EXHIBIT 2.2
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CAMBRIDGE ANTIBODY TECHNOLOGY GROUP PLC
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of ___________, 2001
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TABLE OF CONTENT
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ARTICLE 1. DEFINITIONS.......................................................................... 1
SECTION 1.1. American Depositary Shares.................................................. 1
SECTION 1.2. Article; Section............................................................ 1
SECTION 1.3 Commission.................................................................. 2
SECTION 1.4. Custodian................................................................... 2
SECTION 1.5. Deposit Agreement........................................................... 2
SECTION 1.6. Depositary; Corporate Trust Office.......................................... 2
SECTION 1.7. Deposited Securities........................................................ 2
SECTION 1.8. Dollars..................................................................... 2
SECTION 1.9. Foreign Registrar........................................................... 3
SECTION 1.10. Issuer...................................................................... 3
SECTION 1.11. Owner....................................................................... 3
SECTION 1.12. Receipts.................................................................... 3
SECTION 1.13. Registrar................................................................... 3
SECTION 1.14. Restricted Securities....................................................... 3
SECTION 1.15. Securities Act of 1933...................................................... 3
SECTION 1.16. Shares...................................................................... 4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS......................................................................................... 4
SECTION 2.1. Form and Transferability of Receipts........................................ 4
SECTION 2.2. Deposit of Shares........................................................... 5
SECTION 2.3. Execution and Delivery of Receipts.......................................... 6
SECTION 2.4. Anser of Receipts; Combination and Split-up of Receipts..................... 6
SECTION 2.5. Surrender of Receipts and Withdrawal of Shares.............................. 7
SECTION 2.6. Limitations on Execution and Delivery, Transfer and Surrender of Receipts... 8
SECTION 2.7. Lost Receipts, etc.......................................................... 8
SECTION 2.8. Cancellation and Destruction of Surrendered Receipts........................ 9
SECTION 2.9. Pre-Release of Receipts..................................................... 9
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS............................................ 9
SECTION 3.1. Filing Proofs, Certificates and Other Information........................... 9
SECTION 3.2. Liability of Owner for Taxes................................................ 10
SECTION 3.3. Warranties on Deposit of Shares............................................. 10
ARTICLE 4. THE DEPOSITED SECURITIES............................................................. 10
SECTION 4.1. Cash Distributions.......................................................... 10
SECTION 4.2. Distributions Other Than Cash, Shares or Rights............................. 11
SECTION 4.3. Distributions in Shares..................................................... 11
SECTION 4.4. Rights...................................................................... 12
SECTION 4.5. Conversion of Foreign Currency.............................................. 13
SECTION 4.6. Fixing of Record Date....................................................... 14
SECTION 4.7. Voting of Deposited Securities.............................................. 14
SECTION 4.8. Changes Affecting Deposited Securities...................................... 15
SECTION 4.9. Reports..................................................................... 15
SECTION 4.10. Lists of Owners............................................................. 16
SECTION 4.11. Withholding................................................................. 16
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER........................................ 16
SECTION 5.1. Maintenance of Office and Transfer Books by the Depositary.................. 16
SECTION 5.2. Prevention or Delay in Performance by the Depositary or the Issuer.......... 17
SECTION 5.3. Obligations of the Depositary, the Custodian and the Issuer................. 17
SECTION 5.4. Resignation and Removal of the Depositary................................... 18
SECTION 5.5. The Custodians.............................................................. 19
SECTION 5.6. Notices and Reports......................................................... 20
SECTION 5.7. Distribution of Additional Shares, Rights, Etc.............................. 20
SECTION 5.8. Indemnification............................................................. 20
SECTION 5.9. Charges of Depositary....................................................... 21
SECTION 5.10. Retention of Depositary Documents........................................... 22
SECTION 5.11. Exclusivity................................................................. 22
SECTION 5.12. List of Restricted Securities Owners........................................ 22
ARTICLE 6. AMENDMENT AND TERMINATION............................................................ 22
SECTION 6.1. Amendment................................................................... 22
SECTION 6.2. Termination................................................................. 23
ARTICLE 7. MISCELLANEOUS........................................................................ 24
SECTION 7.1. Counterparts................................................................ 24
SECTION 7.2. No Third Party Beneficiaries................................................ 24
SECTION 7.3. Severability................................................................ 24
SECTION 7.4. Holders and Owners as Parties; Binding Effect............................... 24
SECTION 7.5. Notices..................................................................... 24
SECTION 7.6. Governing Law............................................................... 25
SECTION 7.7. Compliance with U.S. Securities Laws........................................ 25
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ___________, 2001, among CAMBRIDGE
ANTIBODY TECHNOLOGY GROUP PLC, incorporated under the laws of England and Wales
(herein called the Issuer), THE BANK OF NEW YORK, a New York banking corporation
(herein called the Depositary), and all Owners and holders from time to time of
American Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Issuer desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Issuer from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1. American Depositary Shares.
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The term "American Depositary Shares" shall mean the
securities representing the interests in the Deposited Securities and evidenced
by the Receipts issued hereunder. Each American Depositary Share shall represent
one (1) Share, until there shall occur a distribution upon Deposited Securities
covered by Section 4.3 or a change in Deposited Securities covered by Section
4.8 with respect to which additional Receipts are not executed and delivered,
and thereafter American Depositary Shares shall evidence the amount of Shares or
Deposited Securities specified in such Sections.
SECTION 1.2. Article; Section.
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Wherever references are made in this Deposit Agreement to an
"Article" or "Articles" or to a "Section" or "Sections", such references shall
mean an article or
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articles or a section or sections of this Deposit Agreement, unless otherwise
required by the context.
SECTION 1.3. Commission.
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The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.4. Custodian.
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The term "Custodian" shall mean the London office of The Bank
of New York, as agent of the Depositary for the purposes of this Deposit
Agreement, and any other firm or corporation which may hereafter be appointed by
the Depositary pursuant to the terms of Section 5.5, as substitute or additional
custodian or custodians hereunder, as the context shall require and shall also
mean all of them collectively.
SECTION 1.5. Deposit Agreement.
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The term "Deposit Agreement" shall mean this Agreement, as the
same may be amended from time to time in accordance with the provisions hereof.
SECTION 1.6. Depositary; Corporate Trust Office.
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The term "Depositary" shall mean The Bank of New York, a New
York banking corporation and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
SECTION 1.7. Deposited Securities.
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The term "Deposited Securities" as of any time shall mean
Shares at such time deposited or deemed to be deposited under this Deposit
Agreement and any and all other securities, property and cash received by the
Depositary or the Custodian in respect thereof and at such time held hereunder,
subject as to cash to the provisions of Section 4.5.
SECTION 1.8. Dollars.
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The term "Dollars" shall mean United States dollars.
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SECTION 1.9. Foreign Registrar.
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The term "Foreign Registrar" shall mean the entity that
presently carries out the duties of registrar for the Shares or any successor as
registrar for the Shares and any other appointed agent of the Issuer for the
transfer and registration of Shares.
SECTION 1.10. Issuer.
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The term "Issuer" shall mean Cambridge Antibody Technology
Group plc, incorporated under the laws of England and Wales, and its successors.
SECTION 1.11. Owner.
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The term "Owner" shall mean the person in whose name a Receipt
is registered on the books of the Depositary maintained for such purpose.
SECTION 1.12. Receipts.
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The term "Receipts" shall mean the American Depositary
Receipts issued hereunder evidencing American Depositary Shares.
SECTION 1.13. Registrar.
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The term "Registrar" shall mean any bank or trust company
having an office in the Borough of Manhattan, The City of New York, which shall
be appointed to register Receipts and transfers of Receipts as herein provided.
SECTION 1.14. Restricted Securities.
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The term "Restricted Securities" shall mean Shares, or
Receipts representing such Shares, which are acquired directly or indirectly
from the Issuer or its affiliates (as defined in Rule 144 under the Securities
Act of 1933) in a transaction or chain of transactions not involving any public
offering or which are subject to resale limitations under Regulation D under
that Act or both, or which are held by an officer, director (or persons
performing similar functions) or other affiliate of the Issuer, or which are
subject to other restrictions on sale or deposit under the laws of the United
States or the United Kingdom, or under a shareholder agreement or the Memorandum
of Association, Articles of Association and By-laws of the Issuer.
SECTION 1.15. Securities Act of 1933.
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The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
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SECTION 1.16. Shares.
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The term "Shares" shall mean ordinary shares in registered
form of the Issuer, par value 10p, heretofore validly issued and outstanding and
fully paid, nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares other than those imposed by law or hereafter validly issued
and outstanding and fully paid, nonassessable and free of any pre-emptive rights
of the holders of outstanding Shares other than those imposed by law or interim
certificates representing such Shares.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.1. Form and Transferability of Receipts.
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Definitive Receipts shall be substantially in the form set
forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose, unless such Receipt shall have been executed by the
Depositary by the manual or facsimile signature of a duly authorized signatory
of the Depositary and, if a Registrar for the Receipts shall have been
appointed, countersigned by the manual or facsimile signature of a duly
authorized officer of the Registrar. The Depositary shall maintain books on
which each Receipt so executed and delivered as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts bearing the manual
or facsimile signature of a duly authorized signatory of the Depositary who was
at any time a proper signatory of the Depositary shall bind the Depositary,
notwithstanding that such signatory has ceased to hold such office prior to the
execution and delivery of such Receipts by the Registrar or did not hold such
office on the date of issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations or with the rules and
regulations of any securities exchange upon which American Depositary Shares may
be listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are subject
by reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to the American Depositary Shares
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument; provided, however, that the Depositary,
notwithstanding any notice to the contrary, may treat the Owner thereof as the
absolute owner thereof for the purpose of determining the
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person entitled to distribution of dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
SECTION 2.2. Deposit of Shares.
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Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form satisfactory to the Custodian,
together with all such certifications as may be required by the Depositary or
the Custodian in accordance with the provisions of this Deposit Agreement, and,
if the Depositary requires, together with a written order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order, a Receipt or Receipts for the number of
American Depositary Shares representing such deposit. No Share shall be accepted
for deposit unless accompanied by evidence satisfactory to the Depositary that
any necessary approval has been granted by any governmental body in the United
Kingdom which is then performing the function of the regulation of currency
exchange. If required by the Depositary, Shares presented for deposit at any
time, whether or not the transfer books of the Issuer or the Foreign Registrar,
if applicable, are closed, shall also be accompanied by an agreement or
assignment, or other instrument satisfactory to the Depositary, which will
provide for the prompt transfer to the Custodian of any dividend, or right to
subscribe for additional Shares or to receive other property which any person in
whose name the Shares are or have been recorded may thereafter receive upon or
in respect of such deposited Shares, or in lieu thereof, such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or
certificates for Shares to be deposited hereunder, together with the other
documents above specified, such Custodian shall, as soon as transfer and
recordation can be accomplished, present such certificate or certificates to the
Issuer or the Foreign Registrar, if applicable, for transfer and recordation of
the Shares being deposited in the name of the Depositary or its nominee or such
Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine.
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SECTION 2.3. Execution and Delivery of Receipts.
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Upon receipt by any Custodian of any deposit pursuant to
Section 2.2 hereunder (and in addition, if the transfer books of the Issuer or
the Foreign Registrar, if applicable, are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence from the Issuer
that any Deposited Securities have been recorded upon the books of the Issuer or
the Foreign Registrar, if applicable, in the name of the Depositary or its
nominee or such Custodian or its nominee), together with the other documents
required as above specified, such Custodian shall notify the Depositary of such
deposit and the person or persons to whom or upon whose written order a Receipt
or Receipts are deliverable in respect thereof and the number of American
Depositary Shares to be evidenced thereby. Such notification shall be made by
letter or, at the request, risk and expense of the person making the deposit, by
cable, telex or facsimile transmission. Upon receiving such notice from such
Custodian, or upon the receipt of Shares by the Depositary, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver at its Corporate Trust Office, to or upon the order of the person or
persons entitled thereto, a Receipt or Receipts, registered in the name or names
and evidencing any authorized number of American Depositary Shares requested by
such person or persons, but only upon payment to the Depositary of the fees of
the Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.9, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities.
SECTION 2.4. Transfer of Receipts; Combination and Split-up of
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Receipts.
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The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall register transfers of Receipts on its transfer books
from time to time, upon any surrender of a Receipt, by the Owner in person or by
a duly authorized attorney, properly endorsed or accompanied by proper
instruments of transfer, and duly stamped as may be required by the laws of the
State of New York and of the United States of America. Thereupon the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose
of effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents for
the purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other
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requirements by Owners or persons entitled to Receipts and will be entitled to
protection and indemnity to the same extent as the Depositary.
SECTION 2.5. Surrender of Receipts and Withdrawal of Shares.
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Upon surrender at the Corporate Trust Office of the Depositary
of a Receipt for the purpose of withdrawal of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, and
upon payment of the fee of the Depositary for the surrender of Receipts as
provided in Section 5.9 and payment of all taxes and governmental charges
payable in connection with such surrender and withdrawal of the Deposited
Securities, and subject to the terms and conditions of this Deposit Agreement,
the Owner of such Receipt shall be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities at the time represented by the
American Depositary Shares evidenced by such Receipt. Delivery of such Deposited
Securities may be made by the delivery of (a) certificates in the name of such
Owner or as ordered by him or by certificates properly endorsed or accompanied
by proper instruments of transfer to such Owner or as ordered by him and (b) any
other securities, property and cash to which such Owner is then entitled in
respect of such Receipts to such Owner or as ordered by him. Such delivery shall
be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the London office of such
Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and
conditions of this Deposit Agreement, to or upon the written order of the person
or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering
a Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Owner, by cable, telex or facsimile
transmission.
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SECTION 2.6. Limitations on Execution and Delivery, Transfer and
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Surrender of Receipts.
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As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, Custodian or Registrar
may require payment from the depositor of Shares or the presentor of the Receipt
of a sum sufficient to reimburse it for any tax or other governmental charge and
any stock transfer or registration fee with respect thereto (including any such
tax or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, may require the production of
proof satisfactory to it as to the identity and genuineness of any signature and
may also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.6.
The delivery of Receipts against deposits of Shares generally
or against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Issuer at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to the provisions of Section 7.7 hereof. Notwithstanding
any other provision of this Deposit Agreement or the Receipts, the surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Issuer or the deposit of Shares in connection with voting at a
shareholders' meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares.
SECTION 2.7. Lost Receipts, etc.
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In case any Receipt shall be mutilated, destroyed, lost or
stolen, the Depositary shall execute and deliver a new Receipt of like tenor in
exchange and substitution for such mutilated Receipt upon cancellation thereof,
or in lieu of and in substitution for such destroyed, lost or stolen Receipt.
Before the Depositary shall execute and deliver a new Receipt in substitution
for a destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed
with the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
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SECTION 2.8. Cancellation and Destruction of Surrendered Receipts.
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All Receipts surrendered to the Depositary shall be cancelled
by the Depositary. The Depositary is authorized to destroy Receipts so
cancelled.
SECTION 2.9. Pre-Release of Receipts.
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Notwithstanding Section 2.3 hereof, the Depositary may execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.2
("Pre-Release"). The Depositary may, pursuant to Section 2.5, deliver Shares
upon the receipt and cancellation of Receipts which have been Pre-Released,
whether or not such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such Receipt has been Pre-Released. The Depositary
may receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom Receipts are to be delivered that such person, or its
customer, owns the Shares or Receipts to be remitted, as the case may be, (b) at
all times fully collateralized with cash 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 number of American
Depositary Shares which are outstanding at any time as a result of Pre-Releases
will not normally exceed thirty percent (30%) of the Shares deposited hereunder;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.1. Filing Proofs, Certificates and Other Information.
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Any person presenting Shares for deposit or any Owner of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Issuer or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or distribution of rights or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties made.
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SECTION 3.2. Liability of Owner for Taxes.
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If any tax or other governmental charge shall become payable
with respect to any Receipt or any Deposited Securities represented by any
Receipt, such tax or other governmental charge shall be payable by the Owner of
such Receipt to the Depositary. The Depositary may refuse to effect any transfer
of such Receipt or any withdrawal of Deposited Securities represented by
American Depositary Shares evidenced by such Receipt until such payment is made,
and may withhold any dividends or other distributions, or may sell for the
account of the Owner thereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner of such Receipt
shall remain liable for any deficiency.
SECTION 3.3. Warranties on Deposit of Shares.
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Every person depositing Shares under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefor are validly issued, fully paid, nonassessable and free of
any pre-emptive rights of the holders of outstanding Shares other than those
imposed by law and that the person making such deposit is duly authorized so to
do. Every such person shall also be deemed to represent that the deposit of such
Shares and the sale of Receipts evidencing American Depositary Shares
representing such Shares by that person are not restricted under the Securities
Act of 1933. Such representations and warranties shall survive the deposit of
Shares and issuance of Receipts.
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.1. Cash Distributions.
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Whenever the Depositary shall receive any cash dividend or
other cash distribution on any Deposited Securities, the Depositary shall,
subject to the provisions of Section 4.5, convert such dividend or distribution
into Dollars and shall distribute the amount thus received (net of the fees of
the Depositary as provided in Section 5.9 hereof, if applicable) to the Owners
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively; provided,
however, that in the event that the Issuer or the Depositary shall be required
to withhold and does withhold from such cash dividend or such other cash
distribution an amount on account of taxes, the amount distributed to the Owner
of the Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Owner a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to Owners entitled thereto.
The Issuer or its agent will remit to the appropriate
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governmental agency in the United Kingdom all amounts withheld and owing to such
agency. The Depositary will forward to the Issuer or its agent such information
from its records as the Issuer may reasonably request to enable the Issuer or
its agent to file necessary reports with governmental agencies, and the
Depositary or the Issuer or its agent may file any such reports necessary to
obtain benefits under the applicable tax treaties for the Owners of Receipts.
SECTION 4.2. Distributions Other Than Cash, Shares or Rights.
------------------------------------------------
Subject to the provisions of Section 4.11 and Section 5.9,
whenever the Depositary shall receive any distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4, the Depositary shall cause the securities
or property received by it to be distributed to the Owners entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Issuer or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act of 1933 in order to be distributed to Owners or holders) the
Depositary deems such distribution not to be feasible, the Depositary may adopt
such method as it may deem equitable and practicable for the purpose of
effecting such distribution, including, but not limited to, the public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale (net of the fees of the Depositary as
provided in Section 5.9) shall be distributed by the Depositary to the Owners
entitled thereto as in the case of a distribution received in cash.
SECTION 4.3. Distributions in Shares.
------------------------
If any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Issuer shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement with
respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of fees of the
Depositary as provided in Section 5.9. In lieu of delivering Receipts for
fractional American Depositary Shares in any such case, the Depositary shall
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.1. If additional Receipts are not so distributed, each
American
11
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.4. Rights.
-------
In the event that the Issuer shall offer or cause to be
offered to the holders of any Deposited Securities any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary shall have
discretion as to the procedure to be followed in making such rights available to
any Owners or in disposing of such rights on behalf of any Owners and making the
net proceeds available to such Owners or, if by the terms of such rights
offering or for any other reason, the Depositary may not either make such rights
available to any Owners or dispose of such rights and make the net proceeds
available to such Owners, then the Depositary shall allow the rights to lapse.
If at the time of the offering of any rights the Depositary determines in its
discretion that it is lawful and feasible to make such rights available to all
Owners or to certain Owners but not to other Owners, the Depositary may
distribute to any Owner to whom it determines the distribution to be lawful and
feasible, in proportion to the number of American Depositary Shares held by such
Owner, warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be
distributed, if an Owner of Receipts requests the distribution of warrants or
other instruments in order to exercise the rights allocable to the American
Depositary Shares of such Owner hereunder, the Depositary will make such rights
available to such Owner upon written notice from the Issuer to the Depositary
that (a) the Issuer has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Issuer has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Owners, then upon instruction from such
an Owner pursuant to such warrants or other instruments to the Depositary from
such Owner to exercise such rights, upon payment by such Owner to the Depositary
for the account of such Owner of an amount equal to the purchase price of the
Shares to be received upon the exercise of the rights, and upon payment of the
fees of the Depositary and any other charges as set forth in such warrants or
other instruments, the Depositary shall, on behalf of such Owner, exercise the
rights and purchase the Shares, and the Issuer shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.2 of this Deposit Agreement, and shall, pursuant
to Section 2.3 of this Deposit Agreement, execute and deliver Receipts to such
Owner. In the case of a distribution pursuant to the second paragraph of this
section, such Receipts shall be legended in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
12
If the Depositary determines in its discretion that it is not
lawful and feasible to make such rights available to all or certain Owners, it
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Owners to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.9 and all taxes and governmental charges payable in connection with such
rights and subject to the terms and conditions of this Deposit Agreement) for
the account of such Owners otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Owners because of exchange restrictions or the date of
delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Owners or are registered under the provisions of such Act. If an Owner of
Receipts requests distribution of warrants or other instruments, notwithstanding
that there has been no such registration under such Act, the Depositary shall
not effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Issuer upon which the Depositary may rely
that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
SECTION 4.5. Conversion of Foreign Currency.
-------------------------------
Whenever the Depositary shall receive foreign currency, by way
of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with
the approval or license of any government or agency thereof, the Depositary
shall file such application for approval or license, if any, as it may deem
desirable.
13
If at any time the Depositary shall determine that in its
judgment any foreign currency received by the Depositary is not convertible on a
reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in
part, cannot be effected for distribution to some of the Owners entitled
thereto, the Depositary may in its discretion make such conversion and
distribution in Dollars to the extent permissible to the Owners entitled thereto
and may distribute the balance of the foreign currency received by the
Depositary to, or hold such balance uninvested and without liability for
interest thereon for the respective accounts of, the Owners entitled thereto.
SECTION 4.6. Fixing of Record Date.
----------------------
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued with respect to the Deposited Securities, or whenever for
any reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date (a) for the determination of
the Owners who shall be (i) entitled to receive such dividend, distribution or
rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting, or (b) on or
after which each American Depositary Share will represent the changed number of
Shares. Subject to the provisions of Sections 4.1 through 4.5 and to the other
terms and conditions of this Deposit Agreement, the Owners on such record date
shall be entitled, as the case may be, to receive the amount distributable by
the Depositary with respect to such dividend or other distribution or such
rights or the net proceeds of sale thereof in proportion to the number of
American Depositary Shares held by them respectively and to give voting
instructions and to act in respect of any other such matter.
SECTION 4.7. Voting of Deposited Securities.
-------------------------------
Upon receipt of notice of any meeting of holders of Shares or
other Deposited Securities, if requested in writing by the Issuer the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the sole discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting, and (b)
a statement that the Owners as of the close of business on a specified record
date will be entitled, subject to any applicable provision of
14
the United Kingdom law and of the Articles of Association of the Issuer, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares or other Deposited Securities represented by
their respective American Depositary Shares and (c) a statement as to the manner
in which such instructions may be given. Upon the written request of an Owner on
such record date, received on or before the date established by the Depositary
for such purpose, (the "Instruction Date") the Depositary shall endeavor, in so
far as practicable, to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Shares or other Deposited Securities, other than in accordance with such
instructions.
There can be no assurance that Owners generally or any Owner
in particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance with the provisions set
forth in the preceding paragraph.
SECTION 4.8. Changes Affecting Deposited Securities.
---------------------------------------
In circumstances where the provisions of Section 4.3 do not
apply, upon any change in nominal value, change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer or to which it is a party, any securities which shall be
received by the Depositary or a Custodian in exchange for or in conversion of or
in respect of Deposited Securities, shall be treated as new Deposited Securities
under this Deposit Agreement, and American Depositary Shares shall thenceforth
represent the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may, and shall if the Issuer shall so request,
execute and deliver additional Receipts as in the case of a dividend in Shares,
or call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities.
SECTION 4.9. Reports.
--------
The Depositary shall make available for inspection by Owners
at its Corporate Trust Office any reports and communications, including any
proxy soliciting material, received from the Issuer which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Issuer.
The Depositary shall also, upon written request, send to the Owners copies of
such reports furnished by the Issuer pursuant to Section 5.6.
15
SECTION 4.10. Lists of Owners.
----------------
Promptly upon request by the Issuer, the Depositary shall, at
the expense of the Issuer, furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares by all persons in
whose names Receipts are registered on the books of the Depositary.
SECTION 4.11. Withholding.
------------
In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charge which the Depositary is
obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay any such taxes or charges and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Owners entitled thereto in proportion to the number of American
Depositary Shares held by them respectively.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
SECTION 5.1. Maintenance of Office and Transfer Books by the
-----------------------------------------------
Depositary.
-----------
Until termination of this Deposit Agreement in accordance with
its terms, the Depositary shall maintain in the Borough of Manhattan, The City
of New York, facilities for the execution and delivery, registration,
registration of transfers and surrender of Receipts in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books for the registration of
Receipts and transfers of Receipts which at all reasonable times shall be open
for inspection by the Owners, provided that such inspection shall not be for the
purpose of communicating with Owners in the interest of a business or object
other than the business of the Issuer or a matter related to this Deposit
Agreement or the Receipts.
The Depositary may close the transfer books, at any time or
from time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
If any Receipts or the American Depositary Shares evidenced
thereby are listed on one or more stock exchanges in the United States, the
Depositary shall act as Registrar or appoint a Registrar or one or more
co-registrars for registry of such Receipts in accordance with any requirements
of such exchange or exchanges.
16
SECTION 5.2. Prevention or Delay in Performance by the Depositary or
-------------------------------------------------------
the Issuer.
-----------
Neither the Depositary nor the Issuer shall incur any
liability to any Owner or holder of any Receipt, if by reason of any provision
of any present or future law or regulation of the United States or any other
country, or of any governmental or regulatory authority or stock exchange, or by
reason of any provision, present or future, of the Memorandum of Association,
Articles of Association of the Issuer, or by reason of any act of God or war or
other circumstances beyond its control, the Depositary or the Issuer shall be
prevented or forbidden from, or be subject to any civil or criminal penalty on
account of, doing or performing any act or thing which by the terms of this
Deposit Agreement it is provided shall be done or performed; nor shall the
Depositary or the Issuer incur any liability to any Owner or holder of any
Receipt by reason of any non-performance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of this Deposit Agreement it
is provided shall or may be done or performed, or by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement.
Where, by the terms of a distribution pursuant to Sections 4.1, 4.2, or 4.3 of
the Deposit Agreement, or an offering or distribution pursuant to Section 4.4 of
the Deposit Agreement, or for any other reason, such distribution or offering
may not be made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.3. Obligations of the Depositary, the Custodian and the
----------------------------------------------------
Issuer.
-------
The Issuer assumes no obligation nor shall it be subject to
any liability under this Deposit Agreement to Owners or holders of Receipts,
except that it agrees to perform its obligations specifically set forth in this
Deposit Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject
to any liability under this Deposit Agreement to any Owner or holder of any
Receipt (including, without limitation, liability with respect to the validity
or worth of the Deposited Securities), except that it agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither the Depositary nor the Issuer shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability shall be furnished as often
as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary.
17
Neither the Depositary nor the Issuer shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information.
The Depositary shall not be liable for any acts or omissions
made by a successor depositary whether in connection with a previous act or
omission of the Depositary or in connection with any matter arising wholly after
the removal or resignation of the Depositary, provided that in connection with
the issue out of which such potential liability arises the Depositary performed
its obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any such vote is cast or the effect of any such vote, provided
that any such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.4. Resignation and Removal of the Depositary.
------------------------------------------
The Depositary may at any time resign as Depositary hereunder
by written notice of its election so to do delivered to the Issuer, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Issuer by 120
days prior written notice of such removal to become effective upon the latter of
(i) the 120th day after delivery of the notice to the Depositary or (ii) the
appointment 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 Issuer shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Issuer an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Issuer shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
18
Any corporation into or with which the Depositary may be
merged or consolidated shall be the successor of the Depositary without the
execution or filing of any document or any further act.
SECTION 5.5. The Custodians.
---------------
The Custodian shall be subject at all times and in all
respects to the directions of the Depositary and shall be responsible solely to
it. Any Custodian may resign and be discharged from its duties hereunder by
notice of such resignation delivered to the Depositary at least 30 days prior to
the date on which such resignation is to become effective. If upon such
resignation there shall be no Custodian acting hereunder, the Depositary shall,
promptly after receiving such notice, appoint a substitute custodian or
custodians, each of which shall thereafter be a Custodian hereunder. Whenever
the Depositary in its discretion determines that it is in the best interest of
the Owners to do so, it may appoint substitute or additional custodian or
custodians, which shall thereafter be one of the Custodians hereunder. Upon
demand of the Depositary any Custodian shall deliver such of the Deposited
Securities held by it as are requested of it to any other Custodian or such
substitute or additional custodian or custodians. Each such substitute or
additional custodian shall deliver to the Depositary, forthwith upon its
appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary hereunder,
each Custodian then acting hereunder shall forthwith become, without any further
act or writing, the agent hereunder of such successor depositary and the
appointment of such successor depositary shall in no way impair the authority of
each Custodian hereunder; but 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 as agent hereunder of such successor
depositary.
SECTION 5.6. Notices and Reports.
--------------------
On or before the first date on which the Issuer gives notice,
by publication or otherwise, of any meeting of holders of Shares or other
Deposited Securities, or of any adjourned meeting of such holders, or of the
taking of any action in respect of any cash or other distributions or the
offering of any rights, the Issuer agrees to transmit to the Depositary and the
Custodian a copy of the notice thereof in the form given or to be given to
holders of Shares or other Deposited Securities.
The Issuer will arrange for the prompt transmittal by the
Issuer to the Depositary and the Custodian of such notices and any other reports
and communications which are made generally available by the Issuer to holders
of its Shares. If requested in writing by the Issuer, the Depositary will
arrange for the mailing, at the Issuer's expense, of copies of such notices,
reports and communications to all Owners. The Issuer will timely provide the
Depositary with the quantity of such notices, reports, and
19
communications, as requested by the Depositary from time to time, in order for
the Depositary to effect such mailings.
SECTION 5.7. Distribution of Additional Shares, Rights, etc.
-----------------------------------------------
The Issuer agrees that in the event of any issuance or
distribution of (1) additional Shares, (2) rights to subscribe for Shares, (3)
securities convertible into Shares, or (4) rights to subscribe for such
securities, (each a "Distribution") the Issuer will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Issuer, which counsel
shall be satisfactory to the Depositary, stating whether or not the Distribution
requires a Registration Statement under the Securities Act of 1933 to be in
effect prior to making such Distribution available to Owners entitled thereto.
If in the opinion of such counsel a Registration Statement is required, such
counsel shall furnish to the Depositary a written opinion as to whether or not
there is a Registration Statement in effect which will cover such Distribution.
The Issuer agrees with the Depositary that neither the Issuer
nor any company controlled by, controlling or under common control with the
Issuer will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Issuer or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the Securities Act
of 1933.
SECTION 5.8. Indemnification.
----------------
The Issuer agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
fees and expenses of counsel) which may arise out of acts performed or omitted,
in accordance with the provisions of this Deposit Agreement and of the Receipts,
as the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Issuer or any of its
directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Issuer, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
SECTION 5.9. Charges of Depositary.
----------------------
The Issuer agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Issuer from time to time. The Depositary shall present its statement for
such charges and expenses to the Issuer once
20
every three months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
The following charges shall be incurred by any party
depositing or withdrawing Shares or by any party surrendering Receipts or to
whom Receipts are issued (including, without limitation, issuance pursuant to a
stock dividend or stock split declared by the Issuer or an exchange regarding
the Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), whichever applicable: (1) taxes and other governmental charges,
(2) such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the Share register of the
Issuer or Foreign Registrar and applicable to transfers of Shares to the name of
the Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.5 (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.3, 4.3 or 4.4, and the surrender of Receipts
pursuant to Section 2.5 or 6.2, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement including, but not limited to, Sections 4.1 through 4.4
hereof, and (7) a fee for the distribution of securities pursuant to Section
4.2, such fee being in an amount equal to the fee for the execution and delivery
of American Depositary Shares referred to above which would have been charged as
a result of the deposit of such securities (for purposes of this clause (7)
treating all such securities as if they were Shares), but which securities are
instead distributed by the Depositary to Owners.
The Depositary, subject to Section 2.9 hereof, may own and
deal in any class of securities of the Issuer and its affiliates and in
Receipts.
SECTION 5.10. Retention of Depositary Documents.
----------------------------------
The Depositary is authorized to destroy those documents,
records, bills and other data compiled during the term of this Deposit Agreement
at the times permitted by the laws or regulations governing the Depositary
unless the Issuer requests that such papers be retained for a longer period or
turned over to the Issuer or to a successor depositary.
SECTION 5.11. Exclusivity.
------------
The Issuer agrees not to appoint any other depositary for
issuance of American Depositary Receipts so long as The Bank of New York is
acting as Depositary hereunder.
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SECTION 5.12. List of Restricted Securities Owners.
-------------------------------------
From time to time, the Issuer shall provide to the Depositary
a list setting forth, to the actual knowledge of the Issuer, those persons or
entities who beneficially own Restricted Securities and the Issuer shall update
that list on a regular basis. The Issuer agrees to advise in writing each of the
persons or entities so listed that such Restricted Securities are ineligible for
deposit hereunder. The Depositary may rely on such a list or update but shall
not be liable for any action or omission made in reliance thereon.
ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.1. Amendment.
----------
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Issuer and the Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose or increase any fees or charges
(other than taxes and other governmental charges, registration fees, cable,
telex or facsimile transmission costs, delivery costs or other such expenses),
or which shall otherwise prejudice any substantial existing right of Owners,
shall, however, not become effective as to outstanding Receipts until the
expiration of thirty days after notice of such amendment shall have been given
to the Owners of outstanding Receipts. Every Owner at the time any amendment so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.2. Termination.
------------
The Depositary shall at any time at the direction of the
Issuer terminate this Deposit Agreement by mailing notice of such termination to
the Owners of all Receipts then outstanding at least 90 days prior to the date
fixed in such notice for such termination. The Depositary may likewise terminate
this Deposit Agreement by mailing notice of such termination to the Issuer and
the Owners of all Receipts then outstanding if at any time 90 days shall have
expired after the Depositary shall have delivered to the Issuer a written notice
of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4. On and after
the date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5, and
(c) payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by
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such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in this Deposit Agreement, and shall continue to
deliver Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of this Deposit
Agreement, the Issuer shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary under Sections
5.8 and 5.9 hereof.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.1. Counterparts.
-------------
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any holder or Owner of a Receipt during business
hours.
SECTION 7.2. No Third Party Beneficiaries.
-----------------------------
This Deposit Agreement is for the exclusive benefit of the
parties hereto and shall not be deemed to give any legal or equitable right,
remedy or claim whatsoever to any other person.
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SECTION 7.3. Severability.
-------------
In case any one or more of the provisions contained in this
Deposit Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4. Holders and Owners as Parties; Binding Effect.
----------------------------------------------
The holders and Owners of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.5. Notices.
--------
Any and all notices to be given to the Issuer shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to Cambridge Antibody
Technology Group plc, the Science Park, Melbourn, Cambridgeshire, England 5G8
6JJ, Attn: Financial Director within a copy to the General Counsel and Company
Secretary at the same address or any other place to which the Issuer may have
transferred its principal office.
Any and all notices to be given to the Depositary shall be
deemed to have been duly given if in English and personally delivered or sent by
mail or cable, telex or facsimile transmission confirmed by letter, addressed to
The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Issuer may, however, act upon any cable, telex
or facsimile transmission received by it, notwithstanding that such cable, telex
or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
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SECTION 7.6. Governing Law.
--------------
This Deposit Agreement and the Receipts shall be interpreted
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by the laws of the State of New York.
SECTION 7.7. Compliance with U.S. Securities Laws.
-------------------------------------
Notwithstanding anything in this Deposit Agreement to the
contrary, the Issuer and the Depositary each agrees that it will not exercise
any rights it has under this Deposit Agreement to prevent the withdrawal or
delivery of Deposited Securities in a manner which would violate the U.S.
securities laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
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IN WITNESS WHEREOF, CAMBRIDGE ANTIBODY TECHNOLOGY GROUP PLC and THE
BANK OF NEW YORK have duly executed this agreement as of the day and year first
set forth above and all Owners shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof.
CAMBRIDGE ANTIBODY TECHNOLOGY GROUP PLC
By: ____________________________
THE BANK OF NEW YORK,
as Depositary
By: ____________________________
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