Exhibit (a)
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DEPOSIT AGREEMENT
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by and among
HOME RETAIL GROUP PLC
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES
ISSUED HEREUNDER
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Dated as of [date], 2009
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.......................................................................................................1
Section 1.1 "ADS Record Date"..........................................................................1
Section 1.2 "Affiliate"................................................................................1
Section 1.3 "American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)"................................1
Section 1.4 "American Depositary Share(s)" and "ADS(s)"................................................2
Section 1.5 "Applicant"................................................................................2
Section 1.6 "Articles of Association"..................................................................2
Section 1.7 "Beneficial Owner".........................................................................2
Section 1.8 "Certificated ADS(s)"......................................................................2
Section 1.9 "Commission"...............................................................................2
Section 1.10 "Company"..................................................................................2
Section 1.11 "Custodian"................................................................................2
Section 1.12 "Deliver" and "Delivery"...................................................................3
Section 1.13 "Deposit Agreement"........................................................................3
Section 1.14 "Depositary"...............................................................................3
Section 1.15 "Deposited Securities".....................................................................3
Section 1.16 "Dollars" and "$"..........................................................................3
Section 1.17 "DTC"......................................................................................3
Section 1.18 "DTC Participant"..........................................................................3
Section 1.19 "Euroclear UK".............................................................................4
Section 1.20 "Exchange Act".............................................................................4
Section 1.21 "Foreign Currency".........................................................................4
Section 1.22 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and "Full Entitlement
Share(s)"..................................................................................4
Section 1.23 "Holder(s)"................................................................................4
Section 1.24 "Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)" and "Partial
Entitlement Share(s)"......................................................................4
Section 1.25 "Pounds Sterling" and "(pound)"............................................................4
Section 1.26 "Pre-Release Transaction"..................................................................4
Section 1.27 "Principal Office".........................................................................4
Section 1.28 "Procedural Resolution"....................................................................4
Section 1.29 "Registrar"................................................................................4
Section 1.30 "Restricted Securities"....................................................................5
Section 1.31 "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted Shares"...........................5
Section 1.32 "Securities Act"...........................................................................5
Section 1.33 "Share Registrar"..........................................................................5
Section 1.34 "Shares"...................................................................................5
Section 1.35 "Substantive Resolution"...................................................................5
Section 1.36 "Uncertificated ADS(s)"....................................................................5
Section 1.37 "United States" and "U.S.".................................................................6
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ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS.............................................................................................6
Section 2.1 Appointment of Depositary..................................................................6
Section 2.2 Form and Transferability of ADSs...........................................................6
Section 2.3 Deposit of Shares..........................................................................8
Section 2.4 Registration and Safekeeping of Deposited Securities.......................................9
Section 2.5 Issuance of ADSs...........................................................................9
Section 2.6 Transfer, Combination and Split-up of ADRs................................................10
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities..................................11
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of ADSs; Suspension of
Delivery, Transfer, etc...................................................................12
Section 2.9 Lost ADRs, etc............................................................................13
Section 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance of Records..................13
Section 2.11 Escheatment...............................................................................13
Section 2.12 Partial Entitlement ADSs..................................................................14
Section 2.13 Certificated/Uncertificated ADSs..........................................................14
Section 2.14 Restricted ADSs...........................................................................16
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs.....................................................17
Section 3.1 Proofs, Certificates and Other Information................................................17
Section 3.2 Liability for Taxes and Other Charges.....................................................18
Section 3.3 Representations and Warranties on Deposit of Shares.......................................18
Section 3.4 Compliance with Information Requests......................................................19
Section 3.5 Ownership Restrictions....................................................................19
Section 3.6 Reporting Obligations and Regulatory Approvals............................................19
ARTICLE IV
THE DEPOSITED SECURITIES.........................................................................................20
Section 4.1 Cash Distributions........................................................................20
Section 4.2 Distribution in Shares....................................................................20
Section 4.3 Elective Distributions in Cash or Shares..................................................21
Section 4.4 Distribution of Rights to Purchase Additional ADSs........................................22
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares........................24
Section 4.6 Distributions with Respect to Deposited Securities in Bearer Form.........................25
Section 4.7 Redemption................................................................................25
Section 4.8 Conversion of Foreign Currency............................................................26
Section 4.9 Fixing of ADS Record Date.................................................................27
Section 4.10 Voting of Deposited Securities............................................................27
Section 4.11 Changes Affecting Deposited Securities....................................................29
Section 4.12 Available Information.....................................................................30
Section 4.13 Reports...................................................................................30
Section 4.14 List of Holders...........................................................................31
Section 4.15 Taxation..................................................................................31
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ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY....................................................................32
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.................................32
Section 5.2 Exoneration...............................................................................32
Section 5.3 Standard of Care..........................................................................33
Section 5.4 Resignation and Removal of the Depositary; Appointment of Successor Depositary............34
Section 5.5 The Custodian.............................................................................35
Section 5.6 Notices and Reports.......................................................................35
Section 5.7 Issuance of Additional Shares, ADSs etc...................................................36
Section 5.8 Indemnification...........................................................................37
Section 5.9 Fees and Charges of Depositary............................................................38
Section 5.10 Pre-Release Transactions..................................................................39
Section 5.11 Restricted Securities Owners..............................................................40
ARTICLE VI
AMENDMENT AND TERMINATION........................................................................................40
Section 6.1 Amendment/Supplement......................................................................40
Section 6.2 Termination...............................................................................41
ARTICLE VII
MISCELLANEOUS....................................................................................................42
Section 7.1 Counterparts..............................................................................42
Section 7.2 No Third-Party Beneficiaries..............................................................42
Section 7.3 Severability..............................................................................42
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect..................................43
Section 7.5 Notices...................................................................................43
Section 7.6 Governing Law and Jurisdiction............................................................44
Section 7.7 Assignment................................................................................45
Section 7.8 Compliance with U.S. Securities Laws......................................................45
Section 7.9 English Law References....................................................................45
Section 7.10 Titles and References.....................................................................45
EXHIBITS
Form of ADR..............................................................................A-1
Fee Schedule.............................................................................B-1
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [date], 2009, by and among (i) Home Retail
Group plc, a company organized under the laws of England and Wales, and its
successors (the "Company"), (ii) CITIBANK, N.A., a national banking association
organized under the laws of the United States of America acting in its capacity
as depositary, and any successor depositary hereunder (the "Depositary"), and
(iii) all Holders and Beneficial Owners of American Depositary Shares issued
hereunder (all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide for the deposit of the Shares (as hereinafter defined) and
the creation of American Depositary Shares representing the Shares so deposited;
and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in the Deposit Agreement (as hereinafter
defined); and
WHEREAS, any American Depositary Receipts issued pursuant to the terms of
the Deposit Agreement are to be substantially in the form of Exhibit A attached
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in the Deposit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "ADS Record Date" shall have the meaning given to such
term in Section 4.9.
Section 1.2 "Affiliate" shall have the meaning assigned to such term
by the Commission (as hereinafter defined) under Regulation C promulgated under
the Securities Act (as hereinafter defined), or under any successor regulation
thereto.
Section 1.3 "American Depositary Receipt(s)", "ADR(s)" and
"Receipt(s)" shall mean the certificate(s) issued by the Depositary to evidence
the American Depositary Shares issued under the terms of the Deposit Agreement
in the form of Certificated ADS(s) (as hereinafter defined), as such ADRs may be
amended from time to time in accordance with the provisions of the Deposit
Agreement. An ADR may evidence any number of ADSs and may, in the case of ADSs
held through a central depository such as DTC, be in the form of a "Balance
Certificate."
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Section 1.4 "American Depositary Share(s)" and "ADS(s)" shall mean
the rights and interests in the Deposited Securities (as hereinafter defined)
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of the Deposit Agreement and, if issued as Certificated ADS(s) (as
hereinafter defined), the ADR(s) issued to evidence such ADSs. ADS(s) may be
issued under the terms of the Deposit Agreement in the form of (a) Certificated
ADS(s) (as hereinafter defined), in which case the ADS(s) are evidenced by
ADR(s), or (b) Uncertificated ADS(s) (as hereinafter defined), in which case the
ADS(s) are not evidenced by ADR(s) but are reflected on the direct registration
system maintained by the Depositary for such purposes under the terms of Section
2.13. Unless otherwise specified in the Deposit Agreement or in any ADR, or
unless the context otherwise requires, any reference to ADS(s) shall include
Certificated ADS(s) and Uncertificated ADS(s), individually or collectively, as
the context may require. Each ADS shall represent the right to receive, subject
to the terms and conditions of the Deposit Agreement and the applicable ADR (if
issued as a Certificated ADS), four (4) Shares until there shall occur a
distribution upon Deposited Securities referred to in Section 4.2 or a change in
Deposited Securities referred to in Section 4.11 with respect to which
additional ADSs are not issued, and thereafter each ADS shall represent the
right to receive, subject to the terms and conditions of the Deposit Agreement
and the applicable ADR (if issued as a Certificated ADS), the Deposited
Securities determined in accordance with the terms of such Sections.
Section 1.5 "Applicant" shall have the meaning given to such term in
Section 5.10.
Section 1.6 "Articles of Association" shall mean the articles of
association of the Company, as in effect from time to time.
Section 1.7 "Beneficial Owner" shall mean, as to any ADS, any person
or entity having a beneficial interest deriving from the ownership of such ADS.
A Beneficial Owner of ADSs may or may not be the Holder of such ADSs. A
Beneficial Owner shall be able to exercise any right or receive any benefit
hereunder solely through the person who is the Holder of the ADSs owned by such
Beneficial Owner. Unless otherwise identified to the Depositary, a Holder shall
be deemed to be the Beneficial Owner of all the ADSs registered in his/her/its
name.
Section 1.8 "Certificated ADS(s)" shall have the meaning set forth
in Section 2.13.
Section 1.9 "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency thereto in
the United States.
Section 1.10 "Company" shall mean Home Retail Group plc, a company
incorporated and existing under the laws of England and Wales, and its
successors.
Section 1.11 "Custodian" shall mean (i) as of the date hereof,
Citibank, N.A. (London Branch), having its principal office at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx XX000XX, as the custodian for the purposes of the
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Deposit Agreement, (ii) Citibank, N.A., acting as custodian of Deposited
Securities pursuant to the Deposit Agreement, and (iii) any other entity that
may be appointed by the Depositary pursuant to the terms of Section 5.5 as
successor, substitute or additional custodian hereunder. The term "Custodian"
shall mean any Custodian individually or all Custodians collectively, as the
context requires.
Section 1.12 "Deliver" and "Delivery" shall mean (x) when used in
respect of Shares and other Deposited Securities, either (i) the physical
delivery of the certificate(s) representing such securities, or (ii) the
book-entry transfer and recordation of such securities on the books of the Share
Registrar (as hereinafter defined) or in the book-entry settlement of Euroclear
UK, and (y) when used in respect of ADSs, either (i) the physical delivery of
ADR(s) evidencing the ADSs, or (ii) the book-entry transfer and recordation of
ADSs on the books of the Depositary or any book-entry settlement system in which
the ADSs are settlement-eligible.
Section 1.13 "Deposit Agreement" shall mean this Deposit Agreement
and all exhibits hereto, as the same may from time to time be amended and
supplemented from time to time in accordance with the terms of the Deposit
Agreement.
Section 1.14 "Depositary" shall mean Citibank, N.A., a national
banking association organized under the laws of the United States, in its
capacity as depositary under the terms of the Deposit Agreement, and any
successor depositary hereunder.
Section 1.15 "Deposited Securities" shall mean Shares at any time
deposited under the Deposit Agreement and any and all other securities, property
and cash held by the Depositary or the Custodian in respect thereof, subject, in
the case of cash, to the provisions of Section 4.8. The collateral delivered in
connection with Pre-Release Transactions described in Section 5.10 shall not
constitute Deposited Securities.
Section 1.16 "Dollars" and "$" shall refer to the lawful currency of
the United States.
Section 1.17 "DTC" shall mean The Depository Trust Company, a
national clearinghouse and the central book-entry settlement system for
securities traded in the United States and, as such, the custodian for the
securities of DTC Participants (as hereinafter defined) maintained in DTC, and
any successor thereto.
Section 1.18 "DTC Participant" shall mean any financial institution
(or any nominee of such institution) having one or more participant accounts
with DTC for receiving, holding and delivering the securities and cash held in
DTC. A DTC Participant may or may not be a Beneficial Owner. If a DTC
Participant is not the Beneficial Owner of the ADSs credited to its account at
DTC, or of the ADSs in respect of which the DTC Participant is otherwise acting,
such DTC Participant shall be deemed, for all purposes hereunder, to have all
requisite authority to act on behalf of the Beneficial Owner(s) of the ADSs
credited to its account at DTC or in respect of which the DTC Participant is so
acting.
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Section 1.19 "Euroclear UK" shall mean Euroclear UK & Ireland
Limited, which provides the CREST book-entry settlement system for equity
securities in England and Wales, or any successor entity thereto.
Section 1.20 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended from time to time.
Section 1.21 "Foreign Currency" shall mean any currency other than
Dollars.
Section 1.22 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)"
and "Full Entitlement Share(s)" shall have the respective meanings set forth in
Section 2.12.
Section 1.23 "Holder(s)" shall mean the person(s) in whose name the
ADSs are registered on the books of the Depositary (or the Registrar, if any)
maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADS(s) registered in its name, such
person shall be deemed, for all purposes hereunder, to have all requisite
authority to act on behalf of the Beneficial Owners of the ADSs registered in
its name.
Section 1.24 "Partial Entitlement ADR(s)", "Partial Entitlement
ADS(s)" and "Partial Entitlement Share(s)" shall have the respective meanings
set forth in Section 2.12.
Section 1.25 "Pounds Sterling" and "(pound)" shall refer to the
lawful currency of England and Wales.
Section 1.26 "Pre-Release Transaction" shall have the meaning set
forth in Section 5.10.
Section 1.27 "Principal Office" shall mean, when used with respect
to the Depositary, the principal office of the Depositary at which at any
particular time its depositary receipts business shall be administered, which,
at the date of the Deposit Agreement, is located at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
Section 1.28 "Procedural Resolution" shall mean a resolution at a
shareholders' meeting which in the opinion of the chairman is of a procedural
nature (such as a resolution on the choice of a chairman of the meeting, a
resolution to adjourn the meeting or a resolution to correct an obvious error in
a Substantive Resolution).
Section 1.29 "Registrar" shall mean the Depositary or any bank or
trust company having an office in the Borough of Manhattan, The City of New
York, which shall be appointed by the Depositary to register issuances,
transfers and cancellations of ADSs as herein provided, and shall include any
co-registrar appointed by the Depositary for such purposes. Registrars (other
than the Depositary) may be removed and substitutes appointed by the Depositary
upon prior notification to the Company. Each Registrar (other than the
Depositary) appointed pursuant to the Deposit Agreement shall be required to
give notice in writing to the Depositary accepting such appointment and agreeing
to be bound by the applicable terms of the Deposit Agreement.
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Section 1.30 "Restricted Securities" shall mean Shares, Deposited
Securities or ADSs which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an officer or
director (or persons performing similar functions) or other Affiliate of the
Company, or (iii) are subject to other restrictions on sale or deposit under the
laws of the United States, England and Wales, or under a shareholder agreement
or the Articles of Association of the Company or under the regulations of an
applicable securities exchange unless, in each case, such Shares, Deposited
Securities or ADSs are being transferred or sold to persons other than an
Affiliate of the Company in a transaction (a) covered by an effective resale
registration statement, or (b) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares, Deposited Securities or
ADSs are not, when held by such person(s), Restricted Securities.
Section 1.31 "Restricted ADR(s)", "Restricted ADS(s)" and
"Restricted Shares" shall have the respective meanings set forth in Section
2.14.
Section 1.32 "Securities Act" shall mean the United States
Securities Act of 1933, as amended from time to time.
Section 1.33 "Share Registrar" shall mean Capita Registrars Limited
or any other institution organized under the laws of England and Wales appointed
by the Company to carry out the duties of registrar for the Shares, and any
successor thereto.
Section 1.34 "Shares" shall mean the Company's ordinary shares,
(pound)0.10 nominal value per share, validly issued and outstanding and fully
paid and may, if the Depositary so agrees after consultation with the Company,
include evidence of the right to receive Shares; provided that in no event shall
Shares include evidence of the right to receive Shares with respect to which the
full purchase price has not been paid or Shares as to which preemptive rights
have theretofore not been validly waived or exercised; provided further,
however, that, if there shall occur any change in nominal value, split-up,
consolidation, reclassification, exchange, conversion or any other event
described in Section 4.11 in respect of the Shares of the Company, the term
"Shares" shall thereafter, to the maximum extent permitted by law, represent the
successor securities resulting from such event.
Section 1.35 "Substantive Resolution" shall mean any resolution at a
shareholders' meeting, other than a Procedural Resolution.
Section 1.36 "Uncertificated ADS(s)" shall have the meaning set
forth in Section 2.13.
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Section 1.37 "United States" and "U.S." shall have the meaning
assigned to it in Regulation S as promulgated by the Commission under the
Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby appoints
the Depositary as depositary for the Deposited Securities and hereby authorizes
and directs the Depositary to act in accordance with the terms and conditions
set forth in the Deposit Agreement and the applicable ADRs. Each Holder and each
Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued
in accordance with the terms and conditions of the Deposit Agreement shall be
deemed for all purposes to (a) be a party to and bound by the terms of the
Deposit Agreement and the applicable ADR(s), and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in the Deposit Agreement and the applicable
ADR(s), to adopt any and all procedures necessary to comply with applicable law
and to take such action as the Depositary in its sole discretion may deem
necessary or appropriate to carry out the purposes of the Deposit Agreement and
the applicable ADR(s), the taking of such actions to be the conclusive
determinant of the necessity and appropriateness thereof.
Section 2.2 Form and Transferability of ADSs.
(a) Form. Certificated ADSs shall be evidenced by definitive ADRs which
shall be engraved, printed, lithographed or produced in such other manner as may
be agreed upon by the Company and the Depositary. ADRs may be issued under the
Deposit Agreement in denominations of any whole number of ADSs. The ADRs shall
be substantially in the form set forth in Exhibit A to the Deposit Agreement,
with any appropriate insertions, modifications and omissions, in each case as
otherwise contemplated in the Deposit Agreement or required by law. ADRs shall
be (i) dated, (ii) signed by the manual or facsimile signature of a duly
authorized signatory of the Depositary, (iii) countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of ADSs. No ADR and no Certificated ADS evidenced
thereby shall be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company,
unless such ADR shall have been so dated, signed, countersigned and registered.
ADRs bearing the facsimile signature of a duly-authorized signatory of the
Depositary or the Registrar, who at the time of signature was a duly-authorized
signatory of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such ADR by the Depositary. The ADRs shall
bear a CUSIP number that is different from any CUSIP number that was, is or may
be assigned to any depositary receipts previously or subsequently issued
pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company and which are not ADRs outstanding hereunder.
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(b) Legends. The ADRs, with the consent of the Company (which consent
shall not be unreasonably withheld), may be endorsed with, or have incorporated
in the text thereof, such legends or recitals not inconsistent with the
provisions of the Deposit Agreement as (i) may be necessary to enable the
Depositary and the Company to perform their respective obligations hereunder,
(ii) may be required to comply with any applicable laws or regulations, or with
the rules and regulations of any securities exchange or market upon which ADSs
may be traded, listed or quoted, or to conform with any usage with respect
thereto, (iii) may be necessary to indicate any special limitations or
restrictions to which any particular ADRs or ADSs are subject by reason of the
date of issuance of the Deposited Securities or otherwise, or (iv) may be
required by any book-entry system in which the ADSs are held. Holders and
Beneficial Owners shall be deemed, for all purposes, to have notice of, and to
be bound by, the terms and conditions of the legends set forth, in the case of
Holders, on the ADR registered in the name of the applicable Holders or, in the
case of Beneficial Owners, on the ADR representing the ADSs owned by such
Beneficial Owners.
(c) Title. Subject to the limitations contained herein and in the ADR,
title to an ADR (and to each Certificated ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that, in the case of Certificated ADSs, such ADR
has been properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary and the Company may
deem and treat the Holder of an ADS (that is, the person in whose name an ADS is
registered on the books of the Depositary) as the absolute owner thereof for all
purposes. Neither the Depositary nor the Company shall have any obligation nor
be subject to any liability under the Deposit Agreement or any ADR to any holder
or any Beneficial Owner unless, in the case of a holder of ADSs, such holder is
the Holder registered on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner, or the Beneficial Owner's
representative, is the Holder registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for the
acceptance of the ADSs into DTC. All ADSs held through DTC will be registered in
the name of the nominee for DTC (currently "Cede & Co."). As such, the nominee
for DTC will be the only "Holder" of all ADSs held through DTC. Unless issued by
the Depositary as Uncertificated ADSs, the ADSs registered in the name of Cede &
Co. will be evidenced by one or more ADR(s) in the form of a "Balance
Certificate," which will provide that it represents the aggregate number of ADSs
from time to time indicated in the records of the Depositary as being issued
hereunder and that the aggregate number of ADSs represented thereby may from
time to time be increased or decreased by making adjustments on such records of
the Depositary and of DTC or its nominee as hereinafter provided. Citibank, N.A.
(or such other entity as is appointed by DTC or its nominee) may hold the
"Balance Certificate" as custodian for DTC. Each Beneficial Owner of ADSs held
through DTC must rely upon the procedures of DTC and the DTC Participants to
exercise or be entitled to any rights attributable to such ADSs. The DTC
Participants shall for all purposes be deemed to have all requisite power and
authority to act on behalf of the Beneficial Owners of the ADSs held in the DTC
Participants' respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given to it
by DTC Participants. So long as ADSs are held through DTC or unless otherwise
required by law, ownership of beneficial interests in the ADSs registered in the
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name of the nominee for DTC will be shown on, and transfers of such ownership
will be effected only through, records maintained by (i) DTC or its nominee
(with respect to the interests of DTC Participants), or (ii) DTC Participants or
their nominees (with respect to the interests of clients of DTC Participants).
Section 2.3 Deposit of Shares. Subject to the terms and conditions
of the Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares (other than Restricted Securities) may be deposited by any person
(including the Depositary in its individual capacity but subject, however, in
the case of the Company or any Affiliate of the Company, to Section 5.7) at any
time, whether or not the transfer books of the Company or the Share Registrar,
if any, are closed, by Delivery of the Shares to the Custodian. Every deposit of
Shares shall be accompanied by the following: (A) (i) in the case of Shares
represented by certificates issued in registered form, appropriate instruments
of transfer or endorsement, in a form reasonably satisfactory to the Custodian,
(ii) in the case of Shares represented by certificates in bearer form, the
requisite coupons and talons pertaining thereto, and (iii) in the case of Shares
delivered by book-entry transfer and recordation, confirmation of such
book-entry transfer and recordation in the books of the Share Registrar or of
Euroclear UK, as applicable, to the Custodian or that irrevocable instructions
have been given to cause such Shares to be so transferred and recorded, (B) such
certifications and payments (including, without limitation, the Depositary's
fees and related charges) and evidence of such payments (including, without
limitation, stamping or otherwise marking such Shares by way of receipt) as may
be required by the Depositary or the Custodian in accordance with the provisions
of the Deposit Agreement and applicable law, (C) if the Depositary so requires,
a written order directing the Depositary to issue and deliver to, or upon the
written order of, the person(s) stated in such order the number of ADSs
representing the Shares so deposited, (D) evidence reasonably satisfactory to
the Depositary (which may be an opinion of counsel) that all necessary approvals
have been granted by, or there has been compliance with the rules and
regulations of, any applicable governmental agency in England and Wales, and (E)
if the Depositary so requires, (i) an agreement, assignment or instrument
reasonably satisfactory to the Depositary or the Custodian which provides for
the prompt transfer by any person in whose name the Shares are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall be
reasonably satisfactory to the Depositary or the Custodian and (ii) if the
Shares are registered in the name of the person on whose behalf they are
presented for deposit, a proxy or proxies entitling the Custodian to exercise
voting rights in respect of the Shares (subject to the terms of the Deposit
Agreement, including without limitation Section 4.10 of the Deposit Agreement)
for any and all purposes until the Shares so deposited are registered in the
name of the Depositary, the Custodian or any nominee.
Without limiting any other provision of the Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities (except as
contemplated by Section 2.14) nor (b) any fractional Shares or fractional
Deposited Securities nor (c) a number of Shares or Deposited Securities which
upon application of the ADS to Shares ratio would give rise to fractional ADSs.
No Shares shall be accepted for deposit unless accompanied by evidence, if any
is required by the Depositary, that is reasonably satisfactory to the Depositary
or the Custodian that all conditions to such deposit have been satisfied by the
8
person depositing such Shares under the laws and regulations of England and
Wales and any necessary approval has been granted by any applicable governmental
body in England and Wales, if any. The Depositary may issue ADSs against
evidence of rights to receive Shares from the Company, any agent of the Company
or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
ownership of Shares furnished by the Company or any such custodian, registrar,
transfer agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under the Deposit Agreement (A) any Shares or other
securities required to be registered under the provisions of the Securities Act,
unless (i) a registration statement is in effect as to such Shares or other
securities or (ii) the deposit is made upon terms contemplated in Section 2.14,
or (B) any Shares or other securities the deposit of which would violate any
provisions of the Articles of Association of the Company or any applicable laws.
For purposes of the foregoing sentence, the Depositary shall be entitled to rely
upon representations and warranties made or deemed made pursuant to the Deposit
Agreement and shall not be required to make any further investigation. The
Depositary will comply with written instructions of the Company (received by the
Depositary reasonably in advance) not to accept for deposit hereunder any Shares
identified in such instructions at such times and under such circumstances as
may reasonably be specified in such instructions in order to facilitate the
Company's compliance with any applicable laws or the Articles of Association of
the Company.
Section 2.4 Registration and Safekeeping of Deposited Securities.
The Depositary shall, as promptly as practicable, instruct the Custodian upon
each Delivery of certificates representing registered Shares being deposited
hereunder with the Custodian (or other Deposited Securities pursuant to Article
IV hereof), together with the other documents above specified, to present such
certificate(s), together with the appropriate instrument(s) of transfer or
endorsement, duly stamped, to the Share Registrar for transfer and registration
of the Shares (as soon as transfer and registration can be accomplished and at
the expense of the person for whom the deposit is made) in the name of the
Depositary, the Custodian or a nominee of either. Deposited Securities shall be
held by the Depositary or by a Custodian for the account and to the order of the
Depositary or a nominee in each case on behalf of the Holders and Beneficial
Owners, at such place or places as the Depositary or the Custodian shall
determine.
Section 2.5 Issuance of ADSs. The Depositary has made arrangements
with the Custodian for the Custodian to confirm to the Depositary upon receipt
of a deposit of Shares (i) that a deposit of Shares has been made pursuant to
Section 2.3, (ii) that such Deposited Securities have been recorded in the name
of the Depositary, the Custodian or a nominee of either on the shareholders'
register maintained by or on behalf of the Company by the Share Registrar on the
books of Euroclear UK, (iii) that all required documents have been received, and
(iv) the person(s) to whom or upon whose order ADSs are deliverable in respect
thereof and the number of ADSs to be so delivered. Such notification may be made
by letter, cable, telex, SWIFT message or, at the risk and expense of the person
making the deposit, by facsimile or other means of electronic transmission. Upon
receiving such notice from the Custodian, the Depositary, subject to the terms
9
and conditions of the Deposit Agreement and applicable law, shall issue the ADSs
representing the Shares so deposited to or upon the order of the person(s) named
in the notice delivered to the Depositary and, if applicable, shall execute and
deliver at its Principal Office Receipt(s) registered in the name(s) requested
by such person(s) and evidencing the aggregate number of ADSs to which such
person(s) are entitled, but, in each case, only upon payment to the Depositary
of the charges of the Depositary for accepting a deposit, issuing ADSs (as set
forth in Section 5.9 and Exhibit B hereto) and all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
Shares and the issuance of the ADS(s). The Depositary shall only issue ADSs in
whole numbers and deliver, if applicable, ADR(s) evidencing whole numbers of
ADSs. Nothing herein shall prohibit any Pre-Release Transaction upon the terms
set forth in the Deposit Agreement.
Section 2.6 Transfer, Combination and Split-up of ADRs.
(a) Transfer. The Registrar shall, as promptly as practicable, register
the transfer of ADRs (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall, as promptly as
practicable, (x) cancel such ADRs and execute new ADRs evidencing the same
aggregate number of ADSs as those evidenced by the ADRs canceled by the
Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver
such new ADRs to or upon the order of the person entitled thereto, if each of
the following conditions has been satisfied: (i) the ADRs have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a transfer
thereof, (ii) the surrendered ADRs have been properly endorsed or are
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) the surrendered
ADRs have been duly stamped (if required by the laws of the State of New York or
of the United States), and (iv) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject,
however, in each case, to the terms and conditions of the applicable ADRs, of
the Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
(b) Combination & Split Up. The Registrar shall, as promptly as
practicable, register the split-up or combination of ADRs (and of the ADSs
represented thereby) on the books maintained for such purpose and the Depositary
shall, as promptly as practicable, (x) cancel such ADRs and execute new ADRs for
the number of ADSs requested, but in the aggregate not exceeding the number of
ADSs evidenced by the ADRs cancelled by the Depositary, (y) cause the Registrar
to countersign such new ADRs and (z) Deliver such new ADRs to or upon the order
of the Holder thereof, if each of the following conditions has been satisfied:
(i) the ADRs have been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a split-up or combination thereof, and (ii) all applicable
fees and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B
hereto) have been paid, subject, however, in each case, to the terms and
conditions of the applicable ADRs, of the Deposit Agreement and of applicable
law, in each case as in effect at the time thereof.
10
(c) Co-Transfer Agents. The Depositary may appoint one or more co-transfer
agents for the purpose of effecting transfers, combinations and split-ups of
ADRs at designated transfer offices on behalf of the Depositary and shall give
prior notification of any such appointment to the Company. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Holders or persons entitled to
such ADRs and will be entitled to protection and indemnity to the same extent as
the Depositary. Such co-transfer agents may be removed and substitutes appointed
by the Depositary upon prior notification to the Company. Each co-transfer agent
appointed under this Section 2.6 (other than the Depositary) shall give notice
in writing to the Depositary accepting such appointment and agreeing to be bound
by the applicable terms of the Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited
Securities. The Holder of ADSs shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs upon satisfaction of each of the following conditions: (i) the Holder (or a
duly-authorized attorney of the Holder) has duly Delivered ADSs to the
Depositary at its Principal Office (and if applicable, the ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the Depositary, the ADRs
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B)
have been paid, subject, however, in each case, to the terms and conditions of
the ADRs evidencing the surrendered ADSs, of the Deposit Agreement, of the
Company's Articles of Association and of any applicable laws and the rules of
Euroclear UK, and to any provisions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall, as promptly as practicable, cancel the ADSs Delivered to
it (and, if applicable, the ADRs evidencing the ADSs so Delivered), (ii) shall,
as promptly as practicable, direct the Registrar to record the cancellation of
the ADSs so Delivered on the books maintained for such purpose, and (iii) shall
direct the Custodian to Deliver, or cause the Delivery of, in each case, as
promptly as practicable, the Deposited Securities represented by the ADSs so
canceled together with any certificate or other document of title for the
Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such purpose, subject
however, in each case, to the terms and conditions of the Deposit Agreement, of
the ADRs evidencing the ADSs so cancelled, of the Articles of Association of the
Company, of any applicable laws and of the rules of Euroclear UK, and to the
terms and conditions of or governing the Deposited Securities, in each case as
in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one (1) Share. In the case of the Delivery to it of ADSs representing a
11
number other than a whole number of Shares, the Depositary shall cause ownership
of the appropriate whole number of Shares to be Delivered in accordance with the
terms hereof, and shall, at the discretion of the Depositary, either (i) return
to the person surrendering such ADSs the number of ADSs representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Share represented by the ADSs so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of
ADSs; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and
delivery, registration of issuance, transfer, split-up, combination or
surrender, of any ADS, the delivery of any distribution thereon, or the
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require (i) payment from the depositor of Shares or presenter of ADSs or of an
ADR of a sum sufficient to reimburse it for any tax or other governmental charge
and any stock transfer or registration fee with respect thereto (including any
such tax or charge and fee with respect to Shares being deposited or withdrawn)
and payment of any applicable fees and charges of the Depositary as provided in
Section 5.9 and Exhibit B, (ii) the production of proof reasonably satisfactory
to it as to the identity and genuineness of any signature or any other matter
contemplated by Section 3.1, and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of ADRs or ADSs
or to the withdrawal of Deposited Securities and (B) such reasonable regulations
as the Depositary and the Company may establish consistent with the provisions
of the representative ADR, if applicable, the Deposit Agreement and applicable
law.
(b) Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be suspended, or
the deposit of particular Shares may be refused, or the registration of transfer
of ADSs in particular instances may be refused, or the registration of transfers
of ADSs generally may be suspended, during any period when the transfer books of
the Company, the Depositary, a Registrar or the Share Registrar are closed or if
any such action is deemed necessary or advisable by the Depositary or the
Company, in good faith, at any time or from time to time because of any
requirement of law or regulation, any government or governmental body or
commission or any securities exchange on which the ADSs or Shares are listed, or
12
under any provision of the Deposit Agreement or the representative ADR(s), if
applicable, or under any provision of, or governing, the Deposited Securities,
or because of a meeting of shareholders of the Company or for any other reason,
subject, in all cases, to Section 7.8.
(c) Regulatory Restrictions. Notwithstanding any provision of the Deposit
Agreement or any ADR(s) to the contrary, Holders are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities associated herewith at any
time subject only to (i) temporary delays caused by closing the transfer books
of the Depositary or the Company or the deposit of Shares in connection with
voting at a 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 ADSs or to the withdrawal of
the Deposited Securities, and (iv) other circumstances specifically contemplated
by Instruction I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
Section 2.9 Lost ADRs, etc. In case any ADR shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new ADR
of like tenor at the expense of the Holder (a) in the case of a mutilated ADR,
in exchange of and substitution for such mutilated ADR upon cancellation
thereof, or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and
in substitution for such destroyed, lost, or stolen ADR, after the Holder
thereof (i) has submitted to the Depositary a written request for such exchange
and substitution before the Depositary has notice that the ADR has been acquired
by a bona fide purchaser, (ii) has provided such security or indemnity
(including an indemnity bond) as may be required by the Depositary to save it
and any of its agents harmless, and (iii) has satisfied any other reasonable
requirements imposed by the Depositary, including, without limitation, evidence
satisfactory to the Depositary of such destruction, loss or theft of such ADR,
the authenticity thereof and the Holder's ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records. All ADRs surrendered to the Depositary shall be canceled
by the Depositary. Canceled ADRs shall not be entitled to any benefits under the
Deposit Agreement or be valid or enforceable against the Depositary for any
purpose. The Depositary is authorized to destroy ADRs so canceled, provided the
Depositary maintains a record of all destroyed ADRs. Any ADSs held in book-entry
form (i.e., through accounts at DTC) shall be deemed canceled when the
Depositary causes the number of ADSs evidenced by the Balance Certificate to be
reduced by the number of ADSs surrendered (without the need to physically
destroy the Balance Certificate).
Section 2.11 Escheatment. In the event any unclaimed property
relating to the ADSs, for any reason, is in the possession of Depositary and has
not been claimed by the Holder thereof or cannot be delivered to the Holder
thereof through usual channels, the Depositary shall, upon expiration of any
applicable statutory period relating to abandoned property laws, escheat such
unclaimed property to the relevant authorities in accordance with the laws of
each of the relevant States of the United States.
13
Section 2.12 Partial Entitlement ADSs. In the event any Shares are
deposited which (i) entitle the holders thereof to receive a per-share
distribution or other entitlement in an amount different from the Shares then on
deposit or (ii) are not fully fungible (including, without limitation, as to
settlement or trading) with the Shares then on deposit (the Shares then on
deposit collectively, "Full Entitlement Shares" and the Shares with different
entitlement, "Partial Entitlement Shares"), the Depositary shall (i) cause the
Custodian to hold Partial Entitlement Shares separate and distinct from Full
Entitlement Shares, and (ii) subject to the terms of the Deposit Agreement,
issue ADSs representing Partial Entitlement Shares which are separate and
distinct from the ADSs representing Full Entitlement Shares, by means of
separate CUSIP numbering and legending (if necessary) and, if applicable, by
issuing ADRs evidencing such ADSs with applicable notations thereon ("Partial
Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs", respectively). If and
when Partial Entitlement Shares become Full Entitlement Shares, the Depositary
shall (a) give notice thereof to Holders of Partial Entitlement ADSs and give
Holders of Partial Entitlement ADRs the opportunity to exchange such Partial
Entitlement ADRs for Full Entitlement ADRs, (b) cause the Custodian to transfer
the Partial Entitlement Shares into the account of the Full Entitlement Shares,
and (c) take such actions as are necessary to remove the distinctions between
(i) the Partial Entitlement ADRs and ADSs, on the one hand, and (ii) the Full
Entitlement ADRs and ADSs on the other. Holders and Beneficial Owners of Partial
Entitlement ADSs shall only be entitled to the entitlements of Partial
Entitlement Shares. Holders and Beneficial Owners of Full Entitlement ADSs shall
be entitled only to the entitlements of Full Entitlement Shares. All provisions
and conditions of the Deposit Agreement shall apply to Partial Entitlement ADRs
and ADSs to the same extent as Full Entitlement ADRs and ADSs, except as
contemplated by this Section 2.12. The Depositary is authorized to take any and
all other actions as may be reasonably necessary (including, without limitation,
making the necessary notations on ADRs) to give effect to the terms of this
Section 2.12. The Company agrees to give timely written notice to the Depositary
if any Shares issued or to be issued are Partial Entitlement Shares and shall
assist the Depositary with the establishment of procedures enabling the
identification of Partial Entitlement Shares upon Delivery to the Custodian.
Section 2.13 Certificated/Uncertificated ADSs. Notwithstanding any
other provision of the Deposit Agreement, the Depositary may, at any time and
from time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
"Uncertificated ADS(s)" and the ADS(s) evidenced by ADR(s), the "Certificated
ADS(s)"). When issuing and maintaining Uncertificated ADS(s) under the Deposit
Agreement, the Depositary shall at all times be subject to (i) the standards
applicable to registrars and transfer agents maintaining direct registration
systems for equity securities in New York and issuing uncertificated securities
under New York law, and (ii) the terms of New York law applicable to
uncertificated equity securities. Uncertificated ADSs shall not be represented
by any instruments but shall be evidenced by registration in the books of the
Depositary maintained for such purpose. Holders of Uncertificated ADSs, that are
not subject to any registered pledges, liens, restrictions or adverse claims of
which the Depositary has notice at such time, shall at all times have the right
to exchange the Uncertificated ADS(s) for Certificated ADS(s) of the same type
and class, subject in each case to applicable laws and any rules and regulations
the Depositary may have established in respect of the Uncertificated ADSs.
Holders of Certificated ADSs shall, if the Depositary maintains a direct
registration system for the ADSs, have the right to exchange the Certificated
14
ADSs for Uncertificated ADSs upon (i) the due surrender of the Certificated
ADS(s) to the Depositary for such purpose and (ii) the presentation of a written
request to that effect to the Depositary, subject in each case to (a) all liens
and restrictions noted on the ADR evidencing the Certificated ADS(s) and all
adverse claims of which the Depositary then has notice, (b) the terms of the
Deposit Agreement and the rules and regulations that the Depositary may
establish for such purposes hereunder, (c) applicable law, and (d) payment of
the Depositary fees and expenses applicable to such exchange of Certificated
ADS(s) for Uncertificated ADS(s). Uncertificated ADSs shall in all respects be
identical to Certificated ADS(s) of the same type and class, except that (i) no
ADR(s) shall be, or shall need to be, issued to evidence Uncertificated ADS(s),
(ii) Uncertificated ADS(s) shall, subject to the terms of the Deposit Agreement,
be transferable upon the same terms and conditions as uncertificated securities
under New York law, (iii) the ownership of Uncertificated ADS(s) shall be
recorded on the books of the Depositary maintained for such purpose and evidence
of such ownership shall be reflected in periodic statements provided by the
Depositary to the Holder(s) in accordance with applicable New York law, (iv) the
Depositary may from time to time, upon notice to the Holders of Uncertificated
ADSs affected thereby, establish rules and regulations, and amend or supplement
existing rules and regulations, as may be deemed reasonably necessary to
maintain Uncertificated ADS(s) on behalf of Holders, provided that (a) such
rules and regulations do not conflict with the terms of the Deposit Agreement
and applicable law, and (b) the terms of such rules and regulations are readily
available to Holders upon request, (v) the Uncertificated ADS(s) shall not be
entitled to any benefits under the Deposit Agreement or be valid or enforceable
for any purpose against the Depositary or the Company unless such Uncertificated
ADS(s) is/are registered on the books of the Depositary maintained for such
purpose, (vi) the Depositary may, in connection with any deposit of Shares
resulting in the issuance of Uncertificated ADSs and with any transfer, pledge,
release and cancellation of Uncertificated ADSs, require the prior receipt of
such documentation as the Depositary may deem reasonably appropriate, and (vii)
upon termination of the Deposit Agreement, the Depositary shall not require
Holders of Uncertificated ADSs to affirmatively instruct the Depositary before
remitting proceeds from the sale of the Deposited Securities represented by such
Holders' Uncertificated ADSs under the terms of Section 6.2 of the Deposit
Agreement. When issuing ADSs under the terms of the Deposit Agreement,
including, without limitation, issuances pursuant to Sections 2.5, 4.2, 4.3,
4.4, 4.5 and 4.11, the Depositary may in its discretion determine to issue
Uncertificated ADSs rather than Certificated ADSs, unless otherwise specifically
instructed by the applicable Holder to issue Certificated ADSs. All provisions
and conditions of the Deposit Agreement shall apply to Uncertificated ADSs to
the same extent as to Certificated ADSs, except as contemplated by this Section
2.13. The Depositary is authorized and directed to take any and all actions and
establish any and all procedures deemed reasonably necessary to give effect to
the terms of this Section 2.13. Any references in the Deposit Agreement or any
ADR(s) to the terms "American Depositary Share(s)" or "ADS(s)" shall, unless the
context otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s). Except as set forth in this Section 2.13 and except as required by
applicable law, the Uncertificated ADSs shall be treated as ADSs issued and
outstanding under the terms of the Deposit Agreement. In the event that, in
determining the rights and obligations of parties hereto with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit
Agreement (other than this Section 2.13) and (b) the terms of this Section 2.13,
the terms and conditions set forth in this Section 2.13 shall be controlling and
shall govern the rights and obligations of the parties to the Deposit Agreement
pertaining to the Uncertificated ADSs.
15
Section 2.14 Restricted ADSs. The Depositary shall, at the request
and expense of the Company, establish procedures enabling the deposit hereunder
of Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Restricted Shares in the form of
ADSs issued under the terms hereof (such Shares, "Restricted Shares"). Upon
receipt of a written request from the Company to accept Restricted Shares for
deposit hereunder, the Depositary agrees to establish procedures permitting the
deposit of such Restricted Shares and the issuance of ADSs representing the
right to receive, subject to the terms of the Deposit Agreement and the
applicable ADR (if issued as a Certificated ADS), such deposited Restricted
Shares (such ADSs, the "Restricted ADSs," and the ADRs evidencing such
Restricted ADSs, the "Restricted ADRs"). Notwithstanding anything contained in
this Section 2.14, the Depositary and the Company may, to the extent not
prohibited by law, agree to issue the Restricted ADSs in uncertificated form
("Uncertificated Restricted ADSs") upon such terms and conditions as the Company
and the Depositary may deem necessary and appropriate. The Company shall assist
the Depositary in the establishment of such procedures and agrees that it shall
take all steps reasonably necessary and reasonably satisfactory to the
Depositary to insure that the establishment of such procedures does not violate
the provisions of the Securities Act or any other applicable laws. The
depositors of such Restricted Shares and the Holders of the Restricted ADSs may
be required prior to the deposit of such Restricted Shares, the transfer of the
Restricted ADRs and Restricted ADSs or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may reasonably require. The Company
shall provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs (if the Restricted ADSs are to be issued as Certificated ADSs),
or to be included in the statements issued from time to time to Holders of
Uncertificated ADSs (if issued as Uncertificated Restricted ADSs), which legends
shall (i) be in a form reasonably satisfactory to the Depositary and (ii)
contain the specific circumstances under which the Restricted ADSs, and, if
applicable, the Restricted ADRs evidencing the Restricted ADSs, may be
transferred or the Restricted Shares withdrawn. The Restricted ADSs issued upon
the deposit of Restricted Shares shall be separately identified on the books of
the Depositary and the Restricted Shares so deposited shall, to the extent
required by law, be held separate and distinct from the other Deposited
Securities held hereunder. The Restricted Shares and the Restricted ADSs shall
not be eligible for Pre-Release Transactions. The Restricted ADSs shall not be
eligible for inclusion in any book-entry settlement system, including, without
limitation, DTC, and shall not in any way be fungible with the ADSs issued under
the terms hereof that are not Restricted ADSs. The Restricted ADSs, and, if
applicable, the Restricted ADRs evidencing the Restricted ADSs, shall be
transferable only by the Holder thereof upon delivery to the Depositary of (i)
all documentation otherwise contemplated by the Deposit Agreement and (ii) an
opinion of counsel reasonably satisfactory to the Depositary setting forth,
inter alia, the conditions upon which the Restricted ADSs presented, and, if
applicable, the Restricted ADRs evidencing the Restricted ADSs, are transferable
by the Holder thereof under applicable securities laws and the transfer
restrictions contained in the legend applicable to the Restricted ADSs presented
for transfer. Except as set forth in this Section 2.14 and except as required by
applicable law, the Restricted ADSs and the Restricted ADRs evidencing
Restricted ADSs shall be treated as ADSs and ADRs issued and outstanding under
the terms of the Deposit Agreement. In the event that, in determining the rights
16
and obligations of parties hereto with respect to any Restricted ADSs, any
conflict arises between (a) the terms of the Deposit Agreement (other than this
Section 2.14) and (b) the terms of (i) this Section 2.14 or (ii) the applicable
Restricted ADR, the terms and conditions set forth in this Section 2.14 and of
the Restricted ADR shall be controlling and shall govern the rights and
obligations of the parties to the Deposit Agreement pertaining to the deposited
Restricted Shares, the Restricted ADSs and Restricted ADRs.
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares cease to
be Restricted Securities, the Depositary, upon receipt of (x) an opinion of
counsel reasonably satisfactory to the Depositary setting forth, inter alia,
that the Restricted ADRs, the Restricted ADSs and the Restricted Shares are not
as of such time Restricted Securities, and (y) instructions from the Company to
remove the restrictions applicable to the Restricted ADRs, the Restricted ADSs
and the Restricted Shares, shall (i) eliminate the distinctions and separations
that may have been established between the applicable Restricted Shares held on
deposit under this Section 2.14 and the other Shares held on deposit under the
terms of the Deposit Agreement that are not Restricted Shares, (ii) treat the
newly unrestricted ADRs and ADSs on the same terms as, and fully fungible with,
the other ADRs and ADSs issued and outstanding under the terms of the Deposit
Agreement that are not Restricted ADRs or Restricted ADSs, (iii) take all
actions necessary to remove any distinctions, limitations and restrictions
previously existing under this Section 2.14 between the applicable Restricted
ADRs and Restricted ADSs, respectively, on the one hand, and the other ADRs and
ADSs that are not Restricted ADRs or Restricted ADSs, respectively, on the other
hand, including, without limitation, by making the newly-unrestricted ADSs
eligible for Pre-Release Transactions and for inclusion in the applicable
book-entry settlement systems.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Share Registrar) as the Depositary or the Custodian may deem
reasonably necessary or proper or as the Company may reasonably require by
written request to the Depositary consistent with its obligations under the
Deposit Agreement and the applicable ADR(s). The Depositary and the Registrar,
as applicable, may withhold the execution or delivery or registration of
transfer of any ADR or ADS or the distribution or sale of any dividend or
distribution of rights or of the proceeds thereof or, to the extent not limited
17
by the terms of Section 7.8, the delivery of any Deposited Securities until such
proof or other information is filed or such certifications are executed, or such
representations and warranties are made, or such other documentation or
information provided, in each case to the Depositary's, the Registrar's and the
Company's reasonable satisfaction. The Depositary shall provide the Company, in
a timely manner, with copies or originals if necessary and appropriate of (i)
any such proofs of citizenship or residence, taxpayer status, or exchange
control approval or copies of written representations and warranties which it
receives from Holders and Beneficial Owners, and (ii) any other information or
documents which the Company may reasonably request and which the Depositary
shall request and receive from any Holder or Beneficial Owner or any person
presenting Shares for deposit or ADSs for cancellation, transfer or withdrawal.
Unless otherwise agreed between the Company and the Depositary, nothing herein
shall obligate the Depositary to (i) obtain any information for the Company if
not provided by the Holders or Beneficial Owners, or (ii) verify or vouch for
the accuracy of the information so provided by the Holders or Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any Deposited Securities, ADSs or ADRs shall be payable by the Holders and
Beneficial Owners to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities, and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of, any taxes (including applicable interest and
penalties) or charges that are or may be payable by Holders or Beneficial Owners
in respect of the ADSs, Deposited Securities and ADRs, the Holder and the
Beneficial Owner remaining liable for any deficiency. The Custodian may refuse
the deposit of Shares and the Depositary may refuse to issue ADSs, to deliver
ADRs, register the transfer of ADSs, register the split-up or combination of
ADRs and (subject to Section 7.8) the withdrawal of Deposited Securities until
payment in full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the
Custodian, and any of their agents, officers, employees and Affiliates for, and
to hold each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
Section 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, and (v) the Shares presented for deposit are not, and the ADSs
issuable upon such deposit will not be, Restricted Securities (except as
contemplated in Section 2.14), and (vi) the Shares presented for deposit have
not been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of ADSs in respect thereof and the transfer of such ADSs. If any
such representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
18
Section 3.4 Compliance with Information Requests. Notwithstanding any
other provision of the Deposit Agreement or any ADR(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable law, the rules and requirements of the London Stock Exchange, and any
other stock exchange on which the Shares or ADSs are, or will be, registered,
traded or listed or the Articles of Association of the Company, which are made
to provide information, inter alia, as to the capacity in which such Holder or
Beneficial Owner owns ADSs (and Shares as the case may be) and regarding the
identity of any other person(s) interested in such ADSs and the nature of such
interest and various other matters, whether or not they are Holders and/or
Beneficial Owners at the time of such request. The Depositary agrees to use its
reasonable efforts to forward, upon the request of the Company and at the
Company's expense, any such request from the Company to the Holders and to
forward to the Company any such responses to such requests received by the
Depositary.
Section 3.5 Ownership Restrictions. Notwithstanding any other provision in
the Deposit Agreement or any ADR, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
imposed by applicable law or the Articles of Association of the Company. The
Company may also restrict, in such manner as it deems appropriate, transfers of
the ADSs where such transfer may result in the total number of Shares
represented by the ADSs owned by a single Holder or Beneficial Owner to exceed
any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including, but not limited to, the imposition
of restrictions on the transfer of ADSs, the removal or limitation of voting
rights or mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the ADSs held by such Holder or Beneficial
Owner in excess of such limitations, if and to the extent such disposition is
permitted by applicable law and the Articles of Association of the Company.
Nothing herein shall be interpreted as obligating the Depositary or the Company
to ensure compliance with the ownership restrictions described in this Section
3.5.
Section 3.6 Reporting Obligations and Regulatory Approvals. Applicable
laws and regulations may require holders and beneficial owners of Shares,
including the Holders and Beneficial Owners of ADSs, to satisfy reporting
requirements and obtain regulatory approvals in certain circumstances. Holders
and Beneficial Owners of ADSs are solely responsible for determining and
complying with such reporting requirements and obtaining such approvals. Each
Holder and each Beneficial Owner hereby agrees to make such determination, file
such reports, and obtain such approvals to the extent and in the form required
by applicable laws and regulations as in effect from time to time. Neither the
Depositary, the Custodian, the Company or any of their respective agents or
affiliates shall be required to take any actions whatsoever on behalf of Holders
or Beneficial Owners to determine or satisfy such reporting requirements or
obtain such regulatory approvals under applicable laws and regulations.
19
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Company intends to make a
distribution of a cash dividend or other cash distribution, the Company shall
give notice thereof to the Depositary at least fourteen (14) days prior to the
proposed distribution specifying, inter alia, the record date applicable for
determining the holders of Deposited Securities entitled to receive such
distribution. Upon the timely receipt of such notice, the Depositary shall
establish an ADS Record Date upon the terms described in Section 4.9. Upon
receipt of confirmation from the Custodian of the receipt of any cash dividend
or other cash distribution on any Deposited Securities, or upon receipt of
proceeds from the sale of any Deposited Securities or any other entitlements
held in respect of Deposited Securities under the terms hereof, the Depositary
will (i) if at the time of receipt thereof any amounts received in a Foreign
Currency can, in the judgment of the Depositary (pursuant to Section 4.8), be
converted on a practicable basis into Dollars transferable to the United States,
promptly convert or cause to be converted such cash dividend, distribution or
proceeds into Dollars (on the terms described in Section 4.8), (ii) if
applicable and unless previously established, establish the ADS Record Date upon
the terms described in Section 4.9, and (iii) distribute promptly the amount
thus received (net of (a) the applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the Holders entitled
thereto as of the ADS Record Date in proportion to the number of ADSs held as of
the ADS Record Date. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Holder a fraction of one cent,
and any balance not so distributed shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of ADSs
outstanding at the time of the next distribution. If the Company, the Custodian
or the Depositary is required to withhold and does withhold from any cash
dividend or other cash distribution in respect of any Deposited Securities an
amount on account of taxes, duties or other governmental charges, the amount
distributed to Holders on the ADSs representing such Deposited Securities shall
be reduced accordingly. Such withheld amounts shall be forwarded by the Company,
the Custodian or the Depositary to the relevant governmental authority. Evidence
of payment thereof by the Company shall be forwarded by the Company to the
Depositary upon request.
Notwithstanding anything contained in this Section 4.1 to the contrary, in
the event the Company fails to give the Depositary at least fourteen (14) days
prior notice of the proposed distribution provided for above, the Depositary
agrees to use commercially reasonable efforts to perform the actions
contemplated in this Section 4.1, and the Company, the Holders and the
Beneficial Owners acknowledge that the Depositary shall have no liability for
the Depositary's failure to perform the actions contemplated in this Section 4.1
where such notice has not been so timely given, other than its failure to use
commercially reasonable efforts, as provided herein.
Section 4.2 Distribution in Shares. Whenever the Company intends to make a
distribution that consists of a dividend in, or free distribution of, Shares,
the Company shall give notice thereof to the Depositary at least fourteen (14)
days prior to the proposed distribution, specifying, inter alia, the record date
20
applicable to holders of Deposited Securities entitled to receive such
distribution. Upon the timely receipt of such notice from the Company, the
Depositary shall establish the ADS Record Date upon the terms described in
Section 4.9. Upon receipt of confirmation from the Custodian of the receipt of
the Shares so distributed by the Company, the Depositary shall either (i)
subject to Section 5.9, distribute to the Holders as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date, additional
ADSs, which represent in the aggregate the number of Shares received as such
dividend, or free distribution, subject to the other terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, take all actions necessary so that each
ADS issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interests in the
additional integral number of Shares distributed upon the Deposited Securities
represented thereby (net of (a) the applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes). In lieu of delivering fractional
ADSs, the Depositary shall sell the number of Shares or ADSs, as the case may
be, represented by the aggregate of such fractions and distribute the net
proceeds upon the terms described in Section 4.1. In the event that the
Depositary determines that any distribution in property (including Shares) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, if the Company in the fulfillment of its obligation
under Section 5.7, has furnished an opinion of U.S. counsel determining that
Shares must be registered under the Securities Act or other laws in order to be
distributed to Holders (and no such registration statement has been declared
effective), the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems reasonably
necessary and practicable, and the Depositary shall distribute the net proceeds
of any such sale (after deduction of (a) taxes and (b) fees and charges of, and
expenses incurred by, the Depositary) to Holders entitled thereto upon the terms
described in Section 4.1. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
Notwithstanding anything contained in this Section 4.2 to the contrary, in
the event the Company fails to give the Depositary at least fourteen (14) days
prior notice of the proposed distribution provided for above, the Depositary
agrees to use commercially reasonable efforts to perform the actions
contemplated in this Section 4.2, and the Company, the Holders and the
Beneficial Owners acknowledge that the Depositary shall have no liability for
the Depositary's failure to perform the actions contemplated in this Section 4.2
where such notice has not been so timely given, other than its failure to use
commercially reasonable efforts, as provided herein.
Section 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to make a distribution payable at the election of the holders of Shares
in cash or in additional Shares, the Company shall give notice thereof to the
Depositary at least forty-five (45) days prior to the proposed distribution
specifying, inter alia, the record date applicable to holders of Deposited
Securities entitled to receive such elective distribution and whether or not it
wishes such elective distribution to be made available to Holders of ADSs. Upon
the timely receipt of a notice indicating that the Company wishes such elective
distribution to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
21
to make such elective distribution available to the Holders of ADSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Company shall have timely requested that the elective distribution be
made available to Holders, (ii) the Depositary shall have determined that such
distribution is reasonably practicable and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7. If the
above conditions are not satisfied, the Depositary shall establish an ADS Record
Date on the terms described in Section 4.9 and, to the extent permitted by law,
distribute to the Holders, on the basis of the same determination as is made in
England and Wales in respect of the Shares for which no election is made, either
(X) cash upon the terms described in Section 4.1 or (Y) additional ADSs
representing such additional Shares upon the terms described in Section 4.2. If
the above conditions are satisfied, the Depositary shall establish an ADS Record
Date on the terms described in Section 4.9 and establish procedures to enable
Holders to elect the receipt of the proposed distribution in cash or in
additional ADSs. The Company shall assist the Depositary in establishing such
procedures to the extent reasonably necessary. If a Holder elects to receive the
proposed distribution (X) in cash, the distribution shall be made upon the terms
described in Section 4.1, or (Y) in ADSs, the distribution shall be made upon
the terms described in Section 4.2. Nothing herein shall obligate the Depositary
to make available to Holders a method to receive the elective distribution in
Shares (rather than ADSs). There can be no assurance that Holders generally, or
any Holder in particular, will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
Notwithstanding anything contained in this Section 4.3 to the contrary, in
the event the Company fails to give the Depositary at least forty-five (45) days
prior notice of the proposed distribution provided for above, the Depositary
agrees to use commercially reasonable efforts to perform the actions
contemplated in this Section 4.3, and the Company, the Holders and the
Beneficial Owners acknowledge that the Depositary shall have no liability for
the Depositary's failure to perform the actions contemplated in this Section 4.3
where such notice has not been so timely given, other than its failure to use
commercially reasonable efforts, as provided herein.
Section 4.4 Distribution of Rights to Purchase Additional ADSs.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
least forty-five (45) days prior to the proposed distribution specifying, inter
alia, the record date applicable to holders of Deposited Securities entitled to
receive such distribution and whether or not it wishes such rights to be made
available to Holders of ADSs. Upon the timely receipt of a notice indicating
that the Company wishes such rights to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The Depositary shall
make such rights available to Holders only if (i) the Company shall have timely
requested that such rights be made available to Holders, (ii) the Depositary
shall have received satisfactory documentation within the terms of Section 5.7,
and (iii) the Depositary shall have determined that such distribution of rights
is reasonably practicable. In the event any of the conditions set forth above
are not satisfied or if the Company requests that the rights not be made
available to Holders of ADSs, the Depositary shall proceed with the sale of the
22
rights as contemplated in Section 4.4(b) below. In the event all conditions set
forth above are satisfied, the Depositary shall establish an ADS Record Date
(upon the terms described in Section 4.9) and establish procedures to (x)
distribute rights to purchase additional ADSs (by means of warrants or
otherwise), (y) to enable the Holders to exercise such rights (upon payment of
the subscription price and of the applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs
upon the valid exercise of such rights. The Company shall assist the Depositary
to the extent reasonably necessary in establishing such procedures. Nothing
herein shall obligate the Depositary to make available to the Holders a method
to exercise rights to subscribe for Shares (rather than ADSs).
Notwithstanding anything contained in this Section 4.4 to the contrary, in
the event the Company fails to give the Depositary at least forty-five (45) days
prior notice of the proposed distribution provided for above, the Depositary
agrees to use commercially reasonable efforts to perform the actions
contemplated in this Section 4.4(a), and the Company, the Holders and the
Beneficial Owners acknowledge that the Depositary shall have no liability for
the Depositary's failure to perform the actions contemplated in this Section
4.4(a) where such notice has not been so timely given, other than its failure to
use commercially reasonable efforts, as provided herein.
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines it is
not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall, after consultation with the Company, determine whether it is
lawful and reasonably practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public or private sale)
as it may deem practicable. The Company shall assist the Depositary to the
extent reasonably practicable to determine such legality and practicability. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) upon the terms set forth in Section 4.1. The
remittance of the net proceeds of any sale of rights to Holders shall not be
unreasonably delayed by any action of the Depositary.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall, after consultation with the Company, allow such rights to
lapse.
The Depositary and the Company shall not be responsible for (i) any
failure to determine that it may be lawful or practicable to make such rights
available to Holders in general or any Holders in particular or (ii) any foreign
exchange exposure or loss incurred in connection with such sale, or exercise.
The Depositary shall not be responsible for the content of any materials
forwarded to the Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
23
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for the
Company appropriately qualified in respect of the relevant jurisdiction(s) in
which rights would be distributed, in each case reasonably satisfactory to the
Depositary, to the effect that the offering and sale of such securities to
Holders and Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws.
In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines, after consultation with the Company, that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charges which the Depositary is obligated to withhold,
the Depositary may dispose of all or a portion of such property (including
Shares and rights to subscribe therefor) in such amounts and in such manner,
including by public or private sale, as the Depositary deems reasonably
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
Section 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares.
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give timely notice thereof to the Depositary and shall
indicate whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes such
distribution be made to Holders of ADSs, the Depositary shall consult with the
Company, and the Company shall assist the Depositary, to determine whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have requested the
Depositary to make such distribution to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary, after consultation with the Company, shall have determined that
such distribution is reasonably practicable.
(b) Upon receipt of reasonably satisfactory documentation and the request
of the Company to distribute property to Holders of ADSs and after making the
requisite determinations set forth in (a) above, the Depositary shall, as
promptly as possible, distribute the property so received to the Holders of
record, as of the ADS Record Date, in proportion to the number of ADSs held by
them respectively and in such manner as the Depositary may deem reasonably
24
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and expenses incurred by, the
Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of
all or a portion of the property so distributed and deposited, in such amounts
and in such manner (including public or private sale) as the Depositary may deem
reasonably practicable or necessary to satisfy any taxes (including applicable
interest and penalties) or other governmental charges applicable to the
distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary, after consultation with the Company,
determines that all or a portion of such distribution is not reasonably
practicable, the Depositary shall sell or cause such property to be sold in a
public or private sale, at such place or places and upon such terms as it may
deem reasonably practicable and shall (i) cause the proceeds of such sale, if
any, to be converted into Dollars and (ii) distribute the proceeds of such
conversion received by the Depositary (net of applicable (a) fees and charges
of, and expenses incurred by, the Depositary and (b) taxes) to the Holders as of
the ADS Record Date upon the terms of Section 4.1. If the Depositary is unable
to sell such property, the Depositary may dispose of such property for the
account of the Holders in any way it deems reasonably practicable under the
circumstances.
(d) Neither the Depositary nor the Company shall be responsible for (i)
any failure to determine whether it is lawful or practicable to make property
described in this Section 4.5 available to Holders in general or any Holders in
particular, nor (ii) any foreign exchange exposure or loss incurred in
connection with the sale or disposal of such property.
Section 4.6 Distributions with Respect to Deposited Securities in
Bearer Form. Subject to the terms of this Article IV, distributions in respect
of Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of ADS(s) with
respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such
coupons, talons or certificates, as the case may be, in connection with any such
distribution.
Section 4.7 Redemption. If the Company intends to exercise any right
of redemption in respect of any of the Deposited Securities, the Company shall
give notice thereof to the Depositary at least forty-five (45) days prior to the
intended date of redemption which notice shall set forth the particulars of the
proposed redemption. Upon timely receipt of (i) such notice and (ii)
satisfactory documentation given by the Company to the Depositary within the
terms of Section 5.7, and only if the Depositary shall have reasonably
determined that such proposed redemption is practicable, the Depositary shall
provide to each Holder a notice setting forth the intended exercise by the
Company of the redemption rights and any other particulars set forth in the
Company's notice to the Depositary. The Depositary shall instruct the Custodian
to present to the Company the Deposited Securities in respect of which
redemption rights are being exercised against payment of the applicable
redemption price. Upon receipt of confirmation from the Custodian that the
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redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall, as promptly as practicable, convert,
transfer, and distribute the proceeds (net of applicable (a) fees and charges
of, and the expenses incurred by, the Depositary, and (b) taxes), retire ADSs
and cancel ADRs, if applicable, upon delivery of such ADSs by Holders thereof
and the terms set forth in Sections 4.1 and 6.2. If less than all outstanding
Deposited Securities are redeemed, the ADSs to be retired will be selected by
lot or on a pro rata basis, as may be determined by the Depositary. The
redemption price per ADS shall be the dollar equivalent of the per share amount
received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio)
upon the redemption of the Deposited Securities represented by ADSs (subject to
the terms of Section 4.8 and the applicable fees and charges of, and expenses
incurred by, the Depositary, and taxes) multiplied by the number of Deposited
Securities represented by each ADS redeemed.
Notwithstanding anything contained in this Section 4.7 to the contrary, in
the event the Company fails to give the Depositary at least forty-five (45) days
prior notice of the intended date of redemption as provided for above, the
Depositary agrees to use commercially reasonable efforts to perform the actions
contemplated in this Section 4.7 and the Company, the Holders and the Beneficial
Owners acknowledge that the Depositary shall have no liability for the
Depositary's failure to perform the actions contemplated in this Section 4.7
where such notice has not been so timely given, other than for its failure to
use commercially reasonable efforts, as provided for herein.
Section 4.8 Conversion of Foreign Currency. Whenever the Depositary
or the Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may reasonably
determine in accordance with applicable law, into Dollars transferable to the
United States and distributable to the Holders entitled thereto, the Depositary
shall convert or cause to be converted, by sale or in any other manner that it
may reasonably determine, such Foreign Currency into Dollars, and shall
distribute such Dollars (net of any applicable fees, any reasonable and
customary expenses incurred in such conversion and any expenses incurred on
behalf of the Holders in complying with currency exchange control or other
governmental requirements) in accordance with the terms of the applicable
sections of the Deposit Agreement. If the Depositary shall have distributed
warrants or other instruments that entitle the holders thereof to such Dollars,
the Depositary shall distribute such Dollars to the holders of such warrants
and/or instruments upon surrender thereof for cancellation, in either case
without liability for interest thereon. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Holders on account of any application of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
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If at any time the Depositary shall determine that in its reasonable
judgment the conversion of any Foreign Currency and the transfer and
distribution of proceeds of such conversion received by the Depositary is not
practicable or lawful, or if any approval or license of any governmental
authority or agency thereof that is required for such conversion, transfer and
distribution is denied or, in the opinion of the Depositary, not obtainable at a
reasonable cost or within a reasonable period, the Depositary may, in its
discretion, (i) make such conversion and distribution in Dollars to the Holders
for whom such conversion, transfer and distribution is lawful and practicable,
(ii) distribute the Foreign Currency (or an appropriate document evidencing the
right to receive such Foreign Currency) to Holders for whom this is lawful and
practicable or (iii) hold (or cause the Custodian to hold) such Foreign Currency
(without liability for interest thereon) for the respective accounts of the
Holders entitled to receive the same.
Section 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of, or solicitation of consents or proxies of, holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall, upon
prior notification to the Company, fix a record date (the "ADS Record Date") for
the determination of the Holders of ADS(s) who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. The
Depositary shall make reasonable efforts to establish the ADS Record Date as
closely as possible to the applicable record date for the Deposited Securities
(if any) set by the Company in England and Wales. Subject to applicable law and
the provisions of Section 4.1 through 4.8 and to the other terms and conditions
of the Deposit Agreement, only the Holders of ADSs at the close of business in
New York on such ADS Record Date shall be entitled to receive such distribution,
to give such voting instructions, to receive such notice or solicitation, or
otherwise take action.
Section 4.10 Voting of Deposited Securities. As soon as practicable
after receipt of notice of any meeting at which the holders of Deposited
Securities are entitled to vote, or of solicitation of consents or proxies from
holders of Deposited Securities, the Depositary shall fix the ADS Record Date in
respect of such meeting or solicitation of consent or proxy in accordance with
Section 4.9. The Depositary shall, if requested by the Company in writing in a
timely manner (the Depositary having no obligation to take any further action if
the request shall not have been received by the Depositary at least twenty-one
(21) days prior to the date of such vote or meeting), at the Company's expense
and provided no U.S. legal prohibitions exist, distribute to Holders as of the
ADS Record Date: (a) such notice of meeting or notice of solicitation of consent
or proxy, the form of which notice shall be timely furnished by the Company, (b)
a statement, approved by the Company, that the Holders at the close of business
on the ADS Record Date will be entitled, subject to any applicable law, the
provisions of the Deposit Agreement, the Articles of Association of the Company
and the provisions of or governing the Deposited Securities (which provisions,
if any, shall be summarized in pertinent part by the Company), to instruct the
27
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by such Holder's ADSs, and (c) a brief
statement, approved by the Company, as to the manner in which such voting
instructions may be given.
Notwithstanding anything contained in the Deposit Agreement or any ADR,
the Depositary may, to the extent not prohibited by law, regulations, or the
applicable stock exchange requirements, in lieu of distribution of the materials
provided to the Depositary in connection with any meeting of, or solicitation of
consents or proxies from, holders of Deposited Securities, distribute to the
Holders a notice that provides Holders with, or otherwise publicize to Holders,
instructions on how to retrieve such materials or receive such materials upon
request (i.e., by reference to a website containing the materials for retrieval
or a contact for requesting copies of the materials).
Voting instructions may be given only in respect of a number of ADSs
representing an integral number of Deposited Securities. The Depositary has been
advised by the Company that under the Company's Articles of Association as in
effect as of the date of the Deposit Agreement, at any meeting of shareholders,
voting on a Substantive Resolution is on a poll and voting on a Procedural
Resolution is by show of hands unless the chairman of the meeting determines
that a poll is required or unless a poll is demanded. The Depositary will not
join in demanding a poll, whether or not requested to do so by Holders of ADSs.
Under the Articles of Association of the Company (as in effect on the date of
the Deposit Agreement) a poll may be demanded in relation to a Procedural
Resolution by (i) the chairman of the meeting, (ii) at least five shareholders
present in person or in the case of a shareholder being a corporation by its
duly authorized representative or by proxy for the time being entitled to vote
on the resolution, (iii) any shareholder(s) present in person or in the case of
a shareholder being a corporation by its duly authorized representative or by
proxy and representing not less than one-tenth of the total voting rights of all
shareholders having the right to vote on the resolution, or (iv) any
shareholder(s) present in person or in the case of a shareholder being a
corporation by its duly authorized representative or by proxy and holding Shares
in the Company conferring a right to vote at a meeting being Shares on which an
aggregate sum has been paid up equal to not less than one-tenth of the total sum
paid on all Shares conferring that right.
Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of
voting instructions in the manner specified by the Depositary, the Depositary
shall endeavor, insofar as practicable and permitted under applicable law, the
provisions of the Deposit Agreement, the Articles of Association of the Company
and the provisions of the Deposited Securities, to cause to be voted the
Deposited Securities as follows: (i) in the event voting takes place at a
shareholders' meeting in relation to a given resolution by show of hands, the
Depositary will instruct the Custodian to vote all Deposited Securities
(including Deposited Securities represented by ADSs for which no timely voting
instructions are received by the Depositary from the Holder) in accordance with
the voting instructions received from a majority of Holders of ADSs who provided
voting instructions in relation to such resolution; or (ii) in the event voting
takes place at a shareholders' meeting in relation to a given resolution by
poll, the Depositary will instruct the Custodian to vote the Deposited
Securities in accordance with the voting instructions received from the Holders
of ADSs.
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Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of for purposes of establishing a quorum or otherwise, the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein. If the Depositary timely receives voting instructions from a Holder
which fail to specify the manner in which the Depositary is to vote the
Deposited Securities represented by such Holder's ADSs, the Depositary will deem
such Holder (unless otherwise specified in the notice distributed to Holders) to
have instructed the Depositary to vote in favor of the items set forth in such
voting instructions. Notwithstanding anything else contained herein, the
Depositary shall, if so requested in writing by the Company, represent all
Deposited Securities (whether or not voting instructions have been received in
respect of such Deposited Securities from Holders as of the ADS Record Date) for
the sole purpose of establishing quorum at a meeting of shareholders
If (i) the Company shall have timely requested that the Depositary
distribute materials to the Holders in connection with a meeting at which the
holders of Deposited Securities are entitled to vote, (ii) voting at such
meeting takes place by poll, and (iii) the Depositary does not receive timely
instructions from a Holder on or before the date established by the Depositary
for such purpose, the Depositary shall deem such Holder to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company
with respect to that amount of Deposited Securities and the Depositary shall
give a discretionary proxy to a person designated by the Company to vote the
Deposited Securities represented by such Holder's ADSs, except that no such
instruction shall be deemed given and no such discretionary proxy shall be given
with respect to any matter as to which the Company informs the Depositary (and
the Company agrees to provide such information to the Depositary as promptly as
practicable in writing, if applicable) that (x) the Company does not wish such
proxy given, (y) substantial opposition exists, or (z) such matter materially
and adversely affects the rights of holders of Deposited Securities.
Notwithstanding anything else contained in the Deposit Agreement or any
ADR, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Deposited Securities if the taking of such action would violate U.S. laws. The
Company agrees to take commercially reasonable steps to enable Holders and
Beneficial Owners to exercise the voting rights accruing to the Deposited
Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so reasonably requested by the
Depositary.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
Section 4.11 Changes Affecting Deposited Securities. Upon any change
in nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger, consolidation or sale of assets affecting the Company or
to which it is a party, any securities which shall be received by the Depositary
or the Custodian in exchange for, or in conversion of or replacement of or
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
29
Agreement, and the ADRs shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional or replacement securities. In giving effect to such change,
split-up, cancellation, consolidation or other reclassification of Deposited
Securities, recapitalization, reorganization, merger, consolidation or sale of
assets, the Depositary may, with the Company's approval, and shall, if the
Company shall so request, subject to the terms of the Deposit Agreement and
receipt of an opinion of counsel to the Company reasonably satisfactory to the
Depositary that such actions are not in violation of any applicable laws or
regulations, (i) issue and deliver additional ADSs as in the case of a share
dividend on the Shares, (ii) amend the Deposit Agreement and the applicable
ADRs, (iii) amend the applicable Registration Statement(s) on Form F-6 as filed
with the Commission in respect of the ADSs, (iv) call for the surrender of
outstanding ADRs to be exchanged for new ADRs, and (v) take such other actions
as are appropriate to reflect the transaction with respect to the ADSs. The
Company agrees to, jointly with the Depositary, amend the Registration Statement
on Form F-6 as filed with the Commission to permit the issuance of such new form
of ADRs. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the Depositary
may, with the Company's approval, and shall, if the Company requests, subject to
receipt of an opinion of Company's counsel reasonably satisfactory to the
Depositary that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes) for the account of the Holders otherwise
entitled to such securities upon an averaged or other practicable basis without
regard to any distinctions among such Holders and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to Section 4.1. The Depositary and the Company shall not be
responsible for (i) any failure to determine that it may be lawful or
practicable to make such securities available to Holders in general or to any
Holder in particular or (ii) any foreign exchange exposure or loss incurred in
connection with such sale. The Depositary shall not be responsible for any
liability to the purchaser of such securities.
Section 4.12 Available Information.
The Company publishes information in English required to maintain the
exemption from registration pursuant to Rule 12g3-2(b)(2)(i) under the Exchange
Act on its internet website or through an electronic information delivery system
generally available to the public in the Company's primary trading market. The
electronic information delivery system the Company uses for the publication of
such reports is the Regulatory News Service of the London Stock Exchange ("RNS")
(or any successor thereof). As of the date hereof the Company's internet website
is xxxx://xxx.xxxxxxxxxxxxxxx.xxx. The information so published by the Company
cannot be retrieved from the Commission's internet website, and cannot be
inspected or copied at the public reference facilities maintained by the
Commission located (as of the date of the Deposit Agreement) at 000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000.
Section 4.13 Reports. The Depositary shall make available upon
request for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
30
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 provide or make available to Holders copies of such
reports when furnished by the Company pursuant to Section 5.6.
Section 4.14 List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of ADSs of all Holders.
Section 4.15 Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of ADSs may be required from time
to time, and in a timely manner, to file such proof of taxpayer status,
residence and beneficial ownership (as applicable), to execute such certificates
and to make such representations and warranties, or to provide any other
information or documents, as the Depositary or the Custodian may deem necessary
or proper to fulfill the Depositary's or the Custodian's obligations under
applicable law. The Depositary and the Company shall have no obligation or
liability to any person if any Holder or Beneficial Owner fails to provide such
information or if such information does not reach the relevant tax authorities
in time for any Holder or Beneficial Owner to obtain the benefit of any tax
treatment. The Holders and Beneficial Owners shall indemnify the Depositary, the
Company, the Custodian and any of their respective directors, employees, agents
and Affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any
amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e., stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit as soon as
reasonably practicable to the Depositary information about such taxes or
governmental charges withheld or paid, and, if so requested, the tax receipt (or
other proof of payment to the applicable governmental authority) therefor, in
each case, in a form satisfactory to the Depositary. The Depositary shall, to
the extent required by U.S. law, report to Holders any taxes withheld by it or
the Custodian, and, if such information is provided to it by the Company, any
taxes withheld by the Company. The Depositary and the Custodian shall not be
required to provide the Holders with any evidence of the remittance by the
Company (or its agents) of any taxes withheld, or of the payment of taxes by the
Company, except to the extent the evidence is provided by the Company to the
Depositary or the Custodian, as applicable. Neither the Depositary nor the
Custodian shall be liable for the failure by any Holder or Beneficial Owner to
obtain the benefits of credits on the basis of non-U.S. tax paid against such
Holder's or Beneficial Owner's income tax liability.
31
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
ADSs, including without limitation, tax consequences resulting from the Company
(or any of its subsidiaries) being treated as a "Passive Foreign Investment
Company" (in each case as defined in the U.S. Internal Revenue Code and the
regulations issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the
Registrar. Until termination of the Deposit Agreement in accordance with its
terms, the Registrar shall maintain in the Borough of Manhattan, the City of New
York, an office and facilities for the issuance and delivery of ADSs, the
acceptance for surrender of ADS(s) for the purpose of withdrawal of Deposited
Securities, the registration of issuances, cancellations, transfers,
combinations and split-ups of ADS(s) and, if applicable, to countersign ADRs
evidencing the ADSs so issued, transferred, combined or split-up, in each case
in accordance with the provisions of the Deposit Agreement.
The Registrar shall keep books for the registration of ADSs which at all
reasonable times shall be open for inspection by the Company and by the Holders
of such ADSs, provided that such inspection shall not be, to the Registrar's
knowledge, for the purpose of communicating with Holders of such ADSs in the
interest of a business or object other than the business of the Company or other
than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section 7.8.
If any ADSs are listed on one or more stock exchanges or automated
quotation systems in the United States, the Depositary shall act as Registrar or
appoint a Registrar or one or more co-registrars for registration of issuances,
cancellations, transfers, combinations and split-ups of ADSs and, if applicable,
to countersign ADRs evidencing the ADSs so issued, transferred, combined or
split-up, in accordance with any requirements of such exchanges or systems. Such
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary with prior notification to the Company.
Section 5.2 Exoneration. Neither the Depositary nor the Company
shall be obligated to do or perform any act which is inconsistent with the
provisions of the Deposit Agreement or incur any liability (i) if the Depositary
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or the Company shall be prevented or forbidden from, or delayed in, doing or
performing any act or thing required by the terms of the Deposit Agreement, by
reason of any provision of any present or future law or regulation of the United
States, England and Wales or any other country, or of any other governmental
authority or regulatory authority or stock exchange, or on account of the
possible criminal or civil penalties or restraint, or by reason of any
provision, present or future, of the Articles of Association of the Company or
any provision of or governing any Deposited Securities, or by reason of any act
of God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, acts of terrorism, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in the Deposit Agreement or in the
Articles of Association of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for the inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of the
Deposit Agreement, made available to Holders of ADSs, or (v) for any
consequential or punitive damages for any breach of the terms of the Deposit
Agreement.
The Depositary, its controlling persons, its agents, any Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
Section 5.3 Standard of Care. The Company and the Depositary, and
any of their respective controlling persons or agents, assume no obligation and
shall not be subject to any liability under the Deposit Agreement or any ADRs to
any Holder(s) or Beneficial Owner(s), except that the Company and the Depositary
agree to perform their respective obligations specifically set forth in the
Deposit Agreement or the applicable ADRs without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the ADSs,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
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The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any vote is cast or the effect of any vote, provided that any such
action or omission is in good faith and without negligence and in accordance
with the terms of the Deposit Agreement. The Depositary shall not incur any
liability for any failure to determine that any distribution or action may be
lawful or reasonably practicable, for the content of any information submitted
to it by the Company for distribution to the Holders or for any inaccuracy of
any translation thereof, for any investment risk associated with acquiring an
interest in the Deposited Securities, for the validity or worth of the Deposited
Securities or for any tax consequences that may result from the ownership of
ADSs, Shares or Deposited Securities, for the credit-worthiness of any third
party, for allowing any rights to lapse upon the terms of the Deposit Agreement,
for the failure or timeliness of any notice from the Company, or for any action
of or failure to act by, or any information provided or not provided by, DTC or
any DTC Participant.
Section 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 90th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2), or (ii) the appointment by the Company of
a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the later of (i) the 90th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its reasonable efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due
it and on the written request of the Company shall, (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADSs and such other information relating to ADSs and
Holders thereof as the successor may reasonably request. Any such successor
depositary shall promptly provide notice of its appointment to such Holders.
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Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5 The Custodian. The Depositary has initially appointed
Citibank, N.A. (London Branch) as Custodian for the purpose of the Deposit
Agreement. The Custodian or its successors in acting hereunder shall be subject
at all times and in all respects to the direction of the Depositary for the
Deposited Securities for which the Custodian acts as custodian and shall be
responsible solely to it. If any Custodian resigns or is discharged from its
duties hereunder with respect to any Deposited Securities and no other Custodian
has previously been appointed hereunder, the Depositary shall promptly appoint a
substitute custodian. The Depositary shall require such resigning or discharged
Custodian to Deliver, or cause the Delivery of, the Deposited Securities held by
it, together with all such records maintained by it as Custodian with respect to
such Deposited Securities as the Depositary may request, to the Custodian
designated by the Depositary. The Depositary shall use reasonable commercial
efforts to ensure that at all times there is a Custodian thereunder. Whenever
the Depositary determines, in its discretion, that it is appropriate to do so,
it may appoint an additional custodian with respect to any Deposited Securities,
or discharge the Custodian with respect to any Deposited Securities and appoint
a substitute custodian, which shall thereafter be Custodian hereunder with
respect to the Deposited Securities. Immediately upon any such change, the
Depositary shall give notice thereof in writing to all Holders of ADSs, each
other Custodian and the Company.
Citibank, N.A. may at any time act as Custodian of the Deposited
Securities pursuant to the Deposit Agreement, in which case any reference to
Custodian shall mean Citibank, N.A. solely in its capacity as Custodian pursuant
to the Deposit Agreement. Notwithstanding anything contained in the Deposit
Agreement or any ADR, the Depositary shall not be obligated to give notice to
the Company, any Holders of ADSs or any other Custodian of its acting as
Custodian pursuant to the Deposit Agreement.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
Section 5.6 Notices and Reports. On or before the first date on
which the Company gives notice, by publication or otherwise, of any meeting of
holders of Shares or other Deposited Securities, or of any adjourned meeting of
such holders, or of the taking of any action by such holders other than at a
meeting, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of Deposited Securities,
the Company shall transmit to the Depositary and the Custodian a copy of the
notice thereof in the English language but otherwise in the form given or to be
given to holders of Shares or other Deposited Securities. The Company shall also
furnish to the Custodian and the Depositary a summary, in English, of any
applicable provisions or proposed provisions of the Articles of Association of
the Company that may be relevant or pertain to such notice of meeting or be the
subject of a vote thereat.
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The Company will also transmit to the Depositary English-language versions
of the other notices, reports and communications which are made generally
available by the Company to holders of its Shares or other Deposited Securities.
The Depositary shall arrange, at the request of the Company and at the Company's
expense, to provide, as promptly as practicable, copies thereof to all Holders
or make such notices, reports and other communications available to all Holders
on a basis similar to that for holders of Shares or other Deposited Securities
or on such other basis as the Company may advise the Depositary or as may be
required by any applicable law, regulation or stock exchange requirement. The
Company has delivered to the Depositary and the Custodian a copy of the
Company's Articles of Association along with the provisions of or governing the
Shares and any other Deposited Securities issued by the Company in connection
with such Shares, and promptly upon any amendment thereto or change therein, the
Company shall deliver to the Depositary and the Custodian a copy of such
amendment thereto or change therein. The Depositary may rely upon such copy for
all purposes of the Deposit Agreement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the ADSs at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
Section 5.7 Issuance of Additional Shares, ADSs etc. The Company
agrees that in the event it or any of its Affiliates proposes (i) an issuance,
sale or distribution of additional Shares, (ii) an offering of rights to
subscribe for Shares or other Deposited Securities, (iii) an issuance or
assumption of securities convertible into or exchangeable for Shares, (iv) an
issuance of rights to subscribe for securities convertible into or exchangeable
for Shares, (v) an elective dividend of cash or Shares, (vi) a redemption of
Deposited Securities, (vii) a meeting of holders of Deposited Securities, or
solicitation of consents or proxies, relating to any reclassification of
securities, merger or consolidation or transfer of assets, (viii) any
assumption, reclassification, recapitalization, reorganization, merger,
consolidation or sale of assets which affects the Deposited Securities, or (ix)
a distribution of securities other than Shares, it will obtain U.S. legal advice
and take all steps necessary to ensure that the proposed transaction does not
violate the registration provisions of the Securities Act, or any other
applicable laws (including, without limitation, the Investment Company Act of
1940, as amended, the Exchange Act and the securities laws of the states of the
U.S.). In support of the foregoing, the Company will furnish to the Depositary
(a) a written opinion of U.S. counsel (reasonably satisfactory to the
Depositary) stating whether such transaction (1) requires a registration
statement under the Securities Act to be in effect or (2) is exempt from the
registration requirements of the Securities Act and (b) an opinion of English
counsel stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of England and Wales
and (2) all requisite regulatory consents and approvals have been obtained in
England and Wales. If the filing of a registration statement is required, the
Depositary shall not have any obligation to proceed with the transaction unless
it shall have received evidence reasonably satisfactory to it that such
registration statement has been declared effective. If, being advised by
counsel, the Company determines that a transaction is required to be registered
under the Securities Act, the Company will either (i) register such transaction
36
to the extent necessary, (ii) alter the terms of the transaction to avoid the
registration requirements of the Securities Act or (iii) direct the Depositary
to take specific measures, in each case as contemplated in the Deposit
Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act. The Company agrees with the Depositary that
neither the Company nor any of its Affiliates will at any time (i) deposit any
Shares or other Deposited Securities, either upon original issuance or upon a
sale of Shares or other Deposited Securities previously issued and reacquired by
the Company or by any such Affiliate, or (ii) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities or distribute securities other
than Shares, unless such transaction and the securities issuable in such
transaction do not violate the registration provisions of the Securities Act, or
any other applicable laws (including, without limitation, the Investment Company
Act of 1940, as amended, the Exchange Act and the securities laws of the states
of the U.S.).
Notwithstanding anything else contained in the Deposit Agreement, nothing
in the Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
by the Depositary under the terms hereof due to the negligence, bad faith or
willful misconduct of the Depositary.
The Company agrees to indemnify the Depositary, the Custodian, and any of
their respective directors, officers, employees agents and affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs,
ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of
or as a result of any offering documents in respect thereof or (c) out of acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with the Deposit Agreement, the ADRs, the ADSs, the Shares, or any
Deposited Securities, in any such case (i) by the Depositary, the Custodian, or
any of their respective directors, officers, employees, agents and affiliates,
except to the extent such loss, liability, tax, charge or expense is due to the
negligence, bad faith or willful misconduct of any of them, or (ii) by the
Company or any of its directors, officers, employees, agents and affiliates,
except to the extent any such loss, liability, tax, charge or expense arises out
of information relating to the Depositary or any Custodian, as applicable,
furnished to the Company by the Depositary in writing.
The indemnities contained in the preceding paragraph shall not extend to
any loss, liability, tax, charge or expense that arises solely and exclusively
out of any Pre-Release Transaction (as defined in Section 5.10) and that would
not otherwise have arisen had the ADSs not been the subject of a Pre-Release
Transaction pursuant to Section 5.10; provided, however, that the indemnities
37
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 the ADSs
not been the subject of a Pre-Release Transaction, or (ii) the Pre-Release
Transaction was entered into at the request of the Company.
The obligations set forth in this Section shall survive the termination of
the Deposit Agreement and the succession or substitution of any party hereto.
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 to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
Section 5.9 Fees and Charges of Depositary. The Company, the
Holders, the Beneficial Owners, and persons depositing Shares or surrendering
ADSs for cancellation and withdrawal of Deposited Securities shall be required
to pay to the Depositary the Depositary's fees and related charges identified as
payable by them respectively in the Fee Schedule attached hereto as Exhibit B.
All fees and charges so payable may, at any time and from time to time, be
changed by agreement between the Depositary and the Company, but, in the case of
fees and charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
Depositary Fees payable upon (i) deposit of Shares against issuance of
ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable ADS Record Date established by the Depositary. In
the case of distributions of cash, the amount of the applicable Depositary fees
is deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the ADS Record Date established by the
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Depositary. For ADSs held through DTC, the Depositary fees for distributions
other than cash and the Depositary service fee are charged by the Depositary to
the DTC Participants in accordance with the procedures and practices prescribed
by DTC from time to time and the DTC Participants in turn charge the amount of
such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by
the Company in respect of the ADR program established pursuant to the Deposit
Agreement upon such terms and conditions as the Company and the Depositary may
agree from time to time. The Company shall pay to the Depositary such fees and
charges and reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree from time to time. Responsibility for
payment of such charges and reimbursements may from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed, the
Depositary shall present its statement for such expenses and fees or charges to
the Company once every three months. The charges and expenses of the Custodian
are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4, such right shall extend for those fees,
charges and expenses incurred prior to the effectiveness of such resignation or
removal.
Section 5.10 Pre-Release Transactions. Subject to the further terms
and provisions of this Section 5.10, the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its Affiliates and in ADSs. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 and
(ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7, including ADSs which were issued under (i)
above but for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Shares are to be delivered
(w) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such Shares or ADSs are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs, and (z) agrees
to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days' notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of ADSs and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) (the "Pre-Release Limit") of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above), provided, however, that the
39
Depositary reserves the right to disregard such limit from time to time as it
deems reasonably appropriate. Notwithstanding the foregoing, the Depositary will
obtain prior approval from the Company in order to engage in new Pre-Release
Transactions in excess of the Pre-Release Limit, which approval will not be
unreasonably withheld by the Company.
The Depositary may also set limits with respect to the number of ADSs and
Shares involved in Pre-Release Transactions with any one person on a
case-by-case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
Section 5.11 Restricted Securities Owners. The Company agrees to
advise in writing each of the persons or entities who, to the knowledge of the
Company, holds Restricted Securities that such Restricted Securities are
ineligible for deposit hereunder (except under the circumstances contemplated in
Section 2.14) and, to the extent practicable, shall require each of such persons
to represent in writing that such person will not deposit Restricted Securities
hereunder (except under the circumstances contemplated in Section 2.14).
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. Subject to the terms and
conditions of this Section 6.1 and applicable law, the ADRs outstanding at any
time, the provisions of the Deposit Agreement and the form of ADR attached
hereto and to be issued under the terms hereof may at any time and from time to
time be amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. Notice of
any amendment to the Deposit Agreement or any ADR shall not need to describe in
detail the specific amendments effectuated thereby, and failure to describe the
specific amendments in any such notice shall not render such notice invalid,
provided, however, that, in each such case, the notice given to the Holders
identifies a means for Holders and Beneficial Owners to retrieve or receive the
text of such amendment (i.e., upon retrieval from the Commission's, the
Depositary's or the Company's website or upon request from the Depositary). The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
settled solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADSs, to consent and agree to such amendment or supplement and to be bound by
40
the Deposit Agreement and the ADR, if applicable, as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such ADS and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and any ADRs at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement and any ADRs in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, rules or regulations.
Section 6.2 Termination. The Depositary shall, at any time at the
written direction of the Company, terminate the Deposit Agreement by
distributing notice of such termination to the Holders of all ADSs then
outstanding at least thirty (30) days prior to the date fixed in such notice for
such termination. If ninety (90) days shall have expired after (i) the
Depositary shall have delivered to the Company a written notice of its election
to resign, or (ii) the Company shall have delivered to the Depositary a written
notice of the removal of the Depositary, and, in either case, a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.4 of the Deposit Agreement, the Depositary may terminate
the Deposit Agreement by distributing notice of such termination to the Holders
of all ADSs then outstanding at least thirty (30) days prior to the date fixed
in such notice for such termination. The date so fixed for termination of the
Deposit Agreement in any termination notice so distributed by the Depositary to
the Holders of ADSs is referred to as the "Termination Date". Until the
Termination Date, the Depositary shall continue to perform all of its
obligations under the Deposit Agreement, and the Holders and Beneficial Owners
will be entitled to all of their rights under the Deposit Agreement.
If any ADSs shall remain outstanding after the Termination Date, the
Registrar and the Depositary shall not, after the Termination Date, have any
obligation to perform any further acts under the Deposit Agreement, except that
the Depositary shall, subject, in each case, to the terms and conditions of the
Deposit Agreement, continue to (i) collect dividends and other distributions
pertaining to Deposited Securities, (ii) sell securities and other property
received in respect of Deposited Securities, (iii) deliver Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any securities or other property, in
exchange for ADSs surrendered to the Depositary (after deducting, or charging,
as the case may be, in each case, the fees and charges of, and expenses incurred
by, the Depositary, and all applicable taxes or governmental charges for the
account of the Holders and Beneficial Owners, in each case upon the terms set
forth in Section 5.9 of the Deposit Agreement), and (iv) take such actions as
may be required under applicable law in connection with its role as Depositary
under the Deposit Agreement.
At any time after the Termination Date, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and shall after such
sale hold un-invested the net proceeds of such sale, together with any other
41
cash then held by it under the Deposit Agreement, in an un-segregated account
and without liability for interest, for the pro - rata benefit of the Holders
whose ADSs have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
except (i) to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case, the fees and charges of, and
expenses incurred by, the Depositary, and all applicable taxes or governmental
charges for the account of the Holders and Beneficial Owners, in each case upon
the terms set forth in Section 5.9 of the Deposit Agreement), (ii) obligations
to the Company under Section 5.8 and to the Holders under this Section 6.2,
which obligations shall survive the termination of this Deposit Agreement, and
(iii) as may be required at law in connection with the termination of the
Deposit Agreement. After the Termination Date, the Company shall be discharged
from all obligations under the Deposit Agreement, except for its obligations to
the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit Agreement. The
obligations under the terms of the Deposit Agreement of Holders and Beneficial
Owners of ADSs outstanding as of the Termination Date shall survive the
Termination Date and shall be discharged only when the applicable ADSs are
presented by their Holders to the Depositary for cancellation under the terms of
the Deposit Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. The Deposit Agreement may be executed in
any number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of the Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
Section 7.2 No Third-Party Beneficiaries. The Deposit Agreement is
for the exclusive benefit of the parties hereto (and their successors) and shall
not be deemed to give any legal or equitable right, remedy or claim whatsoever
to any other person, except to the extent specifically set forth in the Deposit
Agreement. Nothing in the Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in the Deposit Agreement shall (a) preclude the Depositary or
any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, and (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or relationships.
Section 7.3 Severability. In case any one or more of the provisions
contained in the Deposit Agreement or in the ADRs should be or become invalid,
42
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding
Effect. The Holders and Beneficial Owners from time to time of ADSs issued
hereunder shall be parties to the Deposit Agreement and shall be bound by all of
the terms and conditions hereof and of any ADR evidencing their ADSs by
acceptance thereof or any beneficial interest therein.
Section 7.5 Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex or facsimile transmission, confirmed by letter
personally delivered or sent by mail or air courier, addressed to Home Retail
Group PLC, Avebury, 000-00 Xxxxxxx Xxxxxxxxx, Xxxxx Gate West, Central Xxxxxx
Keynes MK9 2NW, Attention: Xxxxxx Xxxxxxx, or to any other address which the
Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter personally delivered or
sent by mail or air courier, addressed to Citibank, N.A., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, U.S.A., Attention: Depositary Receipts Department, or
to any other address which the Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if (a) personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the books of the Depositary or, if such
Holder shall have filed with the Depositary a request that notices intended for
such Holder be mailed to some other address, at the address specified in such
request, or (b) if a Holder shall have designated such means of notification as
an acceptable means of notification under the terms of the Deposit Agreement, by
means of electronic messaging addressed for delivery to the e-mail address
designated by the Holder for such purpose. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of the Deposit Agreement.
Failure to notify a Holder or any defect in the notification to a Holder shall
not affect the sufficiency of notification to other Holders or to the Beneficial
Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian, the Depositary, or
the Company, notwithstanding that such cable, telex or facsimile transmission
shall not be subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to
be effective at the time of the initiation of the transmission by the sender (as
shown on the sender's records), notwithstanding that the intended recipient
43
retrieves the message at a later date, fails to retrieve such message, or fails
to receive such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address or for any
other reason.
Section 7.6 Governing Law and Jurisdiction. The Deposit Agreement
and the ADRs shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York without reference to the principles of choice of law
thereof. Notwithstanding anything contained in the Deposit Agreement, any ADR or
any present or future provisions of the laws of the State of New York, the
rights of holders of Shares and of any other Deposited Securities and the
obligations and duties of the Company in respect of the holders of Shares and
other Deposited Securities, as such, shall be governed by the laws of England
and Wales (or, if applicable, such other laws as may govern the Deposited
Securities).
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with the Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers Xxxxxxx & Associates (the "Agent")
now at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 as its authorized
agent to receive and accept for and on its behalf, and on behalf of its
properties, assets and revenues, service by mail of any and all legal process,
summons, notices and documents that may be served in any suit, action or
proceeding brought against the Company in any federal or state court as
described in the preceding sentence or in the next paragraph of this Section
7.6. If for any reason the Agent shall cease to be available to act as such, the
Company agrees to designate a new agent in New York or Delaware on the terms and
for the purposes of this Section 7.6 reasonably satisfactory to the Depositary.
The Company further hereby irrevocably consents and agrees to the service of any
and all legal process, summons, notices and documents in any suit, action or
proceeding against the Company, by service by mail of a copy thereof upon the
Agent (whether or not the appointment of such Agent shall for any reason prove
to be ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air mail,
postage prepaid, to its address provided in Section 7.5. The Company agrees that
the failure of the Agent to give any notice of such service to it shall not
impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under the Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
44
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, and agrees not to plead or claim, any right of immunity from
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any ADR or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of the Deposit Agreement, in whole or in part.
Section 7.7 Assignment. Subject to the provisions of Section 5.4,
the Deposit Agreement may not be assigned by either the Company or the
Depositary.
Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding
anything in the Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
Section 7.9 English Law References. Any summary of English laws and
regulations and of the terms of the Company's Articles of Association set forth
in the Deposit Agreement have been provided by the Company solely for the
convenience of Holders, Beneficial Owners and the Depositary. While such
summaries are believed by the Company to be accurate as of the date of the
Deposit Agreement, (i) they are summaries and as such may not include all
aspects of the materials summarized applicable to a Holder or Beneficial Owner,
and (ii) these laws and regulations and the Company's Articles of Association
may change after the date of the Deposit Agreement. Neither the Depositary nor
the Company has any obligation under the terms of the Deposit Agreement to
update any such summaries.
Section 7.10 Titles and References.
45
(a) Deposit Agreement. All references in the Deposit Agreement to
exhibits, articles, sections, subsections, and other subdivisions refer to the
exhibits, articles, sections, subsections and other subdivisions of the Deposit
Agreement unless expressly provided otherwise. The words "the Deposit
Agreement", "herein", "hereof", "hereby", "hereunder", and words of similar
import refer to the Deposit Agreement as a whole as in effect at the relevant
time between the Company, the Depositary and the Holders and Beneficial Owners
of ADSs and not to any particular subdivision unless expressly so limited.
Pronouns in masculine, feminine and neuter gender shall be construed to include
any other gender, and words in the singular form shall be construed to include
the plural and vice versa unless the context otherwise requires. Titles to
sections of the Deposit Agreement are included for convenience only and shall be
disregarded in construing the language contained in the Deposit Agreement.
References to "applicable laws and regulations" shall refer to laws and
regulations applicable to ADRs, ADSs or Deposited Securities as in effect at the
relevant time of determination, unless otherwise required by law or regulation.
(b) ADRs. All references in any ADR(s) to paragraphs, exhibits, articles,
sections, subsections, and other subdivisions refer to the paragraphs, exhibits,
articles, sections, subsections and other subdivisions of the ADR(s) in question
unless expressly provided otherwise. The words "the Receipt", "the ADR",
"herein", "hereof", "hereby", "hereunder", and words of similar import used in
any ADR refer to the ADR as a whole and as in effect at the relevant time, and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender in any ADR shall be construed to include
any other gender, and words in the singular form shall be construed to include
the plural and vice versa unless the context otherwise requires. Titles to
paragraphs of any ADR are included for convenience only and shall be disregarded
in construing the language contained in the ADR. References to "applicable laws
and regulations" shall refer to laws and regulations applicable to ADRs, ADSs or
Deposited Securities as in effect at the relevant time of determination, unless
otherwise required by law or regulation.
46
IN WITNESS WHEREOF, HOME RETAIL GROUP PLC and CITIBANK, N.A. have duly
executed the Deposit Agreement as of the day and year first above set forth and
all Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of ADSs issued in accordance with the terms hereof, or upon acquisition of
any beneficial interest therein.
HOME RETAIL GROUP PLC
By:
-------------------------------
Name:
Title:
CITIBANK, N.A.
By:
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
47
EXHIBIT A
[FORM OF ADR]
Number CUSIP NUMBER: _______
_____________
American Depositary Shares (each
American Depositary Share
representing the right to
receive four (4) Fully Paid
ordinary shares)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
HOME RETAIL GROUP PLC
(Incorporated under the laws of England and Wales)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS") representing deposited ordinary
shares, including evidence of rights to receive such ordinary shares (the
"Shares"), of Home Retail Group plc, a corporation incorporated under the laws
of England and Wales (the "Company"). As of the date of the Deposit Agreement
(as hereinafter defined), each ADS represents the right to receive four (4)
Shares deposited under the Deposit Agreement with the Custodian, which at the
date of execution of the Deposit Agreement is Citibank, N.A. (London Branch)
(the "Custodian"). The ADS(s)-to-Share(s) ratio is subject to amendment as
provided in Articles IV and VI of the Deposit Agreement. The Depositary's
Principal Office is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("ADRs"), all issued and to be issued upon
the terms and conditions set forth in the Deposit Agreement, dated as of [date],
2009 (as amended and supplemented from time to time, the "Deposit Agreement"),
by and among the Company, the Depositary, and all Holders and Beneficial Owners
from time to time of ADSs issued thereunder. The Deposit Agreement sets forth
A-1
the rights and obligations of Holders and Beneficial Owners of ADSs and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other 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 Principal Office of the Depositary and with
the Custodian. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms and
conditions of the Deposit Agreement, shall be deemed for all purposes to (a) be
a party to and bound by the terms of the Deposit Agreement and applicable
ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated in
the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement and the applicable ADR(s), the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of
certain provisions of the Deposit Agreement and the Articles of Association of
the Company (as in effect on the date of the signing of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
Agreement and the Articles of Association, to which reference is hereby made.
All capitalized terms used herein which are not otherwise defined herein shall
have the meanings ascribed thereto in the Deposit Agreement. The Depositary
makes no representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the ADSs
into DTC. Each Beneficial Owner of ADSs held through DTC must rely on the
procedures of DTC and the DTC Participants to exercise and be entitled to any
rights attributable to such ADSs. The Depositary may issue Uncertificated ADSs
subject, however, to the terms and conditions of Section 2.13 of the Deposit
Agreement.
(2) Withdrawal of Deposited Securities. The Holder of this ADR (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the following conditions: (i)
the Holder (or a duly authorized attorney of the Holder) has duly Delivered to
the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if applicable and so required by the Depositary, this
ADR Delivered to the Depositary for such purpose has been properly endorsed in
blank or is accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit
B to, the Deposit Agreement) have been paid, subject, however, in each case, to
the terms and conditions of this ADR evidencing the surrendered ADSs, of the
Deposit Agreement, of the Company's Articles of Association, of any applicable
laws and the rules of Euroclear UK, and to any provisions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
A-2
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall, as promptly as practicable, cancel the ADSs Delivered to
it (and, if applicable, the ADR(s) evidencing the ADSs so Delivered), (ii)
shall, as promptly as practicable, direct the Registrar to record the
cancellation of the ADSs so Delivered on the books maintained for such purpose,
and (iii) shall direct the Custodian to Deliver, or cause the Delivery of, in
each case, as promptly as practicable, the Deposited Securities represented by
the ADSs so canceled together with any certificate or other document of title
for the Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such purpose, subject
however, in each case, to the terms and conditions of the Deposit Agreement, of
this ADR evidencing the ADS so cancelled, of the Articles of Association of the
Company, of any applicable laws and of the rules of Euroclear UK, and to the
terms and conditions of or governing the Deposited Securities, in each case as
in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one (1) Share. In the case of Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the ADSs. Notwithstanding
anything else contained in this ADR or the Deposit Agreement, the Depositary may
make delivery at the Principal Office of the Depositary of (i) any cash
dividends or cash distributions, or (ii) any proceeds from the sale of any
distributions of shares or rights, which are at the time held by the Depositary
in respect of the Deposited Securities represented by the ADSs surrendered for
cancellation and withdrawal. At the request, risk and expense of any Holder so
surrendering ADSs represented by this ADR, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall, as
promptly as practicable, register the transfer of this ADR (and of the ADSs
represented hereby) on the books maintained for such purpose and the Depositary
shall, as promptly as practicable, (x) cancel this ADR and execute new ADRs
evidencing the same aggregate number of ADSs as those evidenced by this ADR when
canceled by the Depositary, (y) cause the Registrar to countersign such new
ADRs, and (z) Deliver such new ADRs to or upon the order of the person entitled
thereto, if each of the following conditions has been satisfied: (i) this ADR
has been duly Delivered by the Holder (or by a duly authorized attorney of the
Holder) to the Depositary at its Principal Office for the purpose of effecting a
transfer thereof, (ii) this surrendered ADR has been properly endorsed or is
A-3
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this surrendered
ADR has been duly stamped (if required by the laws of the State of New York or
of the United States), and (iv) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement)
have been paid, subject, however, in each case, to the terms and conditions of
this ADR, of the Deposit Agreement and of applicable law, in each case as in
effect at the time thereof.
The Registrar shall, as promptly as practicable, register the split-up or
combination of this ADR (and of the ADSs represented hereby) on the books
maintained for such purpose and the Depositary shall, as promptly as
practicable, (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR (canceled), (y) cause the Registrar to countersign such new ADRs, and
(z) Deliver such new ADRs to or upon the order of the Holder thereof, if each of
the following conditions has been satisfied: (i) this ADR has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination hereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and government charges (as
are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have
been paid, subject, however, in each case, to the terms and conditions of this
ADR, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, the registration of issuance, transfer,
split-up, combination or surrender, of any ADR, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B to the Deposit Agreement and
in this ADR, (ii) the production of proof reasonably satisfactory to it as to
the identity and genuineness of any signature or any other matters contemplated
in Section 3.1 of the Deposit Agreement, and (iii) compliance with (A) any laws
or governmental regulations relating to the execution and delivery of ADRs or
ADSs or to the withdrawal of Deposited Securities and (B) such reasonable
regulations as the Depositary and the Company may establish consistent with the
provisions of this ADR, the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of ADSs in particular
instances may be refused, or the registration of transfer of ADSs generally may
be suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action
is deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law or
regulation, any government or governmental body or commission or any securities
A-4
exchange on which the Shares or ADSs are listed, or under any provision of the
Deposit Agreement or this ADR, or under any provision of, or governing, the
Deposited Securities, or because of a meeting of shareholders of the Company or
for any other reason, subject, in all cases to paragraph (24). Notwithstanding
any provision of the Deposit Agreement or this ADR to the contrary, Holders are
entitled to surrender outstanding ADSs to withdraw the Deposited Securities
associated therewith at any time subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a 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 ADSs
or the withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 (as such General Instructions may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company
pursuant to applicable law, the rules and requirements of the London Stock
Exchange, and of any other stock exchange on which Shares or ADSs are, or will
be, registered, traded or listed, or the Articles of Association of the Company,
which are made to provide information, inter alia, as to the capacity in which
such Holder or Beneficial Owner owns ADSs (and Shares, as the case may be) and
regarding the identity of any other person(s) interested in such ADSs and the
nature of such interest and various other matters, whether or not they are
Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this ADR or
of the Deposit Agreement, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of the ADSs
where such transfer may result in the total number of Shares represented by the
ADSs owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association of the Company. Nothing herein or in the
Deposit Agreement shall be interpreted as obligating the Depositary or the
Company to ensure compliance with the ownership restrictions described herein or
in Section 3.5 of the Deposit Agreement.
Applicable laws and regulations may require holders and beneficial owners of
Shares, including the Holders and Beneficial Owners of ADSs, to satisfy
reporting requirements and obtain regulatory approvals in certain circumstances.
Holders and Beneficial Owners of ADSs are solely responsible for determining and
complying with such reporting requirements, and for obtaining such approvals.
A-5
Each Holder and each Beneficial Owner hereby agrees to make such determination,
file such reports, and obtain such approvals to the extent and in the form
required by applicable laws and regulations as in effect from time to time.
Neither the Depositary, the Custodian, the Company or any of their respective
agents or affiliates shall be required to take any actions whatsoever on behalf
of Holders or Beneficial Owners to determine and satisfy such reporting
requirements or obtain such regulatory approvals under applicable laws and
regulations.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable with respect to any ADR or any Deposited Securities
or ADSs shall be payable by the Holders and Beneficial Owners to the Depositary.
The Company, the Custodian and/or Depositary may withhold or deduct from any
distributions made in respect of Deposited Securities and may sell for the
account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, the Holder and
the Beneficial Owner hereof remaining liable for any deficiency. The Custodian
may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to
deliver ADRs, register the transfer of ADSs, register the split-up or
combination of ADRs and (subject to paragraph (24) hereof) the withdrawal of
Deposited Securities until payment in full of such tax, charge, penalty or
interest is received. Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Company, the Custodian, and any of their agents, officers,
employees and Affiliates for, and hold each of them harmless from, any claims
with respect to taxes (including applicable interest and penalties thereon)
arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares and the certificates therefor are duly authorized,
validly issued, fully paid, non-assessable and legally obtained by such person,
(ii) all preemptive (and similar) rights, if any, with respect to such Shares
have been validly waived or exercised, (iii) the person making such deposit is
duly authorized so to do, (iv) the Shares presented for deposit are free and
clear of any lien, encumbrance, security interest, charge, mortgage or adverse
claim, and (v) the Shares presented for deposit are not, and the ADSs issuable
upon such deposit will not be, Restricted Securities (except as contemplated in
Section 2.14 of the Deposit Agreement), and (vi) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and the Depositary shall be authorized, at the cost and
expense of the person depositing Shares, to take any and all actions necessary
to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
A-6
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Shares Registrar) as the Depositary or the Custodian may deem
reasonably necessary or proper or as the Company may reasonably require by
written request to the Depositary consistent with its obligations under the
Deposit Agreement and the applicable ADR(s). The Depositary and the Registrar,
as applicable, may withhold the execution or delivery or registration of
transfer of any ADR or ADS or the distribution or sale of any dividend or
distribution of rights or of the proceeds thereof or, to the extent not limited
by paragraph (24), the delivery of any Deposited Securities until such proof or
other information is filed or such certifications are executed, or such
representations and warranties are made or such other information or
documentation are provided, in each case to the Depositary's, the Registrar's
and the Company's reasonable satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
fees:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares (excluding issuances as
a result of distributions described in paragraph (iv) below),
a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction
thereof) so issued under the terms of the Deposit Agreement;
(ii) Cancellation Fee: to any person surrendering ADSs for
cancellation and withdrawal of Deposited Securities or to any
person to whom Deposited Securities are delivered, a fee not
in excess of U.S. $5.00 per 100 ADSs (or fraction thereof)
surrendered;
(iii) Cash Distribution Fee: to any Holder of ADSs, a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of cash dividends or other cash
distributions (i.e., sale of rights and other entitlements);
(iv) Stock Distribution /Rights Exercise Fee: to any Holder of
ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or
fraction thereof) held for (a) the distribution of stock
dividends or other free stock distributions or (b) the
exercise of rights to purchase additional ADSs;
(v) Other Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of securities other than ADSs or rights
to purchase additional ADSs; and
(vi) Depositary Services Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
on the applicable record date(s) established by the
Depositary.
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In addition, Holders, Beneficial Owners, persons depositing Shares and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Securities shall be responsible for the following charges:
(a) taxes (including applicable interest and penalties) and other
governmental charges;
(b) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(c) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(d) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(e) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(f) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities.
All fees and charges may, at any time and from time to time, be changed by
agreement between the Depositary and Company but, in the case of fees and
charges payable by Holders or Beneficial Owners, only in the manner contemplated
by paragraph (22) of this ADR and as contemplated in the Deposit Agreement. The
Depositary will provide, without charge, a copy of its latest fee schedule to
anyone upon request.
Depositary Fees payable upon (i) deposit of Shares against issuance of
ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
A-8
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable ADS Record Date established by the Depositary. In
the case of distributions of cash, the amount of the applicable Depositary fees
is deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the ADS Record Date established by the
Depositary. For ADSs held through DTC, the Depositary fees for distributions
other than cash and the Depositary service fee are charged by the Depositary to
the DTC Participants in accordance with the procedures and practices prescribed
by DTC from time to time and the DTC Participants in turn charge the amount of
such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by
the Company in respect of the ADR program established pursuant to the Deposit
Agreement upon such terms and conditions as the Company and the Depositary may
agree from time to time. The Company shall pay to the Depositary such fees and
charges and reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree from time to time. Responsibility for
payment of such charges and reimbursements may from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed, the
Depositary shall present its statement for such expenses and fees or charges to
the Company once every three months. The charges and expenses of the Custodian
are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4, such right shall extend for those fees,
charges and expenses incurred prior to the effectiveness of such resignation or
removal.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each ADS evidenced hereby) shall be transferable upon
the same terms as a certificated security under the laws of the State of New
York, provided that, in the case of Certificated ADSs, such ADR has been
properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary and the Company may
deem and treat the Holder of this ADR (that is, the person in whose name this
ADR is registered on the books of the Depositary) as the absolute owner thereof
for all purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or this
ADR to any holder of this ADR or any Beneficial Owner unless, in the case of a
holder of ADSs, such holder is the Holder of this ADR registered on the books of
the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or
the Beneficial Owner's representative is the Holder registered on the books of
the Depositary.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this ADR has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly-authorized signatory of the Depositary, (iii) countersigned
A-9
by the manual or facsimile signature of a duly-authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of ADRs. An ADR bearing the facsimile
signature of a duly-authorized signatory of the Depositary or the Registrar, who
at the time of signature was a duly authorized signatory of the Depositary or
the Registrar, as the case may be, shall bind the Depositary, notwithstanding
the fact that such signatory has ceased to be so authorized prior to the
delivery of such ADR by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books.
The Company publishes information in English required to maintain the
exemption from registration pursuant to Rule 12g3-2(b)(2)(i) under the Exchange
Act on its internet website or through an electronic information delivery system
generally available to the public in the Company's primary trading market. The
electronic information delivery system the Company uses for the publication of
such reports is the Regulatory News Service of the London Stock Exchange ("RNS")
(or any successor thereof). As of the date hereof the Company's internet website
is xxxx://xxx.xxxxxxxxxxxxxxx.xxx. The information so published by the Company
cannot be retrieved from the Commission's internet website, and cannot be
inspected or copied at the public reference facilities maintained by the
Commission located (as of the date of the Deposit Agreement) at 000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000.
The Registrar shall keep books for the registration of ADSs which at all
reasonable times shall be open for inspection by the Company and by the Holders
of such ADSs, provided that such inspection shall not be, to the Registrar's
knowledge, for the purpose of communicating with Holders of such ADSs in the
interest of a business or object other than the business of the Company or other
than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to paragraph
(24).
Dated:
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: _______________________________ By: _______________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Upon the timely
receipt by the Depositary of a notice from the Company that it intends to make a
distribution of a cash dividend or other cash distribution, the Depositary shall
establish an ADS Record Date upon the terms described in Section 4.9. Upon
receipt of confirmation from the Custodian of receipt of any cash dividend or
other cash distribution on any Deposited Securities, or upon receipt of proceeds
from the sale of any Deposited Securities or of any entitlements held in respect
of Deposited Securities under the terms of the Deposit Agreement, the Depositary
will (i) if at the time of receipt thereof any amounts received in a Foreign
Currency can in the judgment of the Depositary (upon the terms of Section 4.8 of
the Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (upon the terms of
Section 4.8 of the Deposit Agreement), (ii) if applicable and unless previously
established, establish the ADS Record Date upon the terms described in Section
4.9 of the Deposit Agreement, and (iii) distribute promptly the amount thus
received (net of (a) applicable fees and charges of, and expenses incurred by,
the Depositary and (b) taxes withheld) to the Holders entitled thereto as of the
ADS Record Date in proportion to the number of ADSs held as of the ADS Record
Date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributed shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of ADSs outstanding at
the time of the next distribution. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company, the
Custodian or the Depositary to the relevant governmental authority. Evidence of
payment thereof by the Company shall be forwarded by the Company to the
Depositary upon request.
Upon the timely receipt by the Depositary of a notice from the Company
that it intends to make a distribution that consists of a dividend in, or free
distribution of Shares, the Depositary shall establish an ADS Record Date upon
the terms described in Section 4.9 of the Deposit Agreement. Upon receipt of
confirmation from the Custodian of the receipt of the Shares so distributed by
the Company, the Depositary shall either (i) subject to Section 5.9 of the
Deposit Agreement, distribute to the Holders as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date, additional
ADSs, which represent in the aggregate the number of Shares received as such
dividend, or free distribution, subject to the other terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, take all actions necessary so that each
ADS issued and outstanding after the ADS Record Date shall, to the extent
A-11
permissible by law, thenceforth also represent rights and interest in the
additional integral number of Shares distributed upon the Deposited Securities
represented thereby (net of (a) the applicable fees and charges of, and expenses
incurred by, the Depositary, and (b) taxes). In lieu of delivering fractional
ADSs, the Depositary shall sell the number of Shares or ADSs, as the case may
be, represented by the aggregate of such fractions and distribute the net
proceeds upon the terms set forth in Section 4.1 of the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company in the
fulfillment of its obligations under Section 5.7 of the Deposit Agreement, has
furnished an opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to Holders
(and no such registration statement has been declared effective), the Depositary
may dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems reasonably necessary and practicable, and
the Depositary shall distribute the net proceeds of any such sale (after
deduction of (a) taxes and (b) fees and charges of, and the expenses incurred
by, the Depositary) to Holders entitled thereto upon the terms of Section 4.1 of
the Deposit Agreement. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
Upon the timely receipt of a notice indicating that the Company wishes an
elective distribution in cash or Shares to be made available to Holders of ADSs
upon the terms described in the Deposit Agreement, the Company and the
Depositary shall determine whether such distribution is lawful and reasonably
practicable. If so, the Depositary shall, subject to the terms and conditions of
the Deposit Agreement, establish an ADS Record Date according to paragraph (16)
and establish procedures to enable the Holder hereof to elect to receive the
proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the distribution shall be made as in the case
of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be made as in the case
of a distribution in Shares upon the terms described in the Deposit Agreement.
If such elective distribution is not reasonably practicable or if the Depositary
did not receive satisfactory documentation set forth in the Deposit Agreement,
the Depositary shall establish an ADS Record Date upon the terms of Section 4.9
of the Deposit Agreement and, to the extent permitted by law, distribute to
Holders, on the basis of the same determination as is made in England and Wales
in respect of the Shares for which no election is made, either (x) cash or (y)
additional ADSs representing such additional Shares, in each case, upon the
terms described in the Deposit Agreement. Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holder hereof a
method to receive the elective distribution in Shares (rather than ADSs). There
can be no assurance that the Holder hereof will be given the opportunity to
receive elective distributions on the same terms and conditions as the holders
of Shares.
Upon the timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to any
A-12
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the Depositary shall sell the
rights as described below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in Section 4.9 of the Deposit Agreement) and establish procedures (x)
to distribute rights to purchase additional ADSs (by means of warrants or
otherwise), (y) to enable the Holders to exercise such rights (upon payment of
the subscription price and of the applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs
upon the valid exercise of such rights. Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise rights to subscribe for Shares (rather than ADSs). If (i) the
Company does not timely request the Depositary to make the rights available to
Holders or requests that the rights not be made available to Holders, (ii) the
Depositary fails to receive satisfactory documentation within the terms of
Section 5.7 of the Deposit Agreement or determines it is not reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall, after consultation with the Company, determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless principal capacity, at
such place and upon such terms (including public and private sale) as it may
deem practicable. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms hereof and of Section
4.1 of the Deposit Agreement. The remittance of the net proceeds of any sale of
rights to Holders shall not be unreasonably delayed by any action of the
Depositary. If the Depositary is unable to make any rights available to Holders
upon the terms described in Section 4.4(a) of the Deposit Agreement or to
arrange for the sale of the rights upon the terms described in Section 4.4(b) of
the Deposit Agreement, the Depositary shall, after consultation with the
Company, allow such rights to lapse. The Depositary and the Company shall not be
responsible for (i) any failure to determine that it may be lawful or
practicable to make such rights available to Holders in general or any Holders
in particular or (ii) any foreign exchange exposure or loss incurred in
connection with such sale or exercise. The Depositary shall not be responsible
for the content of any materials forwarded to the ADS Holders on behalf of the
Company in connection with the rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company appropriately qualified in respect of the
relevant jurisdiction(s) in which rights would be distributed, in each case
reasonably satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
A-13
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of ADSs representing
such Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines, after consultation with the Company, that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
reasonably necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or be able to exercise such rights.
Nothing herein or in the Deposit Agreement shall obligate the Company to file
any registration statement in respect of any rights or Shares or other
securities to be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall, after consultation with the Company, have determined that such
distribution is reasonably practicable. Upon satisfaction of such conditions,
the Depositary shall, as promptly as practicable, distribute the property so
received to the Holders of record, as of the ADS Record Date, in proportion to
the number of ADSs held by them respectively and in such manner as the
Depositary may deem reasonably practicable for accomplishing such distribution
(i) upon receipt of payment or net of the applicable fees and charges of, and
expenses incurred by, the Depositary, and (ii) net of any taxes withheld. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem reasonably practicable and shall (i)
cause the proceeds of such sale, if any, to be converted into Dollars and (ii)
distribute the proceeds of such conversion received by the Depositary (net of
applicable (a) fees and charges of, and expenses incurred by, the Depositary and
(b) taxes) to the Holders as of the ADS Record Date upon the terms hereof and of
the Deposit Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
Neither the Depositary nor the Company shall be responsible for (i) any
failure to determine whether it is lawful or practicable to make property
described in Section 4.5 of the Deposit Agreement available to the Holders in
general or any Holders in particular, nor (ii) any foreign exchange exposure or
loss incurred in connection with the sale or disposal of such property.
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(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon reasonably
determining that such proposed redemption is practicable, the Depositary shall
(to the extent practicable) provide to each Holder a notice setting forth the
Company's intention to exercise the redemption rights and any other particulars
set forth in the Company's notice to the Depositary. Upon receipt of
confirmation that the redemption has taken place and that funds representing the
redemption price have been received, the Depositary shall, as promptly as
practicable, convert, transfer, distribute the proceeds (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary, and (b) taxes),
retire ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by
Holders thereof upon the terms set forth in Sections 4.1 and 6.2 of the Deposit
Agreement. If less than all outstanding Deposited Securities are redeemed, the
ADSs to be retired will be selected by lot or on a pro rata basis, as may be
determined by the Depositary. The redemption price per ADS shall be the dollar
equivalent of the per share amount received by the Depositary (adjusted to
reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited
Securities represented by ADSs (subject to the terms of Section 4.8 of the
Deposit Agreement and the applicable fees and charges of, and expenses incurred
by, the Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall, upon prior notification to the Company, fix
a record date ("ADS Record Date") for the determination of the Holders of ADSs
who shall be entitled to receive such distribution, to give instructions for the
exercise of voting rights at any such meeting, to give or withhold such consent,
to receive such notice or solicitation or to otherwise take action, or to
exercise the rights of Holders with respect to such changed number of Shares
represented by each ADS. Subject to applicable law and the terms and conditions
of this ADR and Sections 4.1 through 4.8 of the Deposit Agreement, only the
Holders of ADSs at the close of business in New York on such ADS Record Date
shall be entitled to receive such distributions, to give such instructions, to
receive such notice or solicitation, or otherwise take action.
(17) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of such consent or proxy in accordance with Section
4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company
in writing in a timely manner (the Depositary having no obligation to take any
A-15
further action if the request shall not have been received by the Depositary at
least twenty-one (21) days prior to the date of such vote or meeting), at the
Company's expense and provided no U.S. legal prohibitions exist, distribute to
Holders as of the ADS Record Date: (a) such notice of meeting or notice of
solicitation of consent or proxy, the form of which notice shall be timely
furnished by the Company, (b) a statement, approved by the Company, that the
Holders at the close of business on the ADS Record Date will be entitled,
subject to any applicable law, the provisions of the Deposit Agreement, the
Company's Articles of Association and the provisions of or governing Deposited
Securities (which provisions, if any, shall be summarized in pertinent part by
the Company), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Deposited Securities represented by such
Holder's ADSs and (c) a brief statement, approved by the Company, as to the
manner in which such voting instructions may be given.
Notwithstanding anything contained in the Deposit Agreement or any ADR,
the Depositary may, to the extent not prohibited by law, regulations, or the
applicable stock exchange requirements, in lieu of distribution of the materials
provided to the Depositary in connection with any meeting of, or solicitation of
consents or proxies from, holders of Deposited Securities, distribute to the
Holders a notice that provides Holders with, or otherwise publicizes to Holders,
instructions on how to retrieve such materials or receive such materials upon
request (i.e., by reference to a website containing the materials for retrieval
or a contact for requesting copies of the materials).
Voting instructions may be given only in respect of a number of ADSs
representing an integral number of Deposited Securities. The Depositary has been
advised by the Company that under the Company's Articles of Association as in
effect as of the date of the Deposit Agreement, at any meeting of the
shareholders, voting on a Substantive Resolution is on a poll and voting on a
Procedural Resolution is by show of hands unless the chairman of the meeting
determines that a poll is required or unless a poll is demanded. The Depositary
will not join in demanding a poll, whether or not requested to do so by Holders
of ADSs. Under the Articles of Association of the Company (as in effect on the
date of the Deposit Agreement) a poll may be demanded in relation to a
Procedural Resolution by (i) the chairman of the meeting, (ii) at least five
shareholders present in person or in the case of a shareholder being a
corporation by its duly authorized representative or by proxy for the time being
entitled to vote on the resolution, (iii) any shareholder(s) present in person
or in the case of a shareholder being a corporation by its duly authorized
representative or by proxy and representing not less than one-tenth of the total
voting rights of all shareholders having the right to vote on the resolution, or
(iv) any shareholder(s) present in person or in the case of a shareholder being
a corporation by its duly authorized representative or by proxy and holding
Shares in the Company conferring a right to vote at a meeting being Shares on
which an aggregate sum has been paid up equal to not less than one-tenth of the
total sum paid on all Shares conferring that right.
Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of
voting instructions in the manner specified by the Depositary, the Depositary
shall endeavor, insofar as practicable and permitted under applicable law, the
provisions of the Deposit Agreement, the Articles of Association of the Company
and the provisions of the Deposited Securities, to cause to be voted the
Deposited Securities as follows: (i) in the event voting takes place at a
A-16
shareholders' meeting in relation to a given resolution by show of hands, the
Depositary will instruct the Custodian to vote all Deposited Securities
(including Deposited Securities represented by ADSs for which no timely voting
instructions are received by the Depositary from the Holder) in accordance with
the voting instructions received from a majority of Holders of ADSs who provided
voting instructions in relation to such resolution; or (ii) in the event voting
takes place at a shareholders' meeting in relation to a given resolution by
poll, the Depositary will instruct the Custodian to vote the Deposited
Securities in accordance with the voting instructions received from the Holders
of ADSs.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein. If the Depositary timely receives voting instructions from a Holder
which fail to specify the manner in which the Depositary is to vote the
Deposited Securities represented by such Holder's ADSs, the Depositary will deem
such Holder (unless otherwise specified in the notice distributed to Holders) to
have instructed the Depositary to vote in favor of the items set forth in such
instructions. Notwithstanding anything else contained herein, the Depositary
shall, if so requested in writing by the Company, represent all Deposited
Securities (whether or not voting instructions have been received in respect of
such Deposited Securities from Holders as of the ADS Record Date) for the sole
purpose of establishing quorum at a meeting of shareholders. If (i) the Company
shall have timely requested that the Depositary distribute materials to the
Holders in connection with a meeting at which the holders of Deposited
Securities are entitled to vote, (ii) voting at such meeting takes place by
poll, and (iii) the Depositary does not receive timely instructions from a
Holder on or before the date established by the Depositary for such purpose, the
Depositary shall deem such Holder to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to that
amount of Deposited Securities and the Depositary shall give a discretionary
proxy to a person designated by the Company to vote the Deposited Securities
represented by such Holder's ADSs, except that no such instruction shall be
deemed given and no such discretionary proxy shall be given with respect to any
matter as to which the Company informs the Depositary (and the Company agrees to
provide such information to the Depositary as promptly as practicable in
writing, if applicable) that (x) the Company does not wish such proxy given, (y)
substantial opposition exists, or (z) such matter materially and adversely
affects the rights of holders of Deposited Securities. Notwithstanding anything
else contained in the Deposit Agreement or this ADR, the Depositary shall not
have any obligation to take any action with respect to any meeting, or
solicitation of consents or proxies, of holders of Deposited Securities if the
taking of such action would violate U.S. laws. The Company agrees to take
commercially reasonable steps to enable Holders and Beneficial Owners to
exercise the voting rights accruing to the Deposited Securities and to deliver
to the Depositary an opinion of U.S. counsel addressing any actions requested to
be taken if so reasonably requested by the Depositary. There can be no assurance
that Holders generally or any Holder in particular will receive the notice
described above with sufficient time to enable the Holder to return voting
instructions to the Depositary in a timely manner.
A-17
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger,
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the ADRs shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional or replacement
securities. In giving effect to such change, split-up, cancellation,
consolidation or other reclassification of Deposited Securities,
recapitalization, reorganization, merger, consolidation or sale of assets, the
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of an opinion
of counsel to the Company reasonably satisfactory to the Depositary that such
actions are not in violation of any applicable laws or regulations, (i) issue
and deliver additional ADSs as in the case of a share dividend on the Shares,
(ii) amend the Deposit Agreement and the applicable ADRs, (iii) amend the
applicable Registration Statement(s) on Form F-6 as filed with the Commission in
respect of the ADSs, (iv) call for the surrender of outstanding ADRs to be
exchanged for new ADRs, and (v) take such other actions as are appropriate to
reflect the transaction with respect to the ADSs. Notwithstanding the foregoing,
in the event that any security so received may not be lawfully distributed to
some or all Holders, the Depositary may, with the Company's approval, and shall,
if the Company requests, subject to receipt of an opinion of Company's counsel
reasonably satisfactory to the Depositary that such action is not in violation
of any applicable laws or regulations, sell such securities at public or private
sale, at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1 of the Deposit
Agreement. The Depositary and the Company shall not be responsible for (i) any
failure to determine that it may be lawful or feasible to make such securities
available to Holders in general or any Holder in particular or (ii) any foreign
exchange exposure or loss incurred in connection with such sale. The Depositary
shall not be responsible for any liability to the purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this ADR, by
reason of any provision of any present or future law or regulation of the United
States, England and Wales or any other country, or of any other governmental
authority or regulatory authority or stock exchange, or on account of the
possible criminal or civil penalties or restraint, or by reason of any
provision, present or future, of the Articles of Association of the Company or
any provision of or governing any Deposited Securities, or by reason of any act
of God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, acts of terrorism, revolutions, rebellions,
A-18
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in the Deposit Agreement or in the
Articles of Association of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for the inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of the
Deposit Agreement, made available to Holders of ADSs or (v) for any
consequential or punitive damages for any breach of the terms of the Deposit
Agreement. The Depositary, its controlling persons, its agents, any Custodian
and the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties. No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement or this ADR.
(20) Standard of Care. The Company and the Depositary, and any of their
respective controlling persons or agents, assume no obligation and shall not be
subject to any liability under the Deposit Agreement or this ADR to any
Holder(s) or Beneficial Owner(s), except that the Company and Depositary agree
to perform their respective obligations specifically set forth in the Deposit
Agreement and this ADR without negligence or bad faith. The Depositary and its
agents shall not be liable for any failure to carry out any instructions to vote
any of the Deposited Securities, or for the manner in which any vote is cast or
the effect of any vote, provided that any such action or omission is in good
faith and without negligence and in accordance with the terms of the Deposit
Agreement. The Depositary shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of the Deposit Agreement, for the failure or
timeliness of any notice from the Company, or for any action or failure to act
by, or any information provided or not provided by, DTC or any DTC participant.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii)
upon the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may at any time
be removed by the Company by written notice of such removal, which removal shall
be effective on the later of (i) the 90th day after delivery thereof to the
Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 of the Deposit Agreement), or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
A-19
provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its reasonable
efforts to appoint a successor depositary, which shall be a bank or trust
company having an office in the Borough of Manhattan, the City of New York.
Every successor depositary shall be required by the Company to execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed (except as required by applicable law), shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
(other than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement).
The predecessor depositary, upon payment of all sums due it and on the written
request of the Company, shall (i) execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder (other
than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADSs and such other information relating to ADSs and
Holders thereof as the successor may reasonably request. Any such successor
depositary shall promptly provide notice of its appointment to such Holders. Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
(22) Amendment/Supplement. Subject to the terms and conditions of this
paragraph 22, the Deposit Agreement and applicable law, this ADR and any
provisions of the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. Notice of
any amendment to the Deposit Agreement or any ADR shall not need to describe in
detail the specific amendments effectuated thereby, and failure to describe the
specific amendments in any such notice shall not render such notice invalid,
provided, however, that, in each such case, the notice given to the Holders
identifies a means for Holders and Beneficial Owners to retrieve or receive the
text of such amendment (i.e., upon retrieval from the Commission's, the
Depositary's or the Company's website or upon request from the Depositary). The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
settled solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADSs, to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and this ADR, if applicable, as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
A-20
Holder to surrender such ADS and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and this ADR at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement and this ADR in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by distributing notice
of such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and, in either case, a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4 of the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by distributing
notice of such termination to the Holders of all ADSs then outstanding at least
thirty (30) days prior to the date fixed in such notice for such termination.
The date so fixed for termination of the Deposit Agreement in any termination
notice so distributed by the Depositary to the Holders of ADSs is referred to as
the "Termination Date". Until the Termination Date, the Depositary shall
continue to perform all of its obligations under the Deposit Agreement, and the
Holders and Beneficial Owners will be entitled to all of their rights under the
Deposit Agreement. If any ADSs shall remain outstanding after the Termination
Date, the Registrar and the Depositary shall not, after the Termination Date,
have any obligation to perform any further acts under the Deposit Agreement,
except that the Depositary shall, subject, in each case, to the terms and
conditions of the Deposit Agreement, continue to (i) collect dividends and other
distributions pertaining to Deposited Securities, (ii) sell securities and other
property received in respect of Deposited Securities, (iii) deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any securities or other
property, in exchange for ADSs surrendered to the Depositary (after deducting,
or charging, as the case may be, in each case, the fees and charges of, and
expenses incurred by, the Depositary, and all applicable taxes or governmental
charges for the account of the Holders and Beneficial Owners, in each case upon
the terms set forth in Section 5.9 of the Deposit Agreement), and (iv) take such
actions as may be required under applicable law in connection with its role as
Depositary under the Deposit Agreement. At any time after the Termination Date,
the Depositary may sell the Deposited Securities then held under the Deposit
Agreement and shall after such sale hold un-invested the net proceeds of such
sale, together with any other cash then held by it under the Deposit Agreement,
in an un-segregated account and without liability for interest, for the pro -
rata benefit of the Holders whose ADSs have not theretofore been surrendered.
After making such sale, the Depositary shall be discharged from all obligations
under the Deposit Agreement except (i) to account for such net proceeds and
other cash (after deducting, or charging, as the case may be, in each case, the
fees and charges of, and expenses incurred by, the Depositary, and all
applicable taxes or governmental charges for the account of the Holders and
A-21
Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the
Deposit Agreement), (ii) obligations to the Company under Section 5.8 of the
Deposit Agreement and to the Holders under Section 6.2 of the Deposit Agreement,
which obligations shall survive the terminations of this Deposit Agreement, and
(iii) as may be required at law in connection with the termination of the
Deposit Agreement. After the Termination Date, the Company shall be discharged
from all obligations under the Deposit Agreement, except for its obligations to
the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit Agreement. The
obligations under the terms of the Deposit Agreement of Holders and Beneficial
Owners of ADSs outstanding as of the Termination Date shall survive the
Termination Date and shall be discharged only when the applicable ADSs are
presented by their Holders to the Depositary for cancellation under the terms of
the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR or the Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (25), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
of the Company and its Affiliates and in ADSs. The Depositary may issue ADSs
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs
prior to the receipt of Shares pursuant to Section 2.3 of the Deposit Agreement
and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs
which were issued under (i) above but for which Shares may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to
a written agreement whereby the person or entity (the "Applicant") to whom ADSs
or Shares are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
U.S. government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days' notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one
time to thirty percent (30%) (the "Pre-Release Limit") of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
A-22
that the Depositary reserves the right to disregard such limit from time to time
as it deems reasonably appropriate. Notwithstanding the foregoing, the
Depositary will obtain prior approval from the Company in order to engage in new
Pre-Release Transactions in excess of the Pre-Release Limit, which approval will
not be unreasonably withheld by the Company. The Depositary may also set limits
with respect to the number of ADSs and Shares involved in Pre-Release
Transactions with any one person on a case by case basis as it deems
appropriate. The Depositary may retain for its own account any compensation
received by it in conjunction with the foregoing. Collateral provided pursuant
to (b) above, but not earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
A-23
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within ADS and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADS on the books of the Depositary with full power of substitution
in the premises.
Dated: Name: ______________________________________
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an
attorney, executor, administrator, trustee
or guardian, the person executing the
endorsement must give his/her full title in
such capacity and proper evidence of
authority to act in such capacity, if not on
file with the Depositary, must be forwarded
with this ADR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs must
be guaranteed by a member of a Medallion
Signature Program approved by the Securities
Transfer Association, Inc.
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences ADSs
representing 'partial entitlement' ordinary Shares of Home Retail Group plc and
as such do not entitle the holders thereof to the same per-share entitlement as
other ordinary Shares (which are 'full entitlement' ordinary Shares) issued and
outstanding at such time. The ADSs represented by this ADR shall entitle holders
to distributions and entitlements identical to other ADSs when the ordinary
Shares represented by such ADSs become 'full entitlement' ordinary Shares."]
A-24
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons depositing
Shares or surrendering ADSs for cancellation agree to pay the following fees of
the Depositary:
-------------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
-------------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to U.S. $5.00 per 100 ADSs (or Person depositing Shares or person
of Shares (excluding fraction thereof) issued. receiving ADSs.
issuances as a result of
distributions described in
paragraph (4) below).
-------------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to U.S. $5.00 per 100 ADSs (or Person surrendering ADSs for the
Securities against surrender fraction thereof) surrendered. purpose of withdrawal of Deposited
of ADSs. Securities or person to whom
Deposited Securities are delivered.
-------------------------------------------------------------------------------------------------------------------
(3) Distribution of cash Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
dividends or other cash fraction thereof) held.
distributions (i.e., sale of
rights and other
entitlements).
-------------------------------------------------------------------------------------------------------------------
(4) Distribution of ADSs pursuant Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
to (i) stock dividends or fraction thereof) held.
other free stock
distributions, or
(ii) exercise of rights to
purchase additional ADSs.
-------------------------------------------------------------------------------------------------------------------
(5) Distribution of securities Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
other than ADSs or rights to fraction thereof) held.
purchase additional ADSs
(i.e., spin-off shares).
-------------------------------------------------------------------------------------------------------------------
(6) Depositary Services. Up to U.S. $5.00 per 100 ADSs (or Person holding ADSs on the
fraction thereof) held on the applicable record date(s)
applicable record date(s) established by the Depositary.
established by the Depositary.
-------------------------------------------------------------------------------------------------------------------
B-1
II. Charges
Holders, Beneficial Owners, persons depositing Shares and persons
surrendering ADSs for cancellation and for the purpose of withdrawing Deposited
Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other governmental
charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and expenses incurred by the Depositary, the Custodian, or any
nominee in connection with the servicing or delivery of Deposited
Securities.
B-2
