[Citibank's Logo]
000 Xxxxxxxxx Xxxxxx
00xx xxxxx
Xxx Xxxx, XX 00000
September 21, 2007
Imperial Tobacco Group Plc
X.X. Xxx 000
Xxxxx Xxxx
Xxxxxxx, XX00 0XX
Xxxxxxx
Attention: Xx. Xxxxx Xxxxxx
IMPERIAL TOBACCO GROUP PLC - Direct Registration System for ADSs
Ladies and Gentlemen:
Reference is made to the Amended and Restated Deposit Agreement, dated as
of November 2, 1998 (the "Deposit Agreement"), by and among IMPERIAL TOBACCO
GROUP PLC (the "Company"), Citibank, NA., as Depositary (the "Depositary"), and
all Holders and Beneficial Owners from time to time of American Depositary
Receipts ("ADRs") evidencing American Depositary Shares ("ADSs") issued
thereunder, each ADS representing two (2) Ordinary Shares, par value of 10p per
share (the "Shares") of the Company. Capitalized terms used herein without
definition shall have the meaning assigned thereto in the Deposit Agreement.
The purpose of this letter agreement is to supplement the Deposit
Agreement to enable the establishment by the Depositary of a "direct
registration system" (the "DR System") for ADSs and the issuance by the
Depositary of "uncertificated ADSs" as part of the DR System. Therefore, the
Company and the Depositary agree as follows:
1. Notwithstanding any provision of the Deposit Agreement, the Depositary
may, at any time and from time to time, issue ADSs that are not evidenced by
ADRs (such ADSs, the "Uncertificated ADSs", and the ADSs evidenced by ADRs, the
"Certificated ADSs").
2. Uncertificated ADSs shall not be represented by any instrument(s) but
shall be evidenced only by the registration of "uncertificated securities" on
the books and records of the Depositary maintained for such purpose. Any
reference to Holders of ADR(s) or ADS(s) in the Deposit Agreement shall, in the
context of the Uncertificated ADSs, refer to the person(s) in whose name the
Uncertificated ADSs are registered on the books of the Depositary maintained for
such purpose.
3. Holders of Uncertificated ADSs that are not subject to any registered
pledges, liens, restrictions or adverse claims, of which the Depositary has
written notice at such time, shall at all times have the right to exchange the
Uncertificated ADSs (or any portion thereof) for Certificated ADSs of the same
type and class, subject in each case to applicable laws and any rules the
Depositary may establish from time to time in respect of the Uncertificated
ADSs.
4. Holders of Certificated ADSs shall, so long as the Depositary maintains
the DR System for the ADSs, have the right to exchange the Certificated ADSs (or
any portion thereof) for Uncertificated ADSs upon (i) the due surrender of the
Certificated ADSs to the Depositary for such purpose, and (ii) the presentation
of a written request to such effect to the Depositary, subject in each case to
(a) all liens and restrictions noted on the ADR evidencing the Certificated
ADS(s) and all adverse claims of which the Depositary then has written notice,
(b) the terms of the Deposit Agreement (as supplemented by this letter
agreement) and the rules that the Depositary may establish from time to time for
such purposes thereunder, and (c) applicable law.
5. Uncertificated ADSs shall in all material respects be identical to
Certificated ADSs of the same type and class, except that (i) no ADR(s) shall
be, nor shall need to be, issued to evidence Uncertificated ADSs, (ii)
Uncertificated ADSs shall, subject to the terms of the Deposit Agreement (as
supplemented by this letter agreement), be transferable upon the same terms and
conditions as uncertificated securities under New York law, (iii) each Holder's
ownership of Uncertificated ADSs shall be recorded on the books and records of
the Depositary maintained for such purpose and evidence of such Holder's
ownership shall be reflected in periodic statements provided by the Depositary
to each such Holder in accordance with applicable law, (iv) the Depositary may
from time to time, upon notice to the Holders of Uncertificated ADSs affected
thereby, establish rules and amend or supplement existing rules, as may be
deemed reasonably necessary to maintain the DR System and for the issuance of
Uncertificated ADSs on behalf of Holders, provided that such rules do not
conflict with the terms of the Deposit Agreement (as supplemented by this letter
agreement) and applicable law, (v) the Holder of Uncertificated ADSs shall not
be entitled to any benefits under the Deposit Agreement (as supplemented by this
letter agreement) and such Holder's Uncertificated ADSs shall not be valid or
enforceable for any purpose against the Depositary or the Company unless such
Holder is registered on the books and records of the Depositary maintained for
such purpose, (vi) the Depositary may, in connection with any deposit of Shares
resulting in the issuance of Uncertificated ADSs and with any transfer, pledge,
release and cancellation of Uncertificated ADSs, require the prior receipt of
such documentation as the Depositary may reasonably request, and (vii) upon
termination of the Deposit Agreement (as supplemented by this letter agreement),
the Depositary shall not require Holders of Uncertificated ADSs to affirmatively
instruct the Depositary or to take other action before remitting proceeds from
the sale of the Deposited Securities represented by such Holders' Uncertificated
ADSs under the terms of Section 6.02 of the Deposit Agreement.
6. When issuing ADSs under the terms of the Deposit Agreement, including,
without limitation, issuances pursuant to Sections 4.03 and 4.04 thereof, the
Depositary may in its discretion determine to issue Uncertificated ADSs rather
than Certificated ADSs, unless otherwise specifically instructed in writing by
the applicable Holder to issue Certificated ADSs.
7. Holders of Uncertificated ADSs may request the sale of ADSs through the
Depositary, subject to the terms and conditions generally applicable to the sale
of ADSs through the Depositary from time to time (which may be changed by the
Depositary).
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8. All provisions and conditions of the Deposit Agreement shall apply to
Uncertificated ADSs to the same extent as to Certificated ADSs, except as
contemplated herein. The Depositary is authorized and directed to take any and
all actions, and establish any and all procedures, deemed reasonably necessary
to give effect to the terms hereof. Any references in the Deposit Agreement or
any ADR(s) to the terms "American Depositary Share(s)" or "ADS(s)" shall, unless
the context otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s), individually or collectively, as the context may require.
9. Except as set forth herein and except as required by applicable law,
the Uncertificated ADSs shall be treated as ADSs issued and outstanding under
the terms of the Deposit Agreement (as supplemented by this letter agreement).
In the event that, in determining the rights and obligations of parties to the
Deposit Agreement (as supplemented by this letter agreement) with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit
Agreement and (b) the terms hereof, the terms and conditions set forth herein
shall be controlling and shall govern the rights and obligations of the parties
to the Deposit Agreement pertaining to the Uncertificated ADSs.
10. This letter agreement shall be interpreted under, and all the rights
and obligations hereunder shall be governed by, the laws of the State of New
York without regard to the principles of choice of law thereof.
11. The terms of this letter agreement supplement the Deposit Agreement,
and are not intended to prejudice any substantial existing rights of Holders of
ADSs and, as a result, notice may, but is not required, to be given of the terms
hereof to Holders of ADSs under the Deposit Agreement.
12. The Company and the Depositary shall make reference to the terms of
this letter agreement, or attach an executed copy hereof to, the next
Registration Statement on Form F-6 filing made with the Securities and Exchange
Commission in respect of the ADSs.
CITIBANK, NA.,
as Depositary
By: /s/ Xxxxx X Xxxxxxxxxx
----------------------------
Name: Xxxxx X Xxxxxxxxxx
Title: Vice President
Date: 09/21/07
Acknowledged and Agreed:
IMPERIAL TOBACCO GROUP PLC
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Company Secretary
Date: 2 October 2007
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