EXECUTION COPY
SUPPLEMENTAL AGREEMENT TO DEPOSIT AGREEMENT
SUPPLEMENTAL AGREEMENT TO DEPOSIT AGREEMENT, dated as of December 16, 2005
(this "Agreement"), to the Deposit Agreement (as defined below), by and among
Reuters Group PLC, a company incorporated and existing under the laws of England
and Wales, and its successors (the "Company"), Deutsche Bank Trust Company
Americas, a New York banking corporation and an indirect wholly owned subsidiary
of Deutsche Bank AG, in its capacity as the successor depositary (the
"Depositary"), and all Holders and Beneficial Owners from time to time of
American Depositary Shares evidenced by American Depositary Receipts issued
thereunder (as defined in the Deposit Agreement).
W I T N E S S E T H T H A T:
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WHEREAS, the Company and JPMorgan Chase Bank, N.A. (formerly Xxxxxx
Guaranty Trust Company of New York) (the "Predecessor Depositary") entered into
the Deposit Agreement, dated as of February 18, 1998 (the "Deposit Agreement"),
for the purposes set forth therein;
WHEREAS, by written notice dated November 10, 2005 addressed to the
Predecessor Depositary, the Company, pursuant to Section 12 of the Deposit
Agreement and paragraph 15 of the form of Receipt, has given notice of its
intention to remove the Predecessor Depositary under the Deposit Agreement and
appoint Deutsche Bank Trust Company Americas as Depositary in accordance with
and subject to the conditions of the Deposit Agreement, as amended and
supplemented by this Agreement;
WHEREAS, the Company and the Predecessor Depositary have agreed that the
Predecessor Depositary, in consideration of the payment of certain fees and
expenses of the Predecessor Depositary, will be removed as depositary under the
Deposit Agreement with effect from the Effective Date (as defined in Section
6.01 herein);
WHEREAS, the Company and the Depositary have agreed that the Predecessor
Depositary shall duly assign, transfer and deliver to the Depositary the
information, records, property and cash referred to in Section 12 of the Deposit
Agreement and paragraph 15 of the form of Receipt;
WHEREAS, Deutsche Bank Trust Company Americas has accepted its appointment,
with effect from the Effective Date, as Depositary in accordance with and
subject to the conditions of the Deposit Agreement, as amended and supplemented
by this Agreement;
WHEREAS, the Company desires to provide for the deposit of Shares of the
Company with the Depositary or the Custodian as agent for the Depositary and for
the execution and delivery of Receipts evidencing American Depositary Shares
representing beneficial interests in the Shares so deposited; and
WHEREAS, the Company and the Depositary desire to amend and supplement the
terms of the Deposit Agreement and form of Receipts, in accordance with
Condition 16 of the form of Receipt, inter alia to reflect the removal by the
Company of JPMorgan Chase Bank N.A. (formerly Xxxxxx Guaranty Trust Company of
New York), in its capacity as the predecessor depositary, and the appointment of
Deutsche Bank Trust Company Americas, in its capacity as the successor
depositary, in accordance with Section 12 of the Deposit Agreement and paragraph
15 of the form of Receipt.
NOW, THEREFORE, the Company and the Depositary hereby amend and supplement
the Receipts and the Deposit Agreement, effective as of the Effective Date, as
follows:
ARTICLE I
CONFIRMATION OF APPOINTMENT AND ACCEPTANCE OF DEPOSITARY
Section 1.01 The Company hereby confirms its appointment of the Depositary
as successor Depositary under the Deposit Agreement.
Section 1.02 The Depositary hereby accepts the appointment referred to
above and agrees to observe and be bound by the terms of the Deposit Agreement,
as amended and supplemented by
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this Agreement, as if the Depositary had been originally appointed as Depositary
under the Deposit Agreement.
ARTICLE II
DEFINITIONS
Section 2.01 Definitions Generally. Unless otherwise defined in this
Agreement, terms used herein and defined in the Deposit Agreement are used
herein as so defined.
ARTICLE III
AMENDMENTS TO DEPOSIT AGREEMENT
Section 3.01 All references in the Deposit Agreement to "Xxxxxx Guaranty
Trust Company of New York" (JPMorgan Chase Bank N.A., and formerly Xxxxxx
Guaranty Trust Company of New York) are hereby replaced with references to
"Deutsche Bank Trust Company Americas". All references in the Deposit Agreement
to "Xxxxxx Guaranty Trust Company of New York" or the "Depositary" shall be read
and construed as references to "Deutsche Bank Trust Company Americas."
Section 3.02 All references in the Deposit Agreement to the "Deposit
Agreement" shall hereby mean the Deposit Agreement, as amended and supplemented
by this Agreement and as further amended and supplemented from time to time.
Section 3.03 The Deposit Agreement is hereby amended and supplemented by
deleting the words "Deposited Securities" and replacing them with the words
"Deposited Property."
Section 3.04 The Deposit Agreement is hereby amended and supplemented by
deleting the words "XXXXXX GUARANTY TRUST COMPANY OF NEW YORK" from the preamble
of the Deposit Agreement, and replacing them with the words "Deutsche Bank Trust
Company Americas, a New York banking corporation and an indirect wholly owned
subsidiary of Deutsche Bank AG."
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Section 3.05 The Deposit Agreement is hereby amended and supplemented by
deleting the words "Xxxxxx Guaranty Trust Company of New York" from the
definition of Custodian and replacing them with the words "State Street Bank and
Trust Company."
Section 3.06 The Deposit Agreement is hereby amended and supplemented by
replacing the parenthetical in the first sentence in Section 5(b) with the
following:
(net of (1) the applicable fees and charges of, and expenses incurred by,
the Depositary and (2) taxes withheld)
Section 3.07 The Deposit Agreement is hereby amended and supplemented by
inserting the following sentence after the first sentence of Section 5(b):
The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent. Any
such fractional amount shall be rounded to the nearest whole cent and so
distributed to Beneficial Owners entitled thereto. Holders and Beneficial
Owners understand that in converting foreign currency, amounts received on
conversion are calculated at a rate which exceeds the number of decimal
places used by the Depositary to report distribution rates. Any excess
amount may be retained by the Depositary as an additional cost of
conversion, irrespective of any other fees and expenses payable or owing
hereunder and shall not be subject to escheatment.
Section 3.08 The Deposit Agreement is hereby amended and supplemented by
deleting the words "Xxxxxx Guaranty Trust Company of New York" from the
parenthetical in Section 8 and replacing them with the words "State Street Bank
and Trust Company."
Section 3.09 The Deposit Agreement is hereby amended and supplemented by
replacing the number "30" with the number "90" in Section 8.
Section 3.10 The Deposit Agreement is hereby amended and supplemented by
deleting the words "Xxxxxx Guaranty Trust Company of New York" in the
parenthetical in Section 9(ii) and replacing them with the words "Deutsche Bank
Trust Company Americas."
Section 3.11 The Deposit Agreement is hereby amended and supplemented by
deleting the words "Xxxxxx Guaranty Trust Company of New York" in the
parenthetical in Section 11 and replacing them with the words "Deutsche Bank
Trust Company Americas."
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Section 3.12 The Deposit Agreement is hereby amended and supplemented by
adding the following sentence to the end of the first paragraph of Section 15:
The Depositary and the Company and any of their respective directors,
officers, employees or agents shall not be liable to either party for any
punitive damages except to the extent such punitive damages arise from the
negligence or willful misconduct of the party from whom indemnification is
sought.
Section 3.13 The Deposit Agreement is hereby amended and supplemented by
inclusion of the following address for notices to the Depositary in Section 16:
"60 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ADR
Department, Fax: (000) 000-0000."
Section 3.14 All references in the Deposit Agreement to "deliver",
"deposit", "surrender", "transfer", or "withdraw", when used with respect to the
Shares refer, where the context requires, to an entry or entries or an
electronic transfer or transfers, including through the DRS/Profile, as well as
to the physical transfer of certificates representing the Shares.
ARTICLE IV
AMENDMENTS TO FORM OF RECEIPT
Section 4.01 The form of Receipt attached as Exhibit A to the Deposit
Agreement (the "Form of Receipt") is amended and restated in its entirety to
read as Exhibit A attached hereto, with such amendments reflecting the
appointment of the Depositary.
Section 4.02 All references in the Form of Receipt to "deliver", "deposit",
"surrender", "transfer", or "withdraw", when used with respect to the Shares
refer, where the context requires, to any entry or entries or an electronic
transfer or transfers as well as to the physical transfer of certificates
representing the Shares.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
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Section 5.01 Representations and Warranties. The Company and the Depositary
mutually represent and warrant to each other and to the Holders, that this
Agreement, when executed and delivered by each of the Company and the
Depositary, and the Deposit Agreement, as amended and supplemented by this
Agreement and all other documentation executed and delivered by the Company and
the Depositary in connection therewith, will be duly and validly authorized,
executed and delivered by the Company and the Depositary, and constitute the
legal, valid and binding obligations of the Company and the Depositary,
enforceable against the Company and the Depositary in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Effective Date. This Agreement is dated as of the date first
set forth above and shall be effective on the date on which the U.S. Securities
and Exchange Commission declares effective the Registration Statement on Form
F-6 to be filed by the Depositary, on behalf of the legal entity created by the
Deposit Agreement, as amended and supplemented by this Agreement in connection
with its appointment as successor depositary, the removal of the Predecessor
Depositary to be effective simultaneously therewith (the "Effective Date"). From
and after the Effective Date, all references in the Deposit Agreement and the
Form of Receipt shall be deemed to be references to the Deposit Agreement and
Form of Receipt, as amended and supplemented by this Agreement.
Section 6.02 Outstanding Receipts. Receipts issued prior to the date
hereof, which do not reflect the changes to the Receipts effected hereby, do not
need to be called in for exchange and may remain outstanding until such time as
the Holders thereof choose to surrender them for any reason under the Deposit
Agreement, as amended and supplemented by this Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
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The Company hereby instructs the Depositary (i) to promptly send notice of
the execution of the Deposit Agreement, as amended and supplemented by this
Agreement, to all holders of American Depositary Receipts outstanding under the
Deposit Agreement as of the date hereof and (ii) to promptly inform holders of
American Depositary Receipts outstanding under the Deposit Agreement as of the
date hereof that they have the opportunity, but are not required, to exchange
their Receipts for one or more Receipts issued pursuant to the Deposit
Agreement, as amended and supplemented by this Agreement.
Holders and Beneficial Owners of Receipts issued pursuant to the Deposit
Agreement issued prior to the date hereof and outstanding as of the date hereof,
shall, from and after the date hereof, be deemed Holders and Beneficial Owners
of Receipts issued pursuant and subject to all of the terms and conditions of
the Deposit Agreement, as amended and supplemented by this Agreement, in all
respects, provided, however, that any amendment to the Deposit Agreement
effectuated by this Agreement that prejudices any substantial existing right of
Holders or Beneficial Owners of Receipts issued under the Deposit Agreement
shall not become effective as to Holders and Beneficial Owners until 30 days
after notice of the amendment and supplement effectuated by this Agreement shall
have been given to holders of Receipts outstanding as of the date hereof.
Section 6.03 Undertaking of Depositary. The Depositary hereby undertakes
promptly to mail notice of its appointment as Depositary under the Deposit
Agreement, as amended and supplemented by this Agreement, to the Holders of
Receipts outstanding as of the date hereof.
Section 6.04 Indemnification. The parties hereto shall be entitled to the
benefits of the indemnification provisions of Section 15 of the Deposit
Agreement, as amended, in connection with any and all liability it or they may
incur as a result of the terms of this Agreement and the transactions
contemplated herein provided; however, that the indemnification provision of
Section 15 of the Deposit Agreement shall not obligate the Company to indemnify
the Depositary for any loss, liability or tax resulting from the Pre-Release of
ADRs. Nothing herein shall obligate Deutsche Bank Trust Company Americas to
indemnify or hold harmless the Company or any of its directors, employees,
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agents and affiliates for any liability or expense arising out of acts performed
or omitted by JPMorgan Chase Bank N.A., as Predecessor Depositary, the Custodian
or their respective directors, employees, agents and affiliates.
Section 6.05 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
Section 6.06 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Agreement to be executed by their respective representatives thereunto duly
authorized as of the date set forth above.
REUTERS GROUP PLC, as the Company
By:
Name:
Title:
By:
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Depositary
By:
Name:
Title:
By:
Name:
Title:
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
------------------ No. of ADSs:
Number
------------------------
Each ADS represents
Six Shares
CUSIP: 00000X000
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES OF 25 XXXXX EACH
of
REUTERS GROUP PLC
(Incorporated under the
laws of England and Wales)
DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation and an
indirect wholly-owned subsidiary of Deutsche Bank AG, as depositary hereunder
(the "Depositary"), hereby certifies that _______ is the registered owner (a
"Holder") of _____________ American Depositary Shares ("ADSs"), each (subject to
paragraph (13)) representing Six (6) Ordinary Shares of 25 xxxxx each (including
the rights to receive Shares described in paragraph (1), "Shares" and, together
with any other securities, cash or property from time to time held by the
Depositary in respect or in lieu of deposited Shares, the "Deposited Property"),
of REUTERS GROUP PLC (the "Company"), a corporation organized under the laws of
England and Wales, deposited with the Custodian (the "Custodian") under the
Deposit Agreement dated as of February 18, 1998 (as amended from time to time,
the "Deposit Agreement") among the Company, the Depositary and all Holders and
Beneficial Owners from time to time of American Depositary Receipts issued
thereunder ("ADRs"), each of whom, by accepting an ADR, agrees to become a party
thereto and to be bound by all of the terms and conditions thereof and hereof.
The Deposit Agreement and this ADR (which includes the provisions set forth on
the reverse hereof) shall
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be governed by and construed in accordance with the laws of the State of New
York. The terms and conditions of the Deposit Agreement are hereby incorporated
by reference.
(1) Issuance of ADRS. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs for
delivery at the Transfer Office (defined in paragraph (3)) only against deposit
with the Custodian of: (a) Shares in form satisfactory to the Custodian; (b)
rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) unless requested in writing by the Company to cease doing so at least two
business days in advance of the proposed deposit, other rights to receive Shares
(until such Shares are actually deposited pursuant to (a) or (b) above,
"Pre-released ADRs"), only if (1) Pre-released ADRs are fully collateralized
(marked to market daily) with cash or U.S. government securities held by the
Depositary for the benefit of Holders (but such collateral shall not constitute
Deposited Property), (ii) each recipient of Pre-released ADRs represents and
agrees in writing with the Depositary that such recipient or its customer (A)
beneficially owns such shares, (B) assigns all beneficial right, title and
interest therein to the Depositary for the benefit of the Holders, (C) holds
such Shares for the account of the Depositary and (D) will deliver such Shares
to the Custodian as soon as practicable and promptly upon demand therefor but in
no event more than five days after demand therefor and (iii) all Pre-released
ADRs evidence not more than 15% of all ADSs (excluding those evidenced by
Pre-released ADRs). The Depositary may retain for its own account any earnings
on collateral for Pre-released ADRs and its charges for issuance thereof. At the
request, risk and expense of the person depositing Shares, the Depositary may
accept deposits for forwarding to the Custodian and may deliver ADRs at a place
other than its office. Every person depositing Shares under the Deposit
Agreement represents and warrants that such Shares are validly issued and
outstanding, fully paid, nonassessable and free of pre-emptive rights, that the
person making such deposit is duly authorized to do so and that such Shares (A)
are not "restricted securities" as such term is defined in Rule 144 under the
Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and sold
freely in the United States or (B) have been registered under the Securities Act
of 1933. Such representations and warranties shall survive the deposit of Shares
and issuance of ADRs. The Depositary will not knowingly accept for deposit under
the Deposit Agreement any Shares required to be registered under the Securities
Act of 1933 and not so registered; the Depositary may refuse to accept for such
deposit any Shares identified by the Company in order to facilitate the
Company's compliance with such Act.
(2) Withdrawal of Deposited Property. Holders of ADRs will be entitled to
withdraw the Deposited Property 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, and
(iii) compliance with any laws or governmental regulations relating to the ADRs
or the withdrawal of Deposited Property upon surrender of the ADRs at the
Depositary's New York office and upon payment of any fees, expenses, taxes or
governmental charges as provided in the Deposit Agreement, subject to the terms
of the Deposit Agreement and paragraphs (4) and (5) hereof, upon surrender of
this ADR in form satisfactory to the Depositary at the Transfer Office, the
Holder hereof is entitled to delivery at the Custodian's office of the Deposited
Property at the time represented by the ADSs evidenced by this APR. In
connection with any surrender of an ADR for withdrawal and the delivery of the
Deposited Property represented by the ADSs evidenced thereby, the Depositary may
require proper endorsement in blank of such ADR (or duly executed instruments of
transfer thereof in blank) and the Holder's written order (a "Withdrawal Order")
directing the Depositary to cause the Deposited Property represented by the ADSs
evidenced by such ADR to be withdrawn and delivered to, or upon the written
order of, any person
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designated in such order. At the request, risk and expense of the Holder hereof,
the Depositary may deliver such Deposited Property at such other place as may
have been requested by the Holder, subject to applicable laws in England and
Wales. Delivery of Deposited Property may be made by the delivery of
certificates (which, if required by law shall be properly endorsed or
accompanied by properly executed instruments of transfer or, if such
certificates may be registered, registered in the name of such Holder or as
ordered by such Holder in any Withdrawal Order) or by such other means as the
Depositary may deem practicable.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, which
at all reasonable times will be open for inspection by Holders and the Company
for the purpose of communicating with Holders in the interest of the business of
the Company or a matter relating to the Deposit Agreement and (b) facilities for
the delivery and receipt of ADRs. Title to this ADR (and to the Deposited
Property represented by the ADSs evidenced hereby), when properly endorsed or
accompanied by proper instruments of transfer, is transferable by delivery with
the same effect as in the case of negotiable instruments under the laws of the
State of New York; provided that the Depositary, notwithstanding any notice to
the contrary, may treat the person in whose name this ADR is registered on the
ADR Register as the absolute owner hereof for all purposes. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be
split into other ADRs or combined with other ADRs into one ADR, evidencing the
same number of ADSs evidenced by this ADR, by the Holder hereof or by duly
authorized attorney upon surrender of this ADR at the Transfer Office properly
endorsed or accompanied by proper instruments of transfer and duly stamped as
may be required by applicable law; provided that the Depositary may close the
ADR Register at any time or from time to time when deemed reasonably expedient
by it or requested by the Company.
(4) Certain Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Property, and from time to time in the case of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Property upon any applicable register and (iii) any applicable charges
as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Property and terms of the Deposit Agreement and this ADR, as
it may deem necessary or proper, and (c) compliance with. such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph (2), the withdrawal of Deposited Property may be suspended, generally
or in particular instances, when the ADR Register or any register for Deposited
Property is closed or when any such action is deemed advisable by the Depositary
or the Company.
(5) Taxes; Withholding. If any tax or other governmental charge shall
become payable by or on behalf of the Custodian or the Depositary with respect
to this ADR, any Deposited Property represented by the ADSs evidenced hereby or
any distribution thereon, such tax or other governmental charge shall be paid by
the Holder hereof to the Depositary. The Depositary shall, in accordance with
applicable law, use
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commercially reasonable efforts to assist ADR Holders in the mitigation or
reduction of any withholding tax imposed with respect to any ADR. The Depositary
may refuse to effect any registration, registration of transfer, split-up or
combination hereof or, subject to the last sentence of paragraph (2), any
withdrawal of such Deposited Property until such payment is made. The Depositary
may also deduct from any distributions on or in respect of Deposited Property,
or may sell by public or private sale for the account of the Holder hereof any
part or all of such Deposited Property (after attempting by reasonable means to
notify the Holder hereof prior to such sale), and may apply such deduction or
the proceeds of any such sale in payment of such tax or other governmental
charge, the Holder hereof remaining liable for any deficiency, and, if
appropriate, shall reduce the number of ADSs evidenced hereby to reflect any
such sales of Shares and shall distribute the net proceeds of any such sale or
the balance of any such property after deduction of such tax or other
governmental charge to the Holder hereof. In connection with any distribution to
Holders, the Company will remit to the appropriate governmental authority or
agency all amounts (if any) required to be withheld and owing to such authority
or agency by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. If the Depositary determines that any distribution in property other
than cash (including Shares or rights) on Deposited Property is subject to any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such amounts and
in such manner as the Depositary deems necessary and practicable to pay such
taxes, by public or private sale, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction of
such taxes to the Holders entitled thereto.
Every Holder and Beneficial Owner agrees to indemnify the Depositary, the
Company, the Custodian, and each of their respective agents, officers,
directors, employees and Affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
(6) Disclosure of Interests. To the extent that the provisions of or
governing any Deposited Property may require disclosure of or impose limits on
beneficial or other ownership of Deposited Property, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary in the Depositary's compliance with any Company
instructions in respect thereof, and the Depositary will use reasonable efforts
to comply with such Company instructions.
Notwithstanding any other provision of the Deposit Agreement or this ADR,
each Holder agrees to provide such information as the Company may request in a
disclosure notice (a "Disclosure Notice") given pursuant to the United Kingdom
Companies Act 1985 (as amended from time to time and including any statutory
modification or reenactment thereof, the "Companies Act") or the Articles of
Association of the Company within the time period specified in such Disclosure
Notice. Each Holder acknowledges that it understands that failure to comply with
a Disclosure Notice may result in the imposition of sanctions against the holder
of the Shares in respect of which the non-complying person is or was, or appears
to be or has been, interested as provided in the Companies Act and the Articles
of Association which currently include, the withdrawal of the voting rights of
such Shares and the imposition of restrictions on the rights to receive
dividends on and to transfer such Shares. In addition, each Holder agrees to
comply with the provisions of the Companies Act with regard to the notification
to the Company of interests in Shares, which currently provide, inter alia, that
any Holder who is or becomes directly or indirectly interested (within the
meaning of the Companies Act) in 3% or more of the outstanding Shares, or is
aware that
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another person for whom it holds such ADRs is so interested, must within two
business days after becoming so interested or so aware (and thereafter in
certain circumstances upon any change to the particulars previously notified)
notify the Company as required by the Companies Act.
(7) Charges of Depositary. The Depositary may charge each person to whom
ADRs are issued against deposits of Shares, including deposits in respect of
Share Distributions, Rights and Other Distributions (as such terms are defined
in paragraph (10)), and each person surrendering ADRs for withdrawal of
Deposited Property, U.S.$5.00 for each 100 ADSs (or portion thereof) evidenced
by the ADRs delivered or surrendered. The Depositary may sell (by public or
private sale) sufficient securities and property received in respect of Share
Distributions, Rights and Other Distributions prior to such deposit to pay such
charge. The Company will pay all other charges and expenses of the Depositary
and any agent of the Depositary (except the Custodian) as may be provided
pursuant to agreements from time to time between the Company and the Depositary,
except (i) stock transfer or other taxes and other governmental charges (which
are payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Property (which are
payable by such persons or Holders), (iii) transfer or registration fees for the
registration of transfer of Deposited Property on any applicable register in
connection with the deposit or withdrawal of Deposited Property (which are
payable by persons depositing Shares or Holders withdrawing Deposited Property;
there are no such fees in respect of the Shares as, of the date of the Deposit,
Agreement) and (iv) expenses of the Depositary in connection with the conversion
of foreign currency into U.S. dollars (which are paid out of such foreign
currency). These charges maybe changed in the manner indicated in paragraph
(16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Property and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Property and made generally available to the holders of Deposited Property, are
available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. At the written request of the Company, the
Depositary will mail copies of such communications (or English translations or
summaries thereof) to Holders when furnished by the Company. The Company is
subject to the periodic reporting requirements of the Securities Exchange Act of
1934 applicable to foreign issuers and accordingly files certain reports with
the United States Securities and Exchange Commission (the "Commission").
Such reports and other information may be inspected and copied at the public
reference facilities maintained by the commission located at the date of the
Deposit Agreement at Judiciary Plaza; 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
(9) Execution. This ADR shall not be valid for any purpose unless executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary.
Dated:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Depositary
By:
--------------------------------------
Authorized Officer
The Depositary's principal executive office is located at 00 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx
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Xxxx 00000.
[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Property. Subject to paragraphs (4) and (5)
and any restrictions imposed by United Kingdom law, regulation or applicable
permit, to the extent practicable, the Depositary will promptly distribute by
mail to each Holder entitled thereto on the record date set by the Depositary
therefor at such Holder's address shown on the ADR Register, in proportion to
the number of Deposited Property (on which the following distributions on
Deposited Property are received by the Custodian) represented by ADSs evidenced
by such Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary
resulting from a cash dividend or other cash distribution or the net proceeds of
sales of any other distribution or portion thereof authorized in this paragraph
(10) ("Cash"), on an averaged or other practicable basis, subject to (i)
appropriate adjustments for taxes withheld, (ii) such distribution being
impermissible or impracticable with respect to certain Holders, and (iii)
deduction of the Depositary's fees and expenses in (1) converting any foreign
currency to U.S. dollars by sale or in such other manner as the Depositary may
determine to the extent that it determines that such conversion may be made on a
reasonable basis, (2) transferring foreign currency or U.S. dollars to the
United States by such means as the Depositary may determine to the extent that
it determines that such transfer may be made on a reasonable basis, (3)
obtaining any approval or license of any governmental authority required for
such conversion or transfer, which is obtainable at a reasonable cost and within
a reasonable time and (4) making any sale by public or private means in any
commercially reasonable manner. If the Depositary determines that any foreign
currency received by it cannot be converted on a reasonable basis and
transferred to the United States, the Depositary may distribute the foreign
currency received by it or, at its sole discretion, hold such foreign currency,
uninvested and without liability for interest thereon. The Depositary shall
distribute only such amount as can be distributed without distributing to any
Holder a fraction of one cent. Any such fractional amount shall be rounded to
the nearest whole cent and so distributed to Beneficial Owners entitled thereto.
Holders understand that in converting foreign currency, amounts received on
conversion are calculated at a rate which may exceed the number of decimal
places used by the Depositary to report distribution rates. Any excess amount
may be retained by the Depositary as an additional cost of conversion,
irrespective of any other fees and expenses payable or owing hereunder and shall
not be subject to escheatment, (b) Shares. (i) Additional ADRs evidencing whole
ADSs representing any Shares available to the Depositary resulting from a
dividend or free distribution on Deposited Property consisting of Shares (a
"Share Distribution") and (ii) U.S. dollars available to it resulting from the
net proceeds of sales of Shares received in a Share Distribution, which Shares
would give rise to fractional ADSs if additional ADRs were issued therefor, as
in the case of Cash, (c) Rights. (i) Warrants or other instruments in the good
faith discretion of the Depositary representing rights to acquire additional
ADRs in respect of any rights to subscribe for additional Shares or rights of
any nature available to the Depositary as a result of a distribution on
Deposited Property ("Rights"), to the extent that the Company timely furnishes
to the Depositary evidence satisfactory to the Depositary that the Depositary
may lawfully distribute the same (the Company has no obligation to so furnish
such evidence), or (ii) to the extent the Company does not so furnish such
evidence and sales of Rights are practicable, any U.S. dollars available to the
Depositary from the net proceeds of sales of Rights as in the case of Cash, or
(iii) to the extent the Company does not so furnish such evidence and such sales
cannot practicably be accomplished by reason of the non-transferability of the
Rights, limited markets therefor, their short duration or otherwise, nothing
(and any Rights may lapse), (d) Other Distributions (i) Securities or property
available to the Depositary resulting from any distribution on Deposited
Property other than Cash, Share Distributions and Rights ("Other
Distributions"), by any means that the Depositary
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may deem, after consultation with the Company to the extent practicable, lawful,
equitable and practicable, or (ii) to the extent the Depositary deems, after
consultation with the Company to the extent practicable, distribution of such
securities or property not to be lawful, equitable or practicable, any U.S.
dollars available to the Depositary from the net proceeds of sales of Other
Distributions as in the case of Cash. Such U.S. dollars available will be
distributed by checks drawn on a bank in the United States for whole dollars and
cents. Notwithstanding anything herein to the contrary, the Company shall have
no obligation to either (i) register any ADSs, Shares, Rights or other
securities described in this Paragraph (10) under the Securities Act of 1933 or
(ii) take other actions to permit the distribution of such ADSs, Shares, Rights
or other securities in accordance with applicable U.S. securities laws.
(11) Record Dates. The Depositary shall, after consultation with the
Company if practicable, fix a record date (which shall be as near as practicable
to any corresponding record date set by the Company with respect to the Shares)
for the determination of the Holders who shall be entitled to receive any
distribution on or in respect of Deposited Property, to give instructions for
the exercise of any voting rights, to receive any notice or to act in respect of
other matters and only such Holders shall be so entitled.
(12) Voting of Deposited Property. As soon as practicable after receipt
from the Company of notice of any meeting or solicitation of consents or proxies
of holders of Shares or other Deposited Property, the Depositary, to the extent
practicable, shall mail to Holders a notice stating (a) such information as is
contained in such notice and any solicitation materials, (b) that each Holder on
the record date set by the Depositary therefor will be entitled to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Property represented by the ADSs evidenced by such Holder's ADRs and
(c) the manner in which such instructions may be given. Upon receipt of
instructions of a holder on such record date, in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Property to vote or cause to be voted the Deposited Property
represented by the ADSs evidenced by such Holder's ADRs in accordance with such
instructions. The Depositary will not itself exercise any voting discretion in
respect of any Deposited Property. To the extent such instructions are not so
received by the Depositary from any Holder, such voting rights shall lapse.
Shares or other Deposited Property represented by ADSs for which no specific
voting instructions are received by the Depositary from the Holder shall not be
voted.
Notwithstanding anything to the contrary contained herein, the Depositary
shall not be obligated to exercise any voting rights on behalf of any Holder
unless and until the Depositary has been provided with an opinion, which may be
given at the time of entering into the Deposit Agreement, of counsel to the
Company, in form and substance satisfactory to the Depositary, to the effect
that (i) the voting arrangement as contemplated herein will be given effect
under United Kingdom law, and (ii) the Depositary will not be deemed to be
authorized to exercise any discretion when voting in accordance with the terms
of this paragraph (12) under United Kingdom law and, the Depositary will not be
subject to any liability under United Kingdom law for losses arising from the
exercise of the voting arrangements set forth in this paragraph (12). If after
the date such opinion is delivered to the Depositary the Company is advised by
counsel that there has occurred a change in United Kingdom law such that the
foregoing opinion could no longer be rendered favorably in whole or in part, the
Company shall promptly notify the Depositary of such change and the Depositary
shall thereafter have no obligation to exercise such voting rights. The Company
agrees to direct its counsel to inform it of any such changes in United Kingdom
law.
(13) Changes Affecting Deposited Property. Subject to paragraphs (4) and
(5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling
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this ADR for exchange) or cash, securities or property on the record date set by
the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation or other reclassification of Deposited Property, any
Share Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Property from (and the Depositary is hereby authorized to surrender any
Deposited Property to any person and to sell by public or private sale any
property received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of all or
substantially all the assets of the Company, and to the extent the Depositary
does not so amend this ADR or make a distribution to Holders to reflect any of
the foregoing, or the net proceeds thereof, whatever cash, securities or
property results from any of the foregoing shall constitute Deposited Property
and each ADS evidenced by this ADR shall automatically represent its pro rata
interest in the Deposited Property as then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, regulation, the provisions of or
governing any Deposited Property, act of God, war or other circumstance beyond
its control shall prevent, delay or subject to any civil or criminal penalty any
act which the Deposit Agreement or this ADR provides shall be done or performed
by it, or (ii) by reason of any exercise or failure to exercise any discretion
given it in the Deposit Agreement or this ADR; (b) assume no liability except to
perform its obligations (other than those directly related to the handling of
Deposited Property and Cash) to the extent they are specifically set forth in
this ADR and the Deposit Agreement without gross negligence or bad faith; (c)
assume no liability except to perform its obligations directly related to the
handling of Deposited Property and Cash to the extent they are specifically set
forth in this ADR and the Deposit Agreement without negligence or bad faith; (d)
in the case of the Depositary and its agents hereunder, be under no obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Property or this ADR; (e) in the case of the Company
and its agents hereunder, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited Property
or this ADR, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense (including fees and
disbursements of counsel) and liability be furnished as often as may be
required; or (f) not be liable for any action or inaction by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, or any other person believed by it in
good faith to be competent to give such advice or information. The Depositary,
the company and the respective agents of each of them may rely and shall be
protected in acting upon any written notice, request, direction or other
document believed by them to be genuine and to have been signed or presented by
the proper party or parties. The Depositary and its agents will not he
responsible for any failure to carry out any instructions to vote any of the
Deposited Property, for the manner in which any such vote is cast or for the
effect of any such vote. The Depositary and its agents may own and deal in any
class of securities of the Company and its affiliates and in ADRs. The Company
has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company against
losses incurred by the Company under certain circumstances. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary. The Depositary may resign as
Depositary by written notice of its election to do so delivered to the Company,
or be removed as Depositary by the Company by written notice of such removal
delivered to the Depositary; such resignation or removal shall take effect upon
the appointment of and acceptance by a successor depositary. The Depositary may,
after consultation with the Company, appoint substitute or additional Custodians
and the term "Custodian" refers to each Custodian or all Custodians as the
context requires.
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(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs and
the Deposit Agreement may be amended by the Company and the Depositary without
the consent of the Holders in any respect, provided that any amendment that
imposes or increases any fees or charges (other than stock transfer or other
taxes and other governmental charges, transfer or registration fees, cable,
telex or facsimile transmission costs, delivery costs or other such expenses),
or that shall otherwise prejudice any substantial existing right of Holders,
shall become effective 30 days after notice of such amendment shall have been
given to the Holders. Every Holder of an ADR at the time any amendment to the
Deposit Agreement so becomes effective shall be deemed, by continuing to hold
such ADR, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Holder of any ADR to surrender such ADR and receive the Deposited
Property represented thereby, except in order to comply with mandatory
provisions of applicable law.
(17) Termination. The Depositary may, and shall at the written direction of
the Company, terminate the Deposit Agreement and this ADR by mailing notice of
such termination to the Holders at least 30 days prior to the date fixed in such
notice for such termination. After the date so fixed for termination, the
Depositary and its agents will perform no further acts under the Deposit
Agreement and this ADR, except to advise Holders of such termination, receive
and hold (or sell) distributions on Deposited Property and deliver Deposited
Property being withdrawn. As soon as practicable after the expiration of six
months from the date so fixed for termination, the Depositary shall sell the
Deposited Property and shall thereafter (as long as it may lawfully do so) hold
in a segregated account the net proceeds of such sales, together with any other
cash then held by it under the Deposit Agreement, without liability for
interest, in trust for the pro rata benefit of the Holders of ADRs not therefore
surrendered. After making such sale, the Depositary shall be discharged from all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such net proceeds and other cash. After the date so fixed for termination,
the Company shall be discharged from all obligations under the Deposit Agreement
except for its obligations to the Depositary and its agents.
(18) Restrictions upon Ownership. So long as the Articles of
Associations of the Company (i) limit the number of Shares in which any holder
of Shares may be interested, or (ii) authorize the Company to take certain
actions (including disenfranchisement and withholding of dividends) in respect
of Shares held by a person who does not respond properly to a notice from the
Company requiring details of his interest in those Shares, notwithstanding any
contrary provision of the Deposit Agreement, each Holder agrees that such
limitations shall be applicable to and enforceable by the Company against such
Holder and such Holder's ADRs as if they were, to the extent practicable, the
Shares represented thereby and the Depositary agrees to use its reasonable
efforts to comply with any written instructions received from the Company
requesting that the Depositary take the reasonable actions specified therein to
apply and enforce such limitations (including disenfranchisement and disposal)
against specified Holders (other than The Depository Trust Company ("DTC") or
its nominees), provided that the Company shall indemnify the Depositary and hold
it harmless from any expense or liability incurred in complying with such
instructions. The Depositary shall not be required to take any actions with
respect to DTC or its nominees other than the providing of notice and the
forwarding of information and requests thereto.
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