Exhibit (a)(1)
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SHIRE PHARMACEUTICALS GROUP plc
AND
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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Deposit Agreement
Dated as of March 20, 1998
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TABLE OF CONTENTS
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PARTIES................................................................................................ 1
RECITALS............................................................................................... 1
Section 1. Certain Definitions
(a) ADR Register......................................................................... 1
(b) ADRs................................................................................. 1
(c) ADS.................................................................................. 1
(d) Custodian............................................................................ 1
(e) Delivery Order....................................................................... 1
(f) Deposited Securities................................................................. 1
(g) Holder............................................................................... 1
(h) Securities Act of 1933............................................................... 1
(i) Securities Exchange Act of 1934...................................................... 1
(j) Shares............................................................................... 1
(k) Transfer Office...................................................................... 2
(l) Withdrawal Order..................................................................... 2
Section 2. ADR Certificates..................................................................... 2
Section 3. Deposit of Shares.................................................................... 2
Section 4. Issue of ADRs........................................................................ 3
Section 5. Distributions on Deposited Securities................................................ 3
Section 6. Withdrawal of Deposited Securities................................................... 3
Section 7. Substitution of ADRs................................................................. 3
Section 8. Cancellation and Destruction of ADRs................................................. 4
Section 9. The Custodian........................................................................ 4
Section 10. Co-Registrars and Co-Transfer Agents................................................. 4
Section 11. Lists of Holders..................................................................... 4
Section 12. Depositary's Agents.................................................................. 4
Section 13. Successor Depositary................................................................. 5
Section 14. Reports.............................................................................. 5
Section 15. Additional Shares.................................................................... 6
Section 16. Indemnification...................................................................... 6
Section 17. Notices.............................................................................. 7
Section 18. Miscellaneous........................................................................ 8
TESTIMONIUM............................................................................................ 9
SIGNATURES............................................................................................. 9
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EXHIBIT A
FORM OF FACE OF ADR................................................................................. A-1
Introductory Paragraph..................................................................... A-1
(1) Issuance of ADRs.................................................................. A-2
(2) Withdrawal of Deposited Securities................................................ A-3
(3) Transfers of ADRs................................................................. A-3
(4) Certain Limitations............................................................... A-3
(5) Taxes............................................................................. A-4
(6) Disclosure of Interests........................................................... A-4
(7) Charges of Depositary............................................................. A-5
(8) Available Information............................................................. A-6
(9) Execution......................................................................... A-6
Signature of Depositary.................................................................... A-6
Address of Depositary's Office ............................................................ A-6
FORM OF REVERSE OF ADR.............................................................................. A-7
(10) Distributions on Deposited Securities............................................. A-7
(11) Record Dates...................................................................... A-8
(12) Voting of Deposited Securities.................................................... A-9
(13) Changes Affecting Deposited Securities........................................... A-10
(14) Exoneration...................................................................... A-10
(15) Resignation and Removal of Depositary; the Custodian............................. A-11
(16) Amendment........................................................................ A-11
(17) Termination...................................................................... A-12
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DEPOSIT AGREEMENT dated as of March 20, 1998 (the "Deposit Agreement")
among SHIRE PHARMACEUTICALS GROUP plc and its successors (the "Company"), XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as depositary hereunder (the "Depositary"),
and all holders from time to time of American Depositary Receipts issued
hereunder ("ADRs") evidencing American Depositary Shares ("ADSs") representing
deposited Shares (defined below). The parties hereto agree as follows:
1. Certain Definitions.
(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
(b) "ADRs" mean certificates evidencing ADSs substantially in the form
of Exhibit A annexed hereto (the "form of ADR"). The form of ADR is hereby
incorporated herein and made a part hereof; the provisions of the form of ADR
shall be binding upon the parties hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced
by an ADR represents the right to receive three (3) Shares and a pro rata share
in any other Deposited Securities.
(d) "Custodian" means the agent or agents of the Depositary (singly or
collectively, as the context requires) named as Custodian in the form of ADR and
any additional or substitute Custodian appointed pursuant to Section 9.
(e) "Delivery Order" is defined in Section 3.
(f) "Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(g) "Holder" means the person or persons in whose name an ADR is
registered on the ADR Register.
(h) "Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
(i) "Securities Exchange Act of 1934" means the United States
Securities Exchange Act of 1934, as from time to time amended.
(j) "Shares" mean the Ordinary Shares, nominal value 5p each, of the
Company and shall include the rights to receive Shares specified in paragraph
(1) of the form of ADR.
(k) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(l) "Withdrawal Order" is defined in Section 6.
2. ADR Certificates. ADRs shall be engraved, printed or otherwise
reproduced at the discretion of the Depositary in accordance with its customary
practices in its American depositary receipt business, or at the request of the
Company typewritten and photocopied on plain or safety paper, and shall be
substantially in the form set forth in the form of ADR, with such changes as may
be required by the Depositary or the Company to comply with their obligations
hereunder, any applicable law, regulation, usage or the requirements of any
securities exchange or market upon which the ADSs primarily may be listed or
traded or to indicate any special limitations or restrictions to which any
particular ADRs are subject. ADRs may be issued in denominations of any number
of ADSs. ADRs shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized officer of the Depositary. ADRs bearing the
facsimile signature of anyone who was at the time of execution a duly authorized
officer of the Depositary shall bind the Depositary, notwithstanding that such
officer has ceased to hold such office prior to the delivery of such ADRs.
3. Deposit of Shares. In connection with the deposit of Shares
hereunder, the Depositary or the Custodian may require the following in form
satisfactory to it: (a) a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons designated in
such order an ADR or ADRs evidencing the number of ADSs representing such
deposited Shares (a "Delivery Order"); (b) proper endorsements or duly executed
and stamped instruments of transfer in respect of such deposited Shares; (c)
instruments assigning to the Custodian or its nominee any distribution on or in
respect of such deposited Shares or indemnity therefor; and, (d) proxies
entitling the Custodian to vote such deposited Shares. As soon as practicable
after the Custodian receives Deposited Securities pursuant to any such deposit
or pursuant to paragraph (10) or (13) of the form of ADR, the Custodian shall
present such Deposited Securities for registration of transfer into the name of
the Depositary or its nominee or the Custodian or its nominee, to the extent
such registration is practicable, at the cost and expense of the person making
such deposit (or for whose benefit such deposit is made) and shall obtain
evidence satisfactory to it of such registration. Deposited Securities shall be
held by the Custodian for the account and to the order of the Depositary at such
place or places and in such manner as the Depositary shall determine. Deposited
Securities may be delivered by the Custodian to any person only under the
circumstances expressly contemplated in the Deposit Agreement.
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4. Issue of ADRs. After any such deposit of Shares, the Custodian shall
notify the Depositary of such deposit and of the information contained in any
related Delivery Order by letter, first class airmail postage prepaid, or, at
the request, risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. After receiving such notice from the Custodian, the
Depositary, subject to the Deposit Agreement, shall execute and deliver at the
Transfer Office, to or upon the order of any person named in such notice, an ADR
or ADRs registered as requested and evidencing the aggregate ADSs to which such
person is entitled.
5. Distributions on Deposited Securities. To the extent that the
Depositary determines in its discretion that any distribution pursuant to
paragraph (10) of the form of ADR is not practicable with respect to any Holder,
the Depositary may make such distribution as it so deems practicable, including
the distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender
of an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the Depositary may require proper endorsement in blank of
such ADR (or duly executed instruments of transfer thereof in blank) and the
Holder's written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered to, or upon the written order of, any person designated in such order
(a "Withdrawal Order"). Directions from the Depositary to the Custodian to
deliver Deposited Securities shall be given by letter, first class airmail
postage prepaid, or, at the request, risk and expense of the Holder, by cable,
telex or facsimile transmission. Delivery of Deposited Securities may be made by
the delivery of certificates (which, if required by law shall be properly
endorsed or accompanied by properly executed instruments of transfer or, if such
certificates may be registered, registered in the name of such Holder or as
ordered by such Holder in any Withdrawal Order) or by such other means as the
Depositary may deem practicable.
7. Substitution of ADRs. The Depositary shall execute and deliver a new
ADR of like tenor in exchange and substitution for any mutilated ADR upon
cancellation thereof or in lieu of and in substitution for such destroyed, lost
or stolen ADR, unless the Depositary has notice that such ADR has been acquired
by a bona fide purchaser, upon the Holder thereof filing with the
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Depositary a request for such execution and delivery and a sufficient indemnity
bond and satisfying any other reasonable requirements imposed by the Depositary.
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the
Depositary shall be canceled by the Depositary. The Depositary is authorized to
destroy ADRs so canceled in accordance with its customary practices.
9. The Custodian. The London office of Xxxxxx Guaranty Trust Company of
New York shall act as the initial Custodian hereunder. Any Custodian in acting
hereunder shall be subject to the directions of the Depositary and shall be
responsible solely to it. The Depositary may from time to time, after
consultation with the Company if practicable, appoint one or more agents to act
for it as Custodian hereunder in addition to or in lieu of the Custodian named
in the form of ADR. Each Custodian so appointed (other than Xxxxxx Guaranty
Trust Company of New York) shall give written notice to the Company and the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms hereof. Any Custodian may resign from its duties hereunder by at least 30
days written notice to the Depositary. The Depositary may discharge any
Custodian at any time upon notice to the Custodian being discharged. Courtesy
copies of any such notice shall be provided to the Company. Any Custodian
ceasing to act hereunder as Custodian shall deliver, upon the instruction of the
Depositary, all Deposited Securities held by it to a Custodian so continuing to
act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may appoint
and remove (i) co-registrars to register ADRs and transfers, combinations and
split-ups of ADRs and to countersign ADRs in accordance with the terms of any
such appointment and (ii) co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices in
addition to the Transfer Office on behalf of the Depositary. Each co-registrar
or co-transfer agent (other than Xxxxxx Guaranty Trust Company of New York)
shall give notice in writing to the Company and the Depositary accepting such
appointment and agreeing to be bound by the applicable terms of the Deposit
Agreement.
11. Lists of Holders. The Company shall have the right to inspect
transfer records of the Depositary and its agents and the ADR Register, take
copies thereof and require the Depositary and its agents to supply copies of
such portions of such records as the Company may request. The Depositary or its
agent shall furnish to the Company promptly upon the written request of the
Company, a list of the names, addresses and holdings of ADSs by all Holders as
of a date within seven days of the Depositary's receipt of such request.
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12. Depositary's Agents. The Depositary may perform its obligations
under the Deposit Agreement through any agent appointed by it, provided that the
Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed.
13. Successor Depositary. If the Depositary acting hereunder shall
resign or be removed, the Company shall, unless it elects to terminate this
Agreement in accordance with paragraph (17) of the form of ADR, use its best
efforts to appoint a bank or trust company having an office in the Borough of
Manhattan, The City of New York, as successor depositary hereunder. Every
successor depositary shall execute and deliver to its predecessor and to the
Company written acceptance of its appointment hereunder, and thereupon such
successor depositary, without any further act or deed, shall become Depositary
hereunder; but 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 and assigning all interest in the Deposited Securities to such
successor, and shall deliver to such successor a copy of its records in respect
of all outstanding ADRs issued hereunder and a list of the Holders. Any bank or
trust company into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act. Upon the appointment of any successor depositary
hereunder, any agent of the Depositary then acting hereunder shall forthwith
become such agent hereunder of such successor depositary and such successor
depositary shall, on the written request of any such agent, execute and deliver
to such agent any instruments necessary to give such agent authority as such
agent hereunder of such successor depositary. Notwithstanding the foregoing, any
appointment of a successor Depositary shall not relieve the predecessor
Depositary or the Company from those obligations and liabilities to each other
under Section 16 hereof which arose prior to the appointment of such successor
Depositary. A predecessor D epositary shall not have any liability or incur any
expense as a result of any action or inaction on the part of a successor
Depositary.
14. Reports. The Depositary shall make available for inspection by
Holders at the Transfer Office any reports and communications received by the
Company which are both (a) received by the Depositary as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary shall also promptly send to
the Holders copies of such reports when furnished by the Company. Any such
reports and communications furnished to the Depositary by the Company shall be
furnished in English. On or before the first date on which the Company gives
notice, by publication or otherwise, of any meeting of holders of
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Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or the taking of any action by such holders other than at a meeting,
the Company shall transmit to the Custodian and the Depositary a copy thereof in
English in the form given or to be given, or made publicly available, to holders
of Shares or other Deposited Securities. At the written request of the Company
and upon receipt of a sufficient number of copies of such notices from the
Company, the Depositary will arrange for the prompt mailing of copies of such
notices to all Holders. In connection with any registration statement under the
Securities Act of 1933 relating to the ADRs or with any undertaking contained
therein, the Company and the Depositary shall each furnish to the other and to
the United States Securities and Exchange Commission or any successor
governmental agency such information as shall be required to make such filings
or comply with such undertakings. The Company has delivered to the Depositary,
the Custodian and any Transfer Office, a copy of all provisions of or governing
the Shares and any other Deposited Securities issued by the Company or any
affiliate of the Company and, promptly upon any change thereto, the Company
shall deliver to the Depositary, the Custodian and any Transfer Office, a copy
(in English or with an English translation) of such provisions as so changed.
The Depositary and its agents may rely upon the Company's delivery thereof for
all purposes of the Deposit Agreement.
15. Additional Shares. Neither the Company nor any company controlled
by the Company shall issue additional Shares, rights to subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities or shall deposit any Shares under this Deposit
Agreement, except under circumstances complying in all respects with, and not in
violation of, the Securities Act of 1933. The Company shall use its best efforts
to ensure that any company controlling or under common control with the Company
shall abide by the restrictions set forth in the preceding sentence. The
Depositary will use reasonable efforts to comply with written instructions of
the Company not to accept for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company's compliance
with securities laws in the United States.
16. Indemnification. (a) The Company shall indemnify, defend and save
harmless each of the Depositary and its agents against any loss, liability or
expense (including reasonable fees and expenses of counsel) that may arise out
of (a) its acceptance and performance of its powers and duties in respect of the
Deposit Agreement, except to the extent such loss, liability or expense is due
to the negligence or bad faith of the Depositary or its agents, as the case may
be, or (b) any offer or sale of ADRs, ADSs, Shares or other Deposited Securities
or any registration statement under the Securities Act of 1933 in respect
thereof filed by the Company (including any Form F-6
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registration statement to which this Deposit Agreement has been, and may
hereafter be, filed or incorporated by reference therein as an exhibit), except
to the extent such loss, liability or expense arises out of information (or
omissions from such information) relating to it furnished in writing to the
Company by it expressly for use in any such registration statement. Each of the
Depositary and its agents shall indemnify, defend and save harmless the Company
against any loss, liability or expense incurred by the Company in respect of the
Deposit Agreement to the extent such loss, liability or expense is due to the
negligence or bad faith of such person. The obligations set forth in this
Section 16 shall survive the termination of the Deposit Agreement and the
succession or substitution of any indemnified person.
(b) Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this Section 16 and shall only
affect its rights hereunder to the extent such failure is prejudicial) and shall
consult in good faith with the indemnifying person as to the conduct of the
defense of such action or claim, which shall be reasonable in the circumstances.
No indemnified person shall compromise or settle any indemnifiable action or
claim without the prior written consent of the indemnifying person (which
consent shall not be unreasonably withheld or delayed).
(c) The obligations set forth in this Section 16 shall survive the
termination of the Deposit Agreement and the succession or substitution of any
indemnified person.
17. Notices. Notice to any Holder shall be deemed given when first
mailed, first class postage prepaid, to the address of such Holder on the ADR
Register or received by such Holder. Notice to the Depositary or the Company
shall be deemed given when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, or at such other
address or facsimile transmission number as either may specify to the other by
written notice:
(a) Xxxxxx Guaranty Trust Company
of New York
00 Xxxx Xxxxxx (00xx Xxxxx)
New York, New York 10260
Attention: ADR Administration
Fax: (000) 000-0000 or 5105
(b) Shire Pharmaceuticals Group plc
Xxxx Xxxxx
Xxxxxxx
0
Xxxxxxxxx XX00 0XX
Xxxxxxx
Attention: Group Finance Director
Fax: 00 0000 000 000
18. Miscellaneous. The Deposit Agreement is for the exclusive benefit
of the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and owners of ADRs from time to time
shall be parties to the Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable in
any respect, the remaining provisions shall in no way be affected thereby. The
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one instrument.
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IN WITNESS WHEREOF, SHIRE PHARMACEUTICALS GROUP plc and XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK have duly executed this Deposit Agreement as of the
day and year first above set forth and all holders of ADRs shall become parties
hereto upon acceptance by them of ADRs issued in accordance with the terms
hereof.
SHIRE PHARMACEUTICALS GROUP plc
By /s/
-----------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
----------------------
[FORM OF FACE OF ADR]
THE RIGHT OF HOLDERS HEREOF TO DIRECT THE VOTING OF SHARES MAY BE RESTRICTED AS
DESCRIBED IN PARAGRAPHS (6) AND (12) BELOW.
__________________ No. of ADSs:
Number
________________________
Each ADS represents
Three (3) Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES, NOMINAL VALUE 5P EACH
of
SHIRE PHARMACEUTICALS GROUP plc
(Incorporated under the
laws of England and Wales)
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a New York corporation, as
depositary hereunder (the "Depositary"), hereby certifies that __________ is the
registered owner (a "Holder") of _________ American Depositary Shares ("ADSs"),
each (subject to paragraph (13)) representing three ordinary shares, nominal
value 5p each (including the rights to receive Shares described in paragraph
(1), "Shares" and, together with any other securities, cash or property from
time to time held by the Depositary in respect or in lieu of deposited Shares,
the "Deposited Securities"), of Shire Pharmaceuticals Group plc, a corporation
organized under the laws of England and Wales (the "Company"), deposited at the
London office of Xxxxxx Guaranty Trust Company of New York, as Custodian
(subject to paragraph (15), the "Custodian"), under the Deposit Agreement dated
as of March 20, 1998 (as amended from time to time, the "Deposit Agreement")
among the Company, the Depositary and all Holders from time to time of American
Depositary Receipts issued thereunder ("ADRs"), each of whom by accepting an ADR
becomes a party thereto. The Deposit Agreement and this ADR (which includes the
provisions set forth on the reverse hereof) shall be governed by and construed
in accordance with the laws of the State of New York.
A-1
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the
Deposit Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the Custodian;
(b) rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) unless requested in writing by the Company to cease doing so at least two
business days in advance of the proposed deposit, other rights to receive Shares
(until such Shares are actually deposited pursuant to (a) or (b) above,
"Pre-released ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market daily) with cash or U.S. government securities held by the
Depositary for the benefit of Holders (but such collateral shall not constitute
"Deposited Securities"), (ii) each recipient of Pre-released ADRs agrees in
writing with the Depositary that such recipient (a) owns such Shares, (b)
assigns all beneficial right, title and interest therein to the Depositary in
its capacity as such, (c) holds such Shares for the account of the Depositary,
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (e) will not take any action with respect to
the Pre-released ADS and Shares that is inconsistent with the transfer of the
Depositary's beneficial ownership thereof, and (iii) all Pre-released ADRs
evidence not more than 20% of all ADSs (excluding those evidenced by
Pre-released ADRs), except to the extent that the Depositary (in its sole
discretion) determines that unusual market conditions require the issuance of
Pre-released ADRs in addition to 20% of all such ADSs. The Depositary may retain
for its own account any earnings on collateral for Pre-released ADRs and its
charges for issuance thereof. At the request, risk and expense of the person
depositing Shares, the Depositary may accept deposits for forwarding to the
Custodian and may deliver ADRs at a place other than its office. Every person
depositing Shares under the Deposit Agreement represents and warrants that such
Shares are free and clear of any lien, encumbrance, security interest, charge,
mortgage, pledge or restriction on transfer, validly issued and outstanding,
fully paid, nonassessable and free of pre-emptive rights, that the person making
such deposit is duly authorized so to do and that such Shares (A) are not
"restricted securities" as such term is defined in Rule 144 under the Securities
Act of 1933 unless at the time of deposit they may be freely transferred in
accordance with Rule 144(k) and may otherwise be offered and sold freely in the
United States or (B) have been registered under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and issuance
of ADRs. The Depositary will not knowingly accept for deposit under the Deposit
Agreement any Shares required to be registered under the Securities Act of 1933
and not so registered; the Depositary may refuse to accept for such deposit any
Shares identified by the Company in order to facilitate the Company's compliance
with such Act.
A-2
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and
(5), upon surrender of this ADR in form satisfactory to the Depositary at the
Transfer Office, the Holder hereof is entitled to delivery at the Custodian's
office of the Deposited Securities at the time represented by the ADSs evidenced
by this ADR. At the request, risk and expense of the Holder hereof, the
Depositary may deliver such Deposited Securities at such other place as may have
been requested by the Holder. Notwithstanding any other provision of the Deposit
Agreement or this ADR, the withdrawal of Deposited Securities may be restricted
only for the reasons set forth in General Instruction I.A.(1) of Form F-6 (as
such instructions may be amended from time to time) under the Securities Act of
1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, which
at all reasonable times will be open for inspection by Holders and the Company
for the purpose of communicating with Holders in the interest of the business of
the Company or a matter relating to the Deposit Agreement and (b) facilities for
the delivery and receipt of ADRs. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed or
accompanied by proper instruments of transfer, is transferable by delivery with
the same effect as in the case of negotiable instruments under the laws of the
State of New York; provided that the Depositary, notwithstanding any notice to
the contrary, may treat the person in whose name this ADR is registered on the
ADR Register as the absolute owner hereof for all purposes. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be
split into other ADRs or combined with other ADRs into one ADR, evidencing the
same number of ADSs evidenced by this ADR, by the Holder hereof or by duly
authorized attorney upon surrender of this ADR at the Transfer Office properly
endorsed or accompanied by proper instruments of transfer and duly stamped as
may be required by applicable law; provided that the Depositary may close the
ADR Register at any time or from time to time when deemed expedient by it or
requested by the Company.
(4) Certain Limitations. Prior to the issue, registration, registration
of transfer, split-up or combination of any ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of paragraph
(2), the withdrawal of any Deposited Securities, and from time to time in the
case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stamp duty,
stamp duty reserve tax or other transfer duty or stock transfer or other tax or
other governmental charge, (ii) any stock transfer or registration fees in
effect for the registration of transfers of Shares or other Deposited Securities
upon any applicable register and (iii) any applicable charges as provided in
paragraph (7) of this ADR; (b) the production of
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proof satisfactory to it of (i) the identity and genuineness of any signature
and (ii) such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed advisable by
the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable
by or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary and neither the Company nor the Depositary shall
have any liability therefore. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Deposited Securities. In
connection with any distribution to Holders, the Company will remit to the
appropriate governmental authority or agency all amounts (if any) required to be
withheld 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 all amounts (if any) required to be withheld and owing to
such authority or agency by the Depositary or the Custodian. If the Depositary
determines that any distribution in property other than cash (including Shares
or rights) on Deposited Securities is subject to any tax that the Depositary or
the Custodian is obligated to withhold, the Depositary may dispose of all or a
portion of such property in such amounts and in such manner as the Depositary
deems necessary and practicable to pay such taxes, by public or private sale,
and the Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the Holders
entitled thereto.
(6) Disclosure of Interests. To the extent that the
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provisions of or governing or to which such Deposited Securities are otherwise
subject may require disclosure of or impose limits on beneficial or other
ownership of Deposited Securities, other Shares and other securities and may
provide for blocking transfer, voting or other rights to enforce such disclosure
or limits, Holders and all persons holding ADRs agree to comply with all such
disclosure requirements and ownership limitations and to cooperate with the
Depositary in the Depositary's compliance with any Company instructions in
respect thereof, and the Depositary will use reasonable efforts to comply with
such Company instructions.
Notwithstanding any provision of the Deposit Agreement or of this ADR
and without limiting the foregoing, by being a Holder of an ADR, each such
Holder agrees to provide such information as the Company may request in a
disclosure notice (a "Disclosure Notice") given pursuant to the Great Britain
Companies Act 1985 (as amended from time to time and including any statutory
modification or re-enactment thereof, the "Companies Act") or the Articles of
Association of the Company. By accepting or holding this ADR, each Holder
acknowledges that it understands that failure to comply with a Disclosure Notice
may result in the imposition of sanctions against the holder of the Shares in
respect of which the non-complying person is or was, or appears to be or has
been, interested as provided in the Companies Act and the Articles of
Association which currently include, the withdrawal of the voting rights of such
Shares and the imposition of restrictions on the rights to receive dividends on
and to transfer such Shares. In addition, by accepting or holding this ADR each
Holder agrees to comply with the provisions of the Companies Act with regard to
the notification to the Company of interests in Shares, which currently provide,
inter alia, that any Holder who is or becomes directly or indirectly interested
(within the meaning of the Companies Act) in 3% or more of the outstanding
Shares, or is aware that another person for whom it holds such ADRs is so
interested, must within two business days after becoming so interested or so
aware (and thereafter in certain circumstances upon any change to the
particulars previously notified) notify the Company as required by the Companies
Act. After the relevant threshold is exceeded, similar notifications must be
made in whole respect of whole percentage figure increases or decreases, rounded
down to the nearest whole number.
(7) Charges of Depositary. The Depositary may charge each person to
whom ADRs are issued against deposits of Shares, including deposits in respect
of Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph (10)), and each person surrendering ADRs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
evidenced by the ADRs delivered or surrendered. The Depositary may sell (by
public or private sale) sufficient securities and property received in respect
of Share Distributions, Rights and Other Distributions prior to such deposit to
pay such charge. The Company will pay all other
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charges and expenses of the Depositary and any agent of the Depositary (except
the Custodian) pursuant to agreements from time to time between the Company and
the Depositary, except (i) stock transfer or other taxes and other governmental
charges (which are payable by Holders or persons depositing Shares), (ii) cable,
telex and facsimile transmission and delivery charges incurred at the request of
persons depositing, or Holders delivering Shares, ADRs or Deposited Securities
(which are payable by such persons or Holders), (iii) transfer or registration
fees for the registration of transfer of Deposited Securities on any applicable
register in connection with the deposit or withdrawal of Deposited Securities
(which are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date of
the Deposit Agreement) and (iv) expenses of the Depositary in connection with
the conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency). These charges may be changed in the manner indicated in
paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will mail copies of such
communications (or English translations or summaries thereof) to Holders if and
when furnished by the Company. The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and accordingly files
certain reports with the United States Securities and Exchange Commission (the
"Commission"). Such reports and other information may be inspected and copied at
public reference facilities maintained by the Commission located at the date
hereof at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
(9) Execution. This ADR shall not be valid for any purpose unless
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary.
Dated:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Depositary
By ............................
Authorized Officer
The Depositary's office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4)
and (5), to the extent practicable, the Depositary will distribute by mail to
each Holder entitled thereto on the record date set by the Depositary therefor
at such Holder's address shown on the ADR Register, in proportion to the number
of Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs and, in each case, without unreasonable delay:
(a) Cash: Any U.S. dollars available to the Depositary
resulting from a cash dividend or other cash distribution or the net proceeds of
sales of any other distribution or portion thereof authorized in this paragraph
(10) ("Cash"), on an averaged or other practicable basis, subject to (i)
appropriate adjustments for taxes withheld, (ii) such distribution being
impermissible or impracticable with respect to certain Holders, and (iii)
deduction of the Depositary's expenses in (1) converting any foreign currency to
U.S. dollars by sale or in such other manner as the Depositary may determine to
the extent that it determines that such conversion may be made on a reasonable
basis, (2) transferring foreign currency or U.S. dollars to the United States by
such means as the Depositary may determine to the extent that it determines that
such transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. If the Depositary determines in its reasonable judgment that such
foreign currency is not convertible, in whole or in part, on a reasonable basis
into U.S. dollars transferable to the United States, or if any approval or
license which is required for such conversion is denied or in the opinion of the
Depositary, is not obtainable or is not obtained within a reasonable period or
at a reasonable cost, the Depositary may distribute all or part of the foreign
currency (or an appropriate document evidencing the right to receive such
foreign currency) to, or in its discretion may hold such foreign currency
uninvested and without liability for interest thereon for the respective
accounts of, the Holders entitled thereto. All expenses of any such conversion
shall be deducted from the proceeds thereof.
On the date in which the Company shall pay any cash dividend
to its holders of Shares or other Deposited Securities, the Company may convert
or cause to be converted, in a commercially reasonable manner, such foreign
currency into U.S. dollars and distribute the same to the Depositary for
distribution to Holders. No deductions shall be made by the Company from the
proceeds of such conversion; provided that actual and customary commissions paid
by the Company on account of such conversion shall not be considered a deduction
by the Company. If such conversion or distribution generally or with
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regard to any particular Holder can be effected only with the approval or
license of any government or agency thereof, the Company shall have discretion
and authority to file such application for approval or license, if any, as it
may deem desirable.
(b) Shares. (i) Additional ADRs evidencing whole ADSs
representing any Shares available to the Depositary resulting from a dividend or
free distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash.
(c) Rights. (i) Warrants or other instruments in the
discretion of the Depositary representing rights to acquire additional ADRs in
respect of any rights to subscribe for additional Shares or rights of any nature
available to the Depositary as a result of a distribution on Deposited
Securities ("Rights"), to the extent that the Company timely furnishes to the
Depositary evidence satisfactory to the Depositary that the Depositary may
lawfully distribute the same (the Company has no obligation to so furnish such
evidence), or (ii) to the extent the Company does not so furnish such evidence
and sales of Rights are practicable, any U.S. dollars available to the
Depositary from the net proceeds of sales of Rights as in the case of Cash, or
(iii) to the extent the Company does not so furnish such evidence and such sales
cannot practicably be accomplished by reason of the nontransferability of the
Rights, whether by their terms, pursuant to applicable law or otherwise, limited
markets therefor, their short duration or otherwise, nothing (and any Rights may
lapse).
(d) Other Distributions. (i) Securities or property
available to the Depositary resulting from any distribution on Deposited
Securities other than Cash, Share Distributions and Rights ("Other
Distributions"), by any means that the Depositary may deem equitable and
practicable, or (ii) to the extent the Depositary deems distribution of such
securities or property not to be equitable and practicable, any U.S. dollars
available to the Depositary from the net proceeds of sales of Other
Distributions as in the case of Cash. Before effecting any such sale of a Share
Distribution, Rights or Other Distribution, the Depositary will provide notice
to the Company of its intended action. Such U.S. dollars available will be
distributed by checks drawn on a bank in the United States for whole dollars and
cents (any fractional cents being withheld without liability for interest and
added to future Cash distributions).
(11) Record Dates. The Depositary may, after consultation with the
Company, if practicable, fix a record date (which shall be as near as
practicable to any corresponding record date set by the Company) for the
determination of the Holders who shall be
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entitled to receive any distribution on or in respect of Deposited Securities,
to give instructions for the exercise of any voting rights, to receive any
notice or to act in respect of other matters and only such Holders shall be so
entitled.
(12) Voting of Deposited Securities. As soon as practicable after
receipt from the Company of notice of any meeting or solicitation of consents or
proxies of holders of Shares or other Deposited Securities, the Depositary shall
fix a record date in accordance with paragraph (11) hereof and, unless otherwise
requested in writing by the Company in order to comply with applicable law, mail
to Holders a notice stating (a) such information as is contained in such notice
and any solicitation materials, (b) that each Holder on the record date set by
the Depositary therefor will be entitled to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs and (c) the manner in
which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company subject to any
applicable provisions of the laws of the United Kingdom and the Memorandum and
Articles of Association of the Company and the provisions of or governing
Deposited Securities. Upon receipt of instructions of a Holder on such record
date in the manner and on or before the date established by the Depositary for
such purpose, the Depositary shall endeavor insofar as practicable and permitted
under the provisions of or governing Deposited Securities to vote or cause to be
voted (or to grant a discretionary proxy to a person designated by the Company
to vote) the Deposited Securities represented by the ADSs evidenced by such
Holder's ADRs in accordance with such instructions. The Depositary will not
itself exercise any voting discretion in respect of any Deposited Security.
Subject to the provisions of the next succeeding paragraph, to the extent such
instructions are not so received by the Depositary from any Holder, the Holder
shall be deemed to have instructed the Depositary to give a discretionary proxy
to a person designated by the Company to vote the Deposited Securities
represented by ADSs as to which the Depositary has not received instructions
from the Holders, provided that no such instruction shall be deemed to be given
and no discretionary proxy shall be given with respect to which the Company
informs the Depositary (and the Company agrees to provide such information
promptly in writing) that the Company does not wish such proxy given.
Notwithstanding anything to the contrary contained in the preceding
paragraph, the Depositary shall not be obligated to give any such discretionary
proxy and the Holders shall not have been deemed to have so instructed the
Depositary unless and until the Depositary has been provided with an opinion of
counsel to the Company, which may be given at the time of entering into the
Deposit Agreement, satisfactory to the Depositary (which may be internal
counsel), in form and substance satisfactory to the Depositary, substantially to
the effect that (i) the granting of
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such discretionary proxy does not subject the Depositary to any additional
disclosure obligations related to interests in shares under the Companies Act or
the listing rules of the London Stock Exchange except for any required
notification to the Company pursuant to Part VI of the Companies Act, (ii) the
granting of such proxy does not result in a breach of the Companies Act or the
listing rules of the London Stock Exchange and (iii) the Depositary or the
Custodian, or the nominee of any of them, whichever is the registered holder
entitled to attend and vote at meetings of the Company in respect of such
Shares, has the right to appoint the proxy to attend and vote instead of him.
The Company undertakes to inform the Depositary of any substantial change in law
which would subject the Depositary to disclosure obligations under the Companies
Act or listing rules of the London Stock Exchange (other than said Part VI of
the Companies Act) to which the Depositary, the Custodian or the nominee of any
of them would not otherwise be subject but for the grant of such discretionary
proxy.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4)
and (5), the Depositary may, in its discretion, and after consultation with the
Company if practicable, amend this ADR or distribute additional or amended ADRs
(with or without calling this ADR for exchange) or cash, securities or property
on the record date set by the Depositary therefor to reflect any change in par
value, split-up, consolidation, cancellation or other reclassification of
Deposited Securities, any Share Distribution or Other Distribution not
distributed to Holders or any cash, securities or property available to the
Depositary in respect of Deposited Securities from (and the Depositary is hereby
authorized to surrender any Deposited Securities to any person and to sell by
public or private sale any property received in connection with) any
recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
(14) Exoneration. Without limiting Section 16 of the Deposit Agreement
as between the Company and the Depositary, the Depositary, the Company, their
respective officers, directors, employees and agents and each of them shall: (a)
incur no liability (i) if any present or future law, regulation, the provisions
of or governing any Deposited Securities, act of God, war or other circumstance
beyond its control shall prevent, delay or subject to any civil or criminal
penalty any act which the Deposit Agreement or this ADR provides shall be done
or performed by it, or (ii) by reason of any exercise or failure to exercise any
discretion given it in the Deposit Agreement or this ADR; (b)
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assume no obligation nor shall any of them be subject to any liability to any
Holders or beneficial owners of ADSs or any other person except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; or (d) in the case of the Company and its agents
hereunder be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or this ADR,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to give
such advice or information. The Depositary and the Company, their respective
agents and their respective directors, officers and employees acting hereunder
may rely and shall be protected in acting upon any written notice, request,
direction or other document believed by them to be genuine and to have been
signed or presented by the proper party or parties. The Depositary and its
agents will not be responsible for any failure to carry out any instructions to
vote any of the Deposited Securities, for the manner in which any such vote is
cast or for the effect of any such vote. The Depositary and its agents may own
and deal in any class of securities of the Company and its affiliates and in
ADRs. The Company has agreed to indemnify the Depositary and its agents under
certain circumstances and the Depositary has agreed to indemnify the Company
under certain circumstances. No disclaimer of liability under the Securities Act
of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The
Depositary may resign as Depositary by written notice of its election to do so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary; such resignation or removal
shall take effect upon the appointment of and acceptance by a successor
depositary. The Depositary may appoint substitute or additional Custodians and
the term "Custodian" refers to each Custodian or all Custodians as the context
requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs
and the Deposit Agreement may be amended by the Company and the Depositary,
provided that any amendment that imposes or increases any fees or charges (other
than stock transfer or other taxes and other governmental charges, transfer or
registration fees for the registration of transfer of Deposited Securities on
any applicable register in connection with the deposit or withdrawal of
Deposited Securities, cable,
A-11
telex or facsimile transmission costs, delivery costs or other such expenses),
or that shall otherwise prejudice any substantial existing right of Holders,
shall become effective 30 days after notice of such amendment shall have been
given to the Holders. Every Holder of an ADR at the time any amendment to the
Deposit Agreement so becomes effective shall be deemed, by continuing to hold
such ADR, 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 Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. In no event shall any amendment or
supplement impair the right of the Holder to surrender such ADR 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 or the form of ADR to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17) Termination. The Depositary shall at the written direction of the
Company, terminate the Deposit Agreement and this ADR by mailing notice of such
termination to the Holders at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may terminate the Deposit Agreement
by giving the notice set forth in the preceding sentence of this paragraph (17)
at any time after 60 days has elapsed after the Depositary shall have resigned
hereunder, provided that no successor depositary shall have been appointed and
accepted its appointment hereunder before the end of such 60 days. After the
date so fixed for termination, the Depositary and its agents will perform no
further acts under the Deposit Agreement and this ADR, except to advise Holders
of such termination, receive and hold (or sell) distributions on Deposited
Securities and deliver Deposited Securities being withdrawn. As soon as
practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account the
net proceeds of such sales, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, in trust for the pro rata
benefit of the Holders of ADRs not theretofore surrendered. After making
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such sale, the Depositary shall be discharged from all obligations in respect of
the Deposit Agreement and this ADR, except to account for such net proceeds and
other cash. After the date so fixed for termination, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary and its agents.
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