DEPOSIT AGREEMENT
by
and
among
THE
GAME GROUP PLC
as
Issuer
AND
DEUTSCHE
BANK TRUST COMPANY AMERICAS
as
Depositary,
AND
THE
HOLDERS AND BENEFICIAL OWNERS
OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN
DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated
as
of November 12, 2008
DEPOSIT
AGREEMENT,
dated
as of November 12 , 2008, by and among (i) The Game Group plc, a company
incorporated under the laws of England, and its successors (the "Company"),
(ii)
Deutsche Bank Trust Company Americas, an indirect wholly owned subsidiary of
Deutsche Bank A.G., acting in its capacity as depositary, and any successor
depositary hereunder (the "Depositary"), and (iii) all Holders and Beneficial
Owners of American Depositary Shares evidenced by American Depositary Receipts
issued hereunder (all such capitalized terms as hereinafter
defined).
WITNESSETH
THAT:
WHEREAS,
the
Company desires to establish an ADR facility with the Depositary to provide
for
the deposit of the Shares and the creation of American Depositary Shares
representing the Shares so deposited;
WHEREAS,
the
Depositary is willing to act as the Depositary for such ADR facility upon the
terms set forth in this Deposit Agreement; and
WHEREAS,
the
American Depositary Receipts evidencing the American Depositary Shares issued
pursuant to the terms of this Deposit Agreement are to be substantially in
the
form of Exhibit A annexed hereto, with appropriate insertions, modifications
and
omissions, as hereinafter provided in this Deposit Agreement; and
WHEREAS,
the
Board of Directors of the Company (or an authorized committee thereof) has
duly
approved the establishment of an ADR facility upon the terms set forth in this
Deposit Agreement, the execution and delivery of this Deposit Agreement on
behalf of the Company, and the actions of the Company and the transactions
contemplated herein.
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
DEFINITIONS
All
capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth below, unless otherwise clearly indicated:
SECTION
1.2 "Agent"
shall
mean such entity or entities as the Depositary may appoint under Section 7.10,
including the Custodian or any successor or addition thereto.
2
SECTION
1.3 "American
Depositary Share(s)" and "ADS(s)"
American
Depositary Share(s) shall mean the securities represented by the rights and
interests in the Deposited Securities granted to the Holders and Beneficial
Owners pursuant to the terms and conditions of this Deposit Agreement and
evidenced by the American Depositary Receipts issued hereunder. Each American
Depositary Share shall represent the right to receive five 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 4.9 with respect
to
which additional American Depositary Receipts are not executed and delivered,
and thereafter each American Depositary Share shall represent the Shares or
Deposited Securities specified in such Sections.
SECTION
1.4 "ADS
Record Date"
shall
have the meaning given to such term in Section 4.7.
SECTION
1.5 "Beneficial
Owner"
shall
mean as to any ADS, any person or entity having a beneficial interest in such
ADS. A Beneficial Owner need not be the Holder of the ADR evidencing such ADSs.
A Beneficial Owner may exercise any rights or receive any benefits hereunder
solely through the Holder of the ADR(s) evidencing the ADSs in which such
Beneficial Owner has an interest.
SECTION
1.6 "Business
Day"
shall
mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not (a) a day on which
banking institutions in the Borough of Manhattan, The City of New York are
authorized or obligated by law or executive order to close and (b) a day on
which the market(s) in which Receipts are traded are closed.
SECTION
1.8 "Company"
shall
mean The Game Group plc, a company incorporated and existing under the laws
of
England, and its successors.
SECTION
1.9 "Custodian"
shall
mean, as of the date hereof, State Street Bank & Trust Company, having its
office at 000 Xxxxx Xxxx, Xxxxxxxxx, XX0 0XX, Xxxxxx Xxxxxxx, as the custodian
for the purposes of this Deposit Agreement, and any other firm or corporation
which may hereinafter be appointed by the Depositary pursuant to the terms
of
Section 5.5 as a successor or an additional custodian or custodians hereunder,
as the context shall require. The term "Custodian" shall mean all custodians,
collectively.
SECTION
1.10 "Deliver"
and "Delivery"
shall
mean, when used in respect of American Depositary Shares, Receipts, Deposited
Securities and Shares, the physical delivery of the certificate representing
such security, or the electronic delivery of such security by means of
book-entry transfer, as appropriate, including, without limitation, through
DRS/Profile. With respect to DRS/Profile ADRs, the terms "execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel"
refer
to applicable entries or movements to or within DRS/Profile.
SECTION
1.11 "Deposit
Agreement"
shall
mean this Deposit Agreement and all exhibits hereto, as the same may from time
to time be amended and supplemented in accordance with the terms
hereof.
3
SECTION
1.15 "DRS/Profile"
means
the system for the uncertificated registration of ownership of securities
pursuant to which ownership of ADSs is maintained on the books of the Depositary
without the issuance of a physical certificate and transfer instructions may
be
given to allow for the automated transfer of ownership between the books of
DTC
and the Depositary. Ownership of ADSs held in DRS/Profile are evidenced by
periodic statements issued by the Depositary to the Holders entitled thereto.
SECTION
1.18 "Foreign
Currency"
shall
mean any currency other than Dollars.
SECTION
1.19 "Foreign
Registrar"
shall
mean the entity, if any, that carries out the duties of registrar for the Shares
or any successor as registrar for the Shares and any other appointed agent
of
the Company for the transfer and registration of Shares.
4
SECTION
1.25 "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 ownership of Receipts and transfer of Receipts as herein
provided, 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.
SECTION
1.28 "Shares"
shall
mean ordinary shares of the Company heretofore validly issued and outstanding
and fully paid or hereafter validly issued and outstanding and fully paid.
References to Shares shall include evidence of rights to receive Shares, whether
or not stated in the particular instance; provided,
however,
that in
no event shall Shares include evidence of rights to receive Shares with respect
to which the full purchase price has not been paid or Shares as to which
pre-emptive rights have theretofore not been validly waived or exercised;
provided further,
however,
that,
if there shall occur any change in par value, split-up, consolidation,
reclassification, conversion or any other event described in Section 4.9, in
respect of the Shares of the Company, the term "Shares" shall thereafter, to
the
extent permitted by law, represent the successor securities resulting from
such
change in par value, split-up, consolidation, exchange, conversion,
reclassification or event.
5
ARTICLE
II
APPOINTMENT
OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT
OF SHARES; EXECUTION
AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION
2.2 Form
and Transferability of Receipts.
(a) Definitive
Receipts shall be substantially in the form set forth in Exhibit A annexed
to this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Receipts may be issued in denominations
of
any number of American Depositary Shares. No definitive Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual or facsimile signature of a duly authorized signatory of the
Depositary. The Depositary shall maintain books on which each Receipt so
executed and delivered, in the case of definitive Receipts, and each Receipt
issued through the DRS/Profile, in either case as hereinafter provided and
the
transfer of each such Receipt shall be registered. Receipts in certificated
form
bearing the manual or facsimile signature of a duly authorized signatory of
the
Depositary who was at any time a proper signatory of the Depositary shall bind
the Depositary, notwithstanding that such signatory has ceased to hold such
office prior to the execution and delivery of such Receipts by the Registrar
or
did not hold such office on the date of issuance of such Receipts.
In
addition to the foregoing, the Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications
not
inconsistent with the provisions of this Deposit Agreement as may be reasonably
required by the Depositary in order to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which American Depositary Shares may be listed or to conform
with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the
date
of issuance of the underlying Deposited Securities or
otherwise.
6
Notwithstanding
anything in this Deposit Agreement or in the Receipt to the contrary, to the
extent made available by the Depositary, American Depositary Shares shall be
evidenced by Receipts issued through DRS/Profile unless certificated Receipts
are specifically requested by the Holder. Holders and Beneficial Owners shall
be
bound by the terms and conditions of this Deposit Agreement and of the form
of
Receipt, regardless of whether their Receipts are certificated or issued through
DRS/Profile.
(b) Subject
to the limitations contained herein and in the form of Receipt, title to a
Receipt (and to the American Depositary Shares evidenced thereby), when properly
endorsed (in the case of certificated Receipts) or upon delivery to the
Depositary of proper instruments of transfer, shall be transferable by delivery
with the same effect as in the case of a negotiable instrument under the laws
of
the State of New York; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the Holder thereof as the absolute owner
thereof for the purpose of determining the person entitled to distribution
of
dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes and neither the Depositary nor the Company
will have any obligation or be subject to any liability under the Deposit
Agreement to any holder of a Receipt, unless such holder is the Holder
thereof.
SECTION
2.3 Deposits.
(a)
Subject to the terms and conditions of this 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 hereof) at any time, whether or not
the
transfer books of the Company or the Foreign 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 issued in registered
form, appropriate instruments of transfer or endorsement, in a form satisfactory
to the Custodian, (ii) in the case of Shares issued in bearer form, such Shares
or the certificates representing such Shares and (iii) in the case of Shares
delivered by book-entry transfer, confirmation of such book-entry transfer
to
the Custodian or that irrevocable instructions have been given to cause such
Shares to be so transferred, (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 this Deposit Agreement, (C) if the
Depositary so requires, a written order directing the Depositary to execute
and
deliver to, or upon the written order of, the person or persons stated in such
order a Receipt or Receipts for the number of American Depositary Shares
representing the Shares so deposited, (D) evidence satisfactory to the
Depositary (which may include an opinion of counsel reasonably satisfactory
to
the Depositary provided at the cost of the person seeking to deposit Shares)
that all conditions to such deposit have been met and all necessary approvals
have been granted by, and there has been compliance with the rules and
regulations of, any applicable governmental agency in the United Kingdom, and
(E) if the Depositary so requires, (i) an agreement, assignment or instrument
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 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
for
any and all purposes until the Shares so deposited are registered in the name
of
the Depositary, the Custodian or any nominee. No Share shall be accepted for
deposit unless accompanied by confirmation or such additional 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
person depositing such Shares under the laws and regulations of the United
Kingdom and any necessary approval has been granted by any governmental body
in
the United Kingdom, if any, which is then performing the function of the
regulator of currency exchange. The Depositary may issue Receipts 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.
Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act , unless a registration statement is in
effect as to such Shares. The Depositary will use commercially reasonable
efforts to comply with reasonable written instructions of the Company that
the
Depositary shall not accept for deposit hereunder any Shares specifically
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 the securities laws in the United
States.
7
(c)
In
the event any Shares are deposited which entitle the holders thereof to receive
a per-share distribution or other entitlement in an amount different from the
Shares then on deposit, the Depositary is authorized to take any and all actions
as may be necessary (including, without limitation, making the necessary
notations on Receipts) to give effect to the issuance of such ADSs and to ensure
that such ADSs are not fungible with other ADSs issued hereunder until such
time
as the entitlement of the Shares represented by such non-fungible ADSs equals
that of the Shares represented by ADSs prior to the original such deposit.
The
Company agrees to give timely written notice to the Depositary if any Shares
issued or to be issued contain rights different from those of any other Shares
theretofore issued and shall assist the Depositary with the establishment of
procedures enabling the identification of such non-fungible Shares upon Delivery
to the Custodian.
8
SECTION
2.4 Execution
and Delivery of Receipts.
After
the deposit of any Shares pursuant to Section 2.3, the Custodian shall
notify the Depositary of such deposit and the person or persons to whom or
upon
whose written order a Receipt or Receipts are deliverable in respect thereof
and
the number of American Depositary Shares to be evidenced thereby. Such
notification shall be made by letter, first class airmail postage prepaid,
or,
at the request, risk and expense of the person making the deposit, by cable,
telex, SWIFT, facsimile or electronic transmission. After receiving such notice
from the Custodian, the Depositary, subject to this Deposit Agreement
(including, without limitation, the payment of the fees, expenses, taxes and
other charges owing hereunder), shall issue the ADSs representing the Shares
so
deposited to or upon the order of the person or persons named in the notice
delivered to the Depositary and shall execute and deliver a Receipt registered
in the name or names requested by such person or persons evidencing in the
aggregate the number of American Depositary Shares to which such person or
persons are entitled. Nothing herein shall prohibit any Pre-Release Transaction
upon the terms set forth in this Deposit Agreement.
SECTION
2.5 Transfer
of Receipts; Combination and Split-up of Receipts.
(a) Transfer.
The
Depositary, or, if a Registrar (other than the Depositary) for the Receipts
shall have been appointed, the Registrar, subject to the terms and conditions
of
this Deposit Agreement, shall register transfers of Receipts on its books,
upon
surrender at the Principal Office of the Depositary of a Receipt by the Holder
thereof in person or by duly authorized attorney, properly endorsed in the
case
of a certificated Receipt or accompanied by, or in the case of DRS/Profile
Receipts receipt by the Depositary of, proper instruments of transfer (including
signature guarantees in accordance with standard industry practice) and duly
stamped as may be required by the laws of the State of New York and of the
United States and any other applicable law. Subject to the terms and conditions
of this Deposit Agreement, including payment of the applicable fees and charges
of the Depositary set forth in Section 5.9 hereof and Article (9) of the
Receipt, the Depositary shall execute a new Receipt or Receipts and deliver
the
same to or upon the order of the person entitled thereto evidencing the same
aggregate number of American Depositary Shares as those evidenced by the
Receipts surrendered.
(b) Combination
& Split Up.
The
Depositary, subject to the terms and conditions of this Deposit Agreement shall,
upon surrender of a Receipt or Receipts for the purpose of effecting a split-up
or combination of such Receipt or Receipts and upon payment to the Depositary
of
the applicable fees and charges set forth in Section 5.9 hereof and Article
(9)
of the Receipt, execute and deliver a new Receipt or Receipts for any authorized
number of American Depositary Shares requested, evidencing the same aggregate
number of American Depositary Shares as the Receipt or Receipts
surrendered.
(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 Receipts at designated
transfer offices on behalf of the Depositary. In carrying out its functions,
a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Holders or persons entitled to such
Receipts and will be entitled to protection and indemnity, in each case to
the
same extent as the Depositary. Such co-transfer agents may be removed and
substitutes appointed by the Depositary. Each co-transfer agent appointed under
this Section 2.5 (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 this Deposit Agreement.
9
(d)
At
the
request of a Holder, the Depositary shall, for the purpose of substituting
a
certificated Receipt with a Receipt issued through DRS/Profile, or vice versa,
execute and deliver a certificated Receipt or DRS/Profile statement, as the
case
may be, for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the certificated Receipt or DRS/Profile statement, as the case
may
be, substituted.
SECTION
2.6 Surrender
of Receipts and Withdrawal of Deposited Securities.
Upon
surrender, at the Principal Office of the Depositary, of American Depositary
Shares for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the fees and charges of the Depositary for
the
making of withdrawals of Deposited Securities and cancellation of Receipts
(as
set forth in Section 5.9 hereof and Article (9) of the Receipt and (ii) all
applicable taxes and/or governmental charges payable in connection with such
surrender and withdrawal, and subject to the terms and conditions of this
Deposit Agreement, the Company’s Articles of Association, Section 7.8 hereof and
any other provisions of or governing the Deposited Securities and other
applicable laws, the Holder of such American Depositary Shares shall be entitled
to Delivery, to him or upon his order, of the Deposited Securities at the time
represented by the American Depositary Shares so surrendered. American
Depositary Shares may be surrendered for the purpose of withdrawing Deposited
Securities by delivery of a Receipt evidencing such American Depositary Shares
(if held in certificated form) or by book-entry delivery of such American
Depositary Shares to the Depositary.
A
Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer
in
blank, and if the Depositary so requires, the Holder thereof shall execute
and
deliver to the Depositary a written order directing the Depositary to cause
the
Deposited Securities being withdrawn to be Delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) at the
designated office of the Custodian or through a book entry delivery of the
Shares (in either case, subject to Sections 2.7, 3.1, 3.2, 5.9, and to the
other
terms and conditions of this Deposit Agreement, to the Company’s Articles of
Association, to the provisions of or governing the Deposited Securities and
to
applicable laws, now or hereafter in effect) to or upon the written order of
the
person or persons designated in the order delivered to the Depositary as
provided above, the Deposited Securities represented by such American Depositary
Shares, together with any certificate or other proper documents of or relating
to title of the Deposited Securities as may be legally required, as the case
may
be, to or for the account of such person.
The
Depositary may, in its discretion, refuse to accept for surrender a number
of
American Depositary Shares representing a number other than a whole number
of
Shares. In the case of surrender of a Receipt evidencing a number of American
Depositary Shares representing 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) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing American Depositary Shares representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the Receipt 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 and governmental charges) to the person surrendering
the Receipt.
10
At
the
request, risk and expense of any Holder so surrendering a Receipt, 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 in respect of, and any certificate or certificates and other proper
documents of or relating to title to, the Deposited Securities represented
by
such Receipt to the Depositary for delivery at the Principal Office of the
Depositary, and for further delivery to such Holder. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission. Upon receipt by the Depositary, the Depositary
may make delivery to such person or persons entitled thereto at the Principal
Office of the Depositary of any dividends or cash distributions with respect
to
the Deposited Securities represented by such American Depositary Shares, or
of
any proceeds of sale of any dividends, distributions or rights, which may at
the
time be held by the Depositary.
SECTION
2.7 Limitations
on Execution and Delivery, Transfer, etc. of Receipts; Suspension of Delivery,
Transfer, etc.
(a) Additional
Requirements.
As a
condition precedent to the execution and delivery, registration, registration
of
transfer, split-up, subdivision, combination or surrender of any Receipt, the
delivery of any distribution thereon or withdrawal of any Deposited Securities,
the Depositary or the Custodian may require (i) payment from the depositor
of
Shares or presenter of the Receipt 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 hereof and Article (9) of the Receipt,
(ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section 3.1
hereof and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of Receipts or American Depositary Shares
or to the withdrawal or delivery of Deposited Securities and (B) such reasonable
regulations as the Depositary may establish consistent with the provisions
of
this 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 issuance of ADSs against the deposit
of particular Shares may be withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of
transfers of Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at
any
time or from time to time because of any requirement of law, any government
or
governmental body or commission or any securities exchange on which the Receipts
or Shares are listed, or under any provision of this Deposit Agreement or
provisions of, or governing, the Deposited Securities, or any meeting of
shareholders of the Company or for any other reason, subject, in all cases,
to
Section 7.8 hereof.
11
SECTION
2.9 Cancellation
and Destruction of Surrendered Receipts; Maintenance of Records.
All
Receipts surrendered to the Depositary shall be cancelled by the Depositary.
The
Depositary is authorized to destroy Receipts so cancelled in accordance with
its
customary practices. Cancelled Receipts shall not be entitled to any benefits
under this Deposit Agreement or be valid or obligatory for any
purpose.
SECTION
2.10
Pre-Release.
Subject
to the further terms and provisions of this Section 2.10, 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 may (i) issue ADSs prior to the receipt of Shares
(each such transaction a "Pre-Release Transaction") as provided below and (ii)
deliver Shares upon the receipt and cancellation of ADSs that were issued in
a
Pre-Release Transaction, but for which Shares may not yet have been received.
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 (1) 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, (2) 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,
(3)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (4) agrees to any additional restrictions
or requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States 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%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided,
however,
that
the Depositary reserves the right to disregard such limit from time to time
as
it deems appropriate. 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.
12
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).
CERTAIN
OBLIGATIONS OF HOLDERS
AND
BENEFICIAL OWNERS OF RECEIPTS
13
SECTION
3.2 Liability
for Taxes and Other Charges.
If any
present or future tax or other governmental charge shall become payable by
the
Depositary or the Custodian with respect to any ADR or any Deposited Securities
or American Depositary Shares, such tax or other governmental charge shall
be
payable by the Holders and Beneficial Owners to the Depositary and such Holders
and Beneficial Owners shall be deemed liable therefor. 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 such taxes (including applicable
interest and penalties) or charges, with the Holder and the Beneficial Owner
remaining fully liable for any deficiency. In addition to any other remedies
available to it, the Depositary and the Custodian may refuse the deposit of
Shares, and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer, 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 each of their
respective agents, officers, directors, 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. The
obligations of Holders and Beneficial Owners of Receipts under this
Section 3.2 shall survive any transfer of Receipts, any surrender of
Receipts and withdrawal of Deposited Securities, or the termination of this
Deposit Agreement.
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 were 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 are not, and the American Depositary Shares
issuable upon such deposit will not be, Restricted Securities and (v) 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 American Depositary Shares in respect
thereof and the transfer of such American Depositary Shares. 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.
SECTION
3.4 Compliance
with Information Requests.
Notwithstanding any other provision of this Deposit Agreement, the Articles
of
Association of the Company and applicable law, each Holder and Beneficial Owner
agrees to (a) provide such information as the Company or the Depositary may
request pursuant to law (including, without limitation, relevant United Kingdom
law, any applicable law of the United States, the Articles of Association of
the
Company, any resolutions of the Company’s Board of Directors adopted pursuant to
such Articles of Association, the requirements of any markets or exchanges
upon
which the Shares, ADSs or Receipts are listed or traded, or to any requirements
of any electronic book-entry system by which the ADSs or Receipts may be
transferred, and (b) be bound by and subject to applicable provisions of the
laws of the United Kingdom , the Articles of Association of the Company and
the
requirements of any markets or exchanges upon which the ADSs, Receipts or Shares
are listed or traded, or pursuant to any requirements of any electronic
book-entry system by which the ADSs, Receipts or Shares may be transferred,
to
the same extent as if such Holder and Beneficial Owner held Shares directly,
in
each case irrespective of whether or not they are Holders or Beneficial Owners
at the time such request is made. 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.
14
ARTICLE
IV
THE
DEPOSITED SECURITIES
15
SECTION
4.2 Distribution
in Shares.
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall cause such Shares to be deposited
with the Custodian and registered, as the case may be, in the name of the
Depositary, the Custodian or any of their nominees. Upon receipt of confirmation
of such deposit from the Custodian, the Depositary shall establish the ADS
Record Date upon the terms described in Section 4.7 and shall, subject to
Section 5.9 hereof, either (i) distribute to the Holders as of the ADS Record
Date in proportion to the number of American Depositary Shares held as of the
ADS Record Date, additional American Depositary Shares, which represent in
the
aggregate the number of Shares received as such dividend, or free distribution,
subject to the other terms of this Deposit Agreement (including, without
limitation, (a) the applicable fees and charges of, and expenses incurred by,
the Depositary and (b) taxes and/or governmental charges), or (ii) if additional
American Depositary Shares are not so distributed, each American Depositary
Share issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interests in the
additional 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 and governmental charges). In lieu of delivering
fractional American Depositary Shares, the Depositary shall sell the number
of
Shares represented by the aggregate of such fractions and distribute the
proceeds upon the terms described in Section 4.1. The Depositary may withhold
any such distribution of Receipts if it has not received satisfactory assurances
from the Company (including an opinion of counsel to the Company furnished
at
the expense of the Company) that such distribution does not require registration
under the Securities Act or is exempt from registration under the provisions
of
the Securities Act.
To the
extent such distribution may be withheld, the Depositary may dispose of all
or a
portion of such distribution in such amounts and in such manner, including
by
public or private sale, as the Depositary deems necessary and practicable,
and
the Depositary shall distribute the net proceeds of any such sale (after
deduction of applicable (a) taxes and/or governmental charges and (b) fees
and
charges of, and expenses incurred by, the Depositary) to Holders entitled
thereto upon the terms described in Section 4.1.
SECTION
4.3 Elective
Distributions in Cash or Shares.
Whenever the Company intends to distribute a dividend 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 30 days prior to the proposed
distribution stating whether or not it wishes such elective distribution to
be
made available to Holders of ADSs. Upon receipt of 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 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 is available to Holders of ADRs, (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 including, without limitation, any legal opinions of counsel in
any
applicable jurisdiction that the Depositary in its reasonable discretion may
request, at the expense of the Company. If the above conditions are not
satisfied, the Depositary shall, to the extent permitted by law, distribute
to
the Holders, on the basis of the same determination as is made in the local
market 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 4.7) and establish procedures to enable Holders
to elect the receipt of the proposed dividend in cash or in additional ADSs.
The
Company shall assist the Depositary in establishing such procedures to the
extent necessary. Subject to Section 5.9 hereof, if a Holder elects to receive
the proposed dividend (x) in cash, the dividend shall be distributed upon the
terms described in Section 4.1, or (y) in ADSs, the dividend shall be
distributed 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 dividend 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.
16
SECTION
4.4 Distribution
of Rights to Purchase Shares.
(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 60 days prior to the proposed
distribution stating whether or not it wishes such rights to be made available
to Holders of ADSs. Upon 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 determine, 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 lawful and reasonably practicable. In the
event any of the conditions set forth above are not satisfied, the Depositary
shall proceed with the sale of the rights as contemplated in Section 4.4(b)
below or, if timing or market conditions may not permit, do nothing thereby
allowing such rights to lapse. In the event all conditions set forth above
are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in Section 4.7) and establish procedures (x) to distribute such rights
(by means of warrants or otherwise) and (y) to enable the Holders to exercise
the rights (upon payment of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes and other governmental charges).
Nothing herein shall obligate the Depositary to make available to the Holders
a
method to exercise such rights to subscribe for Shares (rather than
ADSs).
(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 lawful or 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 determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity or otherwise, at such place and upon such terms
(including public or private sale) as it may deem proper. The Company shall
assist the Depositary to the extent necessary 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 and governmental charges) upon the
terms set forth in Section 4.1.
(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 allow such rights to
lapse.
17
The
Depositary 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, (ii) any foreign exchange exposure or loss incurred
in connection with such sale, or exercise, or (iii) 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 and/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 (and/or
such other applicable law) covering such offering is in effect or (ii) unless
the Company furnishes to the Depositary at the Company’s own expense opinion(s)
of counsel to the Company in the United States and counsel to the Company in
any
other applicable country in which rights would be distributed, in each case
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 shall be reduced accordingly. In the
event
that the Depositary determines that any distribution in property (including
Shares and rights to subscribe therefor) is subject to any tax or other
governmental 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 necessary and practicable
to
pay any such taxes and 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 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 notice thereof to the Depositary at least 30 days prior
to
the proposed distribution 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 determine whether such distribution to Holders is lawful and
practicable. The Depositary shall not make such distribution unless (i) the
Company shall have timely 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 shall have determined
that such distribution is reasonably practicable.
18
(b) Upon
receipt of 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 may 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 such Holders respectively and in such
manner as the Depositary may deem 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
and other governmental charges 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.
(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 determines that all or a portion of such distribution is not
reasonably practicable or feasible, the Depositary shall endeavor to 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 proper and shall distribute the net
proceeds, if any, of such sale received by the Depositary (net of applicable
(a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
and
governmental charges) 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 in any way it deems reasonably practicable under
the circumstances for nominal or no consideration and Holders and Beneficial
Owners shall have no rights thereto or arising therefrom.
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used
by
the Depositary to report distribution rates (which in any case will not be
less
than two decimal places). Any excess amount may be retained by the Depositary
as
an additional cost of conversion, irrespective of any other fees and expenses
payable or owing hereunder and shall not be subject to
escheatment.
19
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary may file such application
for
approval or license, if any, as it may deem necessary, practicable and at
nominal cost and expense. Nothing herein shall obligate the Depositary to file
or cause to be filed, or to seek effectiveness of any such application or
license.
If
at any
time the Depositary shall determine that in its judgment the conversion of
any
Foreign Currency and the transfer and distribution of proceeds of such
conversion received by the Depositary is not practical 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 not
obtainable at a reasonable cost, within a reasonable period or otherwise sought,
the Depositary shall, in its sole discretion but subject to applicable laws
and
regulations, either (i) distribute the Foreign Currency (or an appropriate
document evidencing the right to receive such Foreign Currency) received by
the
Depositary to the Holders entitled to receive such Foreign Currency, or (ii)
hold such Foreign Currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the same.
SECTION
4.7 Fixing
of Record Date.
Whenever necessary in connection with 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 American
Depositary Share, or whenever the Depositary shall receive notice of any meeting
of or solicitation of holders of Shares or other Deposited Securities, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (the "ADS Record Date"), as close as practicable to
the
record date fixed by the Company with respect to the Shares (if applicable),
for
the determination of the Holders who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any
such
meeting, or to give or withhold such consent, or 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 American
Depositary Share, or for any other reason. Subject to applicable law and the
provisions of Section 4.1 through 4.6 and to the other terms and conditions
of
this Deposit Agreement, only the Holders of record 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.
20
SECTION
4.8 Voting
of Deposited Securities.
Subject
to the next sentence, as soon as practicable after receipt of notice of any
meeting at which the holders of Shares are entitled to vote, or of solicitation
of consents or proxies from holders of Shares or other Deposited Securities,
the
Depositary shall fix the ADS Record Date in respect of such meeting or
solicitation of consent or proxy. The Depositary shall, if requested by the
Company in writing in a timely manner (the Depositary having no obligation
to
take any further action if the request shall not have been received by the
Depositary at least 30 days prior to the date of such vote or meeting) and
at
the Company's expense and provided no U.S. legal prohibitions exist, mail by
regular, ordinary mail delivery (or by electronic mail or as otherwise may
be
agreed between the Company and the Depositary in writing from time to time)
or
otherwise distribute to Holders as of the ADS Record Date: (a) such notice
of
meeting or solicitation of consent or proxy; (b) a statement that the Holders
at
the close of business on the ADS Record Date will be entitled, subject to any
applicable law, the Company’s Articles of Association 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 Depositary as
to
the exercise of the voting rights, if any, pertaining to the Shares or other
Deposited Securities represented by such Holder's American Depositary Shares;
and (c) a brief statement as to the manner in which such instructions may be
given. Voting instructions may be given only in respect of a number of American
Depositary Shares representing an integral number of Shares or other Deposited
Securities. Upon the timely receipt of written instructions of a Holder of
American Depositary Shares on 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 this Deposit
Agreement, the Company’s Articles of Association and the provisions of or
governing the Deposited Securities, to vote or cause the Custodian to vote
the
Shares and/or other Deposited Securities (in person or by proxy) represented
by
American Depositary Shares evidenced by such Receipt in accordance with such
voting instructions.
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 Shares or other Deposited
Securities represented by American Depositary Shares except pursuant to and
in
accordance with such written instructions from Holders. Shares or other
Deposited Securities represented by ADSs for which no specific voting
instructions are received by the Depositary from the Holder shall not be
voted.
Notwithstanding
the above, save for applicable provisions of English law, and in accordance
with
the terms of Section 5.3, the Depositary shall not be liable for any failure
to
carry out any instructions to vote any of the Deposited Securities.
SECTION
4.9 Changes
Affecting Deposited Securities.
Upon
any change in par value, split-up, subdivision cancellation, consolidation
or
any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation or
sale
of assets affecting the Company or to which it is otherwise a party, any
securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated
as
new Deposited Securities under this Deposit Agreement, and the Receipts shall,
subject to the provisions of this Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such additional
securities. Alternatively, 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, furnished at
the
expense of the Company, satisfactory to the Depositary that such distributions
are not in violation of any applicable laws or regulations, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts,
in
either case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of Receipt contained in Exhibit A hereto, specifically
describing such new Deposited Securities and/or corporate change. 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
Receipts. 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 counsel to the Company, furnished at the expense of
the
Company, 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 and governmental charges)
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 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 to any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
21
SECTION
4.10 Available
Information.
The
Company is exempt from the periodic reporting requirements of the Exchange
Act
and agrees to continue to comply with the provisions of Rule
12g3-2(b) of the Exchange Act.
22
SECTION
4.13 Taxation;Withholding.
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 necessary tax reports with
governmental authorities or agencies. The Depositary, the Custodian or the
Company and its agents may, but shall not be obligated to, 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. Holders and Beneficial Owners
of
American Depositary Shares 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 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.
The
Company shall remit to the appropriate governmental authority or agency any
amounts required to be withheld by the Company and owing to such governmental
authority or agency. Upon any such withholding, the Company shall remit to
the
Depositary information about such taxes and/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: (i) any taxes withheld by it; (ii) any taxes
withheld by the Custodian, subject to information being provided to the
Depositary by the Custodian; and (iii) any taxes withheld by the Company,
subject to information being provided to the Depositary 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. 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.
In
the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charge which the Depositary is obligated to withhold, the
Depositary shall withhold the amount required to be withheld and may by public
or private sale dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes and charges and
the
Depositary shall distribute the net proceeds of any such sale after deduction
of
such taxes and charges to the Holders entitled thereto in proportion to the
number of American Depositary Shares held by them respectively.
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 American Depositary
Shares.
23
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION
5.1 Maintenance
of Office and Transfer Books by the Registrar.
Until
termination of this Deposit Agreement in accordance with its terms, the
Depositary or if a Registrar for the Receipts shall have been appointed, the
Registrar shall maintain in the Borough of Manhattan, the City of New York,
an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
and the delivery and withdrawal of Deposited Securities in accordance with
the
provisions of this Deposit Agreement.
The
Depositary or the Registrar as applicable, shall keep books for the registration
of Receipts and transfers of Receipts which at all reasonable times shall be
open for inspection by the Company and by the Holders of such Receipts, provided
that such inspection shall not be, to the Depositary’s or the Registrar's
knowledge, for the purpose of communicating with Holders of such Receipts in
the
interest of a business or object other than the business of the Company or
other
than a matter related to this Deposit Agreement or the Receipts.
The
Depositary or the Registrar, as applicable, may close the transfer books with
respect to the Receipts, at any time or from time to time, when deemed necessary
or advisable by it in connection with the performance of its duties
hereunder.
If
any
Receipts or the American Depositary Shares evidenced thereby are listed on
one
or more stock exchanges or automated quotation systems in the United States,
the
Depositary shall act as Registrar or appoint a Registrar or one or more
co-registrars for registration of Receipts and transfers, combinations and
split-ups, and to countersign such Receipts 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.
If
any
Receipts or the American Depositary Shares evidenced thereby are listed on
one
or more securities exchanges, markets or automated quotation systems, (i) the
Depositary shall be entitled to, and shall, take or refrain from taking such
action(s) as it may deem necessary or appropriate to comply with the
requirements of such securities exchange(s), market(s) or automated quotation
system(s) applicable to it, notwithstanding any other provision of this Deposit
Agreement; and (ii) upon the reasonable request of the Depositary, the Company
shall provide the Depositary such information and assistance as may be
reasonably necessary for the Depositary to comply with such requirements, to
the
extent that the Company may lawfully do so.
24
SECTION
5.2 Exoneration.
Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of this Deposit Agreement
or
shall incur any liability (i) if the Depositary, the Custodian or the Company
or
their respective controlling persons or agents shall be prevented or forbidden
from, or delayed in, doing or performing any act or thing required by the terms
of this Deposit Agreement, by reason of any provision of any present or future
law or regulation of the United States or any state thereof, England 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 Company’s
Articles of Association 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, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise
of,
or failure to exercise, any discretion provided for in this Deposit Agreement
or
in the Company’s Articles of Association or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the Custodian
or
the Company or their respective controlling persons or agents 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 this Deposit Agreement, made available to Holders of American
Depositary Shares or (v) for any special, consequential, indirect or punitive
damages for any breach of the terms of this Deposit Agreement or
otherwise.
The
Depositary, its controlling persons, its agents, the Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request, opinion 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
this Deposit Agreement.
SECTION
5.3 Standard
of Care.
The
Company and the Depositary and their respective agents assume no obligation
and
shall not be subject to any liability under this Deposit Agreement or any
Receipts to any Holder(s) or Beneficial Owner(s) or other persons (except for
the Company’s and the Depositary’s obligations specifically set forth in Section
5.8), provided, that the Company and the Depositary and their respective agents
agree to perform their respective obligations specifically set forth in this
Deposit Agreement or the applicable ADRs without gross negligence or willful
misconduct.
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 Receipts, which in
its
opinion may involve it in expense or liability, unless indemnity satisfactory
to
it against all expenses (including fees and disbursements of counsel) and
liabilities 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).
25
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 effects of any vote. 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 this Deposit Agreement
or for the failure or timeliness of any notice from the Company, or for any
action or non action by it in reliance upon the opinion, advice of or
information from legal counsel, accountants, any person representing Shares
for
deposit, any Holder or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary and its agents
shall not be liable for any acts or omissions made by a successor depositary
whether in connection with a previous act or omission of the Depositary or
in
connection with any matter arising wholly after the removal or resignation
of
the Depositary, provided that in connection with the issue out of which such
potential liability arises the Depositary performed its obligations without
gross negligence or willful misconduct while it acted as
Depositary.
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 60th day after delivery thereof to the Company (whereupon
the
Depositary shall, in the event no successor depositary has been appointed by
the
Company, be entitled to take the actions contemplated in Section 6.2 hereof),
or
(ii) upon the appointment by the Company of a successor depositary and its
acceptance of such appointment as hereinafter provided, save that, any amounts,
fees, costs or expenses owed to the Depositary hereunder or in accordance with
any other agreements otherwise agreed in writing between the Company and the
Depositary from time to time shall be paid to the Depositary prior to such
resignation.
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 60th day
after
delivery thereof to the Depositary (whereupon the Depositary shall be entitled
to take the actions contemplated in Section 6.2 hereof), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of
such
appointment as hereinafter provided, save that, any amounts, fees, costs or
expenses owed to the Depositary hereunder or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such
removal.
26
In
case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
the City of New York. The Company shall give notice to the Depositary of the
appointment of a successor depositary not more than 60 days after delivery
by
the Depositary of written notice of resignation or by the Company of removal,
each as provided in this section. In the event that a successor depositary
is
not appointed or notice of the appointment of a successor depositary is not
provided by the Company in accordance with the preceding sentence, the
Depositary shall be entitled to take the actions contemplated in Section 6.2
hereof. 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. The predecessor depositary, upon payment of all sums due to 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 Receipts and such other information
relating to Receipts and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly mail 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.
SECTION
5.5 The
Custodian.
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 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.
Whenever the Depositary determines, in its discretion, that it is appropriate
to
do so, it may appoint an additional entity to act as 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. After any
such
change, the Depositary shall give notice thereof in writing to all
Holders.
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 English 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 Company’s
Articles of Association that may be relevant or pertain to such notice of
meeting or be the subject of a vote thereat.
27
The
Company will also transmit to the Depositary (a) 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 and (b)
English language versions of the Company's annual and other reports prepared
in
accordance with the applicable requirements of the Commission under Rule
12g3-2(b). The Depositary shall arrange, at the request of the Company and
at
the Company's expense, for the mailing of copies thereof to all Holders, or
by
any other means as agreed between the Company and the Depositary (at the
Company’s expense) or make such notices, reports and other communications
available for inspection by all Holders, provided, that, the Depositary shall
have received evidence sufficiently satisfactory to it, including in the form
of
an opinion of local and/or U.S. counsel or counsel of other applicable
jurisdiction, furnished at the expense of the Company, as the Depositary in
its
reasonable discretion so requests, that the distribution of such notices,
reports and any such other communications to Holders from time to time is valid
and does not or will not infringe any local, U.S. or other applicable
jurisdiction regulatory restrictions or requirements if so distributed and
made
available to Holders. The Company will timely provide the Depositary with the
quantity of such notices, reports, and communications, as requested by the
Depositary from time to time, in order for the Depositary to effect such
mailings. The Company has delivered to the Depositary and the Custodian a copy
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
or
any Affiliate of the Company, in connection with the Shares, in each case along
with a certified English translation thereof, 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 (along with a
certified English translation thereof). The Depositary may rely upon such copy
for all purposes of this 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 Receipts evidencing the
American Depositary Shares representing such Shares governed by such provisions
at the Depositary's Principal Office, at the office of the Custodian and at
any
other designated transfer office.
28
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 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,
subdivision, amalgamation or consolidation or transfer of assets or (viii)
any
reclassification, recapitalization, reorganization, merger, amalgamation,
consolidation or sale of assets which affects the Deposited Securities, it
will
obtain U.S. legal advice and take all steps necessary to ensure that the
application of the proposed transaction to Holders and Beneficial Owners 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 or the securities laws of the states of
the
United States). In support of the foregoing or at the reasonable request of
the
Depositary where it deems necessary, the Company will furnish to the Depositary,
at it’s own expense (a) a written opinion of U.S. counsel (reasonably
satisfactory to the Depositary) stating whether or not application of such
transaction to Holders and Beneficial Owners (1) requires a registration
statement under the Securities Act to be in effect or is exempt from the
registration requirements of the Securities Act and/or (2) dealing with such
other reasonable issues requested by the Depositary and (b) an opinion of
English counsel (reasonably satisfactory to the Depositary) stating that (1)
making the transaction available to Holders and Beneficial Owners does not
violate the laws, rules or regulations of England and (2) that all requisite
regulatory consents and approvals have been obtained in the United Kingdom.
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 and that such distribution is in accordance with
all
applicable laws or regulations. 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 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 this 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, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act or have been registered under the Securities Act (and such registration
statement has been declared effective).
Notwithstanding
anything else contained in this Deposit Agreement, nothing in this Deposit
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
29
SECTION
5.8 Indemnification.
The
Company agrees to indemnify the Depositary, any Custodian and each of their
respective directors, officers, employees, agents and Affiliates against, and
hold each of them harmless from, any losses, liabilities, taxes, costs, claims,
judgments, proceedings, actions, demands and any charges or expenses of any
kind
whatsoever (including, but not limited to, reasonable attorney’s fees and
expenses and, in each case, fees and expenses of counsel, in each case,
irrevocable value added tax and any similar tax charged or otherwise imposed
in
respect thereof) (collectively referred to as “Losses”) which the Depositary or
any agent thereof may incur or which may be made against it as a result of
or in
connection with its appointment or the exercise of its powers and duties under
this Agreement or that may arise (a) out of or in connection with any offer,
issuance, sale, resale, transfer, deposit or withdrawal of Receipts, American
Depositary Shares, the Shares, or other Deposited Securities, as the case may
be, (b) out of or in connection with any offering documents in respect thereof
or (c) out of or in connection with 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 this Deposit Agreement,
the
Receipts, the American Depositary Shares, 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 any such Losses directly arise out
of
the gross negligence or willful misconduct of any of them, or (ii) by the
Company or any of its directors, officers, employees, agents and Affiliates.
Notwithstanding the above, in no event shall the Depositary or any of its
directors, officers, employees, agents and/or Affiliates be liable for any
indirect, special, punitive or consequential damages to the Company, Holders,
Beneficial Owners or any other person.
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
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
under 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.
The
obligations set forth in this Section shall survive the termination of this
Deposit Agreement and the succession or substitution of any party
hereto.
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 as provided for under Article (9)
of
the Receipt; provided, however, that no fees shall be payable upon distribution
of cash dividends so long as the charging of such fee is prohibited by the
exchange, if any, upon which the ADSs are listed. 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.
The
Depositary and the Company may reach separate agreement in relation to the
payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
by both parties in the performance of its obligations hereunder and in respect
of the actual costs and expenses of the Depositary in respect of any notices
required to be given to the Holders in accordance with Section 6.1
hereof.
30
In
connection with any payment by the Company to the Depositary:
|
(i)
|
all
fees, taxes, duties, charges, costs and expenses which are payable
by the
Company shall be paid or be procured to be paid by the Company (and
any
such amounts which are paid by the Depositary shall be reimbursed
to the
Depositary by the Company upon demand therefor); and
|
|
(ii)
|
such
payment shall be subject to all necessary United Kingdom exchange
control
and other consents and approvals having been obtained. The Company
undertakes to use its reasonable endeavours to obtain all necessary
approvals that are required to be obtained by it in this connection,
and
|
|
(iii)
|
the
Depositary may request, in its sole but reasonable discretion after
reasonable consultation with the Company, an opinion of counsel regarding
U.S. federal or state law, the laws of England, or the laws of any
other
relevant jurisdiction, to be furnished at the expense of the Company,
if
at any time it deems it necessary to seek such an opinion of counsel
regarding the validity of any action to be taken or instructed to
be taken
under this Agreement.
|
The
Company agrees to promptly pay to the Depositary such other expenses, fees
and
charges and to reimburse the Depositary for such out-of-pocket expenses as
the
Depositary and the Company may agree to from time to time. Responsibility for
payment of such charges may at any time and from time to time be changed by
agreement between the Company and the Depositary. In the discretion of the
Depositary, the Depositary shall present its statement for such expenses and
fees or charges to the Company upon receipt or payment of any relevant invoice
by the Depositary, once every three months, semiannually or annually.
All
payments by the Company to the Depositary under this Clause 5.9 shall be paid
without set-off or counterclaim, and free and clear of and without deduction
or
withholding for or on account of, any present or future taxes, levies, imports,
duties, fees, assessments or other charges of whatever nature, imposed by law,
rule, regulation, court, tribunal or by any department, agency or other
political subdivision or taxing authority thereof or therein, and all interest,
penalties or similar liabilities with respect thereto.
The
right
of the Depositary to receive payment of fees, charges and expenses as provided
above shall survive the termination of this Deposit Agreement. As to any
Depositary, upon the resignation or removal of such Depositary as described
in
Section 5.4 hereof, such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal.
SECTION
5.10 Restricted
Securities Owners.
From
time to time or upon request by the Depositary, the Company shall provide to
the
Depositary a list setting forth, to the actual knowledge of the Company, those
persons or entities who beneficially own Restricted Securities and the Company
shall update that list on a regular basis. The Depositary may rely on such
a
list or update but shall not be liable for any action or omission made in
reliance thereon. The Company shall inform Holders and Beneficial Owners and
the
Depositary of any other limitations on ownership of Shares that the Holders
and
Beneficial Owners may be subject to by reason of the number of American
Depositary Shares held under the Articles of Incorporation of the Company or
applicable English law, as such restrictions may be in force from time to
time.
31
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 Receipts
outstanding at any time, the provisions of this Deposit Agreement and the form
of Receipt 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 and not materially prejudicial to the Holders without
the
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 Receipts until 30 days after
notice of such amendment or supplement shall have been given to the Holders
of
outstanding Receipts. 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 American Depositary Shares to be registered
on
Form F-6 under the Securities Act or (b) the American Depositary Shares or
the
Shares to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by Holders,
shall be deemed not to 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
American Depositary Share or Shares, to consent and agree to such amendment
or
supplement and to be bound by the Deposit Agreement as amended and supplemented
thereby. In no event shall any amendment or supplement impair the right of
the
Holder to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require amendment or supplement
of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the Receipt at
any
time in accordance with such changed laws, rules or regulations. Such amendment
or supplement to the Deposit Agreement in such circumstances may become
effective before a notice of such amendment or supplement is given to Holders
or
within any other period of time as required for compliance with such laws,
rules
or regulations.
32
SECTION
6.2 Termination.
The
Depositary shall, at any time at the written direction of the Company, terminate
this Deposit Agreement by mailing notice of such termination to the Holders
of
all Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination, provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the
terms
of this Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time
to
time, prior to such termination shall take effect. If 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, the Depositary may terminate this
Deposit Agreement by mailing notice of such termination to the Holders of all
Receipts then outstanding at least 30 days prior to the date fixed for such
termination. On and after the date of termination of this Deposit Agreement,
the
Holder will, upon surrender of such Receipt at the Principal Office of the
Depositary, upon the payment of the charges of the Depositary for the surrender
of Receipts referred to in Section 2.6 and subject to the conditions and
restrictions therein set forth, and upon payment of any applicable taxes and/or
governmental charges, be entitled to delivery, to him or upon his order, of
the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of this Deposit
Agreement, the Registrar thereafter shall discontinue the registration of
transfers of Receipts, and the Depositary shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights or other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in Section
2.6,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, or charging, as
the
case may be, in each case, the charges of the Depositary for the surrender
of a
Receipt, any expenses for the account of the Holder in accordance with the
terms
and conditions of this Deposit Agreement and any applicable taxes and/or
governmental charges or assessments). At any time after the expiration of six
months from the date of termination of this Deposit Agreement, the Depositary
may sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash
then
held by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders of Receipts whose Receipts have not
theretofore been surrendered. After making such sale, the Depositary shall
be
discharged from all obligations under this Deposit Agreement with respect to
the
Receipts and the Shares, Deposited Securities and American Depositary Shares,
except to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case, the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of this Deposit Agreement and any
applicable taxes and/or governmental charges or assessments). Upon the
termination of this Deposit Agreement, the Company shall be discharged from
all
obligations under this Deposit Agreement except for its obligations to the
Depositary hereunder.
33
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1 Counterparts.
This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and all of such counterparts together shall
constitute one and the same agreement. Copies of this 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.
This
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 this Deposit Agreement. Nothing in this Deposit Agreement shall be
deemed to give rise to a partnership or joint venture among the parties hereto
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 this
Agreement shall (a) preclude the Depositary or any of its Affiliates from
engaging in such transactions or establishing or maintaining such relationships,
or (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 this Deposit Agreement or in
the
Receipts should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.4 Holders
and Beneficial Owners as Parties; Binding Effect.
The
Holders and Beneficial Owners from time to time of American Depositary Shares
shall be parties to the Deposit Agreement and shall be bound by all of the
terms
and conditions hereof and of any Receipt by acceptance hereof 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, facsimile
transmission or electronic transmission, confirmed by letter, addressed to
The
Game Group plc, Xxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx, XX00 0XX,
Attention: Corporate Secretary, 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,
facsimile transmission or by electronic transmission (if agreed by the Company
and the Depositary), at the Company’s expense, unless otherwise agreed in
writing between the Company and the Depositary, confirmed by letter, addressed
to Deutsche Bank Trust Company Americas, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, XXX Attention: ADR Department, telephone: (000) 000 000-0000,
facsimile: (000) 000 000 0000 or to any other address which the
Depositary may specify in writing to the Company.
34
Any
and
all notices to be given to any Holder shall be deemed to have been duly given
if
personally delivered or sent by mail or cable, telex, facsimile transmission
or
by electronic transmission (if agreed by the Company and the Depositary), at
the
Company’s expense, unless otherwise agreed in writing between the Company and
the Depositary, addressed to such Holder at the address of such Holder as it
appears on the transfer books for Receipts of the Depositary, or, if such Holder
shall have filed with the Depositary a written request that notices intended
for
such Holder be mailed to some other address, at the address specified in such
request. Notice to Holders shall be deemed to be notice to Beneficial Owners
for
all purposes of this Deposit Agreement.
Delivery
of a notice sent by mail, air courier or cable, telex, facsimile or electronic
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, facsimile or electronic transmission) is deposited, postage prepaid,
in a
post-office letter box or delivered to an air courier service. The Depositary
or
the Company may, however, act upon any cable, telex, facsimile or electronic
transmission received by it from the other or from any Holder, notwithstanding
that such cable, telex, facsimile or electronic transmission shall not
subsequently be confirmed by letter as aforesaid, as the case may be.
SECTION
7.6 Governing
Law and Jurisdiction.
This
Deposit Agreement and the Receipts 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. 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 this 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
Depositary Management Corporation (the "Agent") now at 000 Xxxxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 10022,, 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 the City of New York 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 hereof. 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.
35
Notwithstanding
the foregoing, the Depositary and the Company unconditionally agree that in
the
event that a Holder or Beneficial Owner brings a suit, action or proceeding
against (a) the Company, (b) the Depositary in its capacity as Depositary under
this Deposit Agreement or (c) against both the Company and the Depositary,
in
any state or federal court of the United States, and the Depositary or the
Company have any claim, for indemnification or otherwise, against each other
arising out of the subject matter of such suit, action or proceeding, then
the
Company and the Depositary may pursue such claim against each other in the
state
or federal court in the United States in which such suit, action, or proceeding
is pending, and for such purposes, the Company and the Depositary irrevocably
submit to the non-exclusive jurisdiction of such courts. 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 and the Depositary agree that, notwithstanding the foregoing, with
regard to any claim or dispute or difference of whatever nature between
the parties hereto arising directly or indirectly from the relationship created
by this Deposit Agreement,
the
Depositary, in its sole discretion, shall be entitled to refer such dispute
or
difference for final settlement by arbitration (“Arbitration”) in accordance
with the applicable rules of the American Arbitration Association (the “Rules”)
then in force, by a sole arbitrator appointed in accordance with the Rules.
The
seat and place of any reference to Arbitration shall be New York, New York
State. The procedural law of any Arbitration shall be New York law and
the
language to be used in the Arbitration shall be English. The fees of the
arbitrator and other costs incurred by the parties in connection with such
Arbitration shall be paid by the party that is unsuccessful in such
Arbitration.
The
provisions of this Section 7.6 shall survive any termination of this Deposit
Agreement, in whole or in part.
SECTION
7.7 Assignment.
Subject
to the provisions of Section 5.4 hereof, this 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 this 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.
36
SECTION
7.9 Titles.
All
references in this Deposit Agreement to exhibits, articles, sections,
subsections, and other subdivisions refer to the exhibits, articles, sections,
subsections and other subdivisions of this Deposit Agreement unless expressly
provided otherwise. The words "this Deposit Agreement", "herein", "hereof",
"hereby", "hereunder", and words of similar import refer to the Deposit
Agreement as a whole as in effect 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 this Deposit Agreement are included
for convenience only and shall be disregarded in construing the language
contained in this Deposit Agreement.
SECTION
7.10 Agents.
The
Depositary shall be entitled, in its sole but reasonable discretion, to appoint
one or more agents (the "Agents") of which it shall have control for the
purpose, inter
alia,
of
making distributions to the Holders or otherwise carrying out its obligations
under this Agreement.
SECTION
7.11 Exclusivity.
The
Company agrees not to appoint any other depositary for the issuance or
administration of depositary receipts evidencing any class of stock of the
Company so long as Deutsche Bank Trust Company Americas is acting as Depositary
hereunder.
37
IN
WITNESS WHEREOF, THE GAME GROUP PLC and DEUTSCHE BANK TRUST COMPANY AMERICAS
have duly executed this 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 American Depositary Shares evidenced by Receipts issued
in
accordance with the terms hereof.
|
THE GAME GROUP PLC
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By:
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||
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Name:
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||
|
Title:
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||
|
DEUTSCHE BANK TRUST COMPANY
AMERICAS
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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38
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Number
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CUSIP
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American
Depositary Shares (Each
American
Depositary Share
representing
5 Fully Paid Ordinary
Shares)
EXHIBIT
A
[FORM
OF FACE OF RECEIPT]
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
Of
(Incorporated
under the laws of England)
DEUTSCHE
BANK TRUST COMPANY AMERICAS, as depositary (herein called 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
Game Group plc (the “Company”), a company incorporated under the laws of England
(the "Company"). As of the date of the Deposit Agreement (hereinafter referred
to), each ADS represents five Shares deposited under the Deposit Agreement
with
the Custodian which at the date of execution of the Deposit Agreement is State
Street Bank & Trust Company (the "Custodian"). The ratio of Depositary
Shares to shares of stock is subject to subsequent amendment as provided in
Article IV of the Deposit Agreement. The Depositary’s Principal Office is
located at 00 Xxxx 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
("Receipts"), all issued and to be issued upon the terms and conditions set
forth in the Deposit Agreement, dated as of November 12, 2008 (as amended 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 Receipts
issued thereunder, each of whom by accepting a Receipt agrees to become a party
thereto and becomes bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights and obligations of Holders and Beneficial Owners
of Receipts and the rights and duties of the Depositary in respect of the Shares
deposited thereunder and any and all other securities, property and cash from
time to time, received in respect of such Shares and held thereunder (such
Shares, other 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 the Custodian.
A-1
Each
owner 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 Receipt are summaries of certain
provisions of the Deposit Agreement and the Company’s Articles of Association
(as in effect on the date of the Deposit Agreement) and are qualified by and
subject to the detailed provisions of the Deposit Agreement, 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 American Depositary Shares into DTC. Each Beneficial
Owner
of American Depositary Shares 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 American Depositary Shares. The Receipt evidencing the
American Depositary Shares held through DTC will be registered in the name
of a
nominee of DTC. So long as the American Depositary Shares are held through
DTC
or unless otherwise required by law, ownership of beneficial interests in the
Receipt registered in the name of DTC (or its nominee) will be shown on, and
transfers of such ownership will be effected only through, records maintained
by
(i) DTC (or its nominee), or (ii) DTC Participants (or their
nominees).
(2) Surrender
of Receipts and Withdrawal of Deposited Securities.
Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by
this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making
of
withdrawals and cancellation of Receipts (as set forth in Article (9) hereof
and
in Section 5.9 and Article (9) of this Receipt) and (ii) all applicable taxes
and/or governmental charges payable in connection with such surrender and
withdrawal, and, subject to the terms and conditions of the Deposit Agreement,
the Company’s Articles of Association, Section 7.8 of the Deposit Agreement,
Article (22) of this Receipt and the provisions of or governing the Deposited
Securities and other applicable laws, the Holder of the American Depositary
Shares at the time evidenced hereby is entitled to delivery, to him or upon
his
order, of the Deposited Securities represented by the ADS so surrendered.
Subject to the last sentence of this paragraph, such Deposited Securities may
be
delivered in certificated form or by electronic delivery. ADS may be surrendered
for the purpose of withdrawing Deposited Securities by delivery of a Receipt
evidencing such ADS (if held in registered form) or by book-entry delivery
of
such ADS to the Depositary.
A-2
A
Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer
in
blank, and if the Depositary so requires, the Holder thereof shall execute
and
deliver to the Depositary a written order directing the Depositary to cause
the
Deposited Securities being withdrawn to be delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) at the
designated office of the Custodian (subject to the terms and conditions of
the
Deposit Agreement, to the Company’s Articles of Association, and to the
provisions of or governing the Deposited Securities and applicable laws, now
or
hereafter in effect), to or upon the written order of the person or persons
designated in the order delivered to the Depositary as provided above, the
Deposited Securities represented by such ADSs, together with any certificate
or
other proper documents of or relating to title for the Deposited Securities
or
evidence of the electronic transfer thereof (if available) as the case may
be to
or for the account of such person. The Depositary may make delivery to such
person or persons at the Principal Office of the Depositary of any dividends
or
distributions with respect to the Deposited Securities represented by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
The
Depositary may, in its discretion, refuse to accept for surrender a number
of
American Depositary Shares representing a number of Shares other than a whole
number of Shares. In the case of surrender of a Receipt evidencing a number
of
ADSs representing 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) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt so surrendered and remit the proceeds thereof (net
of
(a) applicable fees and charges of, and expenses incurred by, the Depositary
and
(b) taxes and governmental charges) to the person surrendering the Receipt.
At
the request, risk and expense of any Holder so surrendering a Receipt, 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 in respect of, and any certificate or certificates and other
proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of
such
Holder, by cable, telex or facsimile transmission
A-3
(3) Transfers,
Split-Ups and Combinations of Receipts.
Subject
to the terms and conditions of the Deposit Agreement, the Registrar shall
register transfers of Receipts on its books, upon surrender at the Principal
Office of the Depositary of a Receipt by the Holder thereof in person or by
duly
authorized attorney, properly endorsed or accompanied by proper instruments
of
transfer (including signature guarantees in accordance with standard industry
practice) and duly stamped as may be required by the laws of the State of New
York and of the United States of America, of England and of any other applicable
jurisdiction. Subject to the terms and conditions of the Deposit Agreement,
including payment of the applicable fees and charges of the Depositary, the
Depositary shall execute and deliver a new Receipt(s) (and if necessary, cause
the Registrar to countersign such Receipt(s)) and deliver same to or upon the
order of the person entitled to such Receipts evidencing the same aggregate
number of ADSs as those evidenced by the Receipts surrendered. Upon surrender
of
a Receipt or Receipts for the purpose of effecting a split-up or combination
of
such Receipt or Receipts upon payment of the applicable fees and charges of
the
Depositary, and subject to the terms and conditions of the Deposit Agreement,
the Depositary shall execute and deliver a new Receipt or Receipts for any
authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as the Receipt or Receipts surrendered.
(4) Pre-Conditions
to Registration, Transfer, Etc.
As a
condition precedent to the execution and delivery, registration of transfer,
split-up, subdivision combination or surrender of any Receipt or withdrawal
of
any Deposited Securities, the Depositary or the Custodian may require (i)
payment from the depositor of Shares or presenter of the Receipt 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
the
Deposit Agreement and in this Receipt, (ii) the production of proof satisfactory
to it as to the identity and genuineness of any signature or any other matters
and (iii) compliance with (A) any laws or governmental regulations relating
to
the execution and delivery of Receipts and ADSs or to the withdrawal of
Deposited Securities and (B) such reasonable regulations of the Depositary
or
the Company consistent with 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 issuance of ADSs against the deposit
of particular Shares may be withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of transfer
of Receipts generally may be suspended, during any period when the transfer
books of the Depositary are closed or if any such action is deemed necessary
or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange upon which the Receipts or Share
are listed, or under any provision of the Deposit Agreement or provisions of,
or
governing, the Deposited Securities or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (22) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, the Holders of Receipts are entitled to surrender outstanding ADSs
to
withdraw the Deposited Securities 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 Receipts or to the withdrawal of the Deposited Securities,
and
(iv) other circumstances specifically contemplated by Section I.A.(l) of the
General Instructions to Form F-6 (as such General Instructions may be amended
from time to time). Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the Deposit Agreement any Shares or
other
Deposited Securities required to be registered under the provisions of the
U.S.
Securities Act, unless a registration statement is in effect as to such
Shares.
A-4
(5) Compliance
With Information Requests.
Notwithstanding any other provision of the Deposit Agreement or this Receipt,
each Holder and Beneficial Owner of the ADSs represented hereby agrees to comply
with requests from the Company pursuant to the laws of the England and any
stock
exchange on which the Shares are, or will be registered, traded or
listed,
the
Company’s Articles of Association, which are made to provide information as to
the capacity in which such Holder or Beneficial Owner owns ADSs and regarding
the identity of any other person interested in such ADSs and the nature of
such
interest and various other matters whether or not they are Holders and/or
Beneficial Owner at the time of such request. The Depositary agrees to use
reasonable efforts to forward any such requests to the Holders and to forward
to
the Company any such responses to such requests received by the
Depositary.
(6) Liability
of Holder for Taxes, Duties and Other Charges.
If any
tax or other governmental charge shall become payable by the Depositary or
the
Custodian with respect to any Receipt or any Deposited Securities or ADSs,
such
tax, or other governmental charge 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 the 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, with the Holder and the Beneficial Owner hereof remaining fully
liable for any deficiency. The Custodian may refuse the deposit of Shares,
and
the Depositary may refuse to issue ADSs, to deliver Receipts, register the
transfer, split-up or combination of ADRs and (subject to Article (22) 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 each of
their
respective agents, directors, 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.
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used
by
the Depositary to report distribution rates (which in any case will not be
less
than two decimal places). Any excess amount may be retained by the Depositary
as
an additional cost of conversion, irrespective of any other fees and expenses
payable or owing hereunder and shall not be subject to escheatment.
(7) 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 were 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 are not, and the ADSs issuable upon such deposit
will not be, Restricted Securities and (v) 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 and the issuance,
cancellation and transfer of ADSs. If any such representations or warranties
are
false in any way, the Company and 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.
A-5
(8) Filing
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 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 and the terms of the Deposit
Agreement and the provisions of, or governing, the Deposited Securities or
other
information as the Depositary deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. Subject to Article (22) hereof and
the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable,
may withhold the delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of
the
proceeds thereof or the delivery of any Deposited Securities until such proof
or
other information is filed, or such certifications are executed, or such
representations and warranties made, or such information and documentation
are
provided, in each case to the Depositary's and the Company's
satisfaction.
(9) Charges
of Depositary.
The
Depositary shall charge the following fees for the services performed under
the
terms of the Deposit Agreement; provided, however, that no fees shall be payable
upon distribution of cash dividends so long as the charging of such fee is
prohibited by the exchange, if any, upon which the ADSs are listed:
(i) to
any
person to whom ADSs are issued or to any person to whom a distribution is made
in respect of ADS distributions pursuant to stock dividends or other free
distributions of stock, bonus distributions, stock splits or other distributions
(except where converted to cash), 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
to
be determined by the Depositary;
(ii) to
any
person surrendering ADSs for cancellation and withdrawal of Deposited Securities
including, inter
alia,
cash
distributions made pursuant to a cancellation or withdrawal, a fee not in excess
of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so surrendered;
(iii)
to
any
Holder of ADSs, a fee not in excess of U.S. $ 2.00 per 100 ADS held for the
distribution of cash proceeds, including cash dividends or sale of rights and
other entitlements, not made pursuant to a cancellation or
withdrawal;
(iv) to
any
holder of ADSs, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or portion
thereof) issued upon the exercise of rights; and
(v) for
the
operation and maintenance costs in administering the ADSs an annual fee of
U.S.
$ 2.00 per 100 ADS;
A-6
In
addition, Holders, Beneficial Owners, person depositing Shares for deposit
and
person surrendering ADSs for cancellation and withdrawal of Deposited Securities
will be required to pay 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 with the Foreign Registrar 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 , facsimile and electronic 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;
(vi) the
fees
and expenses incurred by the Depositary in connection with the delivery of
Deposited Securities, including any fees of a central depository for securities
in the local market, where applicable;
(vii) any
additional fees, charges, costs or expenses that may be incurred by the
Depositary from time to time.
Any
other
charges and expenses of the Depositary under the Deposit Agreement will be
paid
by the Company upon agreement between the Depositary and the Company. 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 Article
(20)
of this Receipt.
(10) Title
to Receipts.
It is a
condition of this Receipt, and every successive Holder of this Receipt by
accepting or holding the same consents and agrees, that title to this Receipt
(and to each ADS evidenced hereby) is transferable by delivery of the Receipt,
provided it has been properly endorsed or accompanied by proper instruments
of
transfer, such Receipt being a certificated security under the laws of the
State
of New York. Notwithstanding any notice to the contrary, the Depositary may
deem
and treat the Holder of this Receipt (that is, the person in whose name this
Receipt is registered on the books of the Depositary) as the absolute owner
hereof for all purposes. The Depositary shall have no obligation or be subject
to any liability under the Deposit Agreement or this Receipt to any holder
of
this Receipt or any Beneficial Owner unless such holder is the Holder of this
Receipt 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.
A-7
(11) Validity
of Receipt.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or
be
valid or enforceable for any purpose, unless this Receipt has been (i) dated,
(ii) signed by the manual or facsimile signature of a duly authorized signatory
of the Depositary, (iii) if a Registrar for the Receipts shall have been
appointed, countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar and (iv) registered in the books
maintained by the Depositary or the Registrar, as applicable, for the issuance
and transfer of Receipts. Receipts 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 execution and delivery
of
such Receipt by the Depositary or did not hold such office on the date of
issuance of such Receipts.
(12) Available
Information; Reports; Inspection of Transfer Books.
The
Company publishes information in English required to maintain the exemption
from
registration under Rule 12g3-2(b) under the Securities Exchange Act of 1934,
as
amended (the "Securities Exchange Act of 1934") on its Internet Web site
(xxx.xxxxxxxxx.xxx.xx) or through an electronic information delivery system
generally available to the public in its primary trading market.
The
Depositary shall make available during normal business hours on any Business
Day
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
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 or the Registrar, as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable
times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary’s or the
Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts 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
Receipts.
The
Depositary or the Registrar, as applicable, may close the transfer books with
respect to the Receipts, 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 Article (22) hereof.
|
Dated:
|
DEUTSCHE
BANK TRUST
|
|
|
COMPANY
AMERICAS, as Depositary
|
||
|
By:
|
||
|
|
Vice
President
|
|
A-8
The
address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
A-9
[FORM
OF REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE
DEPOSIT AGREEMENT
(13) Dividends
and Distributions in Cash, Shares, etc.
Whenever the Depositary receives confirmation from the Custodian of receipt
of
any cash dividend or other cash distribution on any Deposited Securities, or
receives proceeds from the sale of any Shares, rights securities or other
entitlements under the Deposit Agreement, the Depositary will, 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 the Deposit Agreement), be converted on
a
practicable basis, into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars and will distribute promptly the amount thus received (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes and
governmental charges withheld) to the Holders of record as of the ADS Record
Date in proportion to the number of ADS representing such Deposited Securities
held by such Holders respectively 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. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto. 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. Any Foreign Currency received
by the Depositary shall be converted upon the terms and conditions set forth
in
the Deposit Agreement.
If
any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall or cause such Shares to be deposited
with the Custodian and registered, as the case may be, in the name of the
Depositary, the Custodian or their nominees. Upon receipt of confirmation of
such deposit, the Depositary shall, subject to and in accordance with the
Deposit Agreement, establish the ADS Record Date and either (i) 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 aggregate the
number of Shares received as such dividend, or free distribution, subject to
the
terms of the Deposit Agreement (including, without limitation, the applicable
fees and charges of, and expenses incurred by, the Depositary, and taxes and/or
governmental charges), or (ii) if additional ADSs are not so distributed, each
ADS issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interest in the
additional Shares distributed upon the Deposited Securities represented thereby
(net of the applicable fees and charges of, and the expenses incurred by, the
Depositary, and taxes and governmental charges). In lieu of delivering
fractional ADSs, the Depositary shall sell the number of Shares represented
by
the aggregate of such fractions and distribute the proceeds upon the terms
set
forth in the Deposit Agreement.
A-10
In
the
event that (x) 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, (y) if the Company, in the fulfillment
of its obligations under the Deposit Agreement, has either (a) 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), or (b) fails to timely
deliver the documentation contemplated in the Deposit Agreement, 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 necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of taxes and fees and charges of, and expenses incurred by, the Depositary)
to
Holders entitled thereto upon the terms 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
timely receipt of a notice indicating that the Company wishes an elective
distribution to be made available to Holders upon the terms described in the
Deposit Agreement, the Depositary shall, upon provision of all documentation
required under the Deposit Agreement, (including, without limitation, any legal
opinions the Depositary may reasonably request, to be furnished at the expense
of the Company) 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 Article (14)
hereof 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 dividend shall be distributed 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 distributed as in
the
case of a distribution in Shares upon the terms described in the Deposit
Agreement. If such elective distribution is not lawful or reasonably practicable
or if the Depositary did not receive satisfactory documentation set forth in
the
Deposit Agreement, the Depositary shall, to the extent permitted by law,
distribute to Holders, on the basis of the same determination as is made in
the
United Kingdom 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 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.
A-11
Upon
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
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 Holders only if the Company shall have timely requested that
such rights be made available to Holders, the Depositary shall have received
the
documentation required by the Deposit Agreement, and the Depositary shall have
determined that such distribution of rights is lawful and 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 and establish
procedures (x) to distribute such rights (by means of warrants or otherwise)
and
(y) to enable the Holders to exercise the rights (upon payment of the applicable
fees and charges of, and expenses incurred by, the Depositary and taxes).
Nothing herein or in the Deposit Agreement shall obligate the Depositary to
make
available to the Holders a method to exercise such 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 if the Company requests
that the rights not be made available to Holders, (ii) the Depositary fails
to
receive the documentation required by the Deposit Agreement or determines it
is
not lawful or 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 determine whether it is lawful and reasonably
practicable to sell such rights, in a riskless principal capacity or otherwise,
at such place and upon such terms (including public and private sale) as it
may
deem proper. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable fees and charges of, and expenses
incurred by, the Depositary and taxes and governmental charges) upon the terms
hereof and in the Deposit Agreement. If the Depositary is unable to make any
rights available to Holders or to arrange for the sale of the rights upon the
terms described above, the Depositary shall allow such rights to lapse. The
Depositary shall not be responsible for (i) any failure to determine that it
may
be lawful or feasible to make such rights available to Holders in general or
any
Holders in particular, (ii) any foreign exchange exposure or loss incurred
in
connection with such sale, or exercise, or (iii) the content of any materials
forwarded to the Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding
anything herein to the contrary, if registration (under the Securities Act
and/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 (and/or such other
applicable law) covering such offering is in effect or (ii) unless the Company
furnishes to the Depositary opinion(s) of counsel for the Company in the United
States and counsel to the Company in any other applicable country in which
rights would be distributed, in each case satisfactorily 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 shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental 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 necessary and practicable to pay any such taxes and
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 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.
A-12
Upon
receipt of a notice regarding property other than cash, Shares or rights to
purchase additional Shares, to be made to Holders of ADSs, the Depositary shall
determine, upon consultation with the Company, whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make
such
distribution unless (i) the Company shall have timely requested the Depositary
to make such distribution to Holders, (ii) the Depositary shall have received
the documentation required by the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is lawful and reasonably
practicable. Upon satisfaction of such conditions, the Depositary shall
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 such Holders
respectively and in such manner as the Depositary may deem 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 and governmental charges 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 proper and shall distribute the proceeds of
such
sale received by the Depositary (net of (a) applicable fees and charges of,
and
expenses incurred by, the Depositary and (b) taxes and governmental charges)
to
the Holders 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 in any way it deems reasonably practicable under the
circumstances.
(14) Fixing
of Record Date.
Whenever necessary in connection with 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 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, or any other matter,
the
Depositary shall fix a record date ("ADS Record Date") for the determination
of
the Holders who shall be entitled to receive such distribution, to give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or 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 or for any other reason.
Subject to applicable law and the terms and conditions of this Receipt and
the
Deposit Agreement, only the Holders of record at the close of business in New
York on such ADS Record Date shall be entitled to receive such distributions,
to
give such voting instructions, to receive such notice or solicitation, or
otherwise take action.
A-13
(15) Voting
of Deposited Securities.
As soon
as practicable after receipt of notice of any meeting at which the holders
of
Shares are entitled to vote, or of solicitation of consents or proxies from
holders of Shares or other Deposited Securities, the Depositary shall fix the
ADS Record Date in respect of such meeting or solicitation of such consent
or
proxy. The Depositary shall, if requested by the Company in writing in a timely
manner (the Depositary having no obligation to take any further action if the
request shall not have been received by the Depositary at least 30 days prior
to
the date of such vote or meeting), at the Company's expense and provided no
U.S.
legal prohibitions exist, mail by ordinary, regular mail delivery or by
electronic transmission (if agreed by the Company and the Depositary), unless
otherwise agreed in writing by the Company and the Depositary, to Holders as
of
the ADS Record Date: (a) such notice of meeting or solicitation of consent
or
proxies; (b) a statement that the Holders as of 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 Shares or other Deposited
Securities represented by such Holder's ADSs; and (c) a brief statement as
to
the manner in which such instructions may be given. Upon the timely receipt
of
written instructions of a Holder of ADSs on the ADS Record Date, the Depositary
shall endeavor, insofar as practicable and permitted under applicable law and
the provisions of the Company’s Articles of Association and the provisions of
the Deposited Securities, to vote or cause the Custodian to vote the Shares
and/or other Deposited Securities represented by ADSs held by such Holder in
accordance with such instructions.
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 Shares or other Deposited
Securities represented by ADSs except pursuant to and in accordance with such
written instructions from Holders. Shares or other Deposited Securities
represented by ADSs for which no specific voting instructions are received
by
the Depositary from the Holder shall not be voted.
Notwithstanding
the above, and in accordance with Section 5.3 of the Deposit Agreement, the
Depositary 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 such vote
is
cast or the effect of any such vote.
(16) Changes
Affecting Deposited Securities.
Upon
any change in par value, split-up, subdivision cancellation, consolidation
or
any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation or
sale
of assets affecting the Company or to which it otherwise is a party, any
securities which shall be received by the Depositary or a Custodian in exchange
for, or in conversion of or replacement 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 Receipts shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities.
Alternatively, 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 satisfactory documentation contemplated by the Deposit Agreement,
execute and deliver additional Receipts as in the case of a stock dividend
on
the Shares, or call for the surrender of outstanding Receipts to be exchanged
for new Receipts, in either case, as well as in the event of newly deposited
Shares, with necessary modifications to this form of Receipt specifically
describing such new Deposited Securities and/or corporate change.
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
satisfactory legal documentation contemplated in the Deposit Agreement, 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 fees and charges of, and expenses incurred by, the Depositary and taxes
and
governmental charges) for the account of the Holders otherwise entitled to
such
securities and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to the
Deposit Agreement. The Depositary 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, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
A-14
(17) Exoneration.
Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of the Deposit Agreement
or
shall incur any liability (i) if the Depositary, the Custodian or the Company
or
their respective controlling persons or agents 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 Receipt, by reason of any provision of any present
or
future law or regulation of the United States,
the
United Kingdom or any other country, or of any other governmental authority
or
regulatory authority or stock exchange, or by reason of any provision, present
or future of the Company’s Articles of Association 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, 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 Company’s Articles of Association or
provisions of or governing Deposited Securities, (iii) for any action or
inaction of the Depositary, the Custodian or the Company or their respective
controlling persons or agents 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 any 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 ADS 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, opinion 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.
A-15
(18) Standard
of Care.
The
Company and the Depositary and their respective agents assume no obligation
and
shall not be subject to any liability under the Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons (except for the
Company’s and the Depositary’s obligations specifically set forth in Section 5.8
of the Deposit Agreement), provided, that the Company and the Depositary and
their respective agents agree to perform their respective obligations
specifically set forth in the Deposit Agreement without gross negligence or
willful misconduct. 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 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
or for the failure or timeliness of any notice from the Company. In no event
shall the Depositary or any of its agents (including, without limitation, its
Agents) be liable for any indirect, special, punitive or consequential
damage.
(19) 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 60th
day
after delivery thereof to the Company, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in
the
Deposit Agreement, save that, any amounts, fees, costs or expenses owed to
the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such resignation.
The
Company shall use reasonable efforts to appoint such successor depositary,
and
give notice to the Depositary of such appointment, not more than 60 days after
delivery by the Depositary of written notice of resignation as provided in
the
Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal which notice shall be effective on the later of (i) the 60th
day
after delivery thereof to the Depositary, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in
the
Deposit Agreement save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such removal. In
case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its best efforts to appoint a successor depositary which
shall
be a bank or trust company having an office in the Borough of Manhattan, the
City of New York. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor. 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 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 Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail 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.
A-16
(20) Amendment/Supplement.
Subject
to the terms and conditions of this Article (20), and applicable law, this
Receipt 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 consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
charges of the Depositary 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 Receipts until 30 days after notice of such
amendment or supplement shall have been given to the Holders of outstanding
Receipts. 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 or Shares to be traded solely in electronic book-entry form and (ii)
do
not in either such case impose or increase any fees or charges to be borne
by
Holders, shall be deemed not to prejudice any substantial rights of Holders
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
ADS, to consent and agree to such amendment or supplement and to be bound by
the
Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding
the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement
the
Deposit Agreement and the Receipt at any time in accordance with such changed
laws, rules or regulations. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, or rules or
regulations.
A-17
(21) Termination.
The
Depositary shall, at any time at the written direction of the Company, terminate
the Deposit Agreement by mailing notice of such termination to the Holders
of
all Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the
terms
of the Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time
to
time, prior to such termination shall take effect. If 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 herein and in the Deposit Agreement, the Depositary
may
terminate the Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed for such termination. On and after the date of termination of the Deposit
Agreement, the Holder will, upon surrender of such Holder's Receipt at the
Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the surrender of Receipts referred to in Article (2) hereof
and
in the Deposit Agreement and subject to the conditions and restrictions therein
set forth, and upon payment of any applicable taxes and/or governmental charges,
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of the Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of Receipts, and the Depositary
shall suspend the distribution of dividends to the Holders thereof, and shall
not give any further notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in the Deposit
Agreement, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of
the
Holder in accordance with the terms and conditions of the Deposit Agreement
and
any applicable taxes and/or governmental charges or assessments). At any time
after the expiration of six months from the date of termination of the Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders of
Receipts whose Receipts have not theretofore been surrendered. After making
such
sale, the Depositary shall be discharged from all obligations under the Deposit
Agreement with respect to the Receipts and the Shares, Deposited Securities
and
ADSs, except to account for such net proceeds and other cash (after deducting,
or charging, as the case may be, in each case the charges of the Depositary
for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes and/or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from
all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
(22) Compliance
with U.S. Securities Laws; Regulatory Compliance.
Notwithstanding any provisions in this Receipt 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
Section I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities
Act.
A-18
(23) Certain
Rights of the Depositary; Limitations.
Subject
to the further terms and provisions of this Article (23), 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 furnished on behalf of the holder
thereof. 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 and cancellation of ADSs pursuant to Section 2.6 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) accompanied by or subject to a written agreement whereby the person
or
entity (the "Applicant") to whom ADSs or Shares are to be delivered (1)
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, (2) 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, (3) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or ADSs and (4) 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%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided,
however,
that
the Depositary reserves the right to change or disregard such limit from time
to
time as it deems appropriate. 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).
(24) Ownership
Restrictions.
Holders
and Beneficial Owners shall comply with any limitations on ownership of Shares
under the Articles of Incorporation of the Company or applicable United Kingdom
law as if they held the number of Shares their American Depositary Shares
represent. The Company shall inform the Holders, Beneficial Owners and the
Depositary of any such ownership restrictions in place from time to
time.
A-19
(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 Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt 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 Receipt.
|
||
SIGNATURE
GUARANTEED
____________________________
A-20
|
Page
|
|||
|
ARTICLE
I DEFINITIONS
|
2
|
||
|
SECTION
1.1
|
"Affiliate"
|
2
|
|
|
SECTION
1.2
|
"Agent"
|
2
|
|
|
SECTION
1.3
|
"American
Depositary Share(s)" and "ADS(s)"
|
3
|
|
|
SECTION
1.4
|
"ADS
Record Date"
|
3
|
|
|
SECTION
1.5
|
"Beneficial
Owner"
|
3
|
|
|
SECTION
1.6
|
"Business
Xxx"
|
0
|
|
|
SECTION
1.7
|
"Commission"
|
3
|
|
|
SECTION
1.8
|
"Company"
|
3
|
|
|
SECTION
1.9
|
"Custodian"
|
3
|
|
|
SECTION
1.10
|
"Deliver"
and "Delivery"
|
3
|
|
|
SECTION
1.11
|
"Deposit
Agreement"
|
3
|
|
|
SECTION
1.12
|
"Depositary"
|
4
|
|
|
SECTION
1.13
|
"Deposited
Securities"
|
4
|
|
|
SECTION
1.14
|
"Dollars"
and "$"
|
4
|
|
|
SECTION
1.15
|
"DRS/Profile"
|
4
|
|
|
SECTION
1.16
|
"DTC"
|
4
|
|
|
SECTION
1.17
|
"Exchange
Act"
|
4
|
|
|
SECTION
1.18
|
"Foreign
Currency"
|
4
|
|
|
SECTION
1.19
|
"Foreign
Xxxxxxxxx"
|
0
|
|
|
SECTION
1.20
|
"Holder"
|
4
|
|
|
SECTION
1.21
|
“Indemnified
Person” and “Indemnifying Person”
|
4
|
|
|
SECTION
1.22
|
“Pre-Release”
|
4
|
|
|
SECTION 1.23
|
"Principal
Office"
|
5
|
|
|
SECTION
1.24
|
"Receipt(s)";
"American Depositary Receipt(s)" and "ADR(s)"
|
5
|
|
|
SECTION
1.25
|
"Registrar"
|
5
|
|
|
SECTION
1.26
|
"Restricted
Securities"
|
5
|
|
|
SECTION
1.27
|
"Securities
Act"
|
5
|
|
|
SECTION
1.28
|
"Shares"
|
5
|
|
|
SECTION
1.29
|
"United
States" or "U.S."
|
6
|
|
|
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 Receipts
|
6
|
|
|
SECTION
2.3
|
Deposits
|
7
|
|
|
SECTION
2.4
|
Execution
and Delivery of Receipts
|
9
|
|
|
SECTION
2.5
|
Transfer
of Receipts; Combination and Split-up of Receipts
|
9
|
|
(i)
|
Page
|
|||
|
SECTION
2.6
|
Surrender
of Receipts and Withdrawal of Deposited Securities
|
10
|
|
|
SECTION
2.7
|
Limitations
on Execution and Delivery, Transfer, etc. of Receipts; Suspension
of
Delivery, Transfer, etc.
|
11
|
|
|
SECTION 2.8
|
Lost
Receipts, etc.
|
12
|
|
|
SECTION
2.9
|
Cancellation
and Destruction of Surrendered Receipts; Maintenance of
Records
|
12
|
|
|
SECTION
2.10
|
Pre-Release
|
12
|
|
|
ARTICLE
III CERTAIN OBLIGATIONS OF
HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS
|
13
|
||
|
SECTION
3.1
|
Proofs,
Certificates and Other Information
|
13
|
|
|
SECTION
3.2
|
Liability
for Taxes and Other Charges
|
14
|
|
|
SECTION
3.3
|
Representations
and Warranties on Deposit of Shares
|
14
|
|
|
SECTION
3.4
|
Compliance
with Information Requests
|
14
|
|
|
ARTICLE
IV THE DEPOSITED
SECURITIES
|
15
|
||
|
SECTION
4.1
|
Cash
Distributions
|
15
|
|
|
SECTION
4.2
|
Distribution
in Shares
|
16
|
|
|
SECTION
4.3
|
Elective
Distributions in Cash or Shares
|
16
|
|
|
SECTION
4.4
|
Distribution
of Rights to Purchase Shares
|
17
|
|
|
SECTION
4.5
|
Distributions
Other Than Cash, Shares or Rights to Purchase Shares
|
18
|
|
|
SECTION
4.6
|
Conversion
of Foreign Currency
|
19
|
|
|
SECTION
4.7
|
Fixing
of Record Date
|
20
|
|
|
SECTION
4.8
|
Voting
of Deposited Securities
|
21
|
|
|
SECTION
4.9
|
Changes
Affecting Deposited Securities
|
21
|
|
|
SECTION
4.10
|
Available
Information
|
22
|
|
|
SECTION
4.11
|
Reports
|
22
|
|
|
SECTION
4.12
|
List
of Holders
|
22
|
|
|
SECTION 4.13
|
Taxation/Withholding
|
23
|
|
|
ARTICLE
V THE DEPOSITARY, THE
CUSTODIAN AND THE COMPANY
|
24
|
||
|
SECTION
5.1
|
Maintenance
of Office and Transfer Books by the Xxxxxxxxx
|
00
|
|
|
SECTION
5.2
|
Exoneration
|
25
|
|
|
SECTION
5.3
|
Standard
of Care
|
25
|
|
|
SECTION
5.4
|
Resignation
and Removal of the Depositary; Appointment of Successor
Depositary
|
26
|
|
|
SECTION
5.5
|
The
Custodian
|
27
|
|
|
SECTION
5.6
|
Notices
and Reports
|
27
|
|
|
SECTION
5.7
|
Issuance
of Additional Shares, ADSs etc.
|
29
|
|
|
SECTION
5.8
|
Indemnification
|
30
|
|
|
SECTION
5.9
|
Fees
and Charges of Depositary
|
30
|
|
|
SECTION 5.10
|
Restricted
Securities Owners
|
31
|
|
|
ARTICLE
VI AMENDMENT AND
TERMINATION
|
32
|
||
(ii)
|
Page
|
|||
|
SECTION
6.1
|
Amendment/Supplement
|
32
|
|
|
SECTION
6.2
|
Termination
|
33
|
|
|
ARTICLE
VII MISCELLANEOUS
|
34
|
||
|
SECTION
7.1
|
Counterparts
|
34
|
|
|
SECTION
7.2
|
No
Third-Party Beneficiaries
|
34
|
|
|
SECTION
7.3
|
Severability
|
34
|
|
|
SECTION
7.4
|
Holders
and Beneficial Owners as Parties; Binding Effect
|
34
|
|
|
SECTION
7.5
|
Notices
|
34
|
|
|
SECTION
7.6
|
Governing
Law and Jurisdiction
|
35
|
|
|
SECTION
7.7
|
Assignment
|
36
|
|
|
SECTION
7.8
|
Agents
|
36
|
|
|
SECTION
7.9
|
Exclusivity
|
37
|
|
|
SECTION
7.10
|
Compliance
with U.S. Securities Laws
|
37
|
|
|
SECTION 7.11
|
Titles
|
37
|
|
|
EXHIBIT
A Form
of Face of Receipt
|
A-1
|
|
EXHIBIT
B Form
of Reverse of Receipt
|
B-1
|
(iii)
