense, make such notices, reports and other communications available to all
Owners on a basis similar to that for holders of Shares or other Deposited
Securities, or on such other basis as the Company may advise the Depositary is
required or as the Depositary may be required by any applicable law or
regulation. The Company will timely provide the Depositary with the quantity of
such notices, reports and communications, including any proxy soliciting
materials, as requested by the Depositary from time to time, in order for the
Depositary to effect such mailings. The Depositary and Custodian may rely upon
such copies for all purposes of this Receipt and the Deposit Agreement. The
Depositary will, at the expense of the Company, make such copy and such notices,
reports and communications available for inspection by Owners at the
Depositary's Corporate Trust Office, at the office of the Custodian and at any
other designated transfer offices.
The Registrar will keep at its Corporate Trust Office a book or books for
the transfer and registration 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.
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The Registrar may close the books, at any time or from time to time, when
reasonably deemed expedient by it in connection with the performance of its
duties under the Deposit Agreement.
Dated: _______________________________
THE BANK OF NEW YORK,
as Depositary
By: _______________________________________
The address of the Corporate Trust office is located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000.
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FORM OF REVERSE OF RECEIPT
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS OF THE DEPOSIT AGREEMENT
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary or the Custodian shall receive any cash dividend or
other cash distribution on any Deposited Securities, the Depositary shall, if at
the time of receipt thereof any amounts received in a foreign currency can in
the judgment of the Depositary be converted on a reasonable basis into Dollars
transferable to the United States, and subject to the Deposit Agreement, if
practicable in the opinion of the Depositary, give notice to the Owners of its
receipt of such payment, specifying the amount per Share payable in respect of
such dividend or distribution and the estimated date, as determined by the
Depositary for such payments and shall convert or cause to be converted such
dividend or distribution into Dollars and will promptly distribute the Dollars
thereby received (net of the fees, expenses and charges of the Depositary as
provided in the Deposit Agreement) to the Owners entitled thereto on the record
date fixed pursuant to Section 4.06 of the Deposit Agreement in proportion to
the number of Shares held by each of them, proportionately; provided, however,
that in the event that any of the Deposited Securities is not entitled, by
reason of its date of issuance, or otherwise, to receive the full amount of such
cash dividend or distribution, the Depositary will make appropriate adjustments
in the amounts distributed to the Owners of the Receipts issued in respect of
such Shares; and provided, further, that in the event that the Company or the
Depositary is required to withhold and does withhold from such cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, the amount distributed on the Receipts issued in respect of
such Deposited Securities shall be reduced accordingly.
Whenever the Depositary or the Custodian receives any distribution upon the
Deposited Securities other than cash, Shares or rights pursuant to Section 4.01,
4.03 or 4.04 of the Deposit Agreement, the Depositary will cause such amount of
the securities or property received by it to be distributed to the Owners of
Receipts on the record date fixed pursuant to Section 4.06 of the Deposit
Agreement, in any manner that the Depositary[, after consultation with the
Company,] [to be discussed] may deem equitable and practicable for accomplishing
such distribution net of expenses of the Depositary; provided, however, that if
in the opinion of the Depositary such distribution cannot be made among the
Owners of Receipts entitled thereto in proportion to the number of American
Depositary Shares held by each of them, or if for any other reason the
Depositary deems such distribution not to be lawful or feasible, the Depositary
may adopt such method as it deems equitable and practicable for the purpose of
effecting such distribution, including, but not limited to, the sale, at public
or private sale, of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees, expenses and
charges of the Depositary as provided in Article 7 hereof and Section 5.09 of
the Deposit Agreement) shall be distributed by the Depositary to the Owners of
Receipts entitled thereto as in the case of a distribution received in cash.
If any distribution made by the Company with respect to the Deposited
Securities and received by the Depositary shall remain unclaimed at the end of
12 years from the first date upon which such distribution is made available to
Owners and subject to any applicable laws, all rights of the Owners to such
distribution or the proceeds of the sale thereof shall be extinguished and the
Depositary shall return the same to the Company for its own use and benefit
(except for any distribution upon the liquidation of the Company when the
Depositary shall retain the same) and the Depositary shall have no obligation
therefor or liability with respect thereto.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may, and shall if the Company so requests, distribute to
the Owners of Receipts on the record date fixed
A-8
pursuant to Section 4.06 of the Deposit Agreement, in proportion to the number
of American Depositary Shares held by each of them, additional Receipts in the
same form for an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by 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 the fees, expenses and
charges of the Depositary as provided in Article 7 hereof and Section 5.09 of
the Deposit Agreement. The Depositary may withhold any such distribution of
Receipts if it has not received reasonably satisfactory assurances from the
Company that such distribution does not require registration under the
Securities Act or is exempt from registration under the provisions of such Act.
In lieu of delivering Receipts for fractional American Depositary Shares, the
Depositary may, in its discretion, sell the amount of Shares represented by the
aggregate of such fractions, at public or private sale, at such place or places
and upon such terms as it may deem proper, and distribute the net proceeds of
any such sale in accordance with Section 4.01 of the Deposit Agreement. If
additional Receipts are not so distributed (except as pursuant to the preceding
sentence), each American Depositary Share shall thenceforth also represent its
proportionate interest in the additional Shares so distributed upon such
Deposited Securities.
The Company or its agent will remit to the appropriate governmental agency
in South Africa all amounts withheld and owing to such agency. The Depositary
will forward to the Company or its agent such information from its records as
the Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental agencies, and the Depositary or the Company
or its agent may file any such reports necessary to obtain benefits under the
applicable tax treaties for the Owners of Receipts.
13. 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 have discretion
as to the procedure to be followed in making such rights available to any Owners
entitled thereto or in disposing of such rights on behalf of any Owners entitled
thereto and making the net proceeds available to such Owners or, if by the terms
of such rights offering or for any other reason, the Depositary may not either
make such rights available to any Owners or dispose of such rights and make the
net proceeds available 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 in its reasonable discretion (after consultation with the Company)
that it is lawful and feasible to make such rights available to all or certain
Owners but not to other Owners, the Depositary may, and at the request of the
Company shall, distribute to any Owner 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.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the 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)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary to exercise such rights,
upon payment by such Owner to the Depositary for the account of
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such Owner of an amount equal to the purchase price of the Shares or the
acquisition price of any other securities to be received upon the exercise of
the rights, and upon payment of the fees and expenses of the Depositary and any
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Owner, exercise the rights and purchase the 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 or other securities 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 section, such Receipts shall be legended in accordance with
applicable U.S. laws, and shall be subject to the appropriate restrictions on
sale, deposit, cancellation, and transfer under such laws.
If the Depositary determines in its reasonable discretion that it is not
lawful or feasible to make such rights available to all or certain Owners, it
may sell the rights, warrants or other instruments (either by public or private
sale and otherwise at its discretion subject to South African laws and
regulations) in proportion to the number of American Depositary Shares held by
the Owners to whom it has determined it may not lawfully or feasibly make such
rights available, and allocate the net proceeds of such sales (net of the fees,
expenses and charges of the Depositary as provided in Section 5.09 of the
Deposit Agreement and all taxes and other governmental charges payable in
connection with such rights, and subject to the terms and conditions of the
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners on account of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act with respect to a distribution to all Owners or are
registered under the provisions of such Act; provided, that nothing in the
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement with respect to such rights or underlying securities
under the Securities Act or any applicable law or to endeavor to have such a
registration statement declared effective. If an Owner of Receipts requests the
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect such
distribution unless it has received an opinion from U.S. counsel for the Company
in accordance with Section 5.07 of the Deposit Agreement upon which the
Depositary may rely that such distribution to such Owner is exempt from such
registration; provided, however, the Company shall have no obligation to cause
its counsel to issue such opinion at the request of such Owner.
The Depositary shall not be responsible for any reasonable failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency,
received by way of dividends or other distributions or in the form of the net
proceeds from the sale of securities, property or rights, and if, at the time,
the foreign currency so received can, in the judgment of the Depositary be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall promptly convert or cause
to be converted as, by sale or in any other manner that it may determine, such
foreign currency into Dollars, and such Dollars shall be promptly distributed to
the Owners entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the holders thereof to such Dollars,
then to the holders of such warrants or instruments upon surrender thereof for
cancellation, in either case, without liability for interest thereon. Such
distribution
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may be made upon an averaged or other practicable basis without regard to any
distinctions among Owners on account of exchange restrictions, the date of
delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.09
of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall have
discretion and authority to file such application for approval or license, if
any, as it may deem desirable. In no event, however, shall the Depositary be
obligated to make such a filing, nor shall it be liable for failure to receive
approval or licence.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
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 is not obtainable, or if any such approval
or license is not obtainable at a reasonable cost or within a reasonable period
as determined by the Depositary, the Depositary may in its discretion, but
subject to applicable laws and regulations, either (i) distribute such foreign
currency (or an appropriate document evidencing the right to receive such
foreign currency) to the Owners of Receipts entitled to receive the same, or
(ii) hold such foreign currency for the respective accounts of such persons,
uninvested and without liability for interest.
If any such conversion of foreign currency, in whole or in part, can be
effected as aforesaid for distribution to some but not all of the Owners of
Receipts entitled thereto, the Depositary may in its discretion make such
conversion and distribution in Dollars, to the extent such currency shall be
convertible as aforesaid, to the Owners of Receipts entitled thereto and, with
respect to the balance of such foreign currency, shall in its discretion, but
subject to any applicable law and regulations, either (i) distribute or make
available for distribution such balance to the persons who were Owners of
Receipts entitled thereto with respect to whom such conversion could not then be
effected, or (ii) hold such balance for the respective accounts of such persons,
uninvested and without liability for interest.
15. RECORD DATES.
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 the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, the Depositary
shall fix a record date (a) for the determination of the Owners of Receipts who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of Shares, subject
to the provisions of the Deposit Agreement. Such record date will, to the extent
practicable, be the same record date as any corresponding record date set by the
Company for such purpose.
16. VOTING OF DEPOSITED SECURITIES.
As soon as practicable after receipt of notice of any meeting of holders of
Shares or other Deposited Securities the Depositary shall at the Company's
expense, mail to the Owners of Receipts a notice which shall contain (a) such
information as is contained in such notice of meeting, (b) a statement that such
Owners of Receipts at the close of business on a specified record date will be
entitled, subject to any applicable provision of South African law, of the
Deposited Securities or of the Memorandum and Articles of Association of the
Company, to instruct the Depositary as to the exercise of the voting rights,
A-11
if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares, and (c) a brief
statement as to the manner in which such instructions may be given, including an
express indication that the Depositary shall notify such instruction to the
Chairman of the Company, or such other director that the Chairman may designate,
and appoint the Chairman or that other person designated by the Chairman as
representative of the Depositary and the Owners to attend such meeting and vote
the Deposited Securities in the direction so instructed by such Owner.
The Depositary shall not, and the Depositary shall ensure that its
nominees, if any, shall not, vote or exercise any discretion in respect to any
resolution or otherwise attempt to exercise the right to vote which attaches to
the Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by such Owner's Receipt other than in accordance with Section
4.07 of the Deposit Agreement. The Depositary shall not exercise any voting
discretion over any Deposited Securities. Always subject to applicable law and
the Company's Memorandum and Articles of Association, if no voting instructions
are received by the Depositary from any Owner with respect to any of the
Deposited Securities represented by American Depositary Shares evidenced by such
Owner's Receipt on or before the date established by the Depositary for such
purpose, the Depositary shall promptly advise the Company of the same and the
Depositary shall not (unless required by applicable law) vote in respect of such
Deposited Securities.
17. CHANGES AFFECTING DEPOSITED SECURITIES, RECLASSIFICATION,
RECAPITALIZATIONS, ETC.
In circumstances where the provisions of Section 4.03 of the Deposit
Agreement do not apply, upon any change in par or nominal value, sub-division,
consolidation, or any other reclassification of Deposited Securities, or upon
any reduction of capital, recapitalization, reorganization, merger, amalgamation
or consolidation, or sale of assets affecting the Company or to which it is a
party, any securities which shall be received by the Depositary or a Custodian
in exchange for or in conversion of or in respect of Deposited Securities shall
be treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares then outstanding shall thenceforth represent the new Deposited
Securities so received in exchange for or on conversion of or in respect of
Deposited Securities, 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 dividend in Shares, or may call for the surrender of outstanding
Receipts to be exchanged for new Receipts specifically describing such new
Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary, the Custodian nor the Company 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, South
Africa, or of any other country, or of any other action of any governmental or
regulatory authority of the United States, South Africa, or any other country,
or of any stock exchange, or by reason of any provision, present or future, of
the Articles of Association of the Company, or by reason of any act of God or
war or other circumstances beyond its control, the Depositary, the Custodian or
the Company, as the case may be, shall be delayed in, prevented or forbidden
from or subjected to any civil or criminal penalty on account of doing or
performing any act or thing which by the terms of the Deposit Agreement it is
provided shall be done or performed; nor shall the Depositary, the Custodian or
the Company incur any liability to any Owner or Beneficial Owner of a Receipt by
reason of any non-performance 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 distribution pursuant to Section 4.01, 4.02 or 4.03 of the Deposit
Agreement, or an offering or distribution
A-12
pursuant to Section 4.04 of the Deposit Agreement, such distribution or offering
may not be made available to Owners of Receipts, and the Depositary may not
dispose of such distribution or offering on behalf of such Owners and make the
net proceeds available to such Owners, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
Neither the Company, the Custodian nor the Depositary nor any of their
respective directors, officers, employees or agents, assumes any obligation or
shall be subject to any liability under the Deposit Agreement to Owners or
Beneficial Owners of Receipts, other than that each of them agrees to perform
its obligations and duties specifically set forth in the Deposit Agreement
without negligence or bad faith. The Depositary and the Custodian shall not be
subject to any liability with respect to the validity or worth of the Deposited
Securities. Neither the Depositary nor the Company 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 expenses and liabilities 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. Neither the Depositary, the Custodian nor the Company shall be
liable for any action or non-action by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Owner or Beneficial Owner of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary, the Custodian and the Company may rely and shall be protected in
acting upon any written notice, request, direction or other document believed by
it to be genuine and to have been signed or presented by the proper party or
parties. Neither the Depositary nor its agents shall be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner or effect of any such vote made either with or without
request, or for not exercising any right to vote, as long as any such action or
non-action is in good faith and in accordance with the terms of the Deposit
Agreement. 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 a matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises, the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Company agrees to indemnify the Depositary, its directors, employees,
agents and affiliates and any Custodian 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 any registration with the
Commission of Receipts, American Depositary Shares or Deposited Securities or
the offer or sale thereof in the United States or 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 either the Depositary or a Custodian or their respective directors,
employees, agents and affiliates, except for any liability or expense arising
out of the negligence or bad faith of any of them, or (ii) by the Company or any
of its directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.10 of the Deposit Agreement) of a Receipt
or Receipts in accordance with Section 2.10 of the Deposit Agreement and which
would not otherwise have arisen had such Receipt or Receipts not been the
subject of a Pre-Release pursuant to Section 2.10 of the Deposit Agreement;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not been the
subject of a Pre-Release, 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 memorandum) relating to the offer or sale of American
Depositary Shares,
A-13
except to the extent that any such liability or expense arises out of (a)
information relating to the Depositary or any Custodian, 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 and hold them harmless from any liability or expense which
may arise out of acts performed or omitted by the Depositary or its Custodian or
their respective directors, employees, agents and affiliates due to their
negligence or bad faith.
No disclaimer of liability under the Securities Act is intended by any
provisions of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
DEPOSITARY; APPOINTMENT OF SUBSTITUTE OR ADDITIONAL CUSTODIANS.
The Company may terminate the appointment of the Depositary under the
Deposit Agreement by giving at least 90 days' notice in writing to the
Depositary and the Custodian, and the Depositary may resign as Depositary by
giving at least 90 days' notice in writing to the Company and the Custodian,
such termination of appointment or resignation to take effect upon the later of:
(i) the 90th day after giving notice and (ii) the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. Within 90 days after the giving of such notice, notice thereof shall
be duly given by the Depositary to the Owners.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company, unless the Company shall desire the termination of the
Deposit Agreement as provided in Section 6.02 thereof, shall use all reasonable
efforts to appoint a successor depositary, which shall be a bank or trust
company having its principal office in the Borough of Manhattan, The City of New
York with effect from the date of termination or resignation specified in such
notice as soon as reasonably possible following notice of such termination or
resignation. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor; provided, however, that such
predecessor, upon payment of all sums due it and on the written request of the
Company, shall execute and deliver an instrument transferring to such successor
all rights and powers of such predecessor hereunder, shall duly assign, transfer
and deliver all right, title and interest in the Deposited Securities to such
successor and shall deliver to such successor a list of the Owners of all
outstanding Receipts and such other information relating to Receipts and Owners
thereof as the successor may reasonably request. The successor depositary shall
promptly mail notice of its appointment to the Owners of Receipts and the
Custodian.
The Depositary may appoint one or more agents to act as its Custodian under
the Deposit Agreement. The Depositary has initially appointed FirstRand Bank
Limited as Custodian and agent of the Depositary for the purpose of the Deposit
Agreement. Any Custodian in acting under the Deposit Agreement shall be subject
at all times and in all respects to the directions of the Depositary, and shall
be responsible solely to it. Any Custodian may resign and be discharged from its
duties by notice of such resignation delivered to the Depositary at least thirty
(30) days prior to the date on which such resignation is to become effective. If
upon the effectiveness of such resignation there shall be no Custodian acting,
the Depositary shall, promptly after receiving such notice, appoint, after
consultation with the Company, a substitute custodian or custodians, each of
which shall thereafter be a Custodian. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners to do so, it may
appoint
A-14
substitute or additional custodian or custodians, which shall thereafter be one
of a Custodians under the Deposit Agreement subject in each instance to the
written approval of the Company. Upon demand of the Depositary any previous
Custodian shall deliver the Deposited Securities held by it to any other
Custodian or such substitute or additional custodian or custodians as the
Depositary shall instruct. Each such substitute or additional custodian or
custodians shall deliver to the Depositary, forthwith upon its appointment an
acceptance of such appointment satisfactory in form and substance to the
Depositary.
Upon the appointment of any successor depositary, any Custodian then acting
shall forthwith become, without any further act or writing, the agent of such
successor depositary, and the appointment of such successor depositary shall in
no way impair the authority of any Custodian; provided, however, that the
successor depositary so appointed shall, on the written request of any
Custodian, execute and deliver to such Custodian all such instruments as may be
proper to give to such Custodian full and complete power and authority as agent
of such successor depositary.
Any corporation into or with which the Depositary may be converted, merged
or consolidated shall be the successor of such Depositary without the execution
or filing of any document or any further act.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may at
any time and from time to time be amended by written agreement between the
Company and the Depositary without the consent of the Owners or Beneficial
Owners in any respect which they may deem necessary or desirable. Any amendment
which shall impose or have the effect of increasing, any fees or charges payable
by the Owners of Receipts (other than taxes on other governmental charges,
registration fees and cable, telex or facsimile transmission, delivery
expenses), or which shall otherwise prejudice any substantial existing right of
Owners of Receipts, shall not become effective as to outstanding Receipts until
the expiration of thirty (30) days after notice of such amendment shall have
been given to the Owners of outstanding Receipts. Every Owner of an outstanding
Receipt 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 of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented thereby except in
order to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the Receipt at any time in accordance with such changed
rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Owners or within any other period of time as required for
compliance.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time, at the direction of the Company,
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 90 days prior to the date fixed
in such notice for such termination.
During the period beginning on the date of the giving of such notice by the
Depositary to the Owners and ending on the date on which such termination takes
effect, each Owner of a Receipt will, upon (a) surrender of such Receipt at the
Corporate Trust Office of the Depositary, (b) payment of the fee of the
Depositary for the surrender of Receipts referred to in Section 5.09 of the
Deposit Agreement, and (c) payment of any applicable taxes or other governmental
charges, be entitled to delivery, to him or upon
A-15
his order, of the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt.
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, 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
rights and other property 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 of Receipts which have not theretofore been surrendered,
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 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 the Deposit
Agreement, and any applicable taxes or governmental charges) and except for its
obligations to the Company under Section 5.08. Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations under
the Deposit Agreement except for its obligations to the Depositary under
Sections 5.08 and 5.09 of the Deposit Agreement.
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