DEPOSIT AGREEMENT
Exhibit
(a)
Execution
Copy
by and
among
ENSCO
INTERNATIONAL LIMITED
AND
CITIBANK,
N.A.,
as
Depositary,
AND
THE
HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN
DEPOSITARY SHARES
ISSUED
HEREUNDER
Dated as
of September 29, 2009
TABLE OF
CONTENTS
| ARTICLE I |
DEFINITIONS
|
1
|
|
|
Section
1.1
|
“ADS
Record Date”
|
1
|
|
|
Section
1.2
|
“Affiliate”
|
2
|
|
|
Section
1.3
|
“American
Depositary Receipt(s)”, “ADR(s)” and “Receipt(s)”
|
2
|
|
|
Section
1.4
|
“American
Depositary Share(s)” and “ADS(s)”
|
2
|
|
|
Section
1.5
|
“Applicant”
|
2
|
|
|
Section
1.6
|
“Beneficial
Owner”
|
2
|
|
|
Section
1.7
|
“Certificated
ADS(s)”
|
2
|
|
|
Section
1.8
|
“Commission”
|
2
|
|
|
Section
1.9
|
“Company”
|
2
|
|
|
Section
1.10
|
[RESERVED].
|
3
|
|
|
Section
1.11
|
“Custodian”
|
3
|
|
|
Section
1.12
|
“Deliver”
and “Delivery”
|
3
|
|
|
Section
1.13
|
3
|
||
|
Section
1.14
|
“Depositary”
|
3
|
|
|
Section
1.15
|
“Deposited
Securities”
|
3
|
|
|
Section
1.16
|
“Dollars”
and “$”
|
3
|
|
|
Section
1.17
|
“DTC”
|
3
|
|
|
Section
1.18
|
“DTC
Participant”
|
4
|
|
|
Section
1.19
|
“Exchange
Act”
|
4
|
|
|
Section
1.20
|
“Foreign
Currency”
|
4
|
|
|
Section
1.21
|
[RESERVED]
|
4
|
|
|
Section
1.22
|
“Holder(s)”
|
4
|
|
|
Section
1.23
|
[RESERVED]
|
4
|
|
|
Section
1.24
|
“Pounds
Sterling” and “£”
|
4
|
|
|
Section
1.25
|
“Pre-Release
Transaction”
|
4
|
|
|
Section
1.26
|
“Principal
Office”
|
4
|
|
|
Section
1.27
|
“Registrar”
|
4
|
|
|
Section
1.28
|
“Restricted
Securities”
|
4
|
|
|
Section
1.29
|
“Restricted
ADR(s)”, “Restricted ADS(s)” and “Restricted Shares”
|
5
|
|
|
Section
1.30
|
“Securities
Act”
|
5
|
|
|
Section
1.31
|
“Share
Registrar”
|
5
|
|
|
Section
1.32
|
“Shares”
|
5
|
|
|
Section
1.33
|
“Uncertificated
ADS(s)”
|
5
|
|
|
Section
1.34
|
“United
States” and “U.S.”
|
5
|
|
| ARTICLE II | APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS |
5
|
|
|
Section
2.1
|
Appointment
of Depositary.
|
5
|
|
|
Section
2.2
|
Form
and Transferability of ADSs.
|
6
|
|
|
Section
2.3
|
Deposit
of Shares.
|
7
|
|
|
Section
2.4
|
Registration
and Safekeeping of Deposited Securities.
|
9
|
|
|
Section
2.5
|
Issuance
of ADSs.
|
9
|
|
|
Section
2.6
|
Transfer,
Combination and Split-up of ADRs.
|
9
|
|
|
Section
2.7
|
Surrender
of ADSs and Withdrawal of Deposited Securities.
|
10
|
|
|
Section
2.8
|
Limitations
on Execution and Delivery, Transfer, etc. of ADSs; Suspension of Delivery,
Transfer, etc.
|
12
|
|
|
Section
2.9
|
Lost
ADRs, etc.
|
12
|
|
|
Section
2.10
|
Cancellation
and Destruction of Surrendered ADRs; Maintenance of
Records.
|
13
|
|
|
Section
2.11
|
Escheatment.
|
13
|
|
|
Section
2.12
|
[RESERVED].
|
13
|
|
|
Section
2.13
|
Certificated/Uncertificated
ADSs.
|
13
|
|
|
Section
2.14
|
Restricted
Securities.
|
14
|
|
| ARTICLE III |
CERTAIN
OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs
|
17
|
|
|
Section
3.1
|
Proofs,
Certificates and Other Information.
|
17
|
|
|
Section
3.2
|
Liability
for Taxes and Other Charges.
|
17
|
|
|
Section
3.3
|
Representations
and Warranties on Deposit of Shares.
|
18
|
|
|
Section
3.4
|
Compliance
with Information Requests.
|
18
|
|
|
Section
3.5
|
Ownership
Restrictions.
|
18
|
|
|
Section
3.6
|
Reporting
Obligations and Regulatory Approvals.
|
19
|
|
| ARTICLE IV |
THE
DEPOSITED SECURITIES
|
20
|
|
|
Section
4.1
|
Cash
Distributions.
|
20
|
|
|
Section
4.2
|
Distribution
in Shares.
|
20
|
|
|
Section
4.3
|
Elective
Distributions in Cash or Shares.
|
21
|
|
|
Section
4.4
|
Distribution
of Rights to Purchase Additional ADSs.
|
22
|
|
|
Section
4.5
|
Distributions
Other Than Cash, Shares or Rights to Purchase Shares.
|
23
|
|
|
Section
4.6
|
[RESERVED]
|
24
|
|
|
Section
4.7
|
Redemption.
|
24
|
|
|
Section
4.8
|
Conversion
of Foreign Currency.
|
25
|
|
|
Section
4.9
|
Fixing
of ADS Record Date.
|
26
|
|
|
Section
4.10
|
Voting
of Deposited Securities.
|
26
|
|
|
Section
4.11
|
Changes
Affecting Deposited Securities.
|
27
|
|
|
Section
4.12
|
Available
Information.
|
28
|
|
|
Section
4.13
|
Reports.
|
28
|
|
|
Section
4.14
|
List
of Holders.
|
29
|
|
|
Section
4.15
|
Taxation.
|
29
|
|
| ARTICLE V |
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
|
30
|
|
|
Section
5.1
|
Maintenance
of Office and Transfer Books by the Registrar.
|
30
|
|
|
Section
5.2
|
Exoneration.
|
30
|
|
|
Section
5.3
|
Standard
of Care.
|
31
|
|
|
Section
5.4
|
Resignation
and Removal of the Depositary; Appointment of Successor
Depositary.
|
32
|
|
|
Section
5.5
|
The
Custodian.
|
33
|
|
|
Section
5.6
|
Notices
and Reports.
|
34
|
|
|
Section
5.7
|
Issuance
of Additional Shares, ADSs etc.
|
34
|
|
|
Section
5.8
|
Indemnification.
|
35
|
|
ii
|
Section
5.9
|
Fees
and Charges of Depositary.
|
36
|
|
|
Section
5.10
|
Pre-Release
Transactions.
|
37
|
|
|
Section
5.11
|
Restricted
Securities Owners.
|
37
|
|
| ARTICLE VI |
AMENDMENT
AND TERMINATION
|
37
|
|
|
Section
6.1
|
Amendment/Supplement.
|
37
|
|
|
Section
6.2
|
Termination.
|
38
|
|
| ARTICLE VII |
MISCELLANEOUS
|
39
|
|
|
Section
7.1
|
Counterparts.
|
39
|
|
|
Section
7.2
|
No
Third Party Beneficiaries.
|
39
|
|
|
Section
7.3
|
Severability.
|
40
|
|
|
Section
7.4
|
Holders
and Beneficial Owners as Parties; Binding Effect.
|
40
|
|
|
Section
7.5
|
Notices.
|
40
|
|
|
Section
7.6
|
Governing
Law and Jurisdiction.
|
41
|
|
|
Section
7.7
|
Assignment.
|
42
|
|
|
Section
7.8
|
Compliance
with U.S. Securities Laws.
|
42
|
|
|
Section
7.9
|
England
and Wales Law References.
|
43
|
|
|
Section
7.10
|
Titles
and References.
|
43
|
|
| EXHIBITS | |||
|
Form
of ADR.
|
A-1
|
||
|
Fee
Schedule.
|
B-1
|
||
iii
DEPOSIT AGREEMENT, dated as of
September 29, 2009, by and among (i) ENSCO International Limited, a company
organized under the laws of England and Wales and its successors (the
“Company”), (ii) CITIBANK, N.A., a national banking association organized
under the laws of the United States of America acting in its capacity as
depositary, and any successor depositary hereunder (the “Depositary”), and
(iii) all Holders and Beneficial Owners of American Depositary Shares
issued hereunder (all such capitalized terms as hereinafter
defined).
W I T N E S S E T
H T H A T:
WHEREAS, the Company desires
to establish with the Depositary an ADR facility to provide for the deposit of
the Shares (as hereinafter defined) and the creation of American Depositary
Shares representing the Shares so deposited; and
WHEREAS, the Depositary is
willing to act as the Depositary for such ADR facility upon the terms set forth
in the Deposit Agreement (as hereinafter defined); and
WHEREAS, any American
Depositary Receipts issued pursuant to the terms of the Deposit Agreement are to
be substantially in the form of Exhibit A attached
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in the Deposit Agreement; and
WHEREAS, the American
Depositary Shares to be issued pursuant to the terms of the Deposit Agreement
are intended to be listed for trading on The New York Stock Exchange, Inc.
("NYSE"); 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 the Deposit
Agreement, the execution and delivery of the 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:
ARTICLE
I
DEFINITIONS
All
capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth below, unless otherwise clearly indicated:
Section
1.1 “ADS
Record Date”
shall have the meaning given to such term in Section 4.9.
1
Section
1.2 “Affiliate” shall have the meaning
assigned to such term by the Commission (as hereinafter defined) under
Regulation C promulgated under the Securities Act (as hereinafter defined), or
under any successor regulation thereto.
Section
1.3 “American
Depositary Receipt(s)”, “ADR(s)”
and “Receipt(s)”
shall mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of the Deposit Agreement in the form of
Certificated ADS(s) (as hereinafter defined), as such ADRs may be amended from
time to time in accordance with the provisions of the Deposit
Agreement. An ADR may evidence any number of ADSs and may, in the
case of ADSs held through a central depository such as DTC, be in the form of a
“Balance Certificate.”
Section
1.4 “American
Depositary Share(s)” and “ADS(s)”
shall mean the rights and interests in the Deposited Securities (as hereinafter
defined) granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of the Deposit Agreement and, if issued as Certificated ADS(s), (as
hereinafter defined) the ADR(s) issued to evidence such ADSs. ADS(s)
may be issued under the terms of the Deposit Agreement in the form of
(a) Certificated ADS(s) (as hereinafter defined), in which case the ADS(s)
are evidenced by ADR(s), or (b) Uncertificated ADS(s) (as hereinafter
defined), in which case the ADS(s) are not evidenced by ADR(s) but are reflected
on the direct registration system maintained by the Depositary for such purposes
under the terms of Section 2.13. Unless otherwise specified in the
Deposit Agreement or in any ADR, or unless the context otherwise requires, any
reference to ADS(s) shall include Certificated ADS(s) and Uncertificated ADS(s),
individually or collectively, as the context may require. Each ADS shall represent
the right to receive one (1) Share until there shall occur a distribution upon
Deposited Securities referred to in Section 4.2 or a change in Deposited
Securities referred to in Section 4.11 with respect to which additional ADSs are
not issued, and thereafter each ADS shall represent the right to receive the
Deposited Securities determined in accordance with the terms of such
Sections.
Section
1.5 “Applicant”
shall have the meaning given to such term in Section 5.10.
Section
1.6 “Beneficial
Owner” shall mean, as to any ADS, any person or entity having a
beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner of ADSs may or may not be the Holder of such ADSs. A
Beneficial Owner shall be able to exercise any right or receive any benefit
hereunder solely through the person who is the Holder of the ADSs owned by such
Beneficial Owner. Unless otherwise identified to the Depositary, a
Holder shall be deemed to be the Beneficial Owner of all the ADSs registered in
his/her/its name.
Section
1.7 “Certificated
ADS(s)” shall have the meaning set forth in Section 2.13.
Section
1.8 “Commission”
shall mean the Securities and Exchange Commission of the United States or any
successor governmental agency thereto in the United States.
Section
1.9 “Company”
shall mean ENSCO International Limited, a company organized under the laws of
England and Wales and its successors.
2
Section
1.10 [RESERVED].
Section
1.11 “Custodian”
shall mean, as of the date hereof, Citibank, N.A. (London Branch), having its
principal office at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx XX000XX, as the
custodian for the purposes of the Deposit Agreement, and any other entity that
may be appointed by the Depositary pursuant to the terms of Section 5.5 as
successor, substitute or additional custodian hereunder. The term
"Custodian" shall mean any Custodian individually or all Custodians
collectively, as the context requires.
Section
1.12 “Deliver”
and “Delivery”
shall mean (x) when used in
respect of Shares and other Deposited Securities, either (i) the
physical delivery of the certificate(s) representing such securities, or
(ii) the book-entry transfer and recordation of such securities on the
books of the Share Registrar (as hereinafter defined), and (y) when used in respect of ADSs,
either (i) the physical delivery of ADR(s) evidencing the ADSs, or (ii) the
book-entry transfer and recordation of ADSs on the books of the Depositary or
any book-entry settlement system in which the ADSs are
settlement-eligible.
Section
1.13 “Deposit
Agreement” shall mean this Deposit Agreement and all exhibits hereto, as
the same may from time to time be amended and supplemented from time to time in
accordance with the terms of the Deposit Agreement.
Section
1.14 “Depositary”
shall mean Citibank, N.A., a national banking association organized under the
laws of the United States, in its capacity as depositary under the terms of the
Deposit Agreement, and any successor depositary hereunder.
Section
1.15 “Deposited
Securities” shall mean Shares at any time deposited under the Deposit
Agreement and any and all other securities, property and cash held by the
Depositary or the Custodian in respect thereof, subject, in the case of cash, to
the provisions of Section 4.8. The collateral delivered
in connection with Pre-Release Transactions described in Section 5.10 shall
not constitute Deposited Securities.
Section
1.16 “Dollars”
and “$”
shall refer to the lawful currency of the United States.
Section
1.17 “DTC”
shall mean The Depository Trust Company, a national clearinghouse and the
central book-entry settlement system for securities traded in the United States
and, as such, the custodian for the securities of DTC Participants (as
hereinafter defined) maintained in DTC, and any successor thereto.
3
Section
1.18 “DTC
Participant” shall mean any financial institution (or any nominee of such
institution) having one or more participant accounts with DTC for receiving,
holding and delivering the securities and cash held in DTC. A DTC
Participant may or may not be a Beneficial Owner. If a DTC
Participant is not the Beneficial Owner of the ADSs credited to its account at
DTC, or of the ADSs in respect of which the DTC Participant is otherwise acting,
such DTC Participant shall be deemed, for all purposes hereunder, to have all
requisite authority to act on behalf of the Beneficial Owner(s) of the ADSs
credited to its account at DTC or in respect of which the DTC Participant is so
acting.
Section
1.19 “Exchange
Act” shall mean the United States Securities Exchange Act of 1934, as
amended from time to time.
Section
1.20 “Foreign
Currency” shall mean any currency other than Dollars.
Section
1.21 [RESERVED]
Section
1.22 “Holder(s)”
shall mean the person(s) in whose name the ADSs are registered on the books of
the Depositary (or the Registrar, if any) maintained for such
purpose. A Holder may or may not be a Beneficial Owner. If
a Holder is not the Beneficial Owner of the ADS(s) registered in its name, such
person shall be deemed, for all purposes hereunder, to have all requisite
authority to act on behalf of the Beneficial Owners of the ADSs registered in
its name.
Section
1.23 [RESERVED]
Section
1.24
“Pounds
Sterling” and “£”
shall refer to the lawful currency of the United Kingdom.
Section
1.25 “Pre-Release
Transaction” shall have the meaning set forth in Section
5.10.
Section
1.26 “Principal
Office” shall mean, when used with respect to the Depositary, the
principal office of the Depositary at which at any particular time its
depositary receipts business shall be administered, which, at the date of the
Deposit Agreement, is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
Section
1.27 “Registrar”
shall mean the Depositary or any bank or trust company having an office in the
Borough of Manhattan, The City of New York, which shall be appointed by the
Depositary to register issuances, transfers and cancellations of ADSs as herein
provided, and shall include any co-registrar appointed by the Depositary for
such purposes. Registrars (other than the Depositary) may be removed
and substitutes appointed by the Depositary. Each Registrar (other
than the Depositary) appointed pursuant to the Deposit Agreement shall be
required to give notice in writing to the Depositary accepting such appointment
and agreeing to be bound by the applicable terms of the Deposit
Agreement.
Section
1.28 “Restricted
Securities” shall mean Shares, Deposited Securities or ADSs which
(i) have been acquired directly or indirectly from the Company or any of
its Affiliates in a transaction or chain of transactions not involving any
public offering and are subject to resale limitations under the Securities Act
or the rules issued thereunder, or (ii) are held by an officer or director
(or persons performing similar functions) or other Affiliate of the Company, or
(iii) are subject to other restrictions on sale or deposit under the laws
of the United States or any state thereof, the United Kingdom, or under the
regulations of an applicable securities exchange unless, in each case, such
Shares, Deposited Securities or ADSs are being transferred or sold to persons
other than an Affiliate of the Company in a transaction (a) covered by an
effective resale registration statement, or (b) exempt from the
registration requirements of the Securities Act (as hereinafter defined), and
the Shares, Deposited Securities or ADSs are not, when held by such person(s),
Restricted Securities.
4
Section
1.29
“Restricted
ADR(s)”, “Restricted
ADS(s)” and “Restricted
Shares” shall have the respective meanings set forth in Section
2.14.
Section
1.30 “Securities
Act” shall mean the United States Securities Act of 1933, as amended from
time to time.
Section
1.31 “Share
Registrar” shall mean Computershare Investor Services PLC or any other
institution organized under the laws of England and Wales appointed by the
Company to carry out the duties of registrar for the Shares, and any successor
thereto.
Section
1.32 “Shares”
shall mean the Company’s Class A ordinary shares, US$0.10 par value per share,
validly issued and outstanding and fully paid and may, if the Depositary so
agrees after consultation with the Company, include evidence of the right to
receive Shares; provided that in no event
shall Shares include evidence of the right to receive Shares with respect to
which the full purchase price has not been paid or Shares as to which preemptive
rights have theretofore not been validly waived or exercised; provided further, however, that, if there shall
occur any change in par value, split-up, consolidation, reclassification,
exchange, conversion or any other event described in Section 4.11 in respect of
the Shares of the Company, the term “Shares” shall thereafter mean, to the
maximum extent permitted by law, the securities resulting from such event, which
shall not, for purposes of the Deposit Agreement, be new securities or in any
way different from the Shares or deposit prior to such event (unless, and only
to the extent, required by law).
Section
1.33 “Uncertificated
ADS(s)” shall have the meaning set forth in Section 2.13.
Section
1.34 “United
States” and “U.S.”
shall have the meaning assigned to it in Regulation S as promulgated by the
Commission under the Securities Act.
ARTICLE
II
APPOINTMENT
OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT
OF SHARES; EXECUTION AND
DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
Section
2.1 Appointment
of Depositary. The Company
hereby appoints the Depositary as depositary for the Deposited Securities and
hereby authorizes and directs the Depositary to act in accordance with the terms
and conditions set forth in the Deposit Agreement and the applicable
ADRs. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms and
conditions of the Deposit Agreement shall be deemed for all purposes to
(a) be a party to and bound by the terms of the Deposit Agreement and the
applicable ADR(s), and (b) appoint the Depositary its attorney-in-fact,
with full power to delegate, to act on its behalf and to take any and all
actions contemplated in the Deposit Agreement and the applicable ADR(s), to
adopt any and all procedures necessary to comply with applicable law and to take
such action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of the Deposit Agreement and the
applicable ADR(s), the taking of such actions to be the conclusive determinant
of the necessity and appropriateness thereof.
5
Section
2.2 Form and
Transferability of ADSs.
(a) Form. Certificated ADSs shall be evidenced
by definitive ADRs which shall be engraved, printed, lithographed or produced in
such other manner as may be agreed upon by the Company and the
Depositary. ADRs may be issued under the Deposit Agreement in
denominations of any whole number of ADSs. The ADRs shall be
substantially in the form set forth in Exhibit A to the
Deposit Agreement, with any appropriate insertions, modifications and omissions,
in each case as otherwise contemplated in the Deposit Agreement or required by
law. ADRs shall be (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary,
(iii) countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
ADSs. No ADR and no Certificated ADS evidenced thereby
shall be entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such
ADR shall have been so dated, signed, countersigned and registered. ADRs bearing the
facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly-authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the delivery of such ADR by the Depositary. The ADRs shall
bear a CUSIP number that is different from any CUSIP number that was, is or may
be assigned to any depositary receipts previously or subsequently issued
pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company and which are not ADRs outstanding
hereunder.
(b) Legends. The ADRs may be
endorsed with, or have incorporated in the text thereof, such legends or
recitals not inconsistent with the provisions of the Deposit Agreement as
(i) may be necessary to enable the Depositary and the Company to perform
their respective obligations hereunder, (ii) may be required to comply with
any applicable laws or regulations, or with the rules and regulations of any
securities exchange or market upon which ADSs may be traded, listed or quoted,
or to conform with any usage with respect thereto, (iii) may be necessary
to indicate any special limitations or restrictions to which any particular ADRs
or ADSs are subject by reason of the date of issuance of the Deposited
Securities or otherwise, or (iv) may be required by any book-entry system
in which the ADSs are held. Holders and Beneficial Owners shall be
deemed, for all purposes, to have notice of, and to be bound by, the terms and
conditions of the legends set forth, in the case of Holders, on the ADR
registered in the name of the applicable Holders or, in the case of Beneficial
Owners, on the ADR representing the ADSs owned by such Beneficial
Owners.
6
(c) Title. Subject to the
limitations contained herein and in the ADR, title to an ADR (and to each
Certificated ADS evidenced thereby) shall be transferable upon the same terms as
a certificated security under the laws of the State of New York, provided that,
in the case of Certificated ADSs, such ADR has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any
notice to the contrary, the Depositary and the Company may deem and treat the
Holder of an ADS (that is, the person in whose name an ADS is registered on the
books of the Depositary) as the absolute owner thereof for all
purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or any
ADR to any holder or any Beneficial Owner unless, in the case of a holder of
ADSs, such holder is the Holder registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner, or the
Beneficial Owner’s representative, is the Holder registered on the books of the
Depositary.
(d) Book-Entry
Systems. The Depositary
shall make arrangements for the acceptance of the ADSs into DTC at such time as
directed by the Company prior to any listing of the ADSs for trading on the
NYSE. All ADSs held through DTC will be registered in the name of the
nominee for DTC (currently “Cede & Co.”). As such, the nominee
for DTC will be the only “Holder” of all ADSs held through
DTC. Unless issued by the Depositary as Uncertificated ADSs, the ADSs
registered in the name of Cede & Co. will be evidenced by a single ADR in
the form of a “Balance Certificate,” which will provide that it represents the
aggregate number of ADSs from time to time indicated in the records of the
Depositary as being issued hereunder and that the aggregate number of ADSs
represented thereby may from time to time be increased or decreased by making
adjustments on such records of the Depositary and of DTC or its nominee as
hereinafter provided. Citibank, N.A. (or such other entity as is
appointed by DTC or its nominee) may hold the “Balance Certificate” as custodian
for DTC. Each Beneficial Owner of ADSs held through DTC must rely
upon the procedures of DTC and the DTC Participants to exercise or be entitled
to any rights attributable to such ADSs. The DTC Participants shall
for all purposes be deemed to have all requisite power and authority to act on
behalf of the Beneficial Owners of the ADSs held in the DTC Participants’
respective accounts in DTC and the Depositary shall for all purposes be
authorized to rely upon any instructions and information given to it by DTC
Participants. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADSs
registered in the name of the nominee for DTC will be shown on, and transfers of
such ownership will be effected only through, records maintained by (i) DTC or
its nominee (with respect to the interests of DTC Participants), or (ii) DTC
Participants or their nominees (with respect to the interests of clients of DTC
Participants).
Section
2.3 Deposit
of Shares. Subject to the
terms and conditions of the Deposit Agreement and applicable law, Shares or
evidence of rights to receive Shares (other than Restricted Securities) may be
deposited by any person (including the Depositary in its individual capacity but
subject, however, in the case of the Company or any Affiliate of the Company, to
Section 5.7) at any time, whether or not the transfer books of the Company or
the Share Registrar, if any, are closed, by Delivery of the Shares to the
Custodian. Every deposit of Shares shall be accompanied by the
following: (A) (i) in the case of Shares represented by
certificates issued in registered form, appropriate instruments of
transfer or endorsement, in a form satisfactory to the Custodian, and
(ii) in the case of
Shares delivered by book-entry transfer and recordation, confirmation of
such book-entry transfer and recordation in the books of the Share Registrar, to
the Custodian or that irrevocable instructions have been given to cause such
Shares to be so transferred and recorded, (B) such certifications and
payments (including, without limitation, the Depositary’s fees and related
charges) and evidence of such payments (including, without limitation, stamping
or otherwise marking such Shares by way of receipt) as may be required by the
Depositary or the Custodian in accordance with the provisions of the Deposit
Agreement and applicable law, (C) if the Depositary so requires, a written
order directing the Depositary to issue and deliver to, or upon the written
order of, the person(s) stated in such order the number of ADSs representing the
Shares so deposited, (D) evidence satisfactory to the Depositary (which may
be an opinion of counsel) that all necessary approvals have been granted by, or
there has been compliance with the rules and regulations of, any applicable
governmental agency in England and Wales, and (E) if the Depositary so
requires, (i) an agreement, assignment or instrument 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.
7
Without
limiting any other provision of the Deposit Agreement, the Depositary shall
instruct the Custodian not to, and the Depositary shall not knowingly, accept
for deposit (a) any Restricted Securities, except as contemplated by
Section 2.14, nor (b) any fractional Shares or fractional Deposited
Securities nor (c) a number of Shares or Deposited Securities which upon
application of the ADS to Shares ratio would give rise to fractional
ADSs. No Shares shall be accepted for deposit unless accompanied by
evidence, if any is required by the Depositary, that is reasonably satisfactory
to the Depositary or the Custodian that all conditions to such deposit have been
satisfied by the person depositing such Shares under the laws and regulations of
England and Wales and any necessary approval has been granted by any applicable
governmental body in England and Wales, if any. The Depositary may
issue ADSs against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written
blanket or specific guarantees of ownership of Shares furnished by the Company
or any such custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the
Shares.
Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement (A) any Shares or other securities
required to be registered under the provisions of the Securities Act, unless (i)
a registration statement is in effect as to such Shares or other securities or
(ii) the deposit is made upon terms contemplated in Section 2.14, or
(B) any Shares or other securities the deposit of which would violate any
provisions of the Articles of Association of the Company. For
purposes of the foregoing sentence, the Depositary shall be entitled to rely
upon representations and warranties made or deemed made pursuant to the Deposit
Agreement and shall not be required to make any further
investigation. The Depositary will comply with written instructions
of the Company (received by the Depositary reasonably in advance) not to accept
for deposit hereunder any Shares identified in such instructions at such times
and under such circumstances as may reasonably be specified in such instructions
in order to facilitate the Company's compliance with the securities laws of the
United States.
8
Section
2.4 Registration
and Safekeeping of Deposited Securities. The Depositary
shall instruct the Custodian upon each Delivery of certificates representing
registered Shares being deposited hereunder with the Custodian (or other
Deposited Securities pursuant to Article IV hereof), together with the other
documents above specified, to present such certificate(s), together with the
appropriate instrument(s) of transfer or endorsement, duly stamped, to the Share
Registrar for transfer and registration of the Shares (as soon as transfer and
registration can be accomplished and at the expense of the person for whom the
deposit is made) in the name of the Depositary, the Custodian or a nominee of
either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee in
each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
Section
2.5 Issuance
of ADSs. The Depositary has made arrangements with the
Custodian for the Custodian to confirm to the Depositary upon receipt of a
deposit of Shares (i) that a deposit of Shares has been made pursuant to
Section 2.3, (ii) that such Deposited Securities have been recorded in the
name of the Depositary, the Custodian or a nominee of either on the
shareholders’ register maintained by or on behalf of the Company by the Share
Registrar, (iii) that all required documents have been received, and
(iv) the person(s) to whom or upon whose order ADSs are deliverable in
respect thereof and the number of ADSs to be so delivered. Such
notification may be made by letter, cable, telex, SWIFT message or, at the risk
and expense of the person making the deposit, by facsimile or other means of
electronic transmission. Upon receiving such notice from the
Custodian, the Depositary, subject to the terms and conditions of the Deposit
Agreement and applicable law, shall issue the ADSs representing the Shares so
deposited to or upon the order of the person(s) named in the notice delivered to
the Depositary and, if applicable, shall execute and
deliver at its Principal Office Receipt(s) registered in the name(s) requested
by such person(s) and evidencing the aggregate number of ADSs to which such
person(s) are entitled, but, in each case, only upon payment to the Depositary
of the charges of the Depositary for accepting a deposit, issuing ADSs (as set
forth in Section 5.9 and Exhibit B
hereto) and all taxes and governmental charges and fees payable in connection
with such deposit and the transfer of the Shares and the issuance of the
ADS(s). The Depositary shall only issue ADSs in whole numbers and
deliver, if applicable, ADR(s) evidencing whole numbers of
ADSs. Nothing herein shall prohibit any Pre-Release Transaction upon
the terms set forth in the Deposit Agreement.
Section
2.6 Transfer,
Combination and Split-up of ADRs.
(a) Transfer. The Registrar
shall register the transfer of ADRs (and of the ADSs represented thereby) on the
books maintained for such purpose and the Depositary shall (x) cancel such
ADRs and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by the ADRs canceled by the Depositary, (y) cause the Registrar
to countersign such new ADRs and (z) Deliver such new ADRs to or upon the
order of the person entitled thereto, if each of the following conditions has
been satisfied: (i) the ADRs have been duly Delivered by the
Holder (or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a transfer thereof, (ii) the
surrendered ADRs have been properly endorsed or are accompanied by proper
instruments of transfer (including signature guarantees in accordance with
standard securities industry practice), (iii) the surrendered ADRs have
been duly stamped (if required by the laws of the State of New York or of the
United States), and (iv) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 and Exhibit B
hereto) have been paid, subject, however, in each case,
to the terms and conditions of the applicable ADRs, of the Deposit
Agreement and of applicable law, in each case as in effect at the time
thereof.
9
(b) Combination
& Split Up. The Registrar
shall register the split-up or combination of ADRs (and of the ADSs represented
thereby) on the books maintained for such purpose and the Depositary shall
(x) cancel such ADRs and execute new ADRs for the number of ADSs requested,
but in the aggregate not exceeding the number of ADSs evidenced by the ADRs
cancelled by the Depositary, (y) cause the Registrar to countersign such
new ADRs and (z) Deliver such new ADRs to or upon the order of the Holder
thereof, if each of the following conditions has been
satisfied: (i) the ADRs have been duly Delivered by the Holder
(or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a split-up or combination thereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 and Exhibit B hereto)
have been paid, subject,
however, in each case, to the terms and conditions of the applicable
ADRs, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.
(c) Co-Transfer
Agents. The Depositary
may appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices on
behalf of the Depositary. In carrying out its functions, a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Holders or persons entitled to such
ADRs and will be entitled to protection and indemnity to the same extent as the
Depositary. Such co-transfer agents may be removed and substitutes
appointed by the Depositary. Each co-transfer agent appointed under
this Section 2.6 (other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of the Deposit Agreement.
Section
2.7 Surrender
of ADSs and Withdrawal of Deposited Securities. The Holder of
ADSs shall be entitled to Delivery (at the Custodian’s designated office) of the
Deposited Securities at the time represented by the ADSs upon satisfaction of
each of the following conditions: (i) the Holder (or a duly-authorized
attorney of the Holder) has duly Delivered ADSs to the Depositary at its
Principal Office (and if applicable, the ADRs evidencing such ADSs) for the
purpose of withdrawal of the Deposited Securities represented thereby,
(ii) if applicable and so required by the
Depositary, the ADRs Delivered to the Depositary for such purpose have been
properly endorsed in blank or are accompanied by proper instruments of transfer
in blank (including signature guarantees in accordance with standard securities
industry practice), (iii) if so required by the Depositary, the Holder of
the ADSs has executed and delivered to the Depositary a written order directing
the Depositary to cause the Deposited Securities being withdrawn to be Delivered
to or upon the written order of the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in
Section 5.9 and Exhibit B) have been
paid, subject, however, in
each case, to the terms and conditions of the ADRs evidencing the
surrendered ADSs, of the Deposit Agreement, and of the Company’s Articles of
Association, and to any provisions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
10
Upon
satisfaction of each of the conditions specified above, the Depositary
(i) shall cancel the ADSs Delivered to it (and, if applicable, the ADRs
evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver, or cause the
Delivery of, in each case, without unreasonable delay, the Deposited Securities
represented by the ADSs so canceled together with any certificate or other
document of title for the Deposited Securities, or evidence of the electronic
transfer thereof (if available), as the case may be, to or upon the written
order of the person(s) designated in the order delivered to the Depositary for
such purpose, subject however,
in each case, to the terms and conditions of the Deposit Agreement, of
the ADRs evidencing the ADSs so cancelled, of the Articles of Association of the
Company, of any applicable laws, and to the terms and conditions of or governing
the Deposited Securities, in each case as in effect at the time
thereof.
The
Depositary shall not accept for surrender ADSs representing less than one (1)
Share. In the case of the Delivery to it of ADSs representing a
number other than a whole number of Shares, the Depositary shall cause ownership
of the appropriate whole number of Shares to be Delivered in accordance with the
terms hereof, and shall, at the discretion of the Depositary, either
(i) return to the person surrendering such ADSs the number of ADSs
representing any remaining fractional Share, or (ii) sell or cause to be
sold the fractional Share represented by the ADSs so surrendered and remit the
proceeds of such sale (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes withheld) to the person
surrendering the ADSs.
Notwithstanding
anything else contained in any ADR or the Deposit Agreement, the Depositary may
make delivery at the Principal Office of the Depositary of (i) any cash
dividends or cash distributions, or (ii) any proceeds from the sale of any
distributions of shares or rights, which are at the time held by the Depositary
in respect of the Deposited Securities represented by the ADSs surrendered for
cancellation and withdrawal. At the request, risk and expense of any
Holder so surrendering ADSs, and for the account of such Holder, the Depositary
shall direct the Custodian to forward (to the extent permitted by law) any cash
or other property (other than securities) held by the Custodian in respect of
the Deposited Securities represented by such ADSs to the Depositary for delivery
at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
11
Section
2.8 Limitations
on Execution and Delivery, Transfer, etc. of ADSs; Suspension of Delivery,
Transfer, etc.
(a) Additional
Requirements. As a condition
precedent to the execution and delivery, registration of issuance, transfer,
split-up, combination or surrender, of any ADS, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter
of ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B,
(ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section 3.1,
and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of ADRs or ADSs or to the withdrawal of
Deposited Securities and (B) such reasonable regulations as the Depositary
and the Company may establish consistent with the provisions of the
representative ADR, if applicable, the Deposit Agreement and applicable
law.
(b) Additional
Limitations. The issuance of
ADSs against deposits of Shares generally or against deposits of particular
Shares may be suspended, or the deposit of particular Shares may be refused, or
the registration of transfer of ADSs in particular instances may be refused, or
the registration of transfers of ADSs generally may be suspended, during any
period when the transfer books of the Company, the Depositary, a Registrar or
the Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law or regulation, any government or
governmental body or commission or any securities exchange on which the ADSs or
Shares are listed, or under any provision of the Deposit Agreement or the
representative ADR(s), if applicable, or under any provision of, or governing,
the Deposited Securities, or because of a meeting of shareholders of the Company
or for any other reason, subject, in all cases, to Section 7.8.
(c) Regulatory
Restrictions. Notwithstanding
any provision of the Deposit Agreement or any ADR(s) to the contrary, Holders
are entitled to surrender outstanding ADSs to withdraw the Deposited Securities
associated herewith at any time subject only to (i) temporary delays caused
by closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders’ meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the ADSs or to the withdrawal of the Deposited Securities, and
(iv) other circumstances specifically contemplated by Instruction I.A.(l)
of the General Instructions to Form F-6 (as such General Instructions may be
amended from time to time).
Section
2.9 Lost
ADRs, etc. In case any ADR
shall be mutilated, destroyed, lost, or stolen, the Depositary shall execute and
deliver a new ADR of like tenor at the expense of the Holder (a) in the case of a mutilated ADR,
in exchange of and substitution for such mutilated ADR upon cancellation
thereof, or (b) in the
case of a destroyed, lost or stolen ADR, in lieu of and in substitution
for such destroyed, lost, or stolen ADR, after the Holder thereof (i) has
submitted to the Depositary a written request for such exchange and substitution
before the Depositary has notice that the ADR has been acquired by a bona fide
purchaser, (ii) has provided such security or indemnity (including an
indemnity bond) as may be required by the Depositary to save it and any of its
agents harmless, and (iii) has satisfied any other reasonable requirements
imposed by the Depositary, including, without limitation, evidence satisfactory
to the Depositary of such destruction, loss or theft of such ADR, the
authenticity thereof and the Holder’s ownership thereof.
12
Section
2.10 Cancellation
and Destruction of Surrendered ADRs; Maintenance of Records. All ADRs
surrendered to the Depositary shall be canceled by the
Depositary. Canceled ADRs shall not be entitled to any benefits under
the Deposit Agreement or be valid or enforceable against the Depositary for any
purpose. The Depositary is authorized to destroy ADRs so canceled,
provided the Depositary maintains a record of all destroyed ADRs. Any
ADSs held in book-entry form (i.e., through accounts at
DTC) shall be deemed canceled when the Depositary causes the number of ADSs
evidenced by the Balance Certificate to be reduced by the number of ADSs
surrendered (without the need to physically destroy the Balance
Certificate).
Section
2.11 Escheatment. In the event any
unclaimed property relating to the ADSs, for any reason, is in the possession of
Depositary and has not been claimed by the Holder thereof or cannot be delivered
to the Holder thereof through usual channels, the Depositary shall, upon
expiration of any applicable statutory period relating to abandoned property
laws, escheat such unclaimed property to the relevant authorities in accordance
with the laws of each of the relevant States of the United States.
Section
2.12 [RESERVED].
Section
2.13 Certificated/Uncertificated
ADSs. Notwithstanding
any other provision of the Deposit Agreement, the Depositary may, at any time
and from time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
“Uncertificated
ADS(s)” and the ADS(s) evidenced by ADR(s), the “Certificated
ADS(s)”). When issuing and maintaining Uncertificated ADS(s)
under the Deposit Agreement, the Depositary shall at all times be subject to
(i) the standards applicable to registrars and transfer agents maintaining
direct registration systems for equity securities in New York and issuing
uncertificated securities under New York law, and (ii) the terms of New
York law applicable to uncertificated equity
securities. Uncertificated ADSs shall not be represented by any
instruments but shall be evidenced by registration in the books of the
Depositary maintained for such purpose. Holders of Uncertificated
ADSs, that are not subject to any registered pledges, liens, restrictions or
adverse claims of which the Depositary has notice at such time, shall at all
times have the right to exchange the Uncertificated ADS(s) for Certificated
ADS(s) of the same type and class, subject in each case to applicable laws and
any rules and regulations the Depositary may have established in respect of the
Uncertificated ADSs. Holders of Certificated ADSs shall, if the
Depositary maintains a direct registration system for the ADSs, have the right
to exchange the Certificated ADSs for Uncertificated ADSs upon (i) the due
surrender of the Certificated ADS(s) to the Depositary for such purpose and (ii)
the presentation of a written request to that effect to the Depositary, subject
in each case to (a) all liens and restrictions noted on the ADR evidencing the
Certificated ADS(s) and all adverse claims of which the Depositary then has
notice, (b) the terms of the Deposit Agreement and the rules and regulations
that the Depositary may establish for such purposes hereunder,
(c) applicable law, and (d) payment of the Depositary fees and
expenses applicable to such exchange of Certificated ADS(s) for Uncertificated
ADS(s). Uncertificated ADSs shall in all respects be identical to
Certificated ADS(s) of the same type and class, except that (i) no ADR(s)
shall be, or shall need to be, issued to evidence Uncertificated ADS(s),
(ii) Uncertificated ADS(s) shall, subject to the terms of the Deposit
Agreement, be transferable upon the same terms and conditions as uncertificated
securities under New York law, (iii) the ownership of
13
Uncertificated
ADS(s) shall be recorded on the books of the Depositary maintained for such
purpose and evidence of such ownership shall be reflected in periodic statements
provided by the Depositary to the Holder(s) in accordance with applicable New
York law, (iv) the Depositary may from time to time, upon notice to the
Holders of Uncertificated ADSs affected thereby, establish rules and
regulations, and amend or supplement existing rules and regulations, as may be
deemed reasonably necessary to maintain Uncertificated ADS(s) on behalf of
Holders, provided that (a) such rules and regulations do not conflict with
the terms of the Deposit Agreement and applicable law, and (b) the terms of
such rules and regulations are readily available to Holders upon request,
(v) the Uncertificated ADS(s) shall not be entitled to any benefits under
the Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company unless such Uncertificated ADS(s) is/are registered on
the books of the Depositary maintained for such purpose, (vi) the
Depositary may, in connection with any deposit of Shares resulting in the
issuance of Uncertificated ADSs and with any transfer, pledge, release and
cancellation of Uncertificated ADSs, require the prior receipt of such
documentation as the Depositary may deem reasonably appropriate, and
(vii) upon termination of the Deposit Agreement, the Depositary shall not
require Holders of Uncertificated ADSs to affirmatively instruct the Depositary
before remitting proceeds from the sale of the Deposited Securities represented
by such Holders' Uncertificated ADSs under the terms of Section 6.2 of the
Deposit Agreement. When issuing ADSs under the terms of the Deposit
Agreement, including, without limitation, issuances pursuant to Sections 2.5,
4.2, 4.3, 4.4, 4.5 and 4.11, the Depositary may in its discretion determine to
issue Uncertificated ADSs rather than Certificated ADSs, unless otherwise
specifically instructed by the applicable Holder to issue Certificated
ADSs. All provisions and conditions of the Deposit Agreement shall
apply to Uncertificated ADSs to the same extent as to Certificated ADSs, except
as contemplated by this Section 2.13. The Depositary is authorized
and directed to take any and all actions and establish any and all procedures
deemed reasonably necessary to give effect to the terms of this Section
2.13. Any references in the Deposit Agreement or any ADR(s) to the
terms “American Depositary Share(s)” or “ADS(s)” shall, unless the context
otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s). Except as set forth in this Section 2.13 and except as
required by applicable law, the Uncertificated ADSs shall be treated as ADSs
issued and outstanding under the terms of the Deposit Agreement. In
the event that, in determining the rights and obligations of parties hereto with
respect to any Uncertificated ADSs, any conflict arises between (a) the terms of
the Deposit Agreement (other than this Section 2.13) and (b) the terms of this
Section 2.13, the terms and conditions set forth in this Section 2.13 shall be
controlling and shall govern the rights and obligations of the parties to the
Deposit Agreement pertaining to the Uncertificated ADSs.
Section
2.14 Restricted
Securities. The Depositary
shall, at the request and expense of the Company, establish procedures enabling
the deposit hereunder of Shares that are Restricted Securities in order to
enable the holder of such Shares to hold its ownership interests therein in the
form of ADSs issued under the terms hereof (such Shares, “Restricted
Shares”). Upon receipt of a written request from the Company
to accept Restricted Shares for deposit hereunder, the Depositary agrees to
establish procedures permitting the deposit of such Restricted Shares and the
issuance of ADSs representing such
14
deposited
Restricted Shares (such ADSs, the “Restricted ADSs,” and
the ADRs evidencing such Restricted ADSs, the “Restricted
ADRs”). All Restricted Shares, Restricted ADSs and Restricted
ADRs shall be of the same class and series as the Shares deposited, and the ADSs
and ADRs issued and outstanding under the Deposit Agreement, respectively,
subject only to the resale limitations under the Securities Act or the rules
issued thereunder or to other restrictions on sale or deposit under the laws of
the United States, or any state thereof, the United Kingdom, or under the
regulations of an applicable securities exchange, and the procedures implemented
by the Company and the Depositary to promote compliance
therewith. The Company shall assist the Depositary in the
establishment of such procedures and agrees that it shall take all steps
necessary and satisfactory to the Depositary to insure that the establishment of
such procedures does not violate the provisions of the Securities Act or any
other applicable laws. The depositors of such Restricted Shares and
the holders of the Restricted ADSs may be required prior to the deposit of such
Restricted Shares, the transfer of the Restricted ADRs and the Restricted ADSs
evidenced thereby or the withdrawal of the Restricted Shares represented by
Restricted ADSs to provide such written certifications or agreements as the
Depositary or the Company may require. The Company shall provide to
the Depositary in writing the legend(s) to be affixed to the Restricted ADRs,
which legends shall (i) be in a form reasonably satisfactory to the Depositary
and (ii) contain the specific circumstances under which the Restricted ADRs and
the Restricted ADSs represented thereby may be transferred or the Restricted
Shares withdrawn. The Restricted ADSs issued upon the deposit of
Restricted Shares shall be clearly identified on the books of the Depositary as
subject to such restrictions on transferability and the procedures under this
Section 2.14, and the Restricted Shares so deposited shall, to the extent
required by law, be held in a manner as to clearly indicate that the
transferability of such Restricted Shares is limited as compared to the other
Deposited Securities held hereunder. The Restricted Shares and the
Restricted ADSs shall not be eligible for Pre-Release
Transactions. The Restricted ADSs shall not be eligible for inclusion
in any book-entry settlement system, including, without limitation, DTC, unless
permitted by the Securities Act or other applicable law. The
Restricted ADSs shall be fungible with the ADSs issued under the terms hereof
that are not Restricted ADSs only to the extent permitted by the Securities Act
or other applicable law. The Restricted ADRs and the Restricted ADSs
evidenced thereby shall be transferable only by the Holder thereof upon delivery
to the Depositary of (i) all documentation otherwise contemplated by the Deposit
Agreement and (ii) an opinion of counsel satisfactory to the Depositary setting
forth, inter alia, the conditions upon which the Restricted ADR presented is,
and the Restricted ADSs evidenced thereby are, transferable by the Holder
thereof under applicable securities laws and the transfer restrictions contained
in the legend set forth on the Restricted ADR presented for
transfer. In the event that, in determining the rights and
obligations of parties hereto with respect to any Restricted ADSs, any conflict
arises between (a) the terms of the Deposit Agreement (other than this Section
2.14) and (b) the terms of (i) this Section 2.14 or (ii) the applicable
Restricted ADR, the terms and conditions set forth in this Section 2.14 and of
the Restricted ADR shall be controlling and shall govern the rights and
obligations of the parties to the Deposit Agreement pertaining to the deposited
Restricted Shares, the Restricted ADSs and Restricted ADRs.
15
If the
Restricted ADRs, the Restricted ADSs and the Restricted Shares cease to be
Restricted Securities, the Depositary, upon receipt of (x) an opinion of counsel
satisfactory to the Depositary setting forth, inter alia, that the
Restricted ADRs, the Restricted ADSs and the Restricted Shares are not as of
such time Restricted Securities, and (y) instructions from the Company to remove
the restrictions applicable to the Restricted ADRs, the Restricted ADSs and the
Restricted Shares, shall (i) eliminate the distinctions, limitations and
restrictions that may have been established to promote compliance with the
Securities Act and any other applicable laws or regulations between the
applicable Restricted Shares held on deposit under this Section 2.14 and the
other Shares held on deposit under the terms of the Deposit Agreement that are
not Restricted Shares, (ii) process the newly unrestricted ADRs and ADSs on
the same terms as, and fully fungible with, the other ADRs and ADSs issued and
outstanding under the terms of the Deposit Agreement that are not Restricted
ADRs or Restricted ADSs, (iii) take all actions necessary to remove any
distinctions, limitations and restrictions previously existing under this
Section 2.14 between the applicable Restricted ADRs and Restricted ADSs,
respectively, on the one hand, and the other ADRs and ADSs that are not
Restricted ADRs or Restricted ADSs, respectively, on the other hand, including,
without limitation, by making the newly-unrestricted ADSs eligible for
Pre-Release Transactions and for inclusion in the applicable book-entry
settlement systems, provided, however, that the
removal of the restrictions applicable to the Restricted ADRs, the Restricted
ADSs and the Restricted Shares and the elimination of the distinctions,
limitations and restrictions that may have been established to promote
compliance with the Securities Act and any other applicable laws or regulations
between the applicable Restricted Shares held on deposit under this Section 2.14
and the other Shares held on deposit under the terms of the Deposit Agreement
that are not Restricted Shares shall not constitute the deposit of new Shares or
the surrender, cancellation or issue of ADRs or ADSs (restricted or otherwise)
in respect thereof.
16
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS
AND
BENEFICIAL OWNERS OF ADSs
Section
3.1 Proofs,
Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Share Registrar) as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under the Deposit Agreement
and the applicable ADR(s). The Depositary and the Registrar, as
applicable, may withhold the execution or delivery or registration of transfer
of any ADR or ADS or the distribution or sale of any dividend or distribution of
rights or of the proceeds thereof or, to the extent not limited by the terms of
Section 7.8, the delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations and warranties are made, or such other documentation or
information provided, in each case to the Depositary’s, the Registrar’s and the
Company’s satisfaction. The Depositary shall provide the Company, in
a timely manner, with copies or originals if necessary and appropriate of (i)
any such proofs of citizenship or residence, taxpayer status, or exchange
control approval or copies of written representations and warranties which it
receives from Holders and Beneficial Owners, and (ii) any other information or
documents which the Company may reasonably request and which the Depositary
shall request and receive from any Holder or Beneficial Owner or any person
presenting Shares for deposit or ADSs for cancellation, transfer or
withdrawal. Nothing herein shall obligate the Depositary to (i)
obtain any information for the Company if not provided by the Holders or
Beneficial Owners, or (ii) verify or vouch for the accuracy of the information
so provided by the Holders or Beneficial Owners.
Section
3.2 Liability
for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs shall be payable by the Holders
and Beneficial Owners to the Depositary. The Company, the Custodian
and/or 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, the Holder and the Beneficial Owner
remaining liable for any deficiency. The Custodian may refuse the
deposit of Shares and the Depositary may refuse to issue ADSs, to deliver ADRs,
register the transfer of ADSs, register the split-up or combination of ADRs and
(subject to Section 7.8) the withdrawal of Deposited Securities until payment in
full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the
Custodian, and any of their agents, officers, employees and Affiliates for, and
to hold each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
17
Section
3.3 Representations
and Warranties on Deposit of Shares. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, and (v) the Shares presented for deposit are not, and the ADSs
issuable upon such deposit will not be, Restricted Securities (except as
contemplated in Section 2.14), and (vi) the Shares presented for deposit
have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are
false in any way, the Company and the Depositary shall be authorized, at the
cost and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
Section
3.4 Compliance
with Information Requests. Notwithstanding
any other provision of the Deposit Agreement or any ADR(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable law, the rules and requirements of the NYSE, and any other stock
exchange on which the Shares or ADSs are, or will be, registered, traded or
listed or the Articles of Association of the Company, which are made to provide
information, inter
alia, as to the capacity in which such Holder or Beneficial Owner owns
ADSs (and Shares as the case may be) and regarding the identity of any other
person(s) interested in such ADSs and the nature of such interest and various
other matters, whether or not they are Holders and/or Beneficial Owners at the
time of such request. The Depositary agrees to use its reasonable
efforts to forward, upon the request of the Company and at the Company’s
expense, any such request from the Company to the Holders and to forward to the
Company any such responses to such requests received by the
Depositary.
Section
3.5 Ownership
Restrictions. Notwithstanding
any other provision in the Deposit Agreement or any ADR, the Company may
restrict transfers of the Shares where such transfer might result in ownership
of Shares exceeding limits imposed by applicable law or the Articles of
Association of the Company. The Company may also restrict, in such
manner as it deems appropriate, transfers of the ADSs where such transfer may
result in the total number of Shares represented by the ADSs owned by a single
Holder or Beneficial Owner to exceed any such limits. The Company
may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including, but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association of the Company. Nothing herein
shall be interpreted as obligating the Depositary or the Company to ensure
compliance with the ownership restrictions described in this Section
3.5.
18
Section
3.6 Reporting
Obligations and Regulatory Approvals. Applicable laws
and regulations may require holders and beneficial owners of Shares, including
the Holders and Beneficial Owners of ADSs, to satisfy reporting requirements and
obtain regulatory approvals in certain circumstances. Holders and
Beneficial Owners of ADSs are solely responsible for determining and complying
with such reporting requirements and obtaining such approvals. Each
Holder and each Beneficial Owner hereby agrees to make such determination, file
such reports, and obtain such approvals to the extent and in the form required
by applicable laws and regulations as in effect from time to
time. Neither the Depositary, the Custodian, the Company or any of
their respective agents or affiliates shall be required to take any actions
whatsoever on behalf of Holders or Beneficial Owners to determine or satisfy
such reporting requirements or obtain such regulatory approvals under applicable
laws and regulations.
19
ARTICLE
IV
THE
DEPOSITED SECURITIES
Section
4.1 Cash
Distributions. Whenever the
Company intends to make a distribution of a cash dividend or other cash
distribution, the Company shall give notice thereof to the Depositary at least
twenty (20) days prior to the proposed distribution specifying, inter alia, the record date
applicable for determining the holders of Deposited Securities entitled to
receive such distribution. Upon the timely receipt of such notice,
the Depositary shall establish an ADS Record Date upon the terms described in
Section 4.9. Upon receipt of confirmation from the Custodian of the
receipt of any cash dividend or other cash distribution on any Deposited
Securities, or upon receipt of proceeds from the sale of any Deposited
Securities or any other entitlements held in respect of Deposited Securities
under the terms hereof, the Depositary will (i) if at the time of receipt
thereof any amounts received in a Foreign Currency can, in the judgment of the
Depositary (pursuant to Section 4.8), be converted on a practicable basis into
Dollars transferable to the United States, promptly convert or cause to be
converted such cash dividend, distribution or proceeds into Dollars (on the
terms described in Section 4.8), (ii) if applicable and unless previously
established, establish the ADS Record Date upon the terms described in Section
4.9, and (iii) distribute promptly the amount thus received (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes withheld) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of ADSs outstanding at the time of the
next distribution. If the Company, the Custodian or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, duties or other governmental charges, the amount distributed to Holders
on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company,
the Custodian or the Depositary to the relevant governmental
authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
Section
4.2 Distribution
in Shares. Whenever the
Company intends to make a distribution that consists of a dividend in, or free
distribution of, Shares, the Company shall give notice thereof to the Depositary
at least twenty(20) days prior to the proposed distribution, specifying, inter alia, the record date
applicable to holders of Deposited Securities entitled to receive such
distribution. Upon the timely receipt of such notice from the
Company, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9. Upon receipt of confirmation from the
Custodian of the receipt of the Shares so distributed by the Company, the
Depositary shall either (i) subject to Section 5.9, distribute to the Holders as
of the ADS Record Date in proportion to the number of ADSs held as of the ADS
Record Date, additional ADSs, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of the Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes), or (ii) if additional ADSs are not so distributed, take all actions
necessary so that each ADS issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights and
interests in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b)
taxes). In lieu of delivering fractional ADSs, the Depositary shall
sell the number of Shares or ADSs, as the case may be, represented by the
aggregate of such fractions and distribute the net proceeds upon the terms
described in Section 4.1. In the event that the Depositary determines
that any distribution in property (including Shares) is subject to any tax or
other governmental charges which the Depositary is obligated to withhold, or, if
the Company in the fulfillment of its obligation under Section 5.7, has
furnished an opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to Holders
(and no such registration statement has been declared effective), the Depositary
may dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of (a) taxes and (b) fees and charges of, and expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms described in Section
4.1. The Depositary shall hold and/or distribute any unsold balance
of such property in accordance with the provisions of the Deposit
Agreement.
20
Section
4.3 Elective
Distributions in Cash or Shares. Whenever the
Company intends to make a distribution payable at the election of the holders of
Shares in cash or in additional Shares, the Company shall give notice thereof to
the Depositary at least sixty (60) days prior to the proposed distribution
specifying, inter alia, the record date
applicable to holders of Deposited Securities entitled to receive such elective
distribution and whether or not it wishes such elective distribution to be made
available to Holders of ADSs. Upon the timely receipt of a notice
indicating that the Company wishes such elective distribution to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such elective
distribution available to the Holders of ADSs. The Depositary shall
make such elective distribution available to Holders only if (i) the Company
shall have timely requested that the elective distribution be made available to
Holders, (ii) the Depositary shall have determined that such distribution
is reasonably practicable and (iii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7. If the
above conditions are not satisfied, the Depositary shall establish an ADS Record
Date on the terms described in Section 4.9 and, to the extent permitted by law,
distribute to the Holders, on the basis of the same determination as is made in
England and Wales in respect of the Shares for which no election is made, either
(X) cash upon the terms described in Section 4.1 or (Y) additional ADSs
representing such additional Shares upon the terms described in Section
4.2. If the above conditions are satisfied, the Depositary shall
establish an ADS Record Date on the terms described in Section 4.9 and establish
procedures to enable Holders to elect the receipt of the proposed distribution
in cash or in additional ADSs. The Company shall assist the
Depositary in establishing such procedures to the extent
necessary. If a Holder elects to receive the proposed distribution
(X) in cash, the distribution shall be made upon the terms described in Section
4.1, or (Y) in ADSs, the distribution shall be made upon the terms
described in Section 4.2. Nothing herein shall obligate the
Depositary to make available to Holders a method to receive the elective
distribution in Shares (rather than ADSs). There can be no assurance
that Holders generally, or any Holder in particular, will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Shares.
21
Section
4.4 Distribution
of Rights to Purchase Additional ADSs.
(a) Distribution
to ADS Holders. Whenever the
Company intends to distribute to the holders of the Deposited Securities rights
to subscribe for additional Shares, the Company shall give notice thereof to the
Depositary at least sixty (60) days prior to the proposed distribution specifying, inter alia, the record date
applicable to holders of Deposited Securities entitled to receive such
distribution and whether or not it wishes such rights to be made available to
Holders of ADSs. Upon the timely receipt of a notice indicating that
the Company wishes such rights to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The
Depositary shall make such rights available to Holders only if (i) the Company
shall have timely requested that such rights be made available to Holders, (ii)
the Depositary shall have received satisfactory documentation within the terms
of Section 5.7, and (iii) the Depositary shall have determined that such
distribution of rights is reasonably practicable. In the event any of
the conditions set forth above are not satisfied or if the Company requests that
the rights not be made available to Holders of ADSs, the Depositary shall
proceed with the sale of the rights as contemplated in Section 4.4(b)
below. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
Section 4.9) and establish procedures to (x) distribute rights to purchase
additional ADSs (by means of warrants or otherwise), (y) to enable the
Holders to exercise such rights (upon payment of the subscription price and of
the applicable (a) fees and charges of, and expenses incurred by, the Depositary
and (b) taxes), and (z) to deliver ADSs upon the valid exercise of such
rights. The Company shall assist the Depositary to the extent
necessary in establishing such procedures. Nothing herein shall
obligate the Depositary to make available to the Holders a method to exercise
rights to subscribe for Shares (rather than ADSs).
(b) Sale of
Rights. If (i) the
Company does not timely request the Depositary to make the rights available to
Holders or requests that the rights not be made available to Holders, (ii) the
Depositary fails to receive satisfactory documentation within the terms of
Section 5.7 or determines it is not reasonably practicable to make the rights
available to Holders, or (iii) any rights made available are not exercised and
appear to be about to lapse, the Depositary shall determine whether it is lawful
and reasonably practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public or private sale)
as it may deem practicable. The Company shall assist the Depositary
to the extent 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) 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.
22
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 or any other applicable law) of the rights or the securities to
which any rights relate may be required in order for the Company to offer such
rights or such securities to Holders and to sell the securities represented by
such rights, the Depositary will not distribute such rights to the Holders
(i) unless and until a registration statement under the Securities Act (or
other applicable law) covering such offering is in effect or (ii) unless
the Company furnishes the Depositary opinion(s) of counsel for the Company 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 of ADSs representing such Deposited Securities 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 or
charges.
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive or exercise rights on the same terms and
conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
Section
4.5 Distributions
Other Than Cash, Shares or Rights to Purchase Shares.
(a) Whenever
the Company intends to distribute to the holders of Deposited Securities
property other than cash, Shares or rights to purchase additional Shares, the
Company shall give timely notice thereof to the Depositary and shall indicate
whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes
such distribution be made to Holders of ADSs, the Depositary shall consult with
the Company, and the Company shall assist the Depositary, to determine whether
such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless
(i) the Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
23
(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 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 them 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 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, 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 practicable and shall (i) cause the proceeds
of such sale, if any, to be converted into Dollars and (ii) distribute the
proceeds of such conversion received by the Depositary (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to
the Holders as of the ADS Record Date upon the terms of Section
4.1. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
Section
4.6 [RESERVED].
Section
4.7 Redemption. If the Company
intends to exercise any right of redemption in respect of any of the Deposited
Securities, the Company shall give notice thereof to the Depositary at least
sixty (60) days prior to the intended date of redemption which notice shall set
forth the particulars of the proposed redemption. Upon timely receipt
of (i) such notice and (ii) satisfactory documentation given by the Company
to the Depositary within the terms of Section 5.7, and only if the Depositary
shall have determined that such proposed redemption is practicable, the
Depositary shall provide to each Holder a notice setting forth the intended
exercise by the Company of the redemption rights and any other particulars set
forth in the Company’s notice to the Depositary. The Depositary shall
instruct the Custodian to present to the Company the Deposited Securities in
respect of which redemption rights are being exercised against payment of the
applicable redemption price. Upon receipt of confirmation from the
Custodian that the redemption has taken place and that funds representing the
redemption price have been received, the Depositary shall convert, transfer, and
distribute the proceeds (net of applicable (a) fees and charges of, and the
expenses incurred by, the Depositary, and (b) taxes), retire ADSs and cancel
ADRs, if applicable, upon delivery of such ADSs by Holders thereof and the terms
set forth in Sections 4.1 and 6.2. If less than all outstanding
Deposited Securities are redeemed, the ADSs to be retired will be selected by
lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the dollar
equivalent of the per share amount received by the Depositary (adjusted to
reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited
Securities represented by ADSs (subject to the terms of Section 4.8 and the
applicable fees and charges of, and expenses incurred by, the Depositary, and
taxes) multiplied by the number of Deposited Securities represented by each ADS
redeemed.
24
Section
4.8 Conversion
of Foreign Currency. Whenever the
Depositary or the Custodian shall receive Foreign Currency, by way of dividends
or other distributions or the net proceeds from the sale of securities, property
or rights, which in the judgment of the Depositary can at such time be converted
on a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall convert
or cause to be converted, by sale or in any other manner that it may determine,
such Foreign Currency into Dollars, and shall distribute such Dollars (net of
any applicable fees, any reasonable and customary expenses incurred in such
conversion and any expenses incurred on behalf of the Holders in complying with
currency exchange control or other governmental requirements) in accordance with
the terms of the applicable sections of the Deposit Agreement. If the
Depositary shall have distributed warrants or other instruments that entitle the
holders thereof to such Dollars, the Depositary shall distribute such Dollars to
the holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest
thereon. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account of
any application of exchange restrictions or otherwise.
If such
conversion or distribution generally or with regard to a particular Holder can
be effected only with the approval or license of any government or agency
thereof, the Depositary shall have authority to file such application for
approval or license, if any, as it may deem desirable. In no event,
however, shall the Depositary be obligated to make such a filing.
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 practicable or lawful, or if any
approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion,
transfer and distribution is lawful and practicable, (ii) distribute the
Foreign Currency (or an appropriate document evidencing the right to receive
such Foreign Currency) to Holders for whom this is lawful and practicable or
(iii) hold (or cause the Custodian to hold) such Foreign Currency (without
liability for interest thereon) for the respective accounts of the Holders
entitled to receive the same.
25
Section
4.9 Fixing of
ADS Record Date. Whenever the
Depositary shall receive notice of the fixing of a record date by the Company
for the determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of, or solicitation of consents or proxies of, holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date (the “ADS
Record Date”) for the determination of the Holders of ADS(s) who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, to give or withhold such consent, to receive
such notice or solicitation or to otherwise take action, or to exercise the
rights of Holders with respect to such changed number of Shares represented by
each ADS. The Depositary shall make reasonable efforts to establish
the ADS Record Date as closely as possible to the applicable record date for the
Deposited Securities (if any) set by the Company in England and
Wales. Subject to applicable law and the provisions of Section 4.1
through 4.8 and to the other terms and conditions of the Deposit Agreement, only
the Holders of ADSs at the close of business in New York on such ADS Record Date
shall be entitled to receive such distribution, to give such voting
instructions, to receive such notice or solicitation, or otherwise take
action.
Section
4.10 Voting of
Deposited Securities. As soon as
practicable after receipt of notice of any meeting at which the holders of
Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall fix the ADS
Record Date in respect of such meeting or solicitation of consent or proxy in
accordance with Section 4.9. The Depositary shall, if requested by
the Company in writing in a timely manner (the Depositary having no obligation
to take any further action if the request shall not have been received by the
Depositary at least thirty (30) days prior to the date of such vote or meeting),
at the Company’s expense and provided no U.S. legal prohibitions exist,
distribute to Holders as of the ADS Record Date: (a) such notice of meeting or
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 provisions of the Deposit Agreement, the Articles of Association of the
Company and the provisions of or governing the Deposited Securities (which
provisions, if any, shall be summarized in pertinent part by the Company), to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Deposited Securities represented by such Holder’s ADSs, and
(c) a brief statement as to the manner in which such voting instructions may be
given.
Notwithstanding
anything contained in the Deposit Agreement or any ADR, the Depositary may, to
the extent not prohibited by law or regulations, or by the requirements of the
stock exchange on which the ADSs are listed, in lieu of distribution of the
materials provided to the Depositary in connection with any meeting of, or
solicitation of consents or proxies from, holders of Deposited Securities,
distribute to the Holders a notice that provides Holders with, or otherwise
publicize to Holders, instructions on how to retrieve such materials or receive
such materials upon request (i.e., by reference to a
website containing the materials for retrieval or a contact for requesting
copies of the materials).
26
Voting
instructions may be given only in respect of a number of ADSs representing an
integral number of Deposited Securities. Upon the timely receipt from
a Holder of ADSs as of the ADS Record Date of voting instructions in the manner
specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the provisions of the Deposit
Agreement, Articles of Association of the Company and the provisions of the
Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities (in person or by proxy) represented by such Holder’s ADSs 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 Deposited Securities represented by
ADSs, except pursuant to and in accordance with the voting instructions timely
received from Holders or as otherwise contemplated herein. If the
Depositary timely receives voting instructions from a Holder which fail to
specify the manner in which the Depositary is to vote the Deposited Securities
represented by such Holder’s ADSs, the Depositary will deem such Holder (unless
otherwise specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such voting
instructions. Deposited Securities represented by ADSs for which no
timely voting instructions are received by the Depositary from the Holder shall
not be voted.
Notwithstanding
anything else contained in the Deposit Agreement or any ADR, the Depositary
shall not have any obligation to take any action with respect to any meeting, or
solicitation of consents or proxies, of holders of Deposited Securities if the
taking of such action would violate U.S. laws. The Company agrees to
take any and all actions reasonably necessary to enable Holders and Beneficial
Owners to exercise the voting rights accruing to the Deposited Securities and to
deliver to the Depositary an opinion of U.S. counsel addressing any actions
requested to be taken if so requested by the Depositary.
There can
be no assurance that Holders generally or any Holder in particular will receive
the notice described above with sufficient time to enable the Holder to return
voting instructions to the Depositary in a timely manner.
Section
4.11 Changes
Affecting Deposited Securities. Upon any change
in nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger, consolidation or sale of assets affecting the Company or
to which it is a party, any securities which shall be received by the Depositary
or the Custodian in exchange for, or in conversion of or replacement of or
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the ADRs shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. In giving effect to such change,
split-up, cancellation, consolidation or other reclassification of Deposited
Securities, recapitalization, reorganization, merger, consolidation or sale of
assets, the Depositary may, with the Company’s approval, and shall, if the
Company shall so request, subject to the terms of the Deposit Agreement and
receipt of an opinion of counsel to the Company satisfactory to the Depositary
that such actions are not in violation of any applicable laws or regulations,
(i) issue and deliver additional ADSs as in the case of a stock dividend on
the Shares, (ii) amend the Deposit Agreement and the applicable ADRs,
(iii) amend the applicable Registration Statement(s) on Form F-6 as filed
with the Commission in respect of the ADSs, (iv) call for the surrender of
outstanding ADRs to be exchanged for new ADRs, and (v) take such other
actions as are appropriate to reflect the transaction with respect to the
ADSs. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of ADRs. Notwithstanding the foregoing, in
the event that any security so received may not be lawfully distributed to some
or all Holders, the Depositary may, with the Company’s approval, and shall, if
the Company requests, subject to receipt of an opinion of Company’s counsel
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, sell such securities at public or private sale,
at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or practicable to make such securities available to Holders in general
or to any Holder in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or (iii) any liability to the purchaser
of such securities. Notwithstanding the foregoing provisions of this
Section 4.11, no amendment or alteration of the rights of Deposited Securities
pursuant to an amendment of the Articles of Association of the Company shall be
a reclassification, recapitalization, reorganization or other change in the
Deposited Securities so as to cause such Deposited Securities to be new
Deposited Securities under the Deposit Agreement, to cause a new deposit of
Deposited Securities under the Deposit Agreement, or to cause the ADSs
representing such Deposited Securities to be new ADSs notwithstanding any change
in the description or name of such Deposited Securities, any change of the name
of the Company, any requirement to amend any applicable Registration
Statement(s) on Form F-6 as filed with the Commission in respect of the ADS or
any change in the form of ADRs evidencing such ADSs.
27
Section
4.12 Available
Information. The Company may
be subject to the periodic reporting requirements of the Exchange Act and, if it
is, it will be required to file or submit certain reports with the
Commission. These reports can be retrieved from the Commission's
website (xxx.xxx.xxx) and can
be inspected and copied at the public reference facilities maintained by the
Commission located (as of the date of the Deposit Agreement) at 000 X Xxxxxx,
X.X., Xxxxxxxxxx X.X. 00000.
Section
4.13 Reports. The Depositary
shall make available 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 shall also provide or make available to
Holders copies of such reports when furnished by the Company pursuant to Section
5.6.
28
Section
4.14 List of
Holders. Promptly upon
written request by the Company, the Depositary shall furnish to it a list, as of
a recent date, of the names, addresses and holdings of ADSs of all
Holders.
Section
4.15 Taxation. The Depositary
will, and will instruct the Custodian to, forward to the Company or its agents
such information from its records as the Company may reasonably request to
enable the Company or its agents to file the necessary tax reports with
governmental authorities or agencies. The Depositary, the Custodian
or the Company and its agents may file such reports as are necessary to reduce
or eliminate applicable taxes on dividends and on other distributions in respect
of Deposited Securities under applicable tax treaties or laws for the Holders
and Beneficial Owners. In accordance with instructions from the
Company and to the extent practicable, the Depositary or the Custodian will take
reasonable administrative actions to obtain tax refunds, reduced withholding of
tax at source on dividends and other benefits under applicable tax treaties or
laws with respect to dividends and other distributions on the Deposited
Securities. As a condition to receiving such benefits, Holders and
Beneficial Owners of ADSs may be required from time to time, and in a timely
manner, to file such proof of taxpayer status, residence and beneficial
ownership (as applicable), to execute such certificates and to make such
representations and warranties, or to provide any other information or
documents, as the Depositary or the Custodian may deem necessary or proper to
fulfill the Depositary’s or the Custodian’s obligations under applicable
law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
If the
Company (or any of its agents) withholds from any distribution any amount on
account of taxes or governmental charges, or pays any other tax in respect of
such distribution (i.e., stamp duty tax, capital
gains or other similar tax), the Company shall (and shall cause such agent to)
remit promptly to the Depositary information about such taxes or governmental
charges withheld or paid, and, if so requested, the tax receipt (or other proof
of payment to the applicable governmental authority) therefor, in each
case, in a form satisfactory to the Depositary. The
Depositary shall, to the extent required by U.S. law, report to Holders any
taxes withheld by it or the Custodian, and, if such information is provided to
it by the Company, any taxes withheld by the Company. The Depositary
and the Custodian shall not be required to provide the Holders with any evidence
of the remittance by the Company (or its agents) of any taxes withheld, or of
the payment of taxes by the Company, except to the extent the evidence is
provided by the Company to the Depositary or the Custodian, as
applicable. Neither the Depositary nor the Custodian shall be liable
for the failure by any Holder or Beneficial Owner to obtain the benefits of
credits on the basis of non-U.S. tax paid against such Holder’s or Beneficial
Owner’s income tax liability.
The
Depositary is under no obligation to provide the Holders and Beneficial Owners
with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
ADSs, including without limitation, tax consequences resulting from the Company
(or any of its subsidiaries) being treated as a “Passive Foreign Investment
Company” (in each case as defined in the U.S. Internal Revenue Code and the
regulations issued thereunder) or otherwise.
29
ARTICLE
V
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section
5.1 Maintenance
of Office and Transfer Books by the Registrar. Until termination
of the Deposit Agreement in accordance with its terms, the Registrar shall
maintain in the Borough of Manhattan, the City of New York, an office and
facilities for the issuance and delivery of ADSs, the acceptance for surrender
of ADS(s) for the purpose of withdrawal of Deposited Securities, the
registration of issuances, cancellations, transfers, combinations and split-ups
of ADS(s) and, if applicable, to countersign ADRs evidencing the ADSs so issued,
transferred, combined or split-up, in each case in accordance with the
provisions of the Deposit Agreement.
The
Registrar shall keep books for the registration of ADSs which at all reasonable
times shall be open for inspection by the Company and by the Holders of such
ADSs, provided that such inspection shall not be, to the Registrar’s knowledge,
for the purpose of communicating with Holders of such ADSs in the interest of a
business or object other than the business of the Company or other than a matter
related to the Deposit Agreement or the ADSs.
The
Registrar may close the transfer books with respect to the ADSs, at any time or
from time to time, when deemed necessary or advisable by it in good faith in
connection with the performance of its duties hereunder, or at the reasonable
written request of the Company subject, in all cases, to Section
7.8.
For as
long as any ADSs are listed on one or more stock exchanges or automated
quotation systems in the United States, the Depositary shall act as Registrar or
appoint a Registrar or one or more co-registrars for registration of issuances,
cancellations, transfers, combinations and split-ups of ADSs and, if applicable,
to countersign ADRs evidencing the ADSs so issued, transferred, combined or
split-up, in
accordance with any requirements of such exchanges or systems. Such
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary.
Section
5.2 Exoneration. Neither the
Depositary nor the Company shall be obligated to do or perform any act which is
inconsistent with the provisions of the Deposit Agreement or incur any liability
(i) if the Depositary or the Company shall be prevented or forbidden from, or
delayed in, doing or performing any act or thing required by the terms of the
Deposit Agreement, by reason of any provision of any present or future law or
regulation of the United States, England and Wales or any other country, or of
any other governmental authority or regulatory authority or stock exchange, or
on account of the possible criminal or civil penalties or restraint, or by
reason of any provision, present or future, of the Articles of Association of
the Company or any provision of or governing any Deposited Securities, or by
reason of any act of God or war or other circumstances beyond its control
(including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, acts of terrorism,
revolutions, rebellions, explosions and computer failure), (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement or in the Articles of Association of the Company or provisions of or
governing Deposited Securities, (iii) for any action or inaction in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for the inability by a Holder
or Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of the Deposit Agreement, made available to Holders of ADSs, or
(v) for any consequential or punitive damages for any breach of the terms of the
Deposit Agreement.
30
The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or
parties.
No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement.
Section
5.3 Standard
of Care. The Company and
the Depositary assume no obligation and shall not be subject to any liability
under the Deposit Agreement or any ADRs to any Holder(s) or Beneficial Owner(s),
except that the Company and the Depositary agree to perform their respective
obligations specifically set forth in the Deposit Agreement or the applicable
ADRs without negligence or bad faith.
Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, or agents, shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the ADSs, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense (including fees and disbursements of counsel) and
liability be furnished as often as may be required (and no Custodian shall be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary).
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, for the failure or
timeliness of any notice from the Company, or for any action of or failure to
act by, or any information provided or not provided by, DTC or any DTC
Participant.
31
Section
5.4 Resignation
and Removal of the Depositary; Appointment of Successor Depositary. The Depositary
may at any time resign as Depositary hereunder by written notice of resignation
delivered to the Company, such resignation to be effective on the earlier of (i)
the 90th day after delivery thereof to the Company (whereupon the Depositary
shall be entitled to take the actions contemplated in Section 6.2), or (ii) the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The
Depositary may at any time be removed by the Company by written notice of such
removal, which removal shall be effective on the later of (i) the 90th day after
delivery thereof to the Depositary (whereupon the Depositary shall be entitled
to take the actions contemplated in Section 6.2), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its 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 be required by
the Company to execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment
of all sums due it and on the written request of the Company shall, (i) execute
and deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder (other than as contemplated in Sections 5.8 and
5.9), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding ADSs and such other
information relating to ADSs and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly provide notice
of its appointment to such Holders.
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.
32
Section
5.5 The
Custodian. The Depositary
has initially appointed Citibank, N.A. (London Branch) as Custodian for the
purpose of the Deposit Agreement. The Custodian or its successors in
acting hereunder shall be subject at all times and in all respects to the
direction of the Depositary for the Deposited Securities for which the Custodian
acts as custodian and shall be responsible solely to it. If any
Custodian resigns or is discharged from its duties hereunder with respect to any
Deposited Securities and no other Custodian has previously been appointed
hereunder, the Depositary shall promptly appoint a substitute
custodian. The Depositary shall require such resigning or discharged
Custodian to Deliver, or cause the Delivery of, the Deposited Securities held by
it, together with all such records maintained by it as Custodian with respect to
such Deposited Securities as the Depositary may request, to the Custodian
designated by the Depositary. Whenever the Depositary determines, in
its discretion, that it is appropriate to do so, it may appoint an additional
custodian with respect to any Deposited Securities, or discharge the Custodian
with respect to any Deposited Securities and appoint a substitute custodian,
which shall thereafter be Custodian hereunder with respect to the Deposited
Securities. Immediately upon any such change, the Depositary shall
give notice thereof in writing to all Holders of ADSs, each other Custodian and
the Company.
Citibank,
N.A. may at any time act as Custodian of the Deposited Securities pursuant to
the Deposit Agreement, in which case any reference to Custodian shall mean
Citibank, N.A. solely in its capacity as Custodian pursuant to the Deposit
Agreement. Notwithstanding anything contained in the Deposit
Agreement or any ADR, the Depositary shall not be obligated to give notice to
the Company, any Holders of ADSs or any other Custodian of its acting as
Custodian pursuant to the Deposit Agreement.
Upon the
appointment of any successor depositary, any Custodian then acting hereunder
shall, unless otherwise instructed by the Depositary, continue to be the
Custodian of the Deposited Securities without any further act or writing, and
shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
The
Deposited Securities shall at all times be held in the custody of the Custodian
and shall not be transferred or issued to any person (including the Depositary
or its nominee or agent) except as expressly provided in this Deposit Agreement,
such as upon deposit or withdrawal by a Holder of ADSs pursuant to, and in
compliance with the procedures of, this Deposit Agreement.
33
Section
5.6 Notices
and Reports. On or before the
first date on which the Company gives notice, by publication or otherwise, of
any meeting of holders of Shares or other Deposited Securities, or of any
adjourned meeting of such holders, or of the taking of any action by such
holders other than at a meeting, or of the taking of any action in respect of
any cash or other distributions or the offering of any rights in respect of
Deposited Securities, the Company shall transmit to the Depositary and the
Custodian a copy of the notice thereof in the English language but otherwise in
the form given or to be given to holders of Shares or other Deposited
Securities. The Company shall also furnish to the Custodian and the Depositary a
summary, in English, of any applicable provisions or proposed provisions of the
Articles of Association of the Company that may be relevant or pertain to such
notice of meeting or be the subject of a vote thereat.
The
Company will also transmit to the Depositary (a) an English language version 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)
the English-language versions of the Company’s annual and semi-annual reports
prepared in accordance with the applicable requirements of the
Commission. The Depositary shall arrange, at the request of the
Company and at the Company’s expense, to provide copies thereof to all Holders
or make such notices, reports and other communications available to all Holders
on a basis similar to that for holders of Shares or other Deposited Securities
or on such other basis as the Company may advise the Depositary or as may be
required by any applicable law, regulation or stock exchange
requirement. The Company has delivered to the Depositary and the
Custodian a copy of the Company’s Articles of Association along with the
provisions of or governing the Shares and any other Deposited Securities issued
by the Company in connection with such Shares, and promptly upon any amendment
thereto or change therein, the Company shall deliver to the Depositary and the
Custodian a copy of such amendment thereto or change therein. The
Depositary may rely upon such copy for all purposes of the Deposit
Agreement.
The
Depositary will, at the expense of the Company, make available a copy of any
such notices, reports or communications issued by the Company and delivered to
the Depositary for inspection by the Holders of the ADSs at the Depositary’s
Principal Office, at the office of the Custodian and at any other designated
transfer office.
Section
5.7 Issuance
of Additional Shares, ADSs etc. The Company
agrees that in the event it or any of its Affiliates proposes (i) an issuance,
sale or distribution of additional Shares, (ii) an offering of rights to
subscribe for Shares or other Deposited Securities, (iii) an issuance or
assumption of securities convertible into or exchangeable for Shares, (iv) an
issuance of rights to subscribe for securities convertible into or exchangeable
for Shares, (v) an elective dividend of cash or Shares, (vi) a redemption of
Deposited Securities, (vii) a meeting of holders of Deposited Securities, or
solicitation of consents or proxies, relating to any reclassification of
securities, merger or consolidation or transfer of assets, or (viii) any
assumption, reclassification, recapitalization, reorganization, merger,
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
proposed transaction does not violate the registration provisions of the
Securities Act, or any other applicable laws (including, without limitation, the
Investment Company Act of 1940, as amended, the Exchange Act and the securities
laws of the states of the U.S.). In support of the foregoing, the
Company will furnish to the Depositary (a) a written opinion of U.S. counsel
(reasonably satisfactory to the Depositary) stating whether such transaction
(1) requires a registration statement under the Securities Act to be in
effect or (2) is exempt from the registration requirements of the Securities Act
and (b) an opinion of English counsel stating that (1) making the transaction
available to Holders and Beneficial Owners does not violate the laws or
regulations of England and Wales and (2) all requisite regulatory consents and
approvals have been obtained in England and Wales. If the filing of a
registration statement is required, the Depositary shall not have any obligation
to proceed with the transaction unless it shall have received evidence
reasonably satisfactory to it that such registration statement has been declared
effective. If, being advised by counsel, the Company determines that
a transaction is required to be registered under the Securities Act, the Company
will either (i) register such transaction to the extent necessary, (ii) alter
the terms of the transaction to avoid the registration requirements of the
Securities Act or (iii) direct the Depositary to take specific measures, in each
case as contemplated in the Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act. The
Company agrees with the Depositary that neither the Company nor any of its
Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction do not violate the registration provisions of the
Securities Act, or any other applicable laws (including, without limitation, the
Investment Company Act of 1940, as amended, the Exchange Act and the securities
laws of the states of the U.S.).
34
Notwithstanding
anything else contained in the Deposit Agreement, nothing in the Deposit
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
Section
5.8 Indemnification. The Depositary
agrees to indemnify the Company and its directors, officers, employees, agents
and Affiliates against, and hold each of them harmless from, any direct loss,
liability, tax, charge or expense of any kind whatsoever (including, but not
limited to, the reasonable fees and expenses of counsel) which may arise out of
acts performed or omitted by the Depositary under the terms hereof due to the
negligence or bad faith of the Depositary.
The
Company agrees to indemnify the Depositary, the Custodian and any of their
respective directors, officers, employees, agents and Affiliates against, and
hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs,
ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of
or as a result of any offering documents of the Company in respect thereof or
(c) out of acts performed or omitted, including, but not limited to, any
delivery by the Depositary on behalf of the Company of information regarding the
Company in connection with the Deposit Agreement, the ADRs, the ADSs, the
Shares, or any Deposited Securities, in any such case (i) by the Depositary, the
Custodian or any of their respective directors, officers, employees, agents and
Affiliates, except to the extent such loss, liability, tax, charge or expense is
due to the negligence or bad faith of any of them, or (ii) by the Company or any
of its directors, officers, employees, agents and Affiliates in the course of
their employment or duties for or on behalf of the Company.
35
The
obligations set forth in this Section shall survive the termination of the
Deposit Agreement and the succession or substitution of any party
hereto.
Any
person seeking indemnification hereunder (an “indemnified person”) shall notify
the person from whom it is seeking indemnification (the “indemnifying person”)
of the commencement of any indemnifiable action or claim promptly after such
indemnified person becomes aware of such commencement (provided that the failure
to make such notification shall not affect such indemnified person’s rights to
seek indemnification except to the extent the indemnifying person is materially
prejudiced by such failure) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim
that may give rise to an indemnity hereunder, which defense shall be reasonable
in the circumstances. No indemnified person shall compromise or
settle any action or claim that may give rise to an indemnity hereunder without
the consent of the indemnifying person, which consent shall not be unreasonably
withheld.
Section
5.9 Fees and
Charges of Depositary. The Company, the
Holders, the Beneficial Owners, and persons depositing Shares or surrendering
ADSs for cancellation and withdrawal of Deposited Securities shall be required
to pay to the Depositary the Depositary’s fees and related charges identified as
payable by them respectively in the Fee Schedule attached hereto as Exhibit
B. All fees and charges so payable may, at any time and from
time to time, be changed by agreement between the Depositary and the Company,
but, in the case of fees and charges payable by Holders and Beneficial Owners,
only in the manner contemplated in Section 6.1. The Depositary shall
provide, without charge, a copy of its latest fee schedule to anyone upon
request.
The
Company shall pay to the Depositary such fees and charges and reimburse the
Depositary for such out-of-pocket expenses as the Depositary and the Company may
agree from time to time. Responsibility for payment of such charges
and reimbursements may from time to time be changed by agreement between the
Company and the Depositary. Unless otherwise agreed, the Depositary
shall present its statement for such expenses and fees or charges to the Company
once every three months. The charges and expenses of the Custodian
are for the sole account of the Depositary.
The right
of the Depositary to receive payment of fees, charges and expenses as provided
above shall survive the termination of the Deposit Agreement. As to
any Depositary, upon the resignation or removal of such Depositary as described
in Section 5.4, such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal.
36
Section
5.10 Pre-Release
Transactions. Subject to the
further terms and provisions of this Section 5.10, the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. In its
capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided,
however, that the Depositary may (i) issue ADSs prior to the receipt of Shares
pursuant to Section 2.3 and (ii) deliver Shares prior to the receipt of ADSs for
withdrawal of Deposited Securities pursuant to Section 2.7, including ADSs which
were issued under (i) above but for which Shares may not have been received
(each such transaction a “Pre-Release
Transaction”). The Depositary may receive ADSs in lieu of
Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) subject to a
written agreement whereby the person or entity (the “Applicant”) to whom
ADSs or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(x) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (z) agrees to any additional restrictions
or requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days’ notice and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) 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 the
earnings thereon, shall be held for the benefit of the Holders (other than the
Applicant).
Section
5.11 Restricted
Securities Owners. The Company
agrees to advise in writing each of the persons or entities who, to the
knowledge of the Company, holds Restricted Securities that such Restricted
Securities are ineligible for deposit hereunder (except under the circumstances
contemplated in Section 2.14) and, to the extent practicable, shall require each
of such persons to represent in writing that such person will not deposit
Restricted Securities hereunder (except under the circumstances contemplated in
Section 2.14).
ARTICLE
VI
AMENDMENT
AND TERMINATION
Section
6.1 Amendment/Supplement. Subject to the
terms and conditions of this Section 6.1 and applicable law, the ADRs
outstanding at any time, the provisions of the Deposit Agreement and the form of
ADR attached hereto and to be issued under the terms hereof may at any time and
from time to time be amended or supplemented by written agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable without the prior written consent of the Holders or Beneficial
Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding ADSs until the expiration of thirty (30) days
after notice of such amendment or supplement shall have been given to the
Holders of outstanding ADSs. Notice of any amendment to the Deposit
Agreement or any ADR shall not need to describe in detail the specific
amendments effectuated thereby, and failure to describe the specific amendments
in any such notice shall not render such notice invalid, provided, however, that, in
each such case, the notice given to the Holders identifies a means for Holders
and Beneficial Owners to retrieve or receive the text of such amendment (i.e., upon retrieval from the
Commission’s, the Depositary’s or the Company’s website or upon request from the
Depositary). The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs to be settled solely in electronic book-entry
form and (ii) do not in either such case impose or increase any fees or charges
to be borne by Holders, shall be deemed not to materially prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such ADSs, to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement and the ADR, if
applicable, as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such ADS and
receive therefor the Deposited Securities represented thereby, except in order
to comply with mandatory provisions of applicable
law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and any ADRs at
any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to the Deposit Agreement
and any ADRs in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, rules or regulations.
37
Section
6.2 Termination. The Depositary
shall, at any time at the written direction of the Company, terminate the
Deposit Agreement by distributing notice of such termination to the Holders of
all ADSs then outstanding at least thirty (30) days prior to the date fixed in
such notice for such termination. If ninety (90) days shall have
expired after (i) the Depositary shall have delivered to the Company a written
notice of its election to resign, or (ii) the Company shall have delivered to
the Depositary a written notice of the removal of the Depositary, and, in either
case, a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4 of the Deposit Agreement, the Depositary
may terminate the Deposit Agreement by distributing notice of such termination
to the Holders of all ADSs then outstanding at least thirty (30) days prior to
the date fixed in such notice for such termination. The date so fixed
for termination of the Deposit Agreement in any termination notice so
distributed by the Depositary to the Holders of ADSs is referred to as the
“Termination
Date”. Until the Termination Date, the Depositary shall
continue to perform all of its obligations under the Deposit Agreement, and the
Holders and Beneficial Owners will be entitled to all of their rights under the
Deposit Agreement.
38
If any
ADSs shall remain outstanding after the Termination Date, the Registrar and the
Depositary shall not, after the Termination Date, have any obligation to perform
any further acts under the Deposit Agreement, except that the Depositary shall,
subject, in each case, to the terms and conditions of the Deposit Agreement,
continue to (i) collect dividends and other distributions pertaining to
Deposited Securities, (ii) sell securities and other property received in
respect of Deposited Securities, (iii) deliver Deposited Securities, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any securities or other property, in exchange for
ADSs surrendered to the Depositary (after deducting, or charging, as the case
may be, in each case, the fees and charges of, and expenses incurred by, the
Depositary, and all applicable taxes or governmental charges for the account of
the Holders and Beneficial Owners, in each case upon the terms set forth in
Section 5.9 of the Deposit Agreement), and (iv) take such actions as may be
required under applicable law in connection with its role as Depositary under
the Deposit Agreement.
At any
time after the Termination Date, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and shall after such sale hold
un-invested the net proceeds of such sale, together with any other cash then
held by it under the Deposit Agreement, in an un-segregated account and without
liability for interest, for the pro-rata benefit of the Holders whose ADSs have
not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
except (i) to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case, the fees and charges of, and
expenses incurred by, the Depositary, and all applicable taxes or governmental
charges for the account of the Holders and Beneficial Owners, in each case upon
the terms set forth in Section 5.9 of the Deposit Agreement), and (ii) as may be
required at law in connection with the termination of the Deposit
Agreement. After the Termination Date, the Company shall be
discharged from all obligations under the Deposit Agreement, except for its
obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit
Agreement. The obligations under the terms of the Deposit Agreement
of Holders and Beneficial Owners of ADSs outstanding as of the Termination Date
shall survive the Termination Date and shall be discharged only when the
applicable ADSs are presented by their Holders to the Depositary for
cancellation under the terms of the Deposit Agreement.
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Counterparts. The Deposit
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of such counterparts together shall constitute one
and the same agreement. Copies of the Deposit Agreement shall be
maintained with the Depositary and shall be open to inspection by any Holder
during business hours.
Section
7.2 No
Third-Party Beneficiaries. The Deposit
Agreement is for the exclusive benefit of the parties hereto (and their
successors) and shall not be deemed to give any legal or equitable right, remedy
or claim whatsoever to any other person, except to the extent specifically set
forth in the Deposit Agreement. Nothing in the Deposit Agreement
shall be deemed to give rise to a partnership or joint venture among the parties
nor establish a fiduciary or similar relationship among the
parties. The parties hereto acknowledge and agree that (i) the
Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in the Deposit Agreement shall (a) preclude the Depositary or
any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, and (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or
relationships.
39
Section
7.3 Severability. In case any one
or more of the provisions contained in the Deposit Agreement or in the ADRs
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
Section
7.4 Holders
and Beneficial Owners as Parties; Binding Effect. The Holders and
Beneficial Owners from time to time of ADSs issued hereunder shall be parties to
the Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of any ADR evidencing their ADSs by acceptance thereof or any
beneficial interest therein.
Section
7.5 Notices. Any and all
notices to be given to the Company shall be deemed to have been duly given if
personally delivered or sent by mail, air courier or cable, telex or facsimile
transmission, confirmed by letter personally delivered or sent by mail or air
courier, addressed to ENSCO International Limited, 000 Xxx Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX, Xxxxxx Xxxxxxx, Attention: Abogado
Nominees Limited, Company 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 or
facsimile transmission, confirmed by letter personally delivered or sent by mail
or air courier, addressed to Citibank, N.A., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, U.S.A., Attention: Depositary
Receipts Department, or to any other address which the Depositary may specify in
writing to the Company.
Any and
all notices to be given to any Holder shall be deemed to have been duly given if
(a) personally
delivered or sent by mail or cable, telex or facsimile transmission, confirmed
by letter, addressed to such Holder at the address of such Holder as it appears
on the books of the Depositary or, if such Holder shall have filed with the
Depositary a request that notices intended for such Holder be mailed to some
other address, at the address specified in such request, or (b) if a Holder shall
have designated such means of notification as an acceptable means of
notification under the terms of the Deposit Agreement, by means of electronic
messaging addressed for delivery to the e-mail address designated by the Holder
for such purpose. Notice to Holders shall be deemed to be notice to
Beneficial Owners for all purposes of the Deposit Agreement. Failure
to notify a Holder or any defect in the notification to a Holder shall not
affect the sufficiency of notification to other Holders or to the Beneficial
Owners of ADSs held by such other Holders.
40
Delivery
of a notice sent by mail, air courier or cable, telex or facsimile transmission
shall be deemed to be effective at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a cable, telex or
facsimile transmission) is deposited, postage prepaid, in a post-office letter
box or delivered to an air courier service, without regard for the actual
receipt or time of actual receipt thereof by a Holder. The Depositary
or the Company may, however, act upon any cable, telex or facsimile transmission
received by it from any Holder, the Custodian, the Depositary, or the Company,
notwithstanding that such cable, telex or facsimile transmission shall not be
subsequently confirmed by letter.
Delivery
of a notice by means of electronic messaging shall be deemed to be effective at
the time of the initiation of the transmission by the sender (as shown on the
sender’s records), notwithstanding that the intended recipient retrieves the
message at a later date, fails to retrieve such message, or fails to receive
such notice on account of its failure to maintain the designated e-mail address,
or its failure to designate a substitute e-mail address.
Section
7.6 Governing
Law and Jurisdiction. The Deposit
Agreement and the ADRs shall be interpreted in accordance with, and all rights
hereunder and thereunder and provisions hereof and thereof shall be governed by,
the laws of the State of New York without reference to the principles of choice
of law thereof such as would result in the application of the laws of any other
jurisdiction. Notwithstanding anything contained in the Deposit
Agreement, any ADR or any present or future provisions of the laws of the State
of New York, the rights of holders of Shares and of any other Deposited
Securities and the obligations and duties of the Company in respect of the
holders of Shares and other Deposited Securities, as such, shall be governed by
the laws of England and Wales (or, if applicable, such other laws as may govern
the Deposited Securities).
Except as
set forth in the following paragraph of this Section 7.6, the Company and the
Depositary agree that the federal or state courts in the City of New York shall
have jurisdiction to hear and determine any suit, action or proceeding and to
settle any dispute between them that may arise out of or in connection with the
Deposit Agreement and, for such purposes, each irrevocably submits to the
non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers ENSCO International Incorporated,
Attention: Xxxx X. Xxxxxxxx, Xx., Secretary (the “Agent”) now at 000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000 as its
authorized agent to receive and accept for and on its behalf, and on behalf of
its properties, assets and revenues, service by mail of any and all legal
process, summons, notices and documents that may be served in any suit, action
or proceeding brought against the Company in any federal or state court as
described in the preceding sentence or in the next paragraph of this Section
7.6. If for any reason the Agent shall cease to be available to act
as such, the Company agrees to designate a new agent in New York on the terms
and for the purposes of this Section 7.6 reasonably satisfactory to the
Depositary. The Company further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding against the Company, by service by mail of a copy
thereof upon the Agent (whether or not the appointment of such Agent shall for
any reason prove to be ineffective or such Agent shall fail to accept or
acknowledge such service), with a copy mailed to the Company by registered or
certified air mail, postage prepaid, to its address provided in Section
7.5. The Company agrees that the failure of the Agent to give any
notice of such service to it shall not impair or affect in any way the validity
of such service or any judgment rendered in any action or proceeding based
thereon.
41
Notwithstanding
the foregoing, the Depositary and the Company unconditionally agree that in the
event that a Holder or Beneficial Owner brings a suit, action or proceeding
against (a) the Company, (b) the Depositary in its capacity as Depositary under
the Deposit Agreement or (c) against both the Company and the Depositary, in any
such case, in any state or federal court of the United States, and the
Depositary or the Company have any claim, for indemnification or otherwise,
against each other arising out of the subject matter of such suit, action or
proceeding, then the Company and the Depositary may pursue such claim against
each other in the state or federal court in the United States in which such
suit, action, or proceeding is pending and, for such purposes, the Company and
the Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in
the manner set forth in the preceding paragraph shall be effective service upon
it for any suit, action or proceeding brought against it as described in this
paragraph.
The
Company irrevocably and unconditionally waives, to the fullest extent permitted
by law, any objection that it may now or hereafter have to the laying of venue
of any actions, suits or proceedings brought in any court as provided in this
Section 7.6, and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
The
Company irrevocably and unconditionally waives, to the fullest extent permitted
by law, and agrees not to plead or claim, any right of immunity from legal
action, suit or proceeding, from setoff or counterclaim, from the jurisdiction
of any court, from service of process, from attachment upon or prior to
judgment, from attachment in aid of execution or judgment, from execution of
judgment, or from any other legal process or proceeding for the giving of any
relief or for the enforcement of any judgment, and consents to such relief and
enforcement against it, its assets and its revenues in any jurisdiction, in each
case with respect to any matter arising out of, or in connection with, the
Deposit Agreement, any ADR or the Deposited Securities.
No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of the Deposit Agreement, in whole or in
part.
Section
7.7 Assignment. Subject to the
provisions of Section 5.4, the Deposit Agreement may not be assigned by either
the Company or the Depositary.
Section
7.8 Compliance
with U.S. Securities Laws. Notwithstanding
anything in the Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
42
Section
7.9 England
and Wales Law References. Any summary of
English laws and regulations and of the terms of the Company's Articles of
Association set forth in the Deposit Agreement have been provided by the Company
solely for the convenience of Holders, Beneficial Owners and the
Depositary. While such summaries are believed by the Company to be
accurate as of the date of the Deposit Agreement, (i) they are summaries
and as such may not include all aspects of the materials summarized applicable
to a Holder or Beneficial Owner, and (ii) these laws and regulations and the
Company's Articles of Association may change after the date of the Deposit
Agreement. Neither the Depositary nor the Company has any obligation
under the terms of the Deposit Agreement to update any such
summaries.
Section
7.10 Titles
and References.
(a) Deposit
Agreement. All references in
the Deposit Agreement to exhibits, articles, sections, subsections, and other
subdivisions refer to the exhibits, articles, sections, subsections and other
subdivisions of the Deposit Agreement unless expressly provided
otherwise. The words “the Deposit Agreement”, “herein”, “hereof”,
“hereby”, “hereunder”, and words of similar import refer to the Deposit
Agreement as a whole as in effect at the relevant time between the Company, the
Depositary and the Holders and Beneficial Owners of ADSs and not to any
particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless
the context otherwise requires. Titles to sections of the Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in the Deposit
Agreement. References to “applicable laws and regulations” shall
refer to laws and regulations applicable to ADRs, ADSs or Deposited Securities
as in effect at the relevant time of determination, unless otherwise required by
law or regulation.
(b) ADRs. All references in
any ADR(s) to paragraphs, exhibits, articles, sections, subsections, and other
subdivisions refer to the paragraphs, exhibits, articles, sections, subsections
and other subdivisions of the ADR(s) in question unless expressly provided
otherwise. The words “the Receipt”, “the ADR”, “herein”, “hereof”,
“hereby”, “hereunder”, and words of similar import used in any ADR refer to the
ADR as a whole and as in effect at the relevant time, and not to any particular
subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender in any ADR shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless
the context otherwise requires. Titles to paragraphs of any ADR are
included for convenience only and shall be disregarded in construing the
language contained in the ADR. References to “applicable laws and
regulations” shall refer to laws and regulations applicable to ADRs, ADSs or
Deposited Securities as in effect at the relevant time of determination, unless
otherwise required by law or regulation.
43
IN
WITNESS WHEREOF, ENSCO INTERNATIONAL LIMITED and CITIBANK, N.A. have duly
executed the Deposit Agreement as of the day and year first above set forth and
all Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of ADSs issued in accordance with the terms hereof, or upon acquisition of
any beneficial interest therein.
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ENSCO
INTERNATIONAL LIMITED
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By:
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/s/ Xxxxx Xxxxxx Armour | ||
| Name: | Xxxxx Xxxxxx Armour | |||
| Title: | Director | |||
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CITIBANK,
N.A.
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By:
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/s/ Xxxxxx Xxxxx | ||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Vice President | |||
44
EXHIBIT
A
[FORM
OF ADR]
| Number _______ | CUSIP NUMBER: _______ | |
|
American
Depositary Shares (each American Depositary Share representing the right
to receive one (1) Fully Paid Class A ordinary
share)
|
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
CLASS A ORDINARY SHARES
of
ENSCO
International Limited
(Incorporated
under the laws of England and Wales)
CITIBANK,
N.A., a national banking association organized and existing under the laws of
the United States of America, as depositary (the “Depositary”), hereby certifies
that _____________is the owner of ______________ American Depositary Shares
(hereinafter “ADS”), representing deposited Class A ordinary shares, including
evidence of rights to receive such Class A ordinary shares (the “Shares”), of
ENSCO International Limited, a corporation incorporated under the laws of
England and Wales (the “Company”). As of the date of the Deposit
Agreement (as hereinafter defined), each ADS represents the right to receive one
(1) Share deposited under the Deposit Agreement with the Custodian, which at the
date of execution of the Deposit Agreement is Citibank, N.A. (London Branch)
(the “Custodian”). The ADS(s)-to-Share(s) ratio is subject to
amendment as provided in Articles IV and VI of the Deposit
Agreement. The Depositary’s Principal Office is located at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-1
(1) The
Deposit Agreement. This American
Depositary Receipt is one of an issue of American Depositary Receipts (“ADRs”),
all issued and to be issued upon the terms and conditions set forth in the
Deposit Agreement, dated as of September 29, 2009 (as amended and supplemented
from time to time, the “Deposit Agreement”), by and among the Company, the
Depositary, and all Holders and Beneficial Owners from time to time of ADSs
issued thereunder. The Deposit Agreement sets forth the rights and
obligations of Holders and Beneficial Owners of ADSs and the rights and duties
of the Depositary in respect of the Shares deposited thereunder and any and all
other securities, property and cash from time to time received in respect of
such Shares and held thereunder (such Shares, securities, property and cash are
herein called “Deposited Securities”). Copies of the Deposit
Agreement are on file at the Principal Office of the Depositary and with the
Custodian. Each Holder and each Beneficial Owner, upon acceptance of
any ADSs (or any interest therein) issued in accordance with the terms and
conditions of the Deposit Agreement, shall be deemed for all purposes to (a) be
a party to and bound by the terms of the Deposit Agreement and applicable
ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated in
the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement and the applicable ADR(s), the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
The
statements made on the face and reverse of this ADR are summaries of certain
provisions of the Deposit Agreement and the Articles of Association of the
Company (as in effect on the date of the signing of the Deposit Agreement) and
are qualified by and subject to the detailed provisions of the Deposit Agreement
and the Articles of Association, to which reference is hereby
made. All capitalized terms used herein which are not otherwise
defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to
the validity or worth of the Deposited Securities. The Depositary has
made arrangements for the acceptance of the ADSs into DTC. Each
Beneficial Owner of ADSs held through DTC must rely on the procedures of DTC and
the DTC Participants to exercise and be entitled to any rights attributable to
such ADSs. The Depositary may issue Uncertificated ADSs subject,
however, to the terms and conditions of Section 2.13 of the Deposit
Agreement.
(2) Withdrawal
of Deposited Securities. The Holder of this ADR
(and of the ADSs evidenced hereby) shall be entitled to Delivery (at the
Custodian’s designated office) of the Deposited Securities at the time
represented by the ADSs evidenced hereby upon satisfaction of each of the
following conditions: (i) the Holder (or a duly authorized attorney of the
Holder) has duly Delivered ADSs to the Depositary at its Principal Office the
ADSs evidenced hereby (and, if applicable, this ADR) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if applicable
and so required by the Depositary, this ADR Delivered to the Depositary for such
purpose has been properly endorsed in blank or is accompanied by proper
instruments of transfer in blank (including signature guarantees in accordance
with standard securities industry practice), (iii) if so required by the
Depositary, the Holder of the ADSs has executed and delivered to the Depositary
a written order directing the Depositary to cause the Deposited Securities being
withdrawn to be Delivered to or upon the written order of the person(s)
designated in such order, and (iv) all applicable fees and charges of, and
expenses incurred by, the Depositary and all applicable taxes and governmental
charges (as are set forth in Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this ADR evidencing the surrendered
ADSs, of the Deposit Agreement, of the Company’s Articles of Association, and of
any applicable laws, and to any provisions of or governing the Deposited
Securities, in each case as in effect at the time thereof.
A-2
Upon
satisfaction of each of the conditions specified above, the Depositary (i) shall
cancel the ADSs Delivered to it (and, if applicable, the ADR(s) evidencing the
ADSs so Delivered), (ii) shall direct the Registrar to record the
cancellation of the ADSs so Delivered on the books maintained for such purpose,
and (iii) shall direct the Custodian to Deliver, or cause the Delivery of,
in each case, without unreasonable delay, the Deposited Securities
represented by the ADSs so canceled together with any certificate or other
document of title for the Deposited Securities, or evidence of the electronic
transfer thereof (if available), as the case may be, to or upon the written
order of the person(s) designated in the order delivered to the Depositary for
such purpose, subject however,
in each case, to the terms and conditions of the Deposit Agreement, of
this ADR evidencing the ADS so cancelled, of the Articles of Association of the
Company, and of any applicable laws, and to the terms and conditions
of or governing the Deposited Securities, in each case as in effect
at the time thereof.
The
Depositary shall not accept for surrender ADSs representing less than one (1)
Share. In the case of Delivery to it of ADSs representing a number
other than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return
to the person surrendering such ADSs the number of ADSs representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Share represented by the ADSs so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the
ADSs. Notwithstanding anything else contained in this ADR or the
Deposit Agreement, the Depositary may make delivery at the Principal Office of
the Depositary of (i) any cash dividends or cash distributions, or
(ii) any proceeds from the sale of any distributions of shares or rights,
which are at the time held by the Depositary in respect of the Deposited
Securities represented by the ADSs surrendered for cancellation and
withdrawal. At the request, risk and expense of any Holder so
surrendering ADSs represented by this ADR, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
(3) Transfer,
Combination and Split-Up of ADRs. The Registrar
shall register the transfer of this ADR (and of the ADSs represented hereby) on
the books maintained for such purpose and the Depositary shall (x) cancel
this ADR and execute new ADRs evidencing the same aggregate number of ADSs as
those evidenced by this ADR when canceled by the Depositary, (y) cause the
Registrar to countersign such new ADRs, and (z) Deliver such new ADRs to or
upon the order of the person entitled thereto, if each of the following
conditions has been satisfied: (i) this ADR has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a transfer
thereof, (ii) this surrendered ADR has been properly endorsed or is
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this surrendered
ADR has been duly stamped (if required by the laws of the State of New York or
of the United States), and (iv) all applicable fees and charges of, and
expenses incurred by, the Depositary and all applicable taxes and governmental
charges (as are set forth in Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this ADR, of the Deposit Agreement
and of applicable law, in each case as in effect at the time
thereof.
A-3
The
Registrar shall register the split-up or combination of this ADR (and of the
ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of
ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced
by this ADR, (y) cause the Registrar to countersign such new ADRs, and
(z) Deliver such new ADRs to or upon the order of the Holder thereof, if
each of the following conditions has been satisfied: (i) this
ADR has been duly Delivered by the Holder (or by a duly authorized attorney of
the Holder) to the Depositary at its Principal Office for the purpose of
effecting a split-up or combination hereof, and (ii) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and government charges (as are set forth in Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this ADR, of the Deposit Agreement
and of applicable law, in each case as in effect at the time
thereof.
(4) Pre-Conditions
to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, the registration of issuance, transfer,
split-up, combination or surrender, of any ADR, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B to the
Deposit Agreement and in this ADR, (ii) the production of proof satisfactory to
it as to the identity and genuineness of any signature or any other matters
contemplated in Section 3.1 of the Deposit Agreement, and (iii) compliance with
(A) any laws or governmental regulations relating to the execution and delivery
of ADRs or ADSs or to the withdrawal of Deposited Securities and (B) such
reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of this ADR, the Deposit Agreement and applicable
law.
A-4
The
issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the deposit of particular Shares may be
refused, or the registration of transfer of ADSs in particular instances may be
refused, or the registration of transfer of ADSs generally may be suspended,
during any period when the transfer books of the Company, the Depositary, a
Registrar or the Share Registrar are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law or regulation, any
government or governmental body or commission or any securities exchange on
which the Shares or ADSs are listed, or under any provision of the Deposit
Agreement or this ADR, or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject, in all cases to paragraph
(24). Notwithstanding any provision of the Deposit Agreement or this
ADR to the contrary, Holders are entitled to surrender outstanding ADSs to
withdraw the Deposited Securities associated therewith at any time subject only
to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with voting at
a shareholders’ meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the ADSs or the withdrawal of the Deposited
Securities, and (iv) other circumstances specifically contemplated by
Instruction I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
(5) Compliance
With Information Requests. Notwithstanding
any other provision of the Deposit Agreement or this ADR, each Holder and
Beneficial Owner of the ADSs represented hereby agrees to comply with requests
from the Company pursuant to applicable law, the rules and requirements of The
New York Stock Exchange, and of any other stock exchange on which Shares or ADS
are, or may be, registered, traded or listed, or the Articles of Association of
the Company, which are made to provide information, inter alia, as to the
capacity in which such Holder or Beneficial Owner owns ADSs (and Shares, as the
case may be) and regarding the identity of any other person(s) interested in
such ADSs and the nature of such interest and various other matters, whether or
not they are Holders and/or Beneficial Owners at the time of such
request.
(6) Ownership
Restrictions. Notwithstanding
any provision of this ADR or of the Deposit Agreement, the Company may restrict
transfers of the Shares where such transfer might result in ownership of Shares
exceeding limits imposed by applicable law or the Articles of Association of the
Company. The Company may also restrict, in such manner as it deems
appropriate, transfers of the ADSs where such transfer may result in the total
number of Shares represented by the ADSs owned by a single Holder or Beneficial
Owner to exceed any such limits. The Company may, in its sole
discretion but subject to applicable law, instruct the Depositary to take action
with respect to the ownership interest of any Holder or Beneficial Owner in
excess of the limits set forth in the preceding sentence, including but not
limited to, the imposition of restrictions on the transfer of ADSs, the removal
or limitation of voting rights or mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Shares represented by the ADSs held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Articles of Association
of the Company. Nothing herein or in the Deposit Agreement shall be
interpreted as obligating the Depositary or the Company to ensure compliance
with the ownership restrictions described herein or in Section 3.5 of the
Deposit Agreement.
A-5
Applicable
laws and regulations may require holders and beneficial owners of Shares,
including the Holders and Beneficial Owners of ADSs, to satisfy reporting
requirements and obtain regulatory approvals in certain
circumstances. Holders and Beneficial Owners of ADSs are solely
responsible for determining and complying with such reporting requirements, and
for obtaining such approvals. Each Holder and each Beneficial Owner
hereby agrees to make such determination, file such reports, and obtain such
approvals to the extent and in the form required by applicable laws and
regulations as in effect from time to time. Neither the Depositary,
the Custodian, the Company or any of their respective agents or affiliates shall
be required to take any actions whatsoever on behalf of Holders or Beneficial
Owners to determine and satisfy such reporting requirements or obtain such
regulatory approvals under applicable laws and regulations.
(7) Liability
of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable with respect to any ADR or any Deposited Securities
or ADSs shall be payable by the Holders and Beneficial Owners to the
Depositary. The Company, the Custodian and/or Depositary may withhold
or deduct from any distributions made in respect of Deposited Securities and may
sell for the account of a Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in payment
of such taxes (including applicable interest and penalties) or charges, the
Holder and the Beneficial Owner hereof remaining liable for any
deficiency. The Custodian may refuse the deposit of Shares and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer of
ADSs, register the split-up or combination of ADRs and (subject to paragraph
(24) hereof) the withdrawal of Deposited Securities until payment in full of
such tax, charge, penalty or interest is received. Every Holder and
Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian,
and any of their agents, officers, employees and Affiliates for, and hold each
of them harmless from, any claims with respect to taxes (including applicable
interest and penalties thereon) arising from any tax benefit obtained for such
Holder and/or Beneficial Owner.
(8) Representations
and Warranties of Depositors. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares have been validly waived or exercised, (iii) the
person making such deposit is duly authorized so to do, (iv) the Shares
presented for deposit are free and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim, and (v) the Shares presented for
deposit are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities (except as contemplated in Section 2.14 of the Deposit Agreement),
and (vi) the Shares presented for deposit have not been stripped of any
rights or entitlements. Such representations and warranties shall
survive the deposit and withdrawal of Shares, the issuance and cancellation of
ADSs in respect thereof and the transfer of such ADSs. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
A-6
(9) Filing
Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Shares Registrar) as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under the Deposit Agreement
and the applicable ADR(s). The Depositary and the Registrar, as
applicable, may withhold the execution or delivery or registration of transfer
of any ADR or ADS or the distribution or sale of any dividend or distribution of
rights or of the proceeds thereof or, to the extent not limited by paragraph
(24), the delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations and warranties are made or such other information or
documentation are provided, in each case to the Depositary’s, the Registrar’s
and the Company’s satisfaction.
(10) Charges
of Depositary. The Depositary
shall not charge any fees to Holders or Beneficial Owners of ADSs.
However,
Holders, Beneficial Owners, persons depositing Shares and persons surrendering
ADSs for cancellation and for the purpose of withdrawing Deposited Securities
shall be responsible for the following charges:
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(a)
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taxes
(including applicable interest and penalties) and other governmental
charges;
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(b)
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such
registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals,
respectively;
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(c)
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such
cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
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(d)
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the
expenses and charges incurred by the Depositary in the conversion of
foreign currency;
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(e)
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such
fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
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(f)
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the
fees and expenses incurred by the Depositary, the Custodian, or any
nominee in connection with the delivery or servicing of Deposited
Securities.
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A-7
All fees
and charges may, at any time and from time to time, be changed by agreement
between the Depositary and Company but, in the case of fees and charges payable
by Holders or Beneficial Owners, only in the manner contemplated by paragraph
(22) of this ADR and as contemplated in the Deposit Agreement. The
Depositary will provide, without charge, a copy of its latest fee schedule to
anyone upon request.
The right
of the Depositary to receive payment of charges and expenses as provided above
shall survive the termination of the Deposit Agreement. As to any
Depositary, upon the resignation or removal of such Depositary as described in
Section 5.4, such right shall extend for those charges and expenses incurred
prior to the effectiveness of such resignation or removal.
(11) Title to
ADRs. It is a condition
of this ADR, and every successive Holder of this ADR by accepting or holding the
same consents and agrees, that title to this ADR (and to each ADS evidenced
hereby) shall be transferable upon the same terms as a certificated security
under the laws of the State of New York, provided that, in the case of
Certificated ADSs, such ADR has been properly endorsed or is accompanied by
proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of this
ADR (that is, the person in whose name this ADR is registered on the books of
the Depositary) as the absolute owner thereof for all
purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or this
ADR to any holder of this ADR or any Beneficial Owner unless, in the case of a
holder of ADSs, such holder is the Holder of this ADR registered on the books of
the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or
the Beneficial Owner’s representative is the Holder registered on the books of
the Depositary.
(12) Validity
of ADR. The Holder(s) of
this ADR (and the ADSs represented hereby) shall not be entitled to any benefits
under the Deposit Agreement or be valid or enforceable for any purpose against
the Depositary or the Company unless this ADR has been (i) dated, (ii) signed by
the manual or facsimile signature of a duly-authorized signatory of the
Depositary, (iii) countersigned by the manual or facsimile signature of a
duly-authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
ADRs. An ADR bearing the facsimile signature of a duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature was a
duly authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such ADR by the
Depositary.
(13) Available
Information; Reports; Inspection of Transfer Books. The Company may
be subject to the periodic reporting requirements of the Exchange Act and, if it
is, it will be required to file or submit certain reports with the
Commission. These reports can be retrieved from the Commission's
website (xxx.xxx.xxx) and can
be inspected and copied at the public reference facilities maintained by the
Commission located (as of the date of the Deposit Agreement) at 000 X Xxxxxx,
X.X., Xxxxxxxxxx X.X. 00000. The Depositary shall make
available 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.
A-8
The
Registrar shall keep books for the registration of ADSs which at all reasonable
times shall be open for inspection by the Company and by the Holders of such
ADSs, provided that such inspection shall not be, to the Registrar’s knowledge,
for the purpose of communicating with Holders of such ADSs in the interest of a
business or object other than the business of the Company or other than a matter
related to the Deposit Agreement or the ADSs.
The
Registrar may close the transfer books with respect to the ADSs, at any time or
from time to time, when deemed necessary or advisable by it in good faith in
connection with the performance of its duties hereunder, or at the reasonable
written request of the Company subject, in all cases, to paragraph
(24).
Dated:
|
CITIBANK,
N.A.
Transfer
Agent and Registrar
|
CITIBANK,
N.A.
as
Depositary
|
|||
|
By:
|
|
By: |
|
|
|
Authorized
Signatory
|
Authorized
Signatory
|
|||
The
address of the Principal Office of the Depositary is 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
A-9
[FORM
OF REVERSE OF ADR]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF THE
DEPOSIT AGREEMENT
(14) Dividends
and Distributions in Cash, Shares, etc. Upon the timely
receipt by the Depositary of a notice from the Company that it intends to make a
distribution of a cash dividend or other cash distribution, the Depositary shall
establish an ADS Record Date upon the terms described in Section
4.9. Upon receipt of confirmation from the Custodian of receipt of
any cash dividend or other cash distribution on any Deposited Securities, or
upon receipt of proceeds from the sale of any Deposited Securities or of any
entitlements held in respect of Deposited Securities under the terms of the
Deposit Agreement, the Depositary will (i) if at the time of receipt
thereof any amounts received in a Foreign Currency can in the judgment of the
Depositary (upon the terms of Section 4.8 of the Deposit Agreement), be
converted on a practicable basis into Dollars transferable to the United States,
promptly convert or cause to be converted such cash dividend, distribution or
proceeds into Dollars (upon the terms of Section 4.8 of the Deposit Agreement),
(ii) if applicable and unless previously established, establish the ADS
Record Date upon the terms described in Section 4.9 of the Deposit Agreement,
and (iii) distribute promptly the amount thus received (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes withheld) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of ADSs outstanding at the time of the
next distribution. If the Company, the Custodian or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, duties or other governmental charges, the amount distributed to Holders
on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company,
the Custodian or the Depositary to the relevant governmental
authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
Upon the
timely receipt by the Depositary of a notice from the Company that it intends to
make a distribution that consists of a dividend in, or free distribution of
Shares, the Depositary shall establish an ADS Record Date upon the terms
described in Section 4.9 of the Deposit Agreement. Upon receipt of
confirmation from the Custodian of the receipt of the Shares so distributed by
the Company, the Depositary shall either (i) subject to Section 5.9 of the
Deposit Agreement, distribute to the Holders as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date, additional
ADSs, which represent in the aggregate the number of Shares received as such
dividend, or free distribution, subject to the other terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, take all actions necessary so that each
ADS issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interest in the
additional integral number of Shares distributed upon the Deposited Securities
represented thereby (net of (a) the applicable fees and charges of, and expenses
incurred by, the Depositary, and (b) taxes). In lieu of delivering
fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the
case may be, represented by the aggregate of such fractions and distribute the
net proceeds upon the terms set forth in Section 4.1 of the Deposit
Agreement.
A-10
In the
event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, or, if the Company in the fulfillment of
its obligations under Section 5.7 of the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable, and the Depositary
shall distribute the net proceeds of any such sale (after deduction of (a) taxes
and (b) fees and charges of, and the expenses incurred by, the Depositary)
to Holders entitled thereto upon the terms of Section 4.1 of the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
Upon the
timely receipt of a notice indicating that the Company wishes an elective
distribution in cash or Shares to be made available to Holders of ADSs upon the
terms described in the Deposit Agreement, the Company and the Depositary shall
determine whether such distribution is lawful and reasonably
practicable. If so, the Depositary shall, subject to the terms and
conditions of the Deposit Agreement, establish an ADS Record Date according to
paragraph (16) and establish procedures to enable the Holder hereof to elect to
receive the proposed distribution in cash or in additional ADSs. If a
Holder elects to receive the distribution in cash, the distribution shall be
made as in the case of a distribution in cash. If the Holder hereof
elects to receive the distribution in additional ADSs, the distribution shall be
made as in the case of a distribution in Shares upon the terms described in the
Deposit Agreement. If such elective distribution is not reasonably
practicable or if the Depositary did not receive satisfactory documentation set
forth in the Deposit Agreement, the Depositary shall establish an ADS Record
Date upon the terms of Section 4.9 of the Deposit Agreement and, to the extent
permitted by law, distribute to Holders, on the basis of the same determination
as is made in England and Wales in respect of the Shares for which no election
is made, either (x) cash or (y) additional ADSs representing such
additional Shares, in each case, upon the terms described in the Deposit
Agreement. Nothing herein or in the Deposit Agreement shall obligate
the Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no
assurance that the Holder hereof will be given the opportunity to receive
elective distributions on the same terms and conditions as the holders of
Shares.
A-11
Upon the
timely receipt by the Depositary of a notice indicating that the Company wishes
rights to subscribe for additional Shares to be made available to Holders of
ADSs, the Depositary upon consultation with the Company, shall determine,
whether it is lawful and reasonably practicable to make such rights available to
the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the Depositary
shall sell the rights as described below. In the event all conditions
set forth above are satisfied, the Depositary shall establish an ADS Record Date
(upon the terms described in Section 4.9 of the Deposit Agreement) and establish
procedures (x) to distribute rights to purchase additional ADSs (by means
of warrants or otherwise), (y) to enable the Holders to exercise such
rights (upon payment of the subscription price and of the applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes), and
(z) to deliver ADSs upon the valid exercise of such
rights. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs). If (i) the Company does not
timely request the Depositary to make the rights available to Holders or
requests that the rights not be made available to Holders, (ii) the
Depositary fails to receive satisfactory documentation within the terms of
Section 5,7 of the Deposit Agreement or determines it is not reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall determine whether it is lawful and reasonably practicable to sell such
rights, in a riskless principal capacity, at such place and upon such terms
(including public and private sale) as it may deem practicable. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) upon the terms hereof and of Section 4.1 of the
Deposit Agreement. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) of the Deposit
Agreement or to arrange for the sale of the rights upon the terms described in
Section 4.4(b) of the Deposit Agreement, the Depositary shall allow such rights
to lapse. 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 ADS Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding
anything herein or in the Deposit Agreement to the contrary, if registration
(under the Securities Act or any other applicable law) of the rights or the
securities to which any rights relate may be required in order for the Company
to offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not distribute such rights to
the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for
the Company 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 of ADSs representing such
Deposited Securities 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 or charges.
A-12
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as the
holders of Shares or be able to exercise such rights. Nothing herein
or in the Deposit Agreement shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
Upon
receipt of a notice indicating that the Company wishes property other than cash,
Shares or rights to purchase additional Shares, to be made to Holders of ADSs,
the Depositary shall determine whether such distribution to Holders is lawful
and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is 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 them 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
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 practicable and shall (i) cause the proceeds of
such sale, if any, to be converted into Dollars and (ii) distribute the
proceeds of such conversion received by the Depositary (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to
the Holders as of the ADS Record Date upon the terms hereof and of the Deposit
Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
(15) Redemption. Upon timely
receipt of notice from the Company that it intends to exercise its right of
redemption in respect of any of the Deposited Securities, and a satisfactory
opinion of counsel, and upon determining that such proposed redemption is
practicable, the Depositary shall (to the extent practicable) provide to each
Holder a notice setting forth the Company’s intention to exercise the redemption
rights and any other particulars set forth in the Company’s notice to the
Depositary. Upon receipt of confirmation that the redemption has
taken place and that funds representing the redemption price have been received,
the Depositary shall convert, transfer, distribute the proceeds (net of
applicable (a) fees and charges of, and expenses incurred by, the Depositary,
and (b) taxes), retire ADSs and cancel ADRs, if applicable, upon delivery of
such ADSs by Holders thereof upon the terms set forth in Sections 4.1 and 6.2 of
the Deposit Agreement. If less than all outstanding Deposited
Securities are redeemed, the ADSs to be retired will be selected by lot or on a
pro rata basis, as may be determined by the Depositary. The
redemption price per ADS shall be the dollar equivalent of the per share amount
received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio)
upon the redemption of the Deposited Securities represented by ADSs (subject to
the terms of Section 4.8 of the Deposit Agreement and the applicable fees and
charges of, and expenses incurred by, the Depositary, and taxes) multiplied by
the number of Deposited Securities represented by each ADS
redeemed.
A-13
(16) Fixing of
ADS Record Date. Whenever the
Depositary shall receive notice of the fixing of a record date by the Company
for the determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of, or solicitation of consents or proxies of, holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date (“ADS
Record Date”) for the determination of the Holders of ADSs who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, to give or withhold such consent, to receive
such notice or solicitation or to otherwise take action, or to exercise the
rights of Holders with respect to such changed number of Shares represented by
each ADS. Subject to applicable law and the terms and conditions of
this ADR and Sections 4.1 through 4.8 of the Deposit Agreement, only the Holders
of ADSs at the close of business in New York on such ADS Record Date shall be
entitled to receive such distributions, to give such instructions, to receive
such notice or solicitation, or otherwise take action.
(17) Voting of
Deposited Securities. As soon as
practicable after receipt of notice of any meeting at which the holders of
Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall fix the ADS
Record Date in respect of such meeting or solicitation of such consent or proxy
in accordance with Section 4.9 of the Deposit Agreement. The
Depositary shall, if requested by the Company in writing in a timely manner (the
Depositary having no obligation to take any further action if the request shall
not have been received by the Depositary at least thirty (30) days prior to the
date of such vote or meeting), at the Company’s expense and provided no U.S.
legal prohibitions exist, distribute to Holders as of the ADS Record
Date: (a) such notice of meeting or solicitation of consent or
proxies, (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 provisions of
the Deposit Agreement, the Company’s Articles of Association and the provisions
of or governing Deposited Securities (which provisions, if any, shall be
summarized in pertinent part by the Company), to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by such Holder’s ADSs and (c) a brief statement as to the
manner in which such voting instructions may be given.
A-14
Notwithstanding
anything contained in the Deposit Agreement or any ADR, the Depositary may, to
the extent not prohibited by law or regulations, or by the requirements of the
stock exchange on which the ADSs are listed, in lieu of distribution of the
materials provided to the Depositary in connection with any meeting of, or
solicitation of consents or proxies from, holders of Deposited Securities,
distribute to the Holders a notice that provides Holders with, or otherwise
publicize to Holders, instructions on how to retrieve such materials or receive
such materials upon request (i.e., by reference to a
website containing the materials for retrieval or a contact for requesting
copies of the materials).
Voting
instructions may be given only in respect of a number of ADSs representing an
integral number of Deposited Securities. Upon the timely receipt of
voting instructions from a Holder of ADSs as of the ADS Record Date in the
manner specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law and the provisions of the Deposit
Agreement, the Articles of Association of the Company and the provisions of the
Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities (in person or by proxy) represented by such Holder’s ADSs 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 Deposited Securities represented by
ADSs, except pursuant to and in accordance with the voting instructions timely
received from Holders or as otherwise contemplated herein. If the
Depositary timely receives voting instructions from a Holder which fail to
specify the manner in which the Depositary is to vote the Deposited Securities
represented by such Holder’s ADSs, the Depositary will deem such Holder (unless
otherwise specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such
instructions. Deposited Securities represented by ADSs for which no
timely voting instructions are received by the Depositary from the Holder shall
not be voted. Notwithstanding anything else contained in the Deposit
Agreement or in this ADR, the Depositary shall not have any obligation to take
any action with respect to any meeting, or solicitation of consents or proxies,
of holders of Deposited Securities if the taking of such action would violate
U.S. laws. The Company agrees to take any and all actions reasonably
necessary to enable Holders and Beneficial Owners to exercise the voting rights
accruing to the Deposited Securities and to deliver to the Depositary an opinion
of U.S. counsel addressing any actions requested to be taken if so requested by
the Depositary. There can be no assurance that Holders generally or
any Holder in particular will receive the notice described above with sufficient
time to enable the Holder to return voting instructions to the Depositary in a
timely manner.
A-15
(18) Changes
Affecting Deposited Securities. Upon any change
in nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger, consolidation or sale of assets affecting the Company or
to which it is a party, any securities which shall be received by the Depositary
or the Custodian in exchange for, or in conversion of or replacement of or
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the ADRs shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. In giving effect to such change,
split-up, cancellation, consolidation or other reclassification of Deposited
Securities, recapitalization, reorganization, merger, consolidation or sale of
assets, the Depositary may, with the Company’s approval, and shall, if the
Company shall so request, subject to the terms of the Deposit Agreement and
receipt of an opinion of counsel to the Company satisfactory to the Depositary
that such actions are not in violation of any applicable laws or regulations,
(i) issue and deliver additional ADSs as in the case of a stock dividend on
the Shares, (ii) amend the Deposit Agreement and the applicable ADRs, (iii)
amend the applicable Registration Statement(s) on Form F-6 as filed with the
Commission in respect of the ADSs, (iv) call for the surrender of
outstanding ADRs to be exchanged for new ADRs, and (v) take such other actions
as are appropriate to reflect the transaction with respect to the
ADSs. Notwithstanding the foregoing, in the event that any security
so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company’s approval, and shall, if the Company requests,
subject to receipt of an opinion of Company’s counsel satisfactory to the
Depositary that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes) for the account of the Holders otherwise
entitled to such securities upon an averaged or other practicable basis without
regard to any distinctions among such Holders and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to Section 4.1 of the Deposit Agreement. The Depositary
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. Notwithstanding the foregoing provisions of Section 4.11
of the Deposit Agreement, no amendment or alteration of the rights of Deposited
Securities pursuant to an amendment of the Articles of Association of the
Company shall be a reclassification, recapitalization, reorganization or other
change in the Deposited Securities so as to cause such Deposited Securities to
be new Deposited Securities under the Deposit Agreement, to cause a new deposit
of Deposited Securities under the Deposit Agreement, or to cause the ADSs
representing such Deposited Securities to be new ADSs notwithstanding any change
in the description or name of such Deposited Securities, any change of the name
of the Company, any requirement to amend any applicable Registration
Statement(s) on Form F-6 as filed with the Commission in respect of the ADS or
any change in the form of ADRs evidencing such ADSs.
(19) Exoneration. Neither the
Depositary nor the Company shall be obligated to do or perform any act which is
inconsistent with the provisions of the Deposit Agreement or incur any liability
(i) if the Depositary or the Company shall be prevented or forbidden from, or
delayed in, doing or performing any act or thing required by the terms of the
Deposit Agreement and this ADR, by reason of any provision of any present or
future law or regulation of the United States, England and Wales or any other
country, or of any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future, of the Articles of
Association of the Company or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, acts of terrorism,
revolutions, rebellions, explosions and computer failure), (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement or in the Articles of Association of the Company or provisions of or
governing Deposited Securities, (iii) for any action or inaction in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for the inability by a Holder
or Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of the Deposit Agreement, made available to Holders of ADSs or
(v) for any consequential or punitive damages for any breach of the terms of the
Deposit Agreement. The Depositary, its controlling persons, its
agents, any Custodian and the Company, its controlling persons and its agents
may rely and shall be protected in acting upon any written notice, request or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties. No disclaimer of liability under the
Securities Act is intended by any provision of the Deposit Agreement or this
ADR.
A-16
(20) Standard
of Care. The Company and
the Depositary assume no obligation and shall not be subject to any liability
under the Deposit Agreement or this ADR to any Holder(s) or Beneficial Owner(s),
except that the Company and Depositary agree to perform their respective
obligations specifically set forth in the Deposit Agreement and this ADR without
negligence or bad faith. The Depositary and its agents shall not be
liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of the Deposit Agreement. The Depositary
shall not incur any liability for any failure to determine that any distribution
or action may be lawful or reasonably practicable, for the content of any
information submitted to it by the Company for distribution to the Holders or
for any inaccuracy of any translation thereof, for any investment risk
associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon the
terms of the Deposit Agreement, for the failure or timeliness of any notice from
the Company, or for any action or failure to act by, or any information provided
or not provided by, DTC or any DTC participant.
(21) Resignation
and Removal of the Depositary; Appointment of Successor Depositary. The Depositary
may at any time resign as Depositary under the Deposit Agreement by written
notice of resignation delivered to the Company, such resignation to be effective
on the earlier of (i) the 90th day after delivery thereof to the Company
(whereupon the Depositary shall be entitled to take the actions contemplated in
Section 6.2 of the Deposit Agreement), or (ii) upon the appointment of a
successor depositary by the Company and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may at any time be
removed by the Company by written notice of such removal, which removal shall be
effective on the later of (i) the 90th day after delivery thereof to the
Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 of the Deposit Agreement), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. 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 be required by the Company to
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed (except as required by applicable
law), shall become fully vested with all the rights, powers, duties and
obligations of its predecessor (other than as contemplated in Sections 5.8 and
5.9 of the Deposit Agreement). The predecessor depositary, upon
payment of all sums due it and on the written request of the Company, shall
(i) execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor under the Deposit Agreement and this ADR
(other than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement),
(ii) duly assign, transfer and deliver all right, title and interest to the
Deposited Securities to such successor, and (iii) deliver to such successor a
list of the Holders of all outstanding ADSs and such other information relating
to ADSs and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly provide notice of its appointment to such
Holders. Any corporation into or with which the Depositary may be
merged or consolidated shall be the successor of the Depositary without the
execution or filing of any document or any further act.
A-17
(22) Amendment/Supplement. Subject to the
terms and conditions of this paragraph 22, the Deposit Agreement and applicable
law, this ADR and any provisions of the Deposit Agreement may at any time and
from time to time be amended or supplemented by written agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable without the prior written consent of the Holders or Beneficial
Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding ADSs until the expiration of thirty (30) days
after notice of such amendment or supplement shall have been given to the
Holders of outstanding ADSs. Notice of any amendment to the Deposit
Agreement or any ADR shall not need to describe in detail the specific
amendments effectuated thereby, and failure to describe the specific amendments
in any such notice shall not render such notice invalid, provided, however, that, in
each such case, the notice given to the Holders identifies a means for Holders
and Beneficial Owners to retrieve or receive the text of such amendment (i.e., upon retrieval from the
Commission’s, the Depositary’s or the Company’s website or upon request from the
Depositary). The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs to be settled solely in electronic book-entry
form and (ii) do not in either such case impose or increase any fees or charges
to be borne by Holders, shall be deemed not to materially prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such ADSs, to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement and this ADR,
if applicable, as amended or supplemented thereby. In no event shall
any amendment or supplement impair the right of the Holder to surrender such ADS
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable
law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and this ADR at
any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to the Deposit Agreement
and this ADR in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, rules or regulations.
A-18
(23) Termination. The Depositary
shall, at any time at the written direction of the Company, terminate the
Deposit Agreement by distributing notice of such termination to the Holders of
all ADSs then outstanding at least thirty (30) days prior to the date fixed in
such notice for such termination. If ninety (90) days shall have
expired after (i) the Depositary shall have delivered to the Company a written
notice of its election to resign, or (ii) the Company shall have delivered to
the Depositary a written notice of the removal of the Depositary, and, in either
case, a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4 of the Deposit Agreement, the Depositary
may terminate the Deposit Agreement by distributing notice of such termination
to the Holders of all ADSs then outstanding at least thirty (30) days prior to
the date fixed in such notice for such termination. The date so fixed
for termination of the Deposit Agreement in any termination notice so
distributed by the Depositary to the Holders of ADSs is referred to as the
“Termination
Date”. Until the Termination Date, the Depositary shall
continue to perform all of its obligations under the Deposit Agreement, and the
Holders and Beneficial Owners will be entitled to all of their rights under the
Deposit Agreement. If any ADSs shall remain outstanding after the
Termination Date, the Registrar and the Depositary shall not, after the
Termination Date, have any obligation to perform any further acts under the
Deposit Agreement, except that the Depositary shall, subject, in each case, to
the terms and conditions of the Deposit Agreement, continue to (i) collect
dividends and other distributions pertaining to Deposited Securities, (ii) sell
securities and other property received in respect of Deposited Securities, (iii)
deliver Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any securities
or other property, in exchange for ADSs surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case, the fees and charges
of, and expenses incurred by, the Depositary, and all applicable taxes or
governmental charges for the account of the Holders and Beneficial Owners, in
each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and
(iv) take such actions as may be required under applicable law in connection
with its role as Depositary under the Deposit Agreement. At any time
after the Termination Date, the Depositary may sell the Deposited Securities
then held under the Deposit Agreement and shall after such sale hold un-invested
the net proceeds of such sale, together with any other cash then held by it
under the Deposit Agreement, in an un-segregated account and without liability
for interest, for the pro-rata benefit of the Holders whose ADSs have not
theretofore been surrendered. After making such sale, the Depositary
shall be discharged from all obligations under the Deposit Agreement except (i)
to account for such net proceeds and other cash (after deducting, or charging,
as the case may be, in each case, the fees and charges of, and expenses incurred
by, the Depositary, and all applicable taxes or governmental charges for the
account of the Holders and Beneficial Owners, in each case upon the terms set
forth in Section 5.9 of the Deposit Agreement), and (ii) as may be required at
law in connection with the termination of the Deposit
Agreement. After the Termination Date, the Company shall be
discharged from all obligations under the Deposit Agreement, except for its
obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit
Agreement. The obligations under the terms of the Deposit Agreement
of Holders and Beneficial Owners of ADSs outstanding as of the Termination Date
shall survive the Termination Date and shall be discharged only when the
applicable ADSs are presented by their Holders to the Depositary for
cancellation under the terms of the Deposit Agreement.
A-19
(24) Compliance
with U.S. Securities Laws. Notwithstanding
any provisions in this ADR or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Instruction I.A.(1) of
the General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act.
(25) Certain
Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this paragraph (25), the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. The
Depositary may issue ADSs against evidence of rights to receive Shares from the
Company, any agent of the Company or any custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares. Such evidence of rights shall consist of
written blanket or specific guarantees of ownership of Shares. In its
capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided, however, that the
Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to Section
2.3 of the Deposit Agreement and (ii) deliver Shares prior to the receipt of
ADSs for withdrawal of Deposited Securities pursuant to Section 2.7 of the
Deposit Agreement, including ADSs which were issued under (i) above but for
which Shares may not have been received (each such transaction a “Pre-Release
Transaction”). The Depositary may receive ADSs in lieu of
Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) subject to a
written agreement whereby the person or entity (the “Applicant”) to whom
ADSs or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(x) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days’ notice and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) 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).
A-20
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s) unto
______________________________ whose taxpayer identification number is
_______________________ and whose address including postal zip code is
________________, the within ADS and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADS on the books of the Depositary with full power of substitution
in the premises.
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Dated:
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Name:
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By:
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Title:
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NOTICE:
The signature of the Holder to this assignment must correspond with the
name as written upon the face of the within instrument in every
particular, without alteration or enlargement or any change
whatsoever.
If
the endorsement be executed by an attorney, executor, administrator,
trustee or guardian, the person executing the endorsement must give
his/her full title in such capacity and proper evidence of authority to
act in such capacity, if not on file with the Depositary, must be
forwarded with this
ADR.
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__________________________
SIGNATURE
GUARANTEED
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All
endorsements or assignments of ADRs must be guaranteed by a member of a
Medallion Signature Program approved by the Securities Transfer
Association, Inc.
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A-21
EXHIBIT
B
FEE
SCHEDULE
DEPOSITARY
FEES AND RELATED CHARGES
All
capitalized terms used but not otherwise defined herein shall have the meaning
given to such terms in the Deposit Agreement.
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I.
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Depositary
Fees
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The
Company agrees to pay fees to the Depositary in the amounts specified by
separate agreement.
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II.
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Charges
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Holders,
Beneficial Owners, persons depositing Shares and persons surrendering ADSs for
cancellation and for the purpose of withdrawing Deposited Securities shall be
responsible for the following charges:
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(i)
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taxes
(including applicable interest and penalties) and other governmental
charges;
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(ii)
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such
registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals,
respectively;
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(iii)
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such
cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
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(iv)
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the
expenses and charges incurred by the Depositary in the conversion of
foreign currency;
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(v)
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such
fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
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(vi)
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the
fees and expenses incurred by the Depositary, the Custodian, or any
nominee in connection with the servicing or delivery of Deposited
Securities.
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B-1
