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RANDGOLD RESOURCES LIMITED
AND
THE BANK OF NEW YORK
AS RULE 144A DEPOSITARY
AND
HOLDERS AND BENEFICIAL OWNERS OF RULE 144A GLOBAL
DEPOSITARY RECEIPTS
RULE 144A DEPOSIT AGREEMENT
DATED AS OF JULY 1, 1997
AMENDED AND RESTATED AS OF JUNE 26, 2002
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RULE 144A DEPOSIT AGREEMENT
RULE 144A DEPOSIT AGREEMENT dated as of July 1, 1997, as
amended and restated as of June 26, 2002, among RANDGOLD RESOURCES LIMITED,
incorporated under the laws of Jersey (herein called the Company), THE BANK OF
NEW YORK, a New York banking corporation (herein called the Rule 144A
Depositary), and all Rule 144A GDS Holders (as hereinafter defined) and Rule
144A GDS Beneficial Owners (as hereinafter defined) from time to time of Rule
144A Global Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set
forth in this Rule 144A Deposit Agreement, for the deposit of Shares (as
hereinafter defined) of the Company from time to time with the Rule 144A
Depositary or with the Custodian (as hereinafter defined), as agent of the Rule
144A Depositary for the purposes set forth in this Rule 144A Deposit Agreement,
for the creation of Rule 144A Rule 144A Global Depositary Shares representing
the Shares so deposited and for the execution and delivery of Rule 144A Global
Depositary Receipts evidencing the Rule 144A Rule 144A Global Depositary Shares;
and
WHEREAS, the Rule 144A Global 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 Rule
144A 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 Rule
144A Deposit Agreement:
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SECTION 1.1 Book-Entry Rule 144A GDSs.
The term "Book-Entry Rule 144A GDSs" shall mean all Rule 144A
GDSs other than Physical Rule 144A GDSs, which are evidenced by a Receipt in
book-entry form in accordance with Section 2.01(b).
SECTION 1.2 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.3 Company.
The term "Company" shall mean Randgold Resources Limited,
incorporated under the laws of Jersey, and its successors.
SECTION 1.4 Custodian.
The term "Custodian" shall mean the London office of The Bank
of New York, as agent of the Rule 144A Depositary for the purposes of this
Deposit Agreement, and any other firm or corporation which may hereafter be
appointed by the Rule 144A Depositary pursuant to the terms of Section 5.05, 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.
The term "Deposit Agreement" shall mean this Rule 144A Deposit
Agreement, as the same may be amended from time to time in accordance with the
provisions hereof and all instruments supplemental hereto.
SECTION 1.6 Rule 144A Depositary; Corporate Trust Office.
The term "Rule 144A 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 Rule 144A
Depositary, shall
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mean the corporate trust office of the Rule 144A Depositary which at the date of
this Deposit Agreement is 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.7 Deposited Securities.
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
Rule 144A Depositary or the Custodian in respect thereof and at such time held
hereunder, subject as to cash to the provisions of Section 4.05.
SECTION 1.8 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.9 DTC.
The term "DTC" shall mean The Depository Trust Company, or any
successor corporation thereto.
SECTION 1.10 Foreign Currency.
The term "Foreign Currency" shall mean any currency other than
Dollars.
SECTION 1.11 Foreign Registrar.
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 Company for the
transfer and registration of Shares.
SECTION 1.12 Regulation S Global Depositary Shares; Regulation S GDSs;
Regulation S Global Depositary Receipts; Regulation S GDRs.
The terms "Regulation S Global Depositary Shares" and
"Regulation S GDSs" shall mean the global depositary shares issued pursuant to
the Regulation S Deposit Agreement. The terms "Regulation S Global Depositary
Receipts" and "Regulation S GDRs" shall mean the global depositary receipts
evidenced by the Regulation S GDSs.
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SECTION 1.13 Rule 144A Global Depositary Shares; Rule 144A GDSs.
The terms "Rule 144A Global Depositary Shares" and "Rule 144A
GDSs" shall mean the securities representing the interests in the Deposited
Securities and evidenced by the Receipts issued hereunder. Each Rule 144A Global
Depositary Share shall represent the right to receive the number of Shares
specified in Exhibit A annexed hereto, until there shall occur a distribution
upon Deposited Securities covered by Section 4.03 or a change in Deposited
Securities covered by Section 4.08 with respect to which additional Receipts are
not executed and delivered, and thereafter Rule 144A Global Depositary Shares
shall evidence the rights to receive the amount of Shares or Deposited
Securities specified in such Sections.
SECTION 1.14 Rule 144A GDS Beneficial Owner.
The term "Rule 144A GDS Beneficial Owner" shall mean each
person owning from time to time any beneficial interest in the Rule 144A Master
GDR issued hereunder, but who is not the Holder of such Receipt.
SECTION 1.15 Rule 144A Deposit Agreement.
The term "Rule 144A Deposit Agreement" shall mean the Rule
144A Deposit Agreement, dated as of July 1, 1997, as amended and restated as of
June 26, 2002, among the Rule 144A Depositary, the Company and the Rule 144A GDS
Holders and Rule 144A GDS Beneficial Owners of Rule 144A Depositary Shares
issued thereunder, as the same may be amended from time to time.
SECTION 1.16 Rule 144A Master GDR.
The term "Master GDR" shall mean the GDR registered in the
name of the nominee of DTC evidencing all Book-Entry Rule 144A GDSs, as provided
in Section 2.01(b).
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SECTION 1.17 Rule 144 GDS Holder.
The term "Rule 144 GDS Holder" shall mean the person in whose
name a Receipt is registered on the books of the Rule 144A Depositary maintained
for such purpose.
SECTION 1.18 Rule 144A Physical Rule 144A GDSs.
The term "Physical Rule 144A GDSs" shall mean GDSs evidenced
by Receipts (other than the Master GDR) issued in physical, certificated form
pursuant to Section 2.01(b) at any time that the book-entry settlement system of
DTC is not available for the Book-Entry Rule 144A GDSs as provided in Section
2.01(b).
SECTION 1.19 PORTAL.
The term "PORTAL" shall mean the Private Offerings, Resales
and Trading through Automated Linkages market of the NASD (as defined in Section
2.01 hereof) or any successor to such market.
SECTION 1.20 Receipts.
The term "Receipts" shall mean the Rule 144A Global Depositary
Receipts, including the Master GDR, issued hereunder, in substantially the form
of Exhibit A hereto, evidencing Rule 144A Global Depositary Shares as the same
may be amended from time to time in accordance with the provisions hereof.
SECTION 1.21 Registrar.
The term "Registrar" shall mean the Rule 144A Depositary or
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 and to countersign Receipts as herein provided and shall include any
co-registrars appointed by the Rule 144A Depositary.
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SECTION 1.22 Regulation S.
The term "Regulation S" shall mean Regulation S, as from time to time
amended, under the Securities Act.
SECTION 1.23 Rule 144.
The term "Rule 144" shall mean Rule 144, as from time to time amended,
under the Securities Act.
SECTION 1.24 Rule 144A.
The term "Rule 144A" shall mean Rule 144A, as from time to time
amended, under the Securities Act.
SECTION 1.25 Securities Act.
The term "Securities Act" shall mean the United States Securities Act
of 1933, as from time to time amended.
SECTION 1.26 Securities Exchange Act.
The term "Securities Exchange Act" shall mean the United States
Securities Exchange Act of 1934, as from time to time amended.
SECTION 1.27 Shares.
The term "Shares" shall mean ordinary shares in registered form of the
Company, nominal value US$0.10 each, heretofore validly issued and outstanding
and fully paid, nonassessable and free of any preemptive rights of the holders
of outstanding Shares, or hereafter validly issued and outstanding and fully
paid, nonassessable and free of any preemptive rights of the holders of
outstanding, Shares or interim certificates representing such Shares; provided,
however, that if there shall occur any change in par value, a split-up or
consolidation or any other reclassification or, upon the occurrence of an event
described in Section 4.08, an exchange or conversion in respect of the Shares,
the term "Shares" shall thereafter mean the successor securities resulting from
such
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change in par value, split-up or consolidation or such other reclassification or
such exchange or conversion.
XXXXXXX 0.00 Xxxxxx Xxxxxx.
The term "United States" shall, except as otherwise provided in this
Deposit Agreement or the Receipts, mean the United States of America, its
territories and possessions, any State of the United States, and the District of
Columbia.
ARTICLE 2. BOOK-ENTRY SYSTEM, FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Form and Transferability of Receipts.
(a) Receipts shall be entitled "Rule 144A Global Depositary Receipts"
and 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 Rule 144A Depositary by the manual or facsimile
signature of a duly authorized signatory of the Rule 144A Depositary and, if a
Registrar (other than the Rule 144A Depositary) for the Receipts shall have been
appointed, countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar. The Rule 144A 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 Rule 144A
Depositary who was at any time a proper signatory of the Rule 144A Depositary
shall bind the Rule 144A 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.
Each Receipt shall bear the following legend:
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THIS RULE 144A GLOBAL DEPOSITARY RECEIPT ("RULE 144A GDR"); THE RULE
144A GLOBAL DEPOSITARY SHARES ("RULE 144A GDSs) AND THE SHARES OF THE COMPANY
REPRESENTED THEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
THE HOLDER HEREOF, BY PURCHASING THE RULE 144A GDSs IN RESPECT OF WHICH THIS
RULE 144A GDR IS ISSUED, AGREES THAT SUCH SECURITIES MAY BE RESOLD, OFFERED FOR
SALE, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A") TO AN INSTITUTIONAL BUYER THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER WHOM THE SELLER HAS INFORMED, IN EACH CASE, THAT THE RESALE
OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) UNLESS THIS CERTIFICATE IS A GLOBAL CERTIFICATE, PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
AVAILABLE) OR (4) UNLESS THIS CERTIFICATE IS A GLOBAL CERTIFICATE, PURSUANT TO
ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
In addition to the foregoing, the Receipts may be endorsed
with or have incorporated in the text thereof such legends or recitals or
modifications not inconsistent with the provisions of this Deposit Agreement as
may be required (i) by the Rule 144A Depositary; (ii) to comply with any
applicable law or regulations or with the rules and regulations thereunder of
any securities exchange upon which Rule 144A Global Depositary Shares may be
listed or to conform with any usage with respect thereto, or to
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indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date or manner of issuance of the
underlying Deposited Securities or otherwise; (iii) by the National Association
of Securities Dealers, Inc. (the "NASD") in order for the Receipts to be
tradeable in the NASD's PORTAL market or by another self-regulatory organization
in order for the Receipts to be tradeable in another closed market open only to
qualified institutional buyers (as defined in Rule 144A) ("QIBs") and to
securities eligible for resale under Rule 144A, the rules of which have been
approved by the Commission (collectively, a "Rule 144A Trading Market"); or (iv)
by Section 2.01(b) or otherwise.
The Receipts shall bear a CUSIP number that is different from
any CUSIP number that is or may be assigned to any Rule 144A GDSs evidenced by
Rule 144A GDRs issued by the Rule 144A Depositary under the Rule 144A Deposit
Agreement or any other depositary receipt facility relating to the Shares.
If applicable, the Receipts shall bear an ISIN number that is
different from any ISIN number that is or may be assigned to any Rule 144A GDSs
evidenced by Rule 144A GDRs issued by the Rule 144A Depositary under the Rule
144A Deposit Agreement or any other depositary receipt facility relating to the
Shares.
(b) The Company and the Rule 144A Depositary shall make
application to DTC for acceptance of the Book-Entry Rule 144A GDSs for its
book-entry settlement system. The Company hereby appoints the Rule 144A
Depositary acting through any authorized officer thereof as its
attorney-in-fact, with full power to delegate, for purposes of executing any
agreements, certifications or other instruments or documents necessary or
desirable in order to effect the acceptance of the Book-Entry Rule 144A GDSs for
DTC eligibility, including but not limited to a letter of representations, with
such modifications as are agreed to by the Company and the other parties
thereto.
So long as the Book-Entry Rule 144A GDSs are eligible for
book-entry settlement with DTC, unless otherwise required by law, such
Book-Entry Rule 144A GDSs representing the Shares deposited with any Custodian
shall be represented by a
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Master GDR issued to DTC and registered in the name of Cede & Co., as nominee of
DTC and no person acquiring such Book-Entry Rule 144A GDSs shall receive or be
entitled to receive physical delivery of certificated Receipts evidencing Rule
144A Global Depositary Shares. Accordingly, each Beneficial Owner must rely upon
the procedures of DTC and institutions having accounts with DTC to exercise or
be entitled to any rights of a Holder of a Receipt. The Bank of New York or such
other entity as is agreed with DTC may hold the Master GDR as custodian for DTC.
During any period in which Book-Entry Rule 144A GDSs are represented by the
Master GDR, ownership of beneficial interests in the Master GDR shall be shown
on, and the transfer of such ownership shall be effected only through, records
maintained by (i) DTC or its nominee (with respect to participants' interests)
or (ii) institutions having accounts with DTC. All references in this Deposit
Agreement to issuance or delivery of Receipts shall be deemed to include, where
applicable, adjustments in the records of the Rule 144A Depositary showing the
number of Book-Entry Rule 144A GDSs evidenced by the Master GDR.
For so long as the Master GDR is registered in the name of a
nominee of DTC, it shall bear a legend substantially in the following form:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the agent authorized by the issuer for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
(b) If, at any time when Book-Entry Rule 144A GDSs are
represented by the Master GDR, DTC ceases to make its book-entry settlement
system available for the Book-Entry Rule 144A GDSs, the Company shall consult
with the Rule 144A Depositary regarding other arrangements for book-entry
settlement. Only in the event
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that it is impracticable without undue effort or expense to have or to continue
to have the Rule 144A GDSs available in book-entry form as determined by the
Company and the Rule 144A Depositary shall the Company instruct the Rule 144A
Depositary to make Receipts evidencing Physical Rule 144A GDSs available to the
Rule 144A GDS Beneficial Owners in physical, certificated form, which
availability shall be subject to such additions, deletions and modifications to
the form of Receipt attached hereto as Exhibit A and this Deposit Agreement, and
subject to the requirements of any other documents, statements or certifications
in connection therewith, as the Company and the Rule 144A Depositary may, from
time to time, agree. In the event of issuance of Receipts in physical,
certificated form evidencing Physical Rule 144A GDSs, such Receipts may evidence
any number of Rule 144A Global Depositary Shares.
The Receipts shall be typewritten, in the case of the Master
GDR, and otherwise shall be engraved, lithographed, printed, or typewritten, or
in such other form as may be agreed upon by the Company and the Rule 144A
Depositary. The Master GDR shall bear such legend or legends as may be required
by DTC for acceptance of the Book-Entry Rule 144A GDSs for its book-entry
settlement system. The Master GDR shall provide that it shall represent the
aggregate amount of Book-Entry Rule 144A GDSs from time to time indicated in the
records of the Rule 144A Depositary as being issued hereunder and that the
aggregate amount of Rule 144A Global Depositary Shares represented thereby may
from time to time be increased or decreased by the adjustment of such records of
the Rule 144A Depositary and of DTC or its nominee as hereinafter provided.
(c) Title to a Receipt (and to the Rule 144A Global Depositary
Shares evidenced thereby), when properly endorsed or accompanied by a proper
instrument or instruments of transfer and transferred in accordance with the
terms of this Deposit Agreement, shall be transferable by delivery with the same
effect as in the case of a negotiable instrument under the laws of the State of
New York; provided, however, that the Rule 144A Depositary, notwithstanding any
notice to the contrary, may treat the Holder thereof as the absolute owner
thereof for the purpose of determining the person
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entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes and neither
the Rule 144A Depositary nor the Company will have any obligation or be subject
to any liability under this Deposit Agreement to any holder of a Receipt, unless
such holder is the Holder thereof.
SECTION 2.2 Deposit of Shares.
(a) 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 (except in the case of the initial deposit of Shares by the
Company) a duly executed and completed written certification and agreement
("Depositor Certificate"), in substantially the form attached as Annex I hereto,
by or on behalf of the person who will be the Beneficial Owner of the Rule 144A
Global Depositary Shares to be issued upon deposit of such Shares, and all such
certifications, documents, other information and payments as may be required by
the Rule 144A Depositary or the Custodian in accordance with the provisions of
this Deposit Agreement, and, if the Rule 144A Depositary requires, together with
a written order (1) directing the Rule 144A Depositary to adjust its records, as
contemplated by Section 2.01(b), so as to increase, by the number of Rule 144A
Global Depositary Shares representing such deposited Shares, the number of Rule
144A Global Depositary Shares evidenced by the Master GDR, and specifying the
person or persons to whose DTC participant account such increase in the number
of Rule 144A Global Depositary Shares should be credited or (2) in the case of
deposits made at any time that DTC's book-entry settlement system is not
available for the Book-Entry Rule 144A GDSs as provided in Section 2.01(b),
directing the Rule 144A Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts in physical certificated form, for the number of Rule 144A GDSs
representing such deposited Shares.
No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Rule 144A Depositary that all conditions to such deposit
have been
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satisfied by the person depositing such Shares under Jersey laws and regulations
and any necessary approval has been granted by any governmental body in Jersey
which is then performing the function of the regulation of currency exchange or
any other function which requires approval for the deposit of Shares. If
required by the Rule 144A Depositary, Shares presented for deposit at any time,
whether or not the transfer books of the Company or the Foreign Registrar, if
applicable, are closed, shall also be accompanied by an agreement or assignment,
or other instrument satisfactory to the Rule 144A 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 Rule 144A
Depositary.
The Depositary will refuse to accept Shares for deposit whenever it is
notified in writing that such deposit would result in any violation of
applicable laws or the Company's Memorandum or Articles of Association.
In the event that Shares, or securities of any class that may from
time to time be deposited with the Custodian pursuant to this Deposit Agreement,
or Rule 144A Global Depositary Shares or Receipts representing such Shares or
other securities, become listed on a national securities exchange which is
registered under Section 6 of the Securities Exchange Act or quoted in a U.S.
automated inter-dealer quotation system (within the meaning of Rule
144A(d)(3)(i)), the Company shall notify the Rule 144A Depositary and the
Custodian in writing of such listing or quotation. Thereafter, and
notwithstanding any other provision of this Deposit Agreement to the contrary,
the Rule 144A Depositary and the Custodian shall refuse to accept for deposit
any Shares of the same class (within the meaning of Rule 144A(d)(3)(i)) as the
securities so listed or quoted, unless the person making such deposit shall
furnish evidence satisfactory to the Rule 144A Depositary, in its sole
discretion, that the Shares to be deposited were not, when issued, of the same
class (within the meaning of Rule 144A(d)(3)(i)), as the securities so listed or
quoted.
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At the request, risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Rule 144A Depositary may receive
certificates for Shares to be deposited, together with the other instruments and
payments 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 and payments
specified above, such Custodian shall, as soon as transfer and recordation can
be accomplished, present such certificate or certificates to the Company or the
appointed agent of the Company for transfer and registration of Shares, which
may but need not be the Foreign Registrar, if applicable, for transfer and
recordation of the Shares being deposited in the name of the Rule 144A
Depositary or its nominee or such Custodian or its nominee.
(b) The Rule 144A Depositary agrees to instruct the Custodian to place
all Shares accepted for deposit under this Deposit Agreement into segregated
accounts separate from any Shares of the Company that may be held by such
Custodian under any other depositary receipt facility relating to the Shares.
(c) Deposited Securities shall be held by the Rule 144A Depositary or
by a Custodian for the account and to the order of the Rule 144A Depositary or
at such other place or places as the Rule 144A Depositary shall determine.
SECTION 2.3 Execution and Delivery of Receipts.
(a) Upon receipt by any Custodian of any deposit pursuant to Section
2.02(b) hereunder (and in addition, if the transfer books of the Company or the
Foreign Registrar, if applicable, are open, the Rule 144A Depositary may in its
sole discretion require a proper acknowledgment or other evidence from the
Company that any Deposited Securities have been recorded upon the books of the
Company or the Foreign Registrar, if applicable, in the name of the Rule 144A
Depositary or its nominee or such Custodian or its nominee), together with the
other documents and payments required as specified above and pursuant to Section
2.06, such Custodian shall notify the Rule 144A Depositary of such deposit and
the name and DTC account number of the DTC
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participant or participants to whose account(s) the Book-Entry Rule 144A GDSs
should be credited or, if DTC's book-entry settlement system is not then
available for the Book-Entry Rule 144A GDSs as provided in Section 2.01(b), the
person or persons to whom or upon whose written order a certificated Receipt or
Receipts for Physical Rule 144A GDSs are deliverable in respect thereof and the
number of Rule 144A Global 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 air courier, cable, telex or facsimile
transmission.
Upon receiving such notice from such Custodian, the Rule 144A
Depositary or its agent, subject to this Deposit Agreement, shall (a) if DTC's
book-entry settlement system is then available for the Book-Entry Rule 144A GDSs
(i) adjust its records to reflect such deposit so as to evidence the aggregate
number of Book-Entry Rule 144A GDSs then outstanding and (ii) instruct DTC to
adjust its records to reflect such increase and credit the designated DTC
participant account or accounts with such increase, or (b) if DTC's book-entry
settlement system is not then available for Book-Entry Rule 144A GDSs as
provided in Section 2.01(b), execute and deliver at its Corporate Trust Office,
to or upon the order of the person or persons named in the notice delivered to
the Rule 144A Depositary, a certificated Receipt or Receipts, registered in the
name or names requested by such person or persons, and evidencing in the
aggregate the number of Physical Rule 144A GDSs to which such person or persons
are entitled, but, in either case, (A) only upon payment to the Rule 144A
Depositary or Custodian of all taxes and governmental charges and fees payable
in connection with such deposit and the transfer of the deposited Shares and (B)
subject to the other terms of this Deposit Agreement and the provisions of the
Company's Articles of Association or Memorandum of Association and of the
Deposited Securities.
Except in the case of the initial deposit of Shares by the Company,
the Rule 144A Depositary shall neither execute nor deliver a Receipt nor adjust
its records in respect of any deposit of Shares unless a Depositor Certificate
in substantially the form
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appearing as Annex I hereto is provided to the Rule 144A Depositary by or on
behalf of the person acquiring beneficial ownership of any Rule 144A GDSs.
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Rule 144A Depositary, subject to the terms and conditions of this
Deposit Agreement, including payment of the fees of the Rule 144A Depositary as
provided in Section 5.09, shall register transfers of Receipts on its transfer
books from time to time, (a) if the book-entry settlement system of DTC is then
available for the Book-Entry Rule 144A GDSs, upon receipt by the Rule 144A
Depositary at its Corporate Trust Office of written instructions from DTC or
DTC's nominee on behalf of any Beneficial Owner and (b) if the book-entry
settlement system of DTC shall become unavailable for the Book-Entry Rule 144A
GDSs, upon surrender at the Corporate Trust Office of the Rule 144A Depositary
of a Receipt, by the Holder in person or by a duly authorized attorney, properly
endorsed or accompanied by a proper instrument or instruments of transfer
(including, in the case of any Receipt in physical, certificated form, the due
execution and completion of any endorsements appearing thereon relating to
compliance with restrictions applicable to the transfer thereof), and duly
stamped as may be required by the laws of the Xxxxx xx Xxx Xxxx xxx xx xxx
Xxxxxx Xxxxxx. Thereupon the Rule 144A Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto, subject to receipt of any certifications by such person as the Rule
144A Depositary and the Company may require in order to comply with applicable
laws, but only upon payment to the Rule 144A Depositary of the fees of the Rule
144A Depositary as provided in Section 5.09.
The Rule 144A Depositary may deliver a Receipt or Receipts in exchange
for an unrestricted depositary receipt or unrestricted depositary receipts, upon
the same terms and subject to the same conditions as apply to a deposit for a
Receipt under Section 2.02(b). The Rule 144A Depositary is not required to
deliver a Receipt in exchange for an unrestricted depositary receipt if the Rule
144A Depositary believes that at the time of issuance such Receipt would not be
eligible under paragraph (d)(3) of Rule 144A.
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The Rule 144A 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 Rule 144A Global
Depositary Shares requested, evidencing the same aggregate number of Rule 144A
Global Depositary Shares as the Receipt or Receipts surrendered.
Notwithstanding the foregoing, with respect to any transfer of a
Receipt evidencing Physical Rule 144A GDSs, upon the surrender of such Receipt
together with written instructions as to the person or persons, or to whose DTC
participant account the Physical Rule 144A GDSs to be transferred are to be
credited, the Rule 144A Depositary will, if at the time DTC's book-entry
settlement system is available for Book-Entry Rule 144A GDSs, cancel the
surrendered Receipt, adjust its records, and instruct DTC to adjust its records,
so as to increase the number of Rule 144A Global Depositary Shares represented
by the Master GDR by the number of Physical Rule 144A GDSs evidenced by the
Receipt so surrendered for transfer and inform DTC as to the person or persons,
or to whose DTC participant account such Rule 144A Global Depositary Shares are
to be credited.
The Rule 144A 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 Rule 144A Depositary. In
carrying out its functions, a co-transfer agent may require evidence of
authority and compliance with applicable laws and other requirements by Rule
144A GDS Holders or persons entitled to Receipts and will be entitled to
protection and indemnity to the same extent as the Rule 144A Depositary.
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
Subject to the terms and conditions of this Deposit Agreement, upon
(i) receipt by the Rule 144A Depositary at its Corporate Trust Office of written
instructions from DTC or DTC's nominee, Euroclear or Cedel on behalf of any
Beneficial Owner, if the book-entry settlement system of DTC is then available
for the Book-Entry Rule 144A
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GDSs, and (ii) surrender at the Corporate Trust Office of the Rule 144A
Depositary of a Receipt evidencing Book-Entry Rule 144A GDSs or Physical Rule
144A GDSs, if the book-entry settlement system of DTC shall have become
unavailable for Book-Entry Rule 144A GDSs, in either case for the purpose of
withdrawal of the Deposited Securities represented by the Rule 144A Global
Depositary Shares evidenced by such Receipt or representing such person's
beneficial interest in Book-Entry Rule 144A GDSs evidenced by the Master GDR,
and upon payment of the fee of the Rule 144A Depositary for the surrender of
Receipts as provided in Section 5.09 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 Articles or Memorandum of Association of the Company, the
Deposited Securities and applicable law, the Holder of such Receipt acting for
itself or on behalf of the Beneficial Owner or DTC participant, as the case may
be, shall be entitled to delivery, to him or upon his order of the amount of
Deposited Securities at the time represented by the Rule 144A Global Depositary
Shares evidenced by such Receipt or such beneficial interest in Book Entry GDSs
evidenced by the Master GDR. Delivery of such Deposited Securities may be made
by the delivery of (x) certificates in the name of such Holder or as ordered by
him or certificates properly endorsed or accompanied by a proper instrument or
instruments of transfer to such Holder or as ordered by him, and (y) any other
securities, property and cash to which such Holder is then entitled in respect
of such Receipts to such Holder or as ordered by him. Such delivery shall be
made, as hereinafter provided, without unreasonable delay.
Notwithstanding the foregoing, no Deposited Securities may be
withdrawn upon receipt of written instructions from DTC or DTC's nominee or
Euroclear or Cedel on behalf of any Beneficial Owner or the surrender of a
Receipt, as the case may be, unless at or prior to the time of surrender the
Rule 144A Depositary shall have received a duly executed and completed written
certificate and agreement ("Withdrawal and Transfer Certificate"), in
substantially the form attached hereto as Annex II, by or on behalf of the
person surrendering such Receipt who after such withdrawal will be the
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beneficial owner of such Deposited Securities; provided that no such certificate
shall be required if (i) the Shares underlying the Rule 144A Global Depositary
Shares have been registered under the Securities Act and the Rule 144A
Depositary has received a satisfactory opinion of counsel to that effect or (ii)
the Rule 144A Depositary shall have received a written opinion of counsel
admitted to practice law in the United States satisfactory to the Rule 144A
Depositary to the effect that no such certificate is required.
A Receipt surrendered for such purposes may be required by the Rule
144A Depositary to be properly endorsed in blank or accompanied by a proper
instrument or instruments of transfer in blank, and if the Rule 144A Depositary
so requires, the Holder thereof or the Beneficial Owner of an interest as to
which withdrawal instructions have been given, as the case may be, shall execute
and deliver to the Rule 144A Depositary a written order directing the Rule 144A
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 Rule 144A Depositary shall direct the Custodian to deliver at the
London office of such Custodian, subject to Sections 2.06, 3.01 and 3.02 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 Rule
144A Depositary as above provided, the amount of Deposited Securities
represented by the Rule 144A Global Depositary Shares evidenced by such Receipt
or such beneficial interest in Book-Entry Rule 144A GDSs evidenced by the Master
GDR, except that the Rule 144A Depositary may make delivery to such person or
persons at the Corporate Trust Office of the Rule 144A Depositary of any
dividends or distributions with respect to the Deposited Securities represented
by the Rule 144A Global Depositary Shares evidenced by such Receipt or such
beneficial interest, or of any proceeds of sale of any dividends, distributions
or rights, which may at the time be held by the Rule 144A Depositary.
At the request, risk and expense of any Holder so surrendering a
Receipt or any Beneficial Owner submitting such written instructions for
delivery, and for the account of such Holder or Beneficial Owner, the Rule 144A
Depositary shall direct the
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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 Rule 144A Global Depositary
Shares evidenced by such Receipt or the beneficial interest in Book-Entry Rule
144A GDSs evidenced by the Master GDR to the Rule 144A Depositary for delivery
at the Corporate Trust Office of the Rule 144A Depositary. Such direction shall
be given by letter or, at the request, risk and expense of such Holder, by air
courier, cable, telex or facsimile transmission.
Notwithstanding the foregoing, at any time the Company maintains an
unrestricted depositary receipt facility with respect to the Shares in the
United States, each Holder acknowledges that, and each of the Rule 144A
Depositary and the Custodian agrees that, neither the Custodian nor the Rule
144A Depositary will make any actual delivery of Shares to any Holder at an
address within the United States, unless such Shares are no longer deemed to be
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act.
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.
(a) As a condition precedent to the execution and delivery,
registration, registration of transfer, split-up, combination or surrender of
any Receipt or beneficial interest in the Master GDR or withdrawal of any
Deposited Securities or the adjustment of the Rule 144A Depositary's records to
reflect the deposit of Shares or any such transfer, split-up, combination,
surrender or withdrawal, the Rule 144A Depositary, Custodian or Registrar may
require payment from the depositor of Shares or the presenter of the Receipt of
a sum sufficient to reimburse it for any tax or other governmental charge and
any stock transfer or registration fee with respect thereto (including any such
tax or charge and fee with respect to the 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 Rule 144A
Depositary may establish consistent with the provisions of this Deposit
Agreement, including, without limitation, this Section 2.06.
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(b) The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or deposits of Shares
may be refused, or the transfer of Receipts in particular instances may be
refused, or the registration of transfer, split-up or combination of outstanding
Receipts, or the surrender of outstanding Receipts or the receipt of written
instructions from any person having a beneficial interest in Book-Entry Rule
144A GDSs represented by the Master GDR for the purpose of withdrawal of
Deposited Securities, may be suspended generally or in particular instances,
during any period when the transfer books of the Rule 144A Depositary or the
Company or the Foreign Registrar, if applicable, are closed, or if any such
action is deemed necessary or advisable by the Rule 144A Depositary or the
Company, or the Foreign Registrar, 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. The
Rule 144A Depositary shall in no event be required to accept Shares for deposit
or issue Receipts or adjust the Master GDR against such delivery if the Rule
144A Depositary believes that at the time of issuance such Receipts would not be
eligible under paragraph (d)(3) of Rule 144A.
SECTION 2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Rule 144A 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 Rule 144A Depositary shall execute and deliver a new Receipt in
substitution for a destroyed, lost or stolen Receipt, the Holder thereof shall
have (a) filed with the Rule 144A Depositary (i) a request for such execution
and delivery before the Rule 144A 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 Rule 144A
Depositary.
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SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts physically surrendered to the Rule 144A Depositary shall
be cancelled by the Rule 144A Depositary. The Rule 144A Depositary is authorized
to destroy Receipts so cancelled.
SECTION 2.9 Pre-Release.
Notwithstanding Section 2.03 hereof, the Rule 144A Depositary may
execute and deliver Receipts prior to the receipt of Shares pursuant to Section
2.02 (a "Pre-Release"). The Rule 144A Depositary may, pursuant to Section 2.05,
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 Rule 144A Depositary knows that such Receipt has been
Pre-Released. The Rule 144A 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 or
Shares 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 Rule 144A Depositary
deems appropriate, (c) terminable by the Rule 144A Depositary on not more than
five (5) business days notice, and (d) subject to such further indemnities and
credit regulations as the Rule 144A Depositary deems appropriate. The number of
Rule 144A Global Rule 144A Depositary Shares which are outstanding at any time
as a result of Pre-Release will not normally exceed thirty percent (30%) of the
Shares deposited hereunder; provided, however, that the Rule 144A Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate.
The Rule 144A Depositary may retain for its own account any
compensation received by it in connection with the foregoing.
The person to whom any Pre-Release is to be made pursuant to this
Section 2.09 shall be required to deliver to the Rule 144A Depositary a duly
executed and completed Depositor Certificate in substantially the form attached
hereto as Annex I.
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ARTICLE 3. CERTAIN OBLIGATIONS OF RULE 144A GDS HOLDERS AND
RULE 144A GDS BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Holder or Beneficial
Owner of a Receipt may be required from time to time to file with the Rule 144A
Depositary or the Custodian such proof of citizenship or residence, exchange
control approval, proof of the identity of any person legally or beneficially
interested in the Receipt and the nature of such interest, proof of compliance
with all applicable laws and regulations and provisions of or governing
Deposited Securities and the terms of this Deposit Agreement or such information
relating to the registration on the books of the Company or the Foreign
Registrar, if applicable, of the Shares presented for deposit or other
information, to execute such certificates and to make such representations and
warranties, as the Rule 144A Depositary may deem necessary or proper. The Rule
144A Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or distribution of rights or of the
sale 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.
SECTION 3.2 Liability of Holder or Beneficial Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Rule 144A Depositary with respect to any Receipt or any
Deposited Securities represented by the Rule 144A Global Depositary Shares
evidenced by any Receipt, such tax or other governmental charge shall be payable
by the Holder or Beneficial Owner of such Receipt to the Rule 144A Depositary.
The Rule 144A Depositary may refuse to effect registration of transfer of such
Receipt (or any split-up or combination thereof) or any withdrawal of Deposited
Securities represented by the Rule 144A Global Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other
distributions in respect of any Deposited Securities, or may sell for the
account of the Holder or Beneficial Owner thereof any part
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or all of the Deposited Securities represented by the Rule 144A Global
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 Holder or Beneficial Owner of such Receipt
shall remain liable for any deficiency.
SECTION 3.3 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant, in addition to such representations and
warranties as may be required pursuant to Section 2.02, that such Shares and
each certificate therefor are validly issued, fully paid, nonassessable and free
of any preemptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized to do so. Such representations and
warranties shall survive the deposit of such Shares and the issuance of
Receipts.
Each person depositing or withdrawing Shares (other than the Company)
will be deemed to acknowledge, represent and warrant to the same effect as the
acknowledgment and certifications set out in paragraphs 2, 3 and 4 of Annex I or
Annex II, as the case may be. Each such purchaser and each such person
depositing or withdrawing Shares will be deemed to represent that it understands
that the Receipts and the underlying Shares, unless otherwise agreed by the
Company and the Rule 144A Depositary, will bear one or more legends
substantially to the effect set out in Sections 2.01(a) and 2.01(b). Such
acknowledgments, representations, warranties and agreements shall survive any
such purchase, deposit or withdrawal.
SECTION 3.4 Disclosure of Interests.
The Company, or the Depositary if instructed by the Company to so
request, may from time to time request Rule 144 GDS Holders, former Rule 144 GDS
Holders, Rule 144A GDS Beneficial Owners or former Beneficial Owners of Rule
144A GDRs to provide information as to the capacity in which they hold or held
Rule 144A GDRs or own or owned such beneficial interest and regarding the
identity of any other person then or previously interested in such Rule 144A GDS
Holder or Rule 144A GDRs and the
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nature of such interest. Each such Rule 144 GDS Holder or Beneficial Owner
agrees to provide any such information reasonably requested by the Company, or
such Depositary if instructed by the Company to so request, pursuant to the
Deposit Agreements.
ARTICLE 4. THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions.
Whenever the Rule 144A Depositary shall receive any cash dividend or
other cash distribution on any Deposited Securities, the Rule 144A Depositary
shall, if such cash is received in Foreign Currency, subject to the provisions
of Section 4.05, convert such dividend or distribution into Dollars and shall
distribute the amount thus received (net of the fees and expenses of the Rule
144A Depositary as provided in Section 5.09) to the Rule 144A GDS Holders
entitled thereto, in proportion to the number of Rule 144A Global Depositary
Shares representing such Deposited Securities evidenced by Receipts held by them
respectively; provided, however, that in the event that the Company or the Rule
144A Depositary or the Custodian shall be required to withhold and does withhold
from such cash dividend or such other cash distribution an amount on account of
taxes or other governmental charges, the amount distributed to the Holder of the
Receipts evidencing Rule 144A Global Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Rule 144A Depositary
shall distribute only such amount, however, as can be distributed without
attributing to any Holder a fraction of one cent. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Rule 144A GDS
Holders entitled thereto. The Company or its agent will remit to the appropriate
governmental agency in Jersey all amounts withheld and owing to such agency. The
Rule 144A Depositary will forward to the Company or its agent such information
from its records as the Company may reasonably request to enable the Company or
its agent to file necessary reports with governmental agencies, and the Rule
144A Depositary or the Company or its agent may file any such reports necessary
to obtain benefits under the applicable tax treaties for the Rule 144A GDS
Holders of Receipts.
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SECTION 4.2 Distributions Other than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the Rule
144A Depositary or Custodian shall receive any distribution other than a
distribution described in Section 4.01, 4.03 or 4.04, the Rule 144A Depositary
shall cause the securities or property received by it to be distributed to the
Rule 144A GDS Holders entitled thereto, after the deduction or upon payment of
any fees and expenses of the Rule 144A Depositary or any taxes or other
governmental charges, in proportion to the number of Rule 144A Global Depositary
Shares representing such Deposited Securities evidenced by Receipts held by them
respectively, in any manner that the Rule 144A Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Rule 144A Depositary such distribution cannot be made
proportionately among the Rule 144A GDS Holders entitled thereto, or if for any
other reason (including, but not limited to, any requirement that the Company or
the Rule 144A Depositary or the Custodian withhold an amount on account of taxes
or other governmental charges or that such property consists of securities that
must be registered under the Securities Act in order to be distributed to Rule
144A GDS Holders or Rule 144A GDS Beneficial Owners) the Rule 144A Depositary
deems such distribution not to be feasible, the Rule 144A Depositary, after
consultation with the Company, 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 and expenses of the Rule 144A Depositary as provided in Section 5.09) shall
be distributed by the Rule 144A Depositary to the Rule 144A GDS Holders entitled
thereto, all in the manner and subject to the conditions described in Section
4.01. Each beneficial owner of securities so distributed shall be deemed to have
acknowledged that the securities have not been registered under the Securities
Act and to have agreed to comply with the restrictions on transfer described in
the form of legend set forth in Section 2.01 hereof.
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There can be no assurance that the Depositary will be able to effect
any currency conversion or to sell or otherwise dispose of any distributed or
offered property or rights in a timely manner or at a particular price or at
all.
SECTION 4.3 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Rule 144A Depositary may
either (i) if Book-Entry Rule 144A GDSs are available, reflect on the records of
the Rule 144A Depositary such increase in the aggregate number of Rule 144A GDSs
representing Shares evidenced by the Master GDR and give notice to DTC of the
related increase in the number of Rule 144A GDSs evidenced by the Master GDR or
(ii) if Book-Entry Rule 144A GDSs are not available, distribute to the Rule 144A
GDS Holders of outstanding Receipts entitled thereto, in proportion to the
number of Rule 144A Global Depositary Shares representing such Deposited
Securities evidenced by Receipts held by them respectively, additional Receipts
evidencing an aggregate number of Rule 144A Global 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 Rule 144A Global 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 the fees and
expenses of the Rule 144A Depositary as provided in Section 5.09. The Rule 144A
Depositary may withhold any such distribution of Receipts if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act or is exempt from registration under the
provisions of such Act. In lieu of delivering Receipts for fractional Rule 144A
Global Depositary Shares in any such case, the Rule 144A 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 4.01. If such adjustments on the records of the Rule 144A
Depositary are not so made or additional Receipts are not so distributed, each
Rule 144A Global Depositary Share shall thenceforth also represent the
additional Shares distributed upon the Deposited Securities
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represented thereby. Each Beneficial Owner of Receipts or Shares so distributed
shall be deemed to have acknowledged that the Shares have not been registered
under the Securities Act and to have agreed to comply with the restrictions on
transfer described in the form of legend set forth in Section 2.01 hereof.
SECTION 4.4 Rights.
In the event that the Company 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 Rule 144A Depositary shall have
discretion as to the procedure to be followed in making such rights available to
any Rule 144A GDS Holders or in disposing of such rights on behalf of any Rule
144A GDS Holders and making the net proceeds available to such Rule 144A GDS
Holders or, if by the terms of such rights offering or for any other reason, the
Rule 144A Depositary may not either make such rights available to any Rule 144A
GDS Holders dispose of such rights and make the net proceeds available to such
Rule 144A GDS Holders, then the Rule 144A Depositary shall allow the rights to
lapse. If at the time of the offering of any rights the Rule 144A Depositary
determines in its discretion that it is lawful and feasible to make such rights
available to all or certain Rule 144A GDS Holders but not to other Rule 144A GDS
Holders, the Rule 144A Depositary may, if the Company so requests, distribute to
any Holder to whom it determines the distribution to be lawful and feasible, in
proportion to the number of Rule 144A Global Depositary Shares held by such
Holder, warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be distributed,
if a Holder of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the Rule 144A Global
Depositary Shares of such Holder hereunder, the Rule 144A Depositary will make
such rights available to such Holder upon written notice from the Company to the
Rule 144A Depositary, if the Company so requests, that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Holder has executed such documents as the Company has determined in its
sole discretion are reasonably required under applicable law.
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If the Rule 144A Depositary has distributed warrants or other
instruments for rights to all or certain Rule 144A GDS Holders, then upon
instruction from such a Holder pursuant to such warrants or other instruments to
the Rule 144A Depositary from such a Holder to exercise such rights, upon
payment by such Holder to the Rule 144A Depositary for the account of such
Holder 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 and expenses of
the Rule 144A Depositary and any other charges as set forth in such warrants or
other instruments, the Rule 144A Depositary shall, on behalf of such Holder,
exercise the rights and purchase the Shares, and the Company shall cause the
Shares so purchased to be delivered to the Rule 144A Depositary on behalf of
such Holder. As agent for such Holder, the Rule 144A Depositary will cause the
Shares so purchased to be deposited pursuant to Section 2.02 of this Deposit
Agreement, and shall, pursuant to Section 2.03 of this Deposit Agreement,
execute and deliver Receipts to such Holder. In the case of a distribution
pursuant to the second paragraph of this section, such Receipts shall be
legended in the manner provided in Section 2.01 and in accordance with
applicable U.S. laws, and shall be subject to the appropriate restrictions on
sale, deposit, cancellation, and transfer under such laws.
If the Rule 144A Depositary determines in its discretion that it is
not lawful and feasible to make such rights available to all or certain Rule
144A GDS Holders, it may sell the rights, warrants or other instruments in
proportion to the number of Rule 144A Global Depositary Shares held by the Rule
144A GDS Holders 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 and expenses of the Rule 144A Depositary as provided in Section 5.09 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 Rule 144A GDS Holders otherwise entitled to such rights, warrants or
other instruments, upon an averaged or other practical basis without regard to
any distinctions among such Rule 144A GDS Holders because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
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The Rule 144A Depositary will not offer rights to Rule 144A GDS
Holders unless both the rights and the securities to which such rights relate
are either exempt from registration under the Securities Act with respect to a
distribution to all Rule 144A GDS Holders or are registered under the provisions
of such Act; provided, that nothing in this Deposit Agreement shall create, any
obligation on the part of the Company to file a registration statement with
respect to such rights or underlying securities or to endeavor to have such a
registration statement declared effective. If a Holder of Receipts requests the
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Rule 144A Depositary shall not
effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Company upon which the Rule 144A Depositary
may rely that such distribution to such Holder is exempt from such registration.
The Rule 144A Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Rule 144A GDS Holders in general or any Holder in particular.
SECTION 4.5 Conversion of Foreign Currency.
Whenever the Rule 144A 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 Rule 144A Depositary be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Rule 144A 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, as
promptly as practicable, to the Rule 144A GDS Holders entitled thereto or, if
the Rule 144A 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, as applicable, upon surrender
thereof for cancellation in whole or in part depending upon the terms of such
warrants or other instruments. Such distribution
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may be made upon an averaged or other practicable basis without regard to any
distinctions among Rule 144A GDS Holders 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 Rule 144A Depositary as
provided in Section 5.09.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Rule 144A
Depositary shall file such application for approval or license, if any, as it
may deem desirable.
If at any time the Rule 144A Depositary shall determine in its
judgment that any Foreign Currency received by the Rule 144A 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 Rule 144A
Depositary is not obtainable, or if any such approval or license is not obtained
within a reasonable period as determined by the Rule 144A Depositary, the Rule
144A Depositary may distribute the Foreign Currency (or an appropriate document
evidencing the right to receive such Foreign Currency) received by the Rule 144A
Depositary to, or in its discretion may hold such Foreign Currency uninvested
and without liability for interest thereon for the respective accounts of, the
Rule 144A GDS Holders 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 Rule 144A GDS Holders
entitled thereto, the Rule 144A Depositary may in its discretion make such
conversion and distribution in Dollars to the extent permissible to the Rule
144A GDS Holders entitled thereto and may distribute the balance of the Foreign
Currency received by the Rule 144A Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Rule 144A GDS Holders 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 the Rule
144A Depositary
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shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Rule 144A Depositary causes a change
in the number of Shares that are represented by each Rule 144A Global Depositary
Share, or whenever the Rule 144A Depositary shall find it necessary or
convenient, the Rule 144A Depositary shall fix a record date which shall be the
same date as the record date, if any, applicable to the Deposited Securities, or
as close thereto as practicable (a) for the determination of the Rule 144A GDS
Holders who shall be (i) entitled to receive such dividend, distribution or
rights or the net proceeds of the sale thereof, (ii) entitled to give or forward
instructions for the exercise of voting rights at any such meeting or (iii) to
receive information on such meeting, subject to the provisions of the Deposit
Agreement or (b) on or after which each Rule 144A Global Depositary Share will
represent the changed number of Shares. Subject to the provisions of Sections
4.01 through 4.05 and to the other terms and conditions of this Deposit
Agreement, the Rule 144A GDS Holders on such record date shall be entitled, as
the case may be, to receive the amount distributable by the Rule 144A 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 Rule 144A Global
Depositary Shares evidenced by Receipts held by them respectively and to give
voting instructions, to exercise the rights of Rule 144A GDS Holders hereunder
with respect to such changed number of Shares 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 instructed in writing by the Company, the Rule 144A
Depositary shall, as soon as practicable thereafter, mail to the Rule 144A GDS
Holders a notice, the form of which notice shall be in the sole discretion of
the Rule 144A Depositary, which shall contain (a) such information as is
contained in such notice of meeting received by the Rule 144A Depositary from
the Company, (b) a statement that the Rule 144A GDS Holders as of the close of
business on a specified record date will be entitled, subject to any applicable
provision of Jersey law and of the Articles of Association or Memorandum of
Association of the Company, to instruct the Rule 144A Depositary as to
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the exercise of the voting rights, if any, pertaining to the amount of Shares or
other Deposited Securities represented by their respective Rule 144A Global
Depositary Shares and (c) a statement as to the manner in which such
instructions may be given. Upon the written request of a Holder on such record
date, received on or before the date established by the Depositary for such
purpose, the Rule 144A Depositary shall endeavor, insofar as practicable, to
vote or cause to be voted the amount of Shares or other Deposited Securities
represented by the Rule 144A Global Depositary Shares evidenced by such Receipt
in accordance with the instructions set forth in such request. The Rule 144A
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.
SECTION 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 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 Company or to which it is a party, any Shares or other securities
or property which shall be received by the Rule 144A Depositary or a Custodian
in exchange for or in conversion, replacement or otherwise in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and Rule 144A Global Depositary Receipts shall, subject to
the terms of the Deposit Agreement and applicable laws (including any
registration requirements under the Securities Act) thenceforth evidence GDSs
representing, in addition to the existing Deposited Securities, the right to
receive 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 Rule 144A Depositary may, and shall, if the Company so
requests, (a) if Book-Entry Rule 144A GDSs are available, make appropriate entry
in its records, or (b) if Book-Entry Rule 144A GDSs are not available, either
(i) execute and deliver additional Receipts as in the case of a dividend in
Shares or (ii) call for the surrender of outstanding Receipts to be exchanged
for new Receipts specifically describing such new Deposited Securities.
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SECTION 4.9 Reports.
The Rule 144A Depositary shall make available for inspection by Rule
144A GDS Holders and Beneficial Owners at its Corporate Trust Office any
notices, reports and communications, including any proxy soliciting material,
received from the Company which are both (a) received by the Rule 144A
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The Rule
144A Depositary shall also send to the Rule 144A GDS Holders copies of such
reports when furnished by the Company pursuant to Section 5.06. Any such reports
and communications, including any such proxy soliciting material, furnished to
the Rule 144A Depositary by the Company shall be furnished in English to the
extent such materials are required to be translated into English pursuant to any
regulations of the Commission.
SECTION 4.10 Lists of Rule 144A GDS Holders.
Upon request by the Company, the Rule 144A Depositary shall, at the
expense of the Company, furnish to it a list, as of a recent date, of the names,
addresses and holdings of Rule 144A Global Depositary Shares by all persons in
whose names Receipts are registered on the books of the Rule 144A Depositary.
SECTION 4.11 Withholding.
In the event that the Rule 144A 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 Rule 144A Depositary
is obligated to withhold, the Rule 144A 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 Rule 144A
Depositary deems necessary and practicable to pay such taxes or charges and the
Rule 144A Depositary shall distribute the net proceeds of any such sale after
deduction of such taxes or charges to the Rule 144A GDS Holders entitled thereto
in proportion to the number of Rule 144A Global Depositary Shares held by them
respectively.
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ARTICLE 5. THE RULE 144A DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Rule 144A
Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Rule 144A 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 Rule 144A Depositary shall keep books at its Corporate Trust
Office for the registration of Receipts and transfers of Receipts which at all
reasonable times shall be open for inspection by the Rule 144A GDS Holders and
Beneficial Owners and the Company, provided that such inspection shall not be
for the purpose of communicating with Rule 144A GDS Holders or Beneficial Owners
in the interest of a business or object other than the business of the Company
or a matter related to this Deposit Agreement or the Receipts.
The Rule 144A 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.
SECTION 5.2 Prevention or Delay in Performance by the Rule 144A Depositary
or the Company.
Neither the Rule 144A Depositary nor the Company nor any of their
respective directors, employees, agents or affiliates shall incur any liability
to any Holder or Beneficial Owner of any Receipt, if by reason of any provision
of any present or future law, regulation, order, decree, moratorium or fiat 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 Articles of Association or Memorandum of Association of the Company, or
by reason of any provision of any securities issued or distributed by the
Company, or any offering or distribution thereof, or by reason of any
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act of God or war or other circumstances beyond its control, the Rule 144A
Depositary or the Company or any of their directors, employees, agents or
affiliates shall be prevented, delayed 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 or Deposited Securities it is
provided shall be done or performed; nor shall the Rule 144A Depositary nor the
Company nor any of their respective directors, employees, agents or affiliates
incur any liability to any Holder or Beneficial Owner of any Receipt by reason
of any nonperformance 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 Section 4.01, 4.02, or 4.03 of this Deposit
Agreement, or an offering or distribution pursuant to Section 4.04 of this
Deposit Agreement, or for any other reason, such distribution or offering may
not be made available to Rule 144A GDS Holders, and the Rule 144A Depositary may
not dispose of such distribution or offering on behalf of such Rule 144A GDS
Holders and make the net proceeds available to such Rule 144A GDS Holders, then
the Rule 144A Depositary shall not make such distribution or offering, and shall
allow any rights, if applicable, to lapse.
SECTION 5.3 Obligations of the Rule 144A Depositary, the Custodian and the
Company.
The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Rule 144A GDS Holders or Rule 144A GDS
Beneficial Owners, except that it agrees to perform its obligations specifically
set forth in this Deposit Agreement without negligence or bad faith.
The Rule 144A Depositary assumes no obligation nor shall it be subject
to any liability under this Deposit Agreement to any Holder or Beneficial Owner
(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.
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Neither the Rule 144A Depositary nor the Company 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 in its sole discretion 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 Rule 144A Depositary.
Neither the Rule 144A Depositary nor the Company 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
Holder, or any other person believed by it in good faith to be competent to give
such advice or information including, but not limited to, any such action or
nonaction based upon any written notice, request, direction or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties.
The Rule 144A 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 Rule 144A Depositary or in connection with any matter arising
wholly after the removal or resignation of the Rule 144A Depositary, provided
that in connection with the issue out of which such potential liability arises
the Rule 144A Depositary performed its obligations without negligence or bad
faith while it acted as Rule 144A Depositary.
The Rule 144A 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 is intended by any
provision of this Deposit Agreement.
SECTION 5.4 Resignation and Removal of the Rule 144A Depositary.
The Rule 144A Depositary may at any time resign as Rule 144A
Depositary hereunder by written notice of its election to do so delivered to the
Company,
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such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as hereinafter provided.
The Rule 144A Depositary may at any time be removed by the Company by
written notice of such removal effective upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Rule 144A Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company 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
Rule 144A GDS Holders of all outstanding Receipts. Any such successor depositary
shall promptly mail notice of its appointment to the Rule 144A GDS Holders.
Any corporation into or with which the Rule 144A Depositary may be
merged or consolidated shall be the successor of the Rule 144A Depositary
without the execution or filing of any document or any further act.
SECTION 5.5 The Custodians.
The Rule 144A Depositary may appoint from time to time one or more
agents to act for it as Custodian hereunder. Any such Custodian shall be subject
at all times and in all respects to the directions of the Rule 144A 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 Rule 144A Depositary at least 30 days prior to the date on which such
resignation is to become effective. If upon such
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resignation there shall be no Custodian acting hereunder, the Rule 144A
Depositary shall, promptly after receiving such notice, appoint a substitute
custodian or custodians, each of which shall thereafter be a Custodian
hereunder. Whenever the Rule 144A Depositary in its discretion determines that
it is in the best interest of the Rule 144A GDS Holders to do so, it may appoint
a substitute or additional custodian or custodians, each of which shall
thereafter be one of the Custodians hereunder. Upon demand of the Rule 144A
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 Rule 144A Depositary, forthwith upon its appointment, an
acceptance of such appointment satisfactory in form and substance to the Rule
144A 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 Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or the taking of any
action by such holders other than at a meeting, or of the taking of any action
in respect of any cash or other distributions or the offering of any rights in
respect of Deposited Securities, the Company agrees to transmit to the Rule 144A
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.
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The Company will arrange for the translation into English and the
prompt transmittal by the Company to the Rule 144A Depositary and the Custodian
of such notices and any other reports and communications which are made
generally available by the Company to holders of its Shares. If requested in
writing by the Company, the Rule 144A Depositary will arrange for the prompt
mailing, at the Company's expense, of copies of such notices, summaries, reports
and communications to all Rule 144A GDS Holders. The Company will timely provide
the Rule 144A Depositary with the quantity of such notices, reports, and
communications, as requested by the Rule 144A Depositary from time to time, in
order for the Rule 144A Depositary to effect such mailings.
SECTION 5.7 Issuance and Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution
of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into or exchangeable for Shares, or (4) rights to subscribe for any
such securities (each a "Distribution"), the Company will promptly furnish to
the Rule 144A Depositary a written opinion from United States counsel for the
Company, which counsel shall be satisfactory to the Rule 144A Depositary,
stating whether or not the Distribution requires a registration statement under
the Securities Act to be in effect prior to making such Distribution available
to Rule 144A GDS Holders entitled thereto. If in the opinion of such counsel a
registration statement is required, such counsel shall furnish to the Rule 144A
Depositary a written opinion as to whether or not there is a registration
statement in effect which will cover such Distribution.
The Company agrees with the Rule 144A Depositary that neither the
Company nor any company controlled by, controlling or under common control with
the Company will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Company or any such affiliate, unless a
registration statement is in effect as to such Shares under the Securities Act
or unless the Company furnishes the Rule 144A Depositary with a written opinion
from United States counsel for the Company, which counsel shall be satisfactory
to the Rule 144A Depositary,
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stating that the Shares proposed to be deposited are eligible for deposit under
the terms of this Deposit Agreement and applicable law.
SECTION 5.8 Indemnification.
The Company agrees to indemnify the Rule 144A 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 Rule 144A Depositary or any 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 Company or any of its directors, employees, agents and affiliates.
The Rule 144A Depositary agrees to indemnify the Company, 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
Rule 144A Depositary or its Custodian or their respective directors, employees,
agents and affiliates due to their negligence or bad faith.
SECTION 5.9 Charges of Rule 144A Depositary.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Rule 144A Depositary and those of any Registrar
only in accordance with agreements in writing entered into between the Rule 144A
Depositary and the Company from time to time. The Rule 144A Depositary shall
present its statement for such charges and expenses to the Company once every
three months. The charges and expenses of the Custodian are for the sole account
of the Rule 144A 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
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issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03), 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
Company or Foreign Registrar (or any other appointed agent of the Company for
transfer and registration of the Shares) and applicable to transfers of Shares
to the name of the Rule 144A 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 for in this
Deposit Agreement, (4) such expenses as are incurred by the Rule 144A Depositary
in the conversion of Foreign Currency pursuant to Section 4.05, (5) a fee of
$5.00 or less per 100 Rule 144A Global Depositary Shares (or portion thereof)
for the execution and delivery of Receipts pursuant to Section 2.03, 4.03 or
4.04 and the surrender of Receipts pursuant to Section 2.05 or 6.02, (6) a fee
of $.02 or less per Rule 144A Global Depositary Share (or portion thereof) for
any cash distribution made pursuant to the Deposit Agreement, including, but not
limited to Sections 4.01 through 4.04 hereof, (7) a fee for the distribution of
securities pursuant to Section 4.02, such fee being in an amount equal to the
fee for the execution and delivery of Rule 144A Global 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 Rule
144A Depositary to Rule 144A GDS Holders and (8) a fee not in excess of $1.50
per certificate for a Receipt or Receipts for transfers made pursuant to the
terms of the Deposit Agreement.
The Rule 144A Depositary, subject to Section 2.09 hereof, may own and
deal in any class of securities of the Company and its affiliates and in
Receipts.
SECTION 5.10 Retention of Rule 144A Depositary Documents.
The Rule 144A Depositary is authorized to destroy those documents,
records, bills and other data compiled during the term of this Deposit Agreement
at the
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times permitted by the laws or regulations governing the Rule 144A Depositary,
unless the Company requests that such papers be retained for a longer period or
turned over to the Company or to a successor depositary.
SECTION 5.11 Exclusivity.
The Company agrees not to appoint any other depositary for issuance of
Receipts so long as The Bank of New York is acting as Rule 144A Depositary
hereunder.
SECTION 5.12 Available Information.
The Company has agreed that, so long as the Rule 144A Deposit
Agreement remains in effect, it will either (i) furnish the Commission with
certain public reports and documents required by the laws of Jersey or of any
securities exchange on which any securities of the Company are listed or
otherwise in accordance with Rule 12g3-2(b) under the Securities Exchange Act,
and otherwise comply with the exemption provided by such Rule, or (ii) be
subject to and fulfill the periodic reporting and other requirements of the
Securities Exchange Act, and in accordance therewith, file reports and other
information with the Commission. If, at any time prior to the termination of
this Deposit Agreement, the Company is neither a reporting company under Section
13 or 15(d) of the Securities Exchange Act nor exempt from the reporting
requirements of the Securities Exchange Act by reason of Rule 12g3-2(b)
thereunder, the Company will provide, at its expense, to any Holder or
Beneficial Owner or any holder of Shares, and to any prospective purchaser of
Rule 144A Global Depositary Shares or Shares designated by such person, upon
request of such Holder, Beneficial Owner, holder or prospective purchaser, the
information required by Rule 144A(d)(4)(i) and otherwise comply with Rule
144A(d)(4). If at any time the Company is neither subject to Section 13 or 15(d)
of the Securities Exchange Act nor exempt pursuant to Rule 12g3-2(b) under the
Securities Exchange Act (as determined by the Office of International Corporate
Finance of the Commission), the Company shall immediately so notify the Rule
144A Depositary, and the Rule 144A Depositary may so notify the Rule 144A GDS
Holders in writing at the Company's expense.
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The Company hereby authorizes the Rule 144A Depositary to deliver such
information as furnished by the Company to the Rule 144A Depositary during any
period in which the Company informs the Rule 144A Depositary it is subject to
the information delivery requirements of Rule 144A(d)(4) to any such Holder,
Beneficial Owner, holder of Shares or prospective purchaser at the request of
such person. The Company agrees to reimburse the Rule 144A Depositary for its
reasonable expenses in connection with such deliveries and to provide the Rule
144A Depositary with such information in such quantities as the Rule 144A
Depositary may from time to time reasonably request.
In addition, upon notice that the Company has not furnished the
Commission with any public reports, documents or other information as required
by foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange
Act, the Rule 144A Depositary is authorized (at any time the Company is exempt
pursuant to Rule 12g3-2(b)) to furnish promptly to the Commission copies of all
annual or other periodic reports and other notices or communications which the
Rule 144A Depositary receives as holder of the Deposited Securities from the
Company and which are not so furnished to or filed with the Commission pursuant
to any other requirement of the Commission and the Rule 144A Depositary is
hereby authorized by the Company so to do on its behalf.
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 or supplemented by
agreement between the Company and the Rule 144A Depositary without the consent
of Rule 144A GDS Holders or Rule 144A GDS Beneficial Owners of Receipts in any
respect which they may deem necessary or desirable. Any amendment which imposes
or increases 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 otherwise prejudices any
substantial existing right of Rule 144A GDS Holders or Beneficial Owner, shall,
however, not become effective as to
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outstanding Receipts until the expiration of 90 days after notice of such
amendment shall have been given to the Rule 144A GDS Holders of outstanding
Receipts. Every Holder and Beneficial 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 or supplement and to be bound or to own any
beneficial interest by the Deposit Agreement as amended or supplemented thereby.
In no event shall any amendment impair the right of the Holder 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 Rule 144 A Depositary shall, at any time at the direction of the
Company, terminate this Deposit Agreement by mailing notice of such termination
to the Rule 144A GDS Holders of all Receipts then outstanding at least 60 days
prior to the date fixed in such notice for such termination. The Rule 144A
Depositary may likewise terminate this Deposit Agreement by mailing notice of
such termination to the Company and the Rule 144A GDS Holders of all Receipts
then outstanding, if at any time 60 days shall have expired after the Rule 144A
Depositary shall have delivered to the Company 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 5.04. On and after the date of
termination, the Holder of a Receipt will, upon (a) (i) receipt by the Rule 144A
Depositary at its Corporate Trust Office of written instructions from DTC or
DTC's nominee on behalf of any Beneficial Owner, if the book-entry settlement
system of DTC is then available for the Book-Entry Rule 144A GDSs, or (ii)
surrender of such Receipt at the Corporate Trust Office of the Rule 144A
Depositary, (b) payment of the fee of the Rule 144A Depositary for the surrender
of Receipts referred to in Section 2.05, 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 Rule 144A Global Rule 144A
Depositary Shares evidenced by such Receipt. If any Receipts shall remain
outstanding after the date of termination, the Rule 144A Depositary
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thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends and other distributions to the Rule 144A
GDS Holders thereof, shall not accept deposits of Shares, and shall not give any
further notices or perform any further acts under this Deposit Agreement, except
that the Rule 144A Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in this Deposit Agreement, shall convert Deposited
Securities into cash as provided in the 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 Rule 144A Depositary
(after deducting, in each case, the fee of the Rule 144A Depositary for the
surrender of a Receipt, any expenses for the account of the Holder 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 six months from the date of termination, the Rule 144A Depositary
shall 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 Rule 144A GDS Holders of Receipts which have not
theretofore been surrendered, such Rule 144A GDS Holders thereupon becoming
general creditors of the Rule 144A Depositary with respect to such net proceeds.
After making such sale, the Rule 144A 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 Rule 144A
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder 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 Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the Rule
144A Depositary under Sections 5.08 and 5.09 hereof.
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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 Rule 144A Depositary and the Custodians and shall be open to
inspection by any Holder or Beneficial 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.
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 Rule 144A GDS Holders and Rule 144A GDS Beneficial Owners as
Parties; Binding Effect.
The Rule 144A GDS Holders and Rule 144A GDS Beneficial 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 Company 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 La Motte Xxxxxxxx, La
Xxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands, or any other place to
which the Company may have transferred its principal office.
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Any and all notices to be given to the Rule 144A 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 Rule
144A Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Holder shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the transfer books for Receipts of the
Rule 144A Depositary, or, if such Holder shall have filed with the Rule 144A
Depositary a written request that notices intended for such Holder 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 effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post office
letter box. The Rule 144A Depositary or the Company 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.
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 Article; Section.
Wherever references are made in this Deposit Agreement to an "Article"
or "Articles" or to a "Section" or "Sections", such references shall mean an
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article or articles or a section or sections of this Deposit Agreement, unless
otherwise required by the context.
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IN WITNESS WHEREOF, RANDGOLD RESOURCES LIMITED and THE BANK OF NEW
YORK have duly executed this Deposit Agreement as of the day and year first set
forth above and all Rule 144A GDS Holders and Rule 144A GDS Beneficial Owners
shall become parties hereto upon acceptance by them of Receipts issued in
accordance with the terms hereof.
RANDGOLD RESOURCES LIMITED
By:__________________________
Name:
Title:
THE BANK OF NEW YORK,
as Rule 144A Depositary
By:_________________________
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Annex I
Certification and Agreement of Certain Acquirors of
Receipts Upon Deposit of Shares Pursuant to
Section 2.02 of the Rule 144A Deposit Agreement
We refer to the Rule 144A Deposit Agreement, dated as of July
1, 1997, as amended and restated as of June 26, 2002 (the "Deposit Agreement"),
among RANDGOLD RESOURCES LIMITED (the "Company"), THE BANK OF NEW YORK, as Rule
144A Depositary, and Rule 144A GDS Holders and Rule 144A GDS Beneficial Owners
of Rule 144A Global Depositary Receipts (the "Receipts") issued thereunder.
Capitalized terms used but not defined herein shall have the meanings given them
in the Deposit Agreement.
1. This certification and agreement is furnished in connection
with the deposit of Shares and issuance of Rule 144A Global Depositary Shares to
be evidenced by one or more Receipts pursuant to Section 2.02 of the Deposit
Agreement.
2. We acknowledge (or if we are acting for the account of
another person, such person has confirmed to us that it acknowledges) that the
Receipts, the Rule 144A Global Depositary Shares evidenced thereby and the
Shares represented thereby have not been and will not be registered under the
Securities Act (the "Act").
3. We certify that either:
A. We are a qualified institutional buyer (as defined in Rule 144A
under the Act), and at the time of issuance of the Receipt or Receipts referred
to above, we (or one or more qualified institutional buyers for whose account we
are acting) will be the beneficial owner of the Rule 144A Global Depositary
Shares evidenced thereby.
OR
B. We are a broker-dealer acting for the account of our customer; our
customer has confirmed to us that it is a qualified institutional buyer and
either (i) at the
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time of issuance of the Receipt or Receipts referred to above, it will be the
beneficial owner of the Rule 144A Global Depositary Shares evidenced thereby, or
(ii) it is acting for the account of a qualified institutional buyer that, at
the time of issuance of the Receipt or Receipts referred to above, will be the
beneficial owner of the Rule 144A Global Depositary Shares evidenced thereby.
4. We agree (or if we are acting for the account of another
person, such person has confirmed to us that it agrees) that we (or it) will not
offer, sell, pledge or otherwise transfer the Receipts, the Rule 144A Global
Depositary Shares evidenced thereby or the Shares represented thereby except (a)
to a person whom we reasonably believe (or it and anyone acting on its behalf
reasonably believes) is a qualified institutional buyer within the meaning of
Rule 144A under the Act in a transaction meeting the requirements of Rule 144A,
(b) in accordance with Regulation S under the Act, or (c) in accordance with
Rule 144 under the Act (if available), in each case in accordance with any
applicable securities laws of any state of the United States.
Very truly yours,
______________________________
[NAME OF CERTIFYING ENTITY]
By:___________________________
Title:
Dated:
-53-
Annex II
Certification and Agreement of Persons Receiving
Deposited Securities Upon Withdrawal
Pursuant to Section 2.05 of
the Rule 144A Deposit Agreement
We refer to the Rule 144A Deposit Agreement, dated as of July
1, 1997, as amended and restated as of June 26, 2002 (the "Deposit Agreement"),
among RANDGOLD RESOURCES LIMITED (the "Company"), THE BANK OF NEW YORK, as Rule
144A Depositary thereunder, and Rule 144A GDS Holders and Rule 144A GDS
Beneficial Owners of Rule 144A Global Depositary Receipts (the "Receipts")
issued thereunder. Capitalized terms used but not defined herein shall have the
meanings given them in the Deposit Agreement.
1. We are surrendering a Receipt or Receipts in accordance
with the terms of the Deposit Agreement for the purpose of withdrawal of the
Deposited Securities represented by the Rule 144A Rule 144A Global Depositary
Shares evidenced by such Receipt or Receipts (the "Shares") pursuant to Section
2.05 of the Deposit Agreement.
2. We acknowledge (or if we are acting for the account of
another person, such person has confirmed that it acknowledges) that the Shares
have not been and will not be registered under the Securities Act (the "Act").
3. We certify that either:
(a) We are a qualified institutional buyer (as
defined in Rule 144A under the Act) acting for our own account or for the
account of one or more qualified institutional buyers, and either:
(i) we have (or it has) sold or otherwise
transferred, or agreed to sell or otherwise transfer and at or prior to the time
of withdrawal will have sold or otherwise transferred, the Receipts or the
Shares in accordance with Regulation S
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under the Act and we are (or it is), or prior to such sale we were (or it was),
the beneficial owner of the Receipts, or
(ii) we have (or it has) sold or otherwise
transferred, or agreed to sell or otherwise transfer and at or prior to the time
of withdrawal will have sold or otherwise transferred, the Receipts or the
Shares to another qualified institutional buyer in accordance with Rule 144A
under the Act and we are (or it is), or prior to such sale we were (or it was),
the beneficial owner of the Receipts, or
(iii) we (or it) will be the beneficial
owner of the Shares upon withdrawal, and, accordingly, we agree (or if we are
acting for the account of one or more qualified institutional buyers, each such
qualified institutional buyer has confirmed to us that it agrees) that (x) we
(or it) will not offer, sell, pledge or otherwise transfer the Shares except (A)
to a person whom we reasonably believe (or it and anyone acting on its behalf
reasonably believes) is a qualified institutional buyer within the meaning of
Rule 144A under the Act in a transaction meeting the requirements of Rule 144A,
(B) in accordance with Regulation S under the Act, or (C) in accordance with
Rule 144 under the Act (if available), in each case in accordance with any
applicable securities laws of any state of the United States, and (y) we (or it)
will not deposit or cause to be deposited such Shares into any depositary
receipt facility established or maintained by a depositary bank (including any
such facility maintained by the Rule 144A Depositary), other than a Rule 144A
restricted depositary receipt facility, so long as such Shares are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act.
OR
(b) We are located outside the United States
(within the meaning of Regulation S under the Act); we acquired, or have agreed
to acquire and at or prior to the time of the withdrawal will have acquired, the
Receipts or the Shares outside the United States (within the meaning of
Regulation S); and we are, or upon acquisition thereof will be, the beneficial
owner of the Receipts or the Shares.
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4. If we are a broker-dealer, we further certify that we are
acting for the account of our customer and that our customer has confirmed the
accuracy of the representations contained in paragraph 3 hereof that are
applicable to it (including the representations with respect to beneficial
ownership) and, if paragraph 3(a)(iii) is applicable to our customer, has
confirmed that it will comply with the agreements set forth in paragraph
3(a)(iii).
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By: _____________________________
Title:
Dated:
-56-
EXHIBIT A
[FORM OF RECEIPT]
RULE 144A
THIS RULE 144A GLOBAL DEPOSITARY RECEIPT ("RULE 144A GDR"), THE RULE 144A GLOBAL
DEPOSITARY SHARES ("RULE 144A GDSs) AND THE SHARES OF THE COMPANY REPRESENTED
THEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THE HOLDER
HEREOF, BY PURCHASING THE RULE 144A GDSs IN RESPECT OF WHICH THIS RULE 144A GDR
IS ISSUED, AGREES THAT SUCH SECURITIES MAY BE RESOLD, OFFERED FOR SALE, PLEDGED
OR OTHERWISE TRANSFERRED ONLY (1) IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO AN INSTITUTIONAL BUYER THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER WHOM THE SELLER HAS INFORMED, IN EACH CASE, THAT THE RESALE
OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) UNLESS THIS CERTIFICATE IS A GLOBAL CERTIFICATE, PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
AVAILABLE) OR (4) UNLESS THIS CERTIFICATE IS A GLOBAL CERTIFICATE, PURSUANT TO
ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE AGENT
AUTHORIZED BY THE ISSUER FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED HOLDER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
----------------------------------
RULE 144A GLOBAL DEPOSITARY
SHARES (Each Rule 144A Global
Depositary Share represents two (2)
deposited Shares)
THE BANK OF NEW YORK
RULE 144A GLOBAL DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF THE NOMINAL
VALUE OF US $0.10 EACH OF
RANDGOLD RESOURCES LIMITED
(ORGANIZED UNDER THE LAWS OF JERSEY)
The Bank of New York as Rule 144A depositary (hereinafter called the
"Rule 144A Depositary"), hereby certifies that_____________________, or
registered assigns IS THE HOLDER OF_______________________
RULE 144A GLOBAL DEPOSITARY SHARES
representing deposited Ordinary shares in registered form, nominal value US
$0.10 each (herein called "Shares") of Randgold Resources Limited, organized
under the laws of Jersey (herein called the "Company"). At the date hereof, each
Rule 144A Global Depositary Share represents two (2) Shares which are either
deposited or subject to deposit under the Rule 144A Deposit Agreement at each of
the London office of The Bank of New York (herein called the "Custodian"). The
Rule 144A Depositary's Corporate Trust Office is located at a different address
than its principal executive office. Its Corporate Trust Office is located at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive office is
located at 00 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE BANK OF NEW YORK,
As Rule 144A Depositary
By:_______________________
Authorized Signatory
Dated: __________________, 2002
Countersigned: ________________________________
Authorized Signatory
THE RULE 144A DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE RULE 144A DEPOSIT AGREEMENT; BOOK-ENTRY GLOBAL DEPOSITARY SHARES.
This Rule 144A Global Depositary Receipt is one of an issue (herein
called "Receipts"), all issued and to be issued upon the terms and conditions
set forth in the deposit agreement, dated as of July 1, 1997, as amended and
restated as of June 26, 2002 (herein called the "Rule 144A Deposit Agreement"),
by and among the Company, the Rule 144A Depositary, and all Holders and
Beneficial Owners from time to time of Receipts issued thereunder, each of whom
by accepting a Receipt agrees to become a party thereto and become bound by all
the terms and conditions thereof. The Rule 144A Deposit Agreement sets forth the
rights of Holders and Beneficial Owners of the Receipts and the rights and
duties of the Rule 144A Depositary in respect or in lieu of the Shares deposited
or deemed to be deposited thereunder and any and all other securities, property
and cash from time to time received in respect or in lieu of such Shares and
held thereunder (such Shares, securities, property, and cash are herein called
"Deposited Securities"). Copies of the Rule 144A Deposit Agreement are on file
at the Rule 144A Depositary's Corporate Trust Office in The City of New York and
at the office of the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Rule 144A Deposit Agreement and are
qualified by and subject to the detailed provisions of the Rule 144A Deposit
Agreement, to which reference is hereby made. Capitalized terms defined in the
Rule 144A Deposit Agreement and not defined herein shall have the meanings set
forth in the Rule 144A Deposit Agreement.
This Receipt shall bear a CUSIP number that is different from any CUSIP
number that is or may be assigned to any Rule 144A GDSs evidenced by Rule 144A
ADRs issued by the Rule 144A Depositary under the Rule 144A Deposit Agreement or
any other depositary shares relating to the Shares.
If applicable, this Receipt shall bear an ISIN number that is different
from any ISIN number that is or may be assigned to any Rule 144A GDSs evidenced
by Rule 144A ADRs issued by the Rule 144A Depositary under the Rule 144A Deposit
Agreement or any other depositary shares relating to the Shares.
So long as the Book-Entry GDSs are eligible for book-entry settlement
with DTC, unless otherwise required by law, such Book-Entry GDSs representing
the Shares deposited with any Custodian shall be represented by a Master GDR
issued to DTC and registered in the name of Cede & Co., as a nominee of DTC and
no person acquiring such Book-Entry GDSs shall receive or be entitled to receive
physical delivery of certificated Receipts evidencing Rule 144A Global
Depositary Shares. Accordingly, each Beneficial Owner must rely upon the
procedures of DTC and institutions having accounts with DTC to exercise or be
entitled to any rights of a Holder of this Receipt.
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If, at any time when Book-Entry GDSs are represented by a Master GDR,
DTC ceases to make its book-entry settlement system available for the Book-Entry
GDSs, the Company shall consult with the Rule 144A Depositary regarding other
arrangements for book-entry settlement. Only in the event that it is
impracticable without undue effort or expense to have or to continue to have the
Rule 144A Global Depositary Shares available in book-entry form as determined by
the Company and the Rule 144A Depositary, the Company shall instruct the Rule
144A Depositary to make Receipts evidencing Physical Rule 144A GDSs available to
the Rule 144A GDS Beneficial Owners in physical, certificated form, which
availability shall be subject to such additions, deletions and modifications to
the form of Receipt and the Rule 144A Deposit Agreement and subject to the
requirements of any other documents, statements or certifications in connection
therewith as the Company and the Rule 144A Depositary may, from time to time,
agree. In the event of issuance of Receipts in physical, certificated form
evidencing Physical Rule 144A GDSs, such Receipts may evidence any number of
Rule 144A Global Depositary Shares.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Subject to the terms and conditions of the Rule 144A Deposit Agreement,
upon (i) receipt by the Rule 144A Depositary at its Corporate Trust Office of
written instructions from DTC or DTC's nominee, Euroclear or Cedel on behalf of
any Beneficial Owner, if the book-entry settlement system of DTC is then
available for the Book-Entry GDSs, and (ii) surrender at the Corporate Trust
Office of the Rule 144A Depositary of a Receipt evidencing Book-Entry GDSs or
Physical Rule 144A GDSs, if the book-entry settlement system of DTC shall have
become unavailable for Book-Entry GDSs, in either case, for the purpose of
withdrawal of the Deposited Securities represented by the Rule 144A Global
Depositary Shares evidenced by such Receipt or representing such person's
beneficial interest in Book-Entry GDSs evidenced by the Master GDR, and upon
payment of the fee of the Rule 144A Depositary for the surrender of Receipts as
provided in Section 5.09 of the Rule 144A Deposit Agreement 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 the Rule 144A Deposit Agreement, the Articles or Memorandum of Association of
the Company, the Deposited Securities and applicable law, the Holder of such
Receipt acting for itself or on behalf of the Beneficial Owner or DTC
participant, as the case may be, shall be entitled to delivery, to him or upon
his order of the amount of Deposited Securities at the time represented by the
Rule 144A Global Depositary Shares evidenced by such Receipt or such beneficial
interest in Book-Entry GDSs evidenced by the Master GDR. Delivery of such
Deposited Securities may be made by the delivery of (x) certificates in the name
of such Holder or as ordered by him or certificates properly endorsed or
accompanied by a proper instrument or instruments of transfer to such Holder or
as ordered by him, and (y) any other securities, property and cash to which such
Holder is then entitled in respect of such Receipts to such Holder or as ordered
by him. Such delivery shall be made, as hereinafter provided without
unreasonable delay.
-3-
Notwithstanding the foregoing, no Deposited Securities may be withdrawn
upon receipt of written instructions from DTC or DTC's nominee or Euroclear or
Cedel on behalf of any Beneficial Owner or the surrender of a Receipt, as the
case may be, unless at or prior to the time of surrender the Rule 144A
Depositary shall have received a duly executed and completed written certificate
and agreement ("Withdrawal and Transfer Certificate"), in substantially the form
attached as Annex II to the Rule 144A Deposit Agreement, by or on behalf of the
person surrendering such Receipt who after such withdrawal will be the
beneficial owner of such Deposited Securities; provided that no such certificate
shall be required if (i) the Shares underlying the Global Depositary Shares have
been registered under the Securities Act and the Rule 144A Depositary has
received a satisfactory opinion of counsel to that effect or (ii) the Rule 144A
Depositary shall have received a written opinion of counsel admitted to practice
law in the United States satisfactory to the Rule 144A Depositary to the effect
that no such certificate is required.
A Receipt surrendered under Section 2.05 of the Rule 144A Deposit
Agreement for such purposes may be required by the Rule 144A Depositary to be
properly endorsed in blank or accompanied by a proper instrument or instruments
of transfer in blank, and if the Rule 144A Depositary so requires, the Holder
thereof or the Beneficial Owner of an interest as to which withdrawal
instructions have been given, as the case may be, shall execute and deliver to
the Rule 144A Depositary a written order directing the Rule 144A 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
Rule 144A Depositary shall direct the Custodian to deliver at the London office
of such Custodian, subject to Sections 2.06, 3.01 and 3.02 of the Rule 144A
Deposit Agreement and to the other terms and conditions of the Rule 144A Deposit
Agreement, to or upon the written order of the person or persons designated in
the order delivered to the Rule 144A Depositary as above provided, the amount of
Deposited Securities represented by the Rule 144A Global Depositary Shares
evidenced by such Receipt or such beneficial interest in Book-Entry GDSs
evidenced by the Master GDR, except that the Rule 144A Depositary may make
delivery to such person or persons at the Corporate Trust Office of the Rule
144A Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the Rule 144A Global Depositary Shares evidenced by
such Receipt or such beneficial interest, or of any proceeds of sale of any
dividends, distributions or rights, which may at the time be held by the Rule
144A Depositary.
At the request, risk and expense of any Holder so surrendering a
Receipt or any Beneficial Owner submitting such written instructions for
delivery, and for the account of such Holder or Beneficial Owner, the Rule 144A
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
Rule 144A Global Depositary Shares evidenced by such Receipt or the beneficial
interest in Book-Entry GDSs evidenced by the Master GDR to the Rule 144A
Depositary for delivery at the Corporate Trust Office of the Rule 144A
Depositary. Such
-4-
direction shall be given by letter or, at the request, risk and expense of such
Holder, by air courier, cable, telex or facsimile transmission.
Notwithstanding the foregoing, at any time the Company maintains an
unrestricted depositary receipt facility with respect to the Shares in the
United States, each Holder acknowledges that, and each of the Rule 144A
Depositary and the Custodian agrees that, neither the Custodian nor the Rule
144A Depositary will make any actual delivery of Shares to any Holder at an
address within the United States, unless such Shares are no longer deemed to be
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act of 1933.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Rule
144A Depositary (a) if the book-entry settlement system of DTC is then available
for the Book-Entry GDSs, upon receipt by the Rule 144A Depositary at its
Corporate Trust Office of written instructions from DTC or DTC's nominee on
behalf of any Beneficial Owner and (b) if the book-entry settlement system of
DTC shall become unavailable for the Book-Entry GDSs, upon surrender at the
Corporate Trust Office of the Rule 144A Depositary of a Receipt, by the Holder
hereof in person or by a duly authorized attorney, properly endorsed or
accompanied by a proper instrument or instruments of transfer (including, in the
case of any Receipt in physical, certificated form, the due execution and
completion of any endorsements appearing thereon relating to compliance with
restrictions applicable to the transfer hereof) and duly stamped as may be
required by the laws of the State of New York and the United States, and subject
to the payment of funds sufficient to pay any applicable transfer taxes and the
fees and expenses of the Rule 144A Depositary as provided in Section 5.09 of the
Rule 144A Deposit Agreement. Thereupon the Rule 144A Depositary shall execute a
new Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto, subject to receipt of any certifications by such person as the
Rule 144A Depositary and the Company may require in order to comply with
applicable laws but only upon payment to the Rule 144A Depositary of the fees of
the Rule 144A Depositary as provided in Section 5.09 of the Rule 144A Deposit
Agreement. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, representing the same
aggregate number of Rule 144A Global Depositary Shares as the Receipt or
Receipts surrendered. The Rule 144A Depositary may deliver a Receipt or Receipts
in exchange for an unrestricted depositary receipt or unrestricted depositary
receipts, upon the same terms and subject to the same conditions as apply to a
deposit for a Receipt under Section 2.02(b) of the Rule 144A Deposit Agreement.
The Rule 144A Depositary is not required to deliver a Receipt in exchange for an
unrestricted depositary receipt if the Rule 144A Depositary believes that at the
time of issuance such Receipt would not be eligible under paragraph (d)(3) of
Rule 144A. As a condition precedent to the execution and delivery, registration,
registration of transfer, split-up, combination or surrender of any Receipt or
beneficial interest in the Master GDR or withdrawal of any Deposited Securities
or the adjustment
-5-
of the Rule 144A Depositary's records to reflect the deposit of Shares or any
such transfer, split-up, combination, surrender or withdrawal, the Rule 144A
Depositary, Custodian or Registrar may require payment from the depositor of
Shares or the presenter of the Receipt of a sum sufficient to reimburse it for
any tax or other governmental charge and any stock transfer or registration fee
with respect thereto (including any such tax or charge and fee with respect to
the 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 Rule 144A Depositary may establish consistent with the
provisions of the Rule 144A Deposit Agreement, including, without limitation,
Section 2.06 thereof.
Notwithstanding the foregoing, with respect to any transfer of a
Receipt evidencing Physical Rule 144A GDSs, upon the surrender of such Receipt
together with written instructions as to the person or persons, or to whose DTC
participant account the Physical Rule 144A GDSs to be transferred are to be
credited, the Rule 144A Depositary will, if at the time DTC's book-entry
settlement system is available for Book-Entry Rule 144A GDSs, cancel the
surrendered Receipt, adjust its records, and instruct DTC to adjust its records,
so as to increase the number of Rule 144A Global Depositary Shares represented
by the Master GDR by the number of Physical Rule 144A GDSs evidenced by the
Receipt so surrendered for transfer and inform DTC as to the person or persons,
or to whose DTC participant account such Rule 144A Global Depositary Shares are
to be credited.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or deposits of Shares
may be refused, or the transfer of Receipts in particular instances may be
refused or the registration of transfer, split-up or combination of outstanding
Receipts, or the surrender of outstanding Receipts or the receipt of written
instructions from any person having a beneficial interest in Book-Entry GDSs
represented by the Master GDR for the purpose of withdrawal of Deposited
Securities, may be suspended generally or in particular instances, during any
period when the transfer books of the Rule 144A Depositary or the Company or the
Foreign Registrar, if applicable, are closed, or if any such action is deemed
necessary or advisable by the Rule 144A Depositary or the Company , or the
Foreign Registrar, 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 the Rule 144A Deposit Agreement, or for any other reason. The Rule
144A Depositary shall in no event be required to accept Shares for deposit or
issue Receipts or adjust the Master GDR against such delivery if the Rule 144A
Depositary believes that at the time of issuance such Receipts would not be
eligible under paragraph (d)(3) of Rule 144A.
-6-
4. LIABILITY OF HOLDER FOR TAXES.
If any tax or other governmental charge shall become payable by the
Custodian or Rule 144A Depositary with respect to this Receipt or any Deposited
Securities represented by the Rule 144A Global Depositary Shares evidenced by
this Receipt, such tax or other governmental charge will be payable by the
Holder or Beneficial Owner hereof to the Rule 144A Depositary. The Rule 144A
Depositary may refuse to effect registration of transfer of this Receipt (or any
split-up or combination thereof) or any withdrawal of Deposited Securities
represented by Rule 144A Global Depositary Shares evidenced by this Receipt
until such payment is made, and may withhold any dividends or other
distributions in respect of any Deposited Securities, or may sell for the
account of the Holder or Beneficial Owner hereof any part or all of the
Deposited Securities represented by the Rule 144A Global Depositary Shares
evidenced by this 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 Holder or Beneficial Owner hereof will remain liable for any
deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Rule 144A Deposit Agreement
will be deemed thereby to represent and warrant, in addition to such
representations and warranties as may be required pursuant to Section 2.02 of
the Rule 144A Deposit Agreement, 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 and that the person making such
deposit is duly authorized to do so. Such representations and warranties will
survive the deposit of such Shares and issuance of Receipts.
Each person depositing or withdrawing Shares (other than the Company)
will be deemed to acknowledge, represent and warrant to the same effect as the
acknowledgment and certifications set out in Annex I or II to the Rule 144A
Deposit Agreement, as the case may be. Each such purchaser and each such person
depositing or withdrawing Shares will be deemed to represent that it understands
that the Receipts and the underlying Shares, unless otherwise agreed by the
Company and the Rule 144A Depositary, will bear one or more legends
substantially to the effect set out in Sections 2.01(a) and 2.01(b) of the Rule
144A Deposit Agreement. Such acknowledgments, representations, warranties and
agreements shall survive any such purchase, deposit or withdrawal.
6. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Holder or Beneficial
Owner of a Receipt may be required from time to time to file with the Rule 144A
Depositary or the Custodian such proof of citizenship or residence, exchange
control approval, proof of the identity of any person legally or beneficially
interested in this Receipt and the nature of such interest, proof of compliance
with all applicable laws and regulations and provisions
-7-
of or governing Deposited Securities and the terms of the Rule 144A Deposit
Agreement or such information relating to the registration on the books of the
Company or the Foreign Registrar, if applicable, of the Shares presented for
deposit or other information, to execute such certificates and to make such
representations and warranties, as the Rule 144A Depositary may deem necessary
or proper. The Rule 144A Depositary may withhold the delivery or registration of
transfer of any Receipt or the distribution of any dividend or distribution of
rights or of the sale 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. No Share shall be
accepted for deposit unless accompanied by evidence satisfactory to the Rule
144A Depositary that all conditions to such deposit have been satisfied by the
person depositing such Shares under Jersey laws and regulations and any
necessary approval has been granted by any governmental body in Jersey which is
then performing the function of the regulation of currency exchange or any other
function which requires approval for the deposit of Shares. The Rule 144A
Depositary will refuse to accept Shares for deposit whenever it is notified in
writing that such deposit would result in any violation of applicable laws or
the Company's Memorandum or Articles of Association.
In the event that Shares, or securities of any class that may from time
to time be deposited with the Custodian pursuant to the Rule 144A Deposit
Agreement, or Rule 144A Global Depositary Shares or Receipts representing such
Shares or other securities, become listed on a national securities exchange
which is registered under Section 6 of the Securities Exchange Act of 1934, as
from time to time amended, or quoted in a U.S. automated inter-dealer quotation
system (within the meaning of Rule 144A(d)(3)(i)), the Company shall notify the
Rule 144A Depositary and the Custodian in writing of such listing or quotation.
Thereafter, and notwithstanding any other provision of the Rule 144A Deposit
Agreement to the contrary, the Rule 144A Depositary and the Custodian shall
refuse to accept for deposit any Shares of the same class (within the meaning of
Rule 144A(d)(3)(i)) as the securities so listed or quoted, unless the person
making such deposit shall furnish evidence satisfactory to the Rule 144A
Depositary, in its sole discretion, that the Shares to be deposited were not,
when issued, of the same class (within the meaning of Rule 144A(d)(3)(i)), as
the securities so listed or quoted.
7. CHARGES OF RULE 144A DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Rule 144A Depositary and those of any Registrar
only in accordance with agreements in writing entered into between the Rule 144A
Depositary and the Company from time to time. The Rule 144A Depositary shall
present its statement for such charges and expenses to the Company once every
three months. The charges and expenses of the Custodian are for the sole account
of the Rule 144A 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,
-8-
without limitation, issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.03 of
the Rule 144A Deposit Agreement), 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 Company or Foreign Registrar (or any other appointed agent of
the Company for transfer and registration of the Shares) and applicable to
transfers of Shares to the name of the Rule 144A 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 the Rule 144A Deposit Agreement, (4) such expenses as are incurred
by the Rule 144A Depositary in the conversion of Foreign Currency pursuant to
Section 4.05 of the Rule 144A Deposit Agreement, (5) a fee of $5.00 or less per
100 Rule 144A Global Depositary Shares (or portion thereof) for the execution
and delivery of Receipts pursuant to Section 2.03, 4.03 or 4.04 of the Rule 144A
Deposit Agreement, and the surrender of receipts pursuant to Section 2.05 or
6.02 of the Rule 144A Deposit Agreement and (6) a fee of $.02 or less per Rule
144A Global Depositary Share (or portion thereof) for any cash distribution made
pursuant to the Rule 144A Deposit Agreement, including, but not limited to,
Sections 4.01 through 4.04 thereof, (7) a fee for the distribution of securities
pursuant to Section 4.02 of the Rule 144A Deposit Agreement, such fee being in
an amount equal to the fee for the execution and delivery of Rule 144A Global
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 Rule 144A Depositary to Rule 144A GDS Holders and (8) a fee
not in excess of $1.50 per certificate for a Receipt or Receipts for transfers
made pursuant to the terms of the Rule 144A Deposit Agreement.
The Rule 144A Depositary, subject to Section 2.09 of the Rule 144A
Deposit Agreement, may own and deal in any class of securities of the Company
and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Rule 144A Deposit Agreement, the
Rule 144A Depositary may execute and deliver Receipts prior to the receipt of
Shares pursuant to Section 2.02 of the Rule 144A Deposit Agreement (a
"Pre-Release"). The Rule 144A Depositary may, pursuant to Section 2.05 of the
Rule 144A Deposit Agreement, 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 Rule 144A Depositary knows that
such Receipt has been Pre-Released. The Rule 144A 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 or Shares 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
-9-
collateralized with cash or such other collateral as the Rule 144A Depositary
deems appropriate, (c) terminable by the Rule 144A Depositary on not more than
five (5) business days notice, and (d) subject to such further indemnities and
credit regulations as the Rule 144A Depositary deems appropriate. The number of
Global Depositary Shares which are outstanding at any time as a result of
Pre-Release will not normally exceed thirty percent (30%) of the Shares
deposited under the Rule 144A Deposit Agreement; provided, however, that the
Rule 144A Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate.
The Rule 144A Depositary may retain for its own account any
compensation received by it in connection with the foregoing.
The person to whom any Pre-Release is to be made pursuant to Section
2.09 of the Rule 144A Deposit Agreement shall be required to deliver to the Rule
144A Depositary a duly executed and completed Depositor Certificate in
substantially the form attached to the Rule 144A Deposit Agreement as Annex I.
9. TITLE TO RECEIPTS.
Title to this Receipt (and to the Rule 144A Global Depositary Shares
evidenced hereby), when properly endorsed or accompanied by a proper instrument
or instruments of transfer and transferred in accordance with the terms of the
Rule 144A Deposit Agreement, is transferable by delivery with the same effect as
in the case of a negotiable instrument under the laws of the State of New York;
provided, however, that the Rule 144A Depositary, notwithstanding any notice to
the contrary, may treat the Holder hereof as the absolute owner hereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Rule 144A Deposit Agreement
and for all other purposes and neither the Rule 144A Depositary nor the Company
will have any obligation or be subject to any liability under the Rule 144A
Deposit Agreement to any holder of a Receipt, unless such holder is the Holder
hereof.
10. VALIDITY OF RECEIPT.
This Receipt will not be entitled to any benefits under the Rule 144A
Deposit Agreement or be valid or obligatory for any purpose, unless this Receipt
shall have been executed by the Rule 114A Depositary by the manual or facsimile
signature of a duly authorized signatory of the Rule 144A Depositary, and if a
Registrar (other than the Rule 144A Depositary) for the Receipts shall have been
appointed, countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company has agreed that, so long as the Rule 144A Deposit Agreement
remains in effect, it will either (i) furnish the Commission with certain public
reports and
-10-
documents required by the laws of Jersey or of any securities exchange on which
any securities of the Company are listed or otherwise in accordance with Rule
12g3-2(b) under the Securities Exchange Act, and otherwise comply with the
exemption provided by such Rule, or (ii) be subject to and fulfill the periodic
reporting and other requirements of the Securities Exchange Act, and in
accordance therewith, file reports and other information with the Commission.
If, at any time prior to the termination of the Rule 144A Deposit Agreement, the
Company is neither a reporting company under Section 13 or 15(d) of the
Securities Exchange Act nor exempt from the reporting requirements of the
Securities Exchange Act by reason of Rule 12g3-2(b) thereunder, the Company will
provide, at its expense, to any Holder or Beneficial Owner or any holder of
Shares, and to any prospective purchaser of Rule 144A Global Depositary Shares
or Shares designated by such person, upon request of such Holder, Beneficial
Owner, holder or prospective purchaser, the information required by Rule
144A(d)(4)(i) and otherwise comply with Rule 144A(d)(4). If at any time the
Company is neither subject to Section 13 or 15(d) of the Securities Exchange Act
nor exempt pursuant to Rule 12g3-2(b) under the Securities Exchange Act (as
determined by the Office of International Corporate Finance of the Commission),
the Company shall immediately so notify the Rule 144A Depositary, and the Rule
144A Depositary may so notify the Rule 144A GDS Holders in writing at the
Company's expense.
The Company has authorized the Rule 144A Depositary to deliver such
information furnished by the Company to the Rule 144A Depositary during any
period in which the Company informs the Rule 144A Depositary it is subject to
the information delivery requirements of Rule 144A(d)(4) to any such Holder,
Beneficial Owner, holder of Shares or prospective purchaser at the request of
such person. The Company has agreed to reimburse the Rule 144A Depositary for
its reasonable expenses in connection with such deliveries and to provide the
Rule 144A Depositary with such information in such quantities as the Rule 144A
Depositary may from time to time reasonably request.
In addition, upon notice that the Company has not furnished the
Commission with any public reports, documents or other information as required
by foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange
Act, the Rule 144A Depositary is authorized (at any time the Company is exempt
pursuant to Rule 12g3-2(b)) to furnish promptly to the Commission copies of all
annual or other periodic reports and other notices or communications which the
Rule 144A Depositary receives as holder of the Deposited Securities from the
Company and which are not so furnished to or filed with the Commission pursuant
to any other requirement of the Commission and the Rule 144A Depositary is
hereby authorized by the Company to do so on its behalf.
The Rule 144A Depositary will make available for inspection by Rule
144A Holders and Beneficial Owners at its Corporate Trust Office any notices,
reports and communications, including any proxy soliciting material, received
from the Company which are both (a) received by the Rule 144A Depositary as the
holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by
-11-
the Company. The Rule 144A Depositary shall also send to the Rule 144A Holders
copies of such reports when furnished by the Company pursuant to Section 5.06 of
the Rule 144A Deposit Agreement. Any such reports and communications, including
any such proxy soliciting material, furnished to the Rule 144A Depositary by the
Company shall be furnished in English to the extent such materials are required
to be translated into English pursuant to any regulations of the Commission.
The Rule 144A Depositary shall keep books at its Corporate Trust Office
for the registration of Receipts and transfers of Receipts which at all
reasonable times shall be open for inspection by the Rule 144A GDS Holders and
Beneficial Owners and the Company, provided that such inspection shall not be
for the purpose of communicating with Rule 144A GDS Holders or Beneficial Owners
in the interest of a business or object other than the business of the Company
or a matter related to the Rule 144A Deposit Agreement or the Receipts.
The Rule 144A 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 under the Rule 144A Deposit Agreement.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Rule 144A Depositary shall receive any cash dividend or
other cash distribution on any Deposited Securities, the Rule 144A Depositary
shall, if such cash is received in Foreign Currency, subject to the provisions
of Section 4.05 of the Rule 144A Deposit Agreement, convert such dividend or
distribution into Dollars and shall distribute the amount thus received (net of
the fees and expenses of the Rule 144A Depositary as provided in Section 5.09 of
the Rule 144A Deposit Agreement) to the Rule 144A GDS Holders entitled thereto,
in proportion to the number of Rule 144A Global Depositary Shares representing
such Deposited Securities evidenced by Receipts held by them respectively;
provided, however, that in the event that the Company or the Rule 144A
Depositary or the Custodian shall be required to withhold and does withhold from
such cash dividend or such other cash distribution an amount on account of taxes
or other governmental charges, the amount distributed to the Holder of the
Receipts evidencing Rule 144A Global Depositary Shares representing such
Deposited Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.09 of the Rule 144A
Deposit Agreement, whenever the Rule 144A Depositary or Custodian shall receive
any distribution other than a distribution described in Section 4.01, 4.03 or
4.04 of the Rule 144A Deposit Agreement, the Rule 144A Depositary shall cause
the securities or property received by it to be distributed to the Rule 144A GDS
Holders entitled thereto, after the deduction or upon payment of any fees and
expenses of the Rule 144A Depositary or any taxes or other governmental charges
under the Rule 144A Deposit Agreement in proportion to the number of Rule 144A
Global Depositary Shares representing such Deposited Securities evidenced by
Receipts held by them respectively,
-12-
in any manner that the Rule 144A Depositary may deem equitable and practicable
for accomplishing such distribution; provided, however, that if in the opinion
of the Rule 144A Depositary such distribution cannot be made proportionately
among the Rule 144A GDS Holders entitled thereto, or if for any other reason
(including, but not limited to, any requirement that the Company or the Rule
144A Depositary or the Custodian withhold an amount on account of taxes or other
governmental charges or that such property consists of securities that must be
registered under the Securities Act in order to be distributed to Rule 144A GDS
Holders or Beneficial Owners of Receipts) the Rule 144A Depositary deems such
distribution not to be feasible, the Rule 144A Depositary, after consultation
with the Company, 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 and
expenses of the Rule 144A Depositary as provided in Section 5.09 of the Rule
144A Deposit Agreement) shall be distributed by the Rule 144A Depositary to the
Rule 144A GDS Holders entitled thereto, all in the manner and subject to the
conditions described in Section 4.01 of the Rule 144A Deposit Agreement. Each
beneficial owner of Receipts or Shares so distributed shall be deemed to have
acknowledged that the Shares have not been registered under the Securities Act
and to have agreed to comply with the restrictions on transfer described in the
legend affixed at the beginning hereof.
There can be no assurance that the Rule 144A Depositary will be able to
effect any currency conversion or to sell or otherwise dispose of any
distributed or offered property or rights in a timely manner or at a particular
price or at all.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Rule 144A Depositary may
either (i) if Book-Entry GDSs are available, reflect on the records of the Rule
144A Depositary such increase in the aggregate number of GDSs representing
Shares evidenced by the Master GDR and give notice to DTC of the related
increase in the number of GDSs evidenced by the Master GDR or (ii) if Book-Entry
GDSs are not available, distribute to the Rule 144A GDS Holders of outstanding
Receipts entitled thereto, in proportion to the number of Rule 144A Global
Depositary Shares representing such Deposited Securities evidenced by Receipts
held by them respectively, additional Receipts evidencing an aggregate number of
Rule 144A Global Depositary Shares representing the amount of Shares received as
such dividend or free distribution, subject to the terms and conditions of the
Rule 144A Deposit Agreement with respect to the deposit of Shares and the
issuance of Rule 144A Global Depositary Shares evidenced by Receipts, including
the withholding of any tax or other governmental charge as provided in Section
4.11 of the Rule 144A Deposit Agreement and the payment of the fees and expenses
of the Rule 144A Depositary as provided in Section 5.09 of the Rule 144A Deposit
Agreement. The Rule 144A Depositary may withhold any such distribution of
Receipts if it has not received satisfactory assurances from the Company that
such distribution does not require registration under the Securities Act or is
exempt from registration under the provisions
-13-
of such Act. In lieu of delivering Receipts for fractional Rule 144A Global
Depositary Shares in any such case, the Rule 144A 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 4.01 of the Rule 144A Deposit Agreement. If such adjustments on the
records of the Rule 144A Depositary are not so made or additional Receipts are
not so distributed, each Rule 144A Global Depositary Share shall thenceforth
also represent the additional Shares distributed upon the Deposited Securities
represented thereby. Each Beneficial Owner of Receipts or Shares so distributed
shall be deemed to have acknowledged that the Shares have not been registered
under the Securities Act and to have agreed to comply with the restrictions on
transfer described in the form of legend set forth in Section 2.01 of the Rule
144A Deposit Agreement.
In the event that the Rule 144A 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 Rule 144A Depositary
is obligated to withhold, the Rule 144A 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 Rule 144A
Depositary deems necessary and practicable to pay any such taxes or charges and
the Rule 144A Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to the Rule 144A GDS Holders entitled
thereto in proportion to the number of Rule 144A Global Depositary Shares held
by them respectively.
13. RIGHTS.
In the event that the Company 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 Rule 144A Depositary shall have
discretion as to the procedure to be followed in making such rights available to
any Rule 144 GDS Holders or in disposing of such rights on behalf of any Rule
144A GDS Holders and making the net proceeds available to such Rule 144A GDS
Holders or, if by the terms of such rights offering or for any other reason, the
Rule 144A Depositary may not either make such rights available to any Rule 144A
GDS Holders or dispose of such rights and make the net proceeds available to
such Rule 144A GDS Holders, then the Rule 144A Depositary shall allow the rights
to lapse. If at the time of the offering of any rights the Rule 144A Depositary
determines in its discretion that it is lawful and feasible to make such rights
available to all or certain Rule 144A GDS Holders but not to other Rule 144A GDS
Holders, the Rule 144A Depositary may, if the Company so requests, distribute to
any Holder to whom it determines the distribution to be lawful and feasible, in
proportion to the number of Rule 144A Global Depositary Shares held by such
Holder, warrants or other instruments therefor in such form as it deems
appropriate.
-14-
In circumstances in which rights would otherwise not be distributed, if
a Holder of Receipts requests the distribution of warrants or other instruments
in order to exercise the rights allocable to the Rule 144A Global Depositary
Shares of such Holder hereunder, the Rule 144A Depositary will make such rights
available to such Holder upon written notice from the Company to the Rule 144A
Depositary, if the Company so requests, that (a) the Company has elected in its
sole discretion to permit such rights to be exercised and (b) such Holder has
executed such documents as the Company has determined in its sole discretion are
reasonably required under applicable law.
If the Rule 144A Depositary has distributed warrants or other
instruments for rights to all or certain Rule 144A GDS Holders, then upon
instruction from such a Holder pursuant to such warrants or other instruments to
the Rule 144A Depositary from such a Holder to exercise such rights, upon
payment by such Holder to the Rule 144A Depositary for the account of such
Holder 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 and expenses of
the Rule 144A Depositary and any other charges as set forth in such warrants or
other instruments, the Rule 144A Depositary shall, on behalf of such Holder,
exercise the rights and purchase the Shares, and the Company shall cause the
Shares so purchased to be delivered to the Rule 144A Depositary on behalf of
such Holder. As agent for such Holder, the Rule 144A Depositary will cause the
Shares so purchased to be deposited pursuant to Section 2.02 of the Rule 144A
Deposit Agreement, and shall, pursuant to Section 2.03 of the Rule 144A Deposit
Agreement, execute and deliver Receipts to such Holder. In the case of a
distribution pursuant to the second paragraph of Section 4.04 of the Rule 144A
Deposit Agreement, such Receipts shall be legended in the manner provided in
Section 2.01 of the Rule 144A Deposit Agreement and in accordance with
applicable U.S. laws, and shall be subject to the appropriate restrictions on
sale, deposit, cancellation and transfer under such laws.
If the Rule 144A Depositary determines in its discretion that it is not
lawful and feasible to make such rights available to all or certain Rule 144A
GDS Holders, it may sell the rights, warrants or other instruments in proportion
to the number of Rule 144A Global Depositary Shares held by the Rule 144A GDS
Holders 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
and expenses of the Rule 144A Depositary as provided in Section 5.09 of the Rule
144A Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the Rule
144A Deposit Agreement) for the account of such Rule 144A GDS Holders otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Rule 144A
GDS Holders because of exchange restrictions or the date of delivery of any
Receipt or otherwise.
The Rule 144A Depositary will not offer rights to Rule 144A GDS Holders
unless both the rights and the securities to which such rights relate are either
exempt from
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registration under the Securities Act with respect to a distribution to all Rule
144A GDS Holders or are registered under the provisions of such Act; provided,
that nothing in the Rule 144A Deposit Agreement shall create any obligation on
the part of the Company to file a registration statement with respect to such
rights or underlying securities or to endeavor to have such a registration
statement declared effective. If a Holder of Receipts requests the distribution
of warrants or other instruments, notwithstanding that there has been no such
registration under such Act, the Rule 144A Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Company upon which the Rule 144A Depositary may rely that
such distribution to such Holder is exempt from such registration.
The Rule 144A Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Rule 144A GDS Holders in general or any Holder in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Rule 144A 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 Rule 144A Depositary be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Rule 144A 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, as
promptly as practicable, to the Rule 144A GDS Holders entitled thereto or, if
the Rule 144A 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, as applicable, upon surrender
thereof for cancellation in whole or in part depending upon the terms of such
warrants or other instruments. Such distribution may be made upon an averaged or
other practicable basis without regard to any distinctions among Rule 144A GDS
Holders 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 Rule 144A Depositary as provided in Section 5.09 of the Rule
144A Deposit Agreement.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Rule 144A
Depositary shall file such application for approval or license, if any, as it
may deem desirable.
If at any time the Rule 144A Depositary shall determine in its judgment
that any Foreign Currency received by the Rule 144A 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 Rule 144A
Depositary is not obtainable, or if any such approval or license is not obtained
within a reasonable period as determined by the Rule 144A Depositary, the Rule
144A Depositary may distribute the Foreign Currency (or an
-16-
appropriate document evidencing the right to receive such Foreign Currency)
received by the Rule 144A Depositary to, or in its discretion may hold such
Foreign Currency uninvested and without liability for interest thereon for the
respective accounts of, the Rule 144A GDS Holders 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 Rule 144A GDS Holders entitled
thereto, the Rule 144A Depositary may in its discretion make such conversion and
distribution in Dollars to the extent permissible to the Rule 144A GDS Holders
entitled thereto and may distribute the balance of the Foreign Currency received
by the Rule 144A Depositary to, or hold such balance uninvested and without
liability for interest thereon for the respective accounts of, the Rule 144A GDS
Holders entitled thereto.
15. 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 the Rule
144A Depositary shall receive notice of any meeting of holders of Shares or
other Deposited Securities, or whenever for any reason the Rule 144A Depositary
causes a change in the number of Shares that are represented by each Rule 144A
Global Depositary Share, or whenever the Rule 144A Depositary shall find it
necessary or convenient, the Rule 144A Depositary shall fix a record date which
shall be the same date as the record date, if any, applicable to the Deposited
Securities, or as close thereto as practicable (a) for the determination of the
Rule 144A GDS Holders who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof, (ii) entitled to
give or forward instructions for the exercise of voting rights at any such
meeting or (iii) to receive information on such meeting, subject to the
provisions of the Rule 144A Deposit Agreement or (b) on or after which each Rule
144A Global Depositary Share will represent the changed number of Shares.
Subject to the provisions of Sections 4.01 through 4.05 of the Rule 144A Deposit
Agreement and to the other terms and conditions of the Rule 144A Deposit
Agreement, the Rule 144A GDS Holders on such record date shall be entitled, as
the case may be, to receive the amount distributable by the Rule 144A 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 Rule 144A Global
Depositary Shares evidenced by Receipts held by them respectively and to give
voting instructions, to exercise the rights of Rule 144A GDS Holders under the
Rule 144A Deposit Agreement with respect to such changed number of Shares and to
act in respect of any other such matter.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if instructed in writing by the Company, the Rule 144A
Depositary shall, as soon as practicable thereafter, mail to the Rule 144A GDS
Holders a notice, the form of which notice shall be in the sole discretion of
the Rule 144A Depositary, which shall
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contain (a) such information as is contained in such notice of meeting received
by the Rule 144A Depositary from the Company, (b) a statement that the Rule 144A
GDS Holders as of the close of business on a specified record date will be
entitled, subject to any applicable provision of Jersey law and of the Articles
of Association or Memorandum of Association of the Company, to instruct the Rule
144A 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 Rule 144A Global Depositary Shares, and (c) a statement as to the
manner in which such instructions may be given. Upon the written request of a
Holder on such record date, received on or before the date established by the
Rule 144A Depositary for such purpose, the Rule 144A Depositary shall endeavor,
insofar as practicable, to vote or cause to be voted the amount of Shares or
other Deposited Securities represented by the Rule 144A Global Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in such
request. The Rule 144A 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.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Rule 144A
Deposit Agreement 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 Company or to which it is a party,
any Shares or other securities or property which shall be received by the Rule
144A Depositary or a Custodian in exchange for or in conversion, replacement or
otherwise in respect of Deposited Securities, shall be treated as new Deposited
Securities under the Rule 144A Deposit Agreement, and Rule 144A Global
Depositary Receipts shall, subject to the terms of the Deposit Agreement and
applicable law (including any registration requirements under the Securities
Act) thenceforth evidence GDSs representing, in addition to existing Deposited
Securities, the right to receive 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 Rule 144A Depositary may, and shall, if
the Company so requests, (a) if Book-Entry GDSs are available, make appropriate
entry in its records, or (b) if Book-Entry GDSs are not available, either (i)
execute and deliver additional Receipts as in the case of a dividend in Shares
or (ii) call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND RULE 144A DEPOSITARY.
Neither the Rule 144A Depositary nor the Company nor any of their
respective directors, employees, agents or affiliates shall incur any liability
to any Holder or Beneficial Owner of any Receipt, if by reason of any provision
of any present or future law, regulation, order, decree, moratorium or fiat of
the United States or any other
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country, or of any governmental or regulatory authority or stock exchange, or by
reason of any provision, present or future, of the Articles of Association or
Memorandum of Association of the Company, or by reason of any provision of any
securities issued or distributed by the Company, or any offering or distribution
thereof, or by reason of any act of God or war or other circumstances beyond its
control, the Rule 144A Depositary or the Company or any of their directors,
employees, agents or affiliates shall be prevented, delayed 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 the Rule 144A Deposit
Agreement or the Deposited Securities it is provided shall be done or performed;
nor shall the Rule 144A Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates incur any liability to any Holder or
Beneficial Owner of any Receipt by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of the
Rule 144A 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 the Rule 144A Deposit Agreement. Where, by the terms of a distribution
pursuant to Section 4.01, 4.02, or 4.03 of the Rule 144A Deposit Agreement, or
an offering or distribution pursuant to Section 4.04 of the Rule 144A Deposit
Agreement, or for any other reason, such distribution or offering may not be
made available to Rule 144A GDS Holders, and the Rule 144A Depositary may not
dispose of such distribution or offering on behalf of such Rule 144A GDS Holders
and make the net proceeds available to such Rule 144A GDS Holders, then the Rule
144A Depositary shall not make such distribution or offering, and shall allow
any rights, if applicable, to lapse.
The Company assumes no obligation nor shall it be subject to any
liability under the Rule 144A Deposit Agreement to any Rule 144A GDS Holders or
Beneficial Rule 144A GDS Owners except that it agrees to perform its obligations
specifically set forth in the Rule 144A Deposit Agreement without negligence or
bad faith. The Rule 144A Depositary assumes no obligation nor shall it be
subject to any liability under the Rule 144A Deposit Agreement to any Holder or
Beneficial Owner (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 the Rule 144A Deposit Agreement
without negligence or bad faith. Neither the Rule 144A Depositary nor the
Company 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 in its sole discretion 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 Rule 144A
Depositary. Neither the Rule 144A Depositary nor the Company 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
Holder, or any other person believed by it in good faith to be competent to give
such advice or information including, but not limited to, any such action or
nonaction based
-19-
upon any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Rule 144A 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 Rule 144A Depositary or in connection with any matter arising wholly after
the removal or resignation of the Rule 144A Depositary, provided that in
connection with the issue out of which such potential liability arises the Rule
144A Depositary performed its obligations without negligence or bad faith while
it acted as Rule 144A Depositary. The Rule 144A 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 is intended by any
provision of the Rule 144A Deposit Agreement.
The Company agrees to indemnify the Rule 144A 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 the Rule 144A Deposit Agreement
and of the Receipts, as the same may be amended, modified or supplemented from
time to time, (i) by either the Rule 144A Depositary or any 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 Company or any of its directors, employees, agents and affiliates.
The Rule 144A Depositary agrees to indemnify the Company, 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
Rule 144A Depositary or its Custodian or their respective directors, employees,
agents and affiliates due to their negligence or bad faith.
19. RESIGNATION AND REMOVAL OF THE RULE 144A DEPOSITARY; APPOINTMENT OF
SUCCESSOR CUSTODIAN.
The Rule 144A Depositary may at any time resign as Rule 144A Depositary
under the Rule 144A Deposit Agreement by written notice of its election so to do
delivered to the Company, such resignation to take effect upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Rule 144A Deposit Agreement. The Rule 144A Depositary may at any time be
removed by the Company by written notice of such removal effective upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Rule 144A Deposit Agreement. In case at any time the Rule 144A
Depositary shall resign or be removed, the Company will use its best efforts to
appoint a successor depositary, which will be a bank or trust company having an
office in the Borough of Manhattan,
-20-
The City of New York. Every successor depositary will execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment under the Rule 144A Deposit Agreement, and thereupon such successor
depositary, without any further act or deed, will 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 Company, will execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor under the Rule 144A
Deposit Agreement, will duly assign, transfer and deliver all right, title and
interest in the Deposited Securities to such successor, and will deliver to such
successor a list of the Rule 144A GDS Holders of all outstanding Receipts. Any
such successor depositary will promptly mail notice of its appointment to the
Rule 144A GDS Holders. Whenever the Rule 144A Depositary in its discretion
determines that it is in the best interest of the Rule 144A GDS Holders to do
so, it may appoint a substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Rule 144A Deposit
Agreement may at any time and from time to time be amended by agreement or
supplemented by agreement between the Company and the Rule 144A Depositary
without the consent of Rule 144A GDS Holders or Rule 144A GDS Beneficial Owners
of Receipts in any respect which they may deem necessary or desirable. Any
amendment which imposes or increases any fees or charges (other than taxes and
other governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other expenses), or which otherwise
prejudices any substantial existing right of Rule 144A GDS Holders or Beneficial
Owner will, however, not become effective as to outstanding Receipts until the
expiration of ninety days after notice of such amendment shall have been given
to the Rule 144A GDS Holders of outstanding Receipts. Every Holder and
Beneficial Owner at the time any amendment so becomes effective will be deemed,
by continuing to hold such Receipt, to consent and agree to such amendment or
supplement and to be bound or to own any beneficial interest by the Rule 144A
Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment impair the right of the Holder of this Receipt to surrender such
Receipt and receive therefor the Deposited Securities represented hereby, except
in order to comply with mandatory provisions of applicable law.
21. TERMINATION OF RULE 144A DEPOSIT AGREEMENT.
The Rule 144A Depositary shall at any time at the direction of the
Company terminate the Rule 144A Deposit Agreement by mailing notice of such
termination to the Rule 144A GDS Holders of all Receipts then outstanding at
least 60 days prior to the date fixed in such notice for such termination. The
Rule 144A Depositary may likewise terminate the Rule 144A Deposit Agreement by
mailing notice of such termination to the Company and the Rule 144A GDS Holders
of all Receipts then outstanding, if at any
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time 60 days shall have expired after the Rule 144A Depositary shall have
delivered to the Company 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 5.04 of the Rule 144A Deposit Agreement. On and after the
date of termination, the Holder of a Receipt will, upon (a) (i) receipt by the
Rule 144A Depositary at its Corporate Trust Office of written instructions from
DTC or DTC's nominee on behalf of any Beneficial Owner, if the book-entry
settlement system of DTC is then available for the Book-Entry GDSs, or (ii)
surrender of such Receipt at the Corporate Trust Office of the Rule 144A
Depositary, (b) payment of the fee of the Rule 144A Depositary for the surrender
of Receipts referred to in Section 2.05 of the Rule 144A Deposit Agreement, 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 Rule 144A Global Depositary Shares evidenced by such Receipt.
If any Receipts shall remain outstanding after the date of termination, the Rule
144A Depositary thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends and other distributions to
the Rule 144A GDS Holders thereof, shall not accept deposits of Shares and shall
not give any further notices or perform any further acts under the Rule 144A
Deposit Agreement, except that the Rule 144A Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in the Rule 144A Deposit
Agreement, shall convert Deposited Securities into cash as provided in the
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 Rule 144A Depositary (after deducting, in each case,
the fee of the Rule 144A Depositary for the surrender of a Receipt, any expenses
for the account of the Holder of such Receipt in accordance with the terms and
conditions of the Rule 144A Deposit Agreement, and any applicable taxes or
governmental charges). At any time after the expiration of six months from the
date of termination, the Rule 144A Depositary shall 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 Rule 144A GDS Holders of Receipts which have not theretofore been
surrendered, such Rule 144A GDS Holders thereupon becoming general creditors of
the Rule 144A Depositary with respect to such net proceeds. After making such
sale, the Rule 144A Depositary shall be discharged from all obligations under
the Rule 144A Deposit Agreement, except to account for such net proceeds and
other cash (after deducting, in each case, the fee of the Rule 144A Depositary
for the surrender of a Receipt, any expenses for the account of the Holder of
such Receipt in accordance with the terms and conditions of the Rule 144A
Deposit Agreement, and any applicable taxes or governmental charges). Upon the
termination of the Rule 144A Deposit Agreement, the Company shall be discharged
from all obligations under the Rule 144A Deposit Agreement except for its
obligations to the Rule 144A Depositary under Sections 5.08 and 5.09 of the Rule
144A Deposit Agreement.
-22-
22. DISCLOSURE OF INTERESTS.
The Company, or the Rule 144A Depositary if instructed by the Company
to so request, may from time to time request Rule 144 GDS Holders, former Rule
144 GDS Holders, Rule 144A GDS Beneficial Owners or former Beneficial Owners of
Rule 144A ADRs to provide information as to the capacity in which they hold or
held Rule 144A ADRs or own or owned such beneficial interest and regarding the
identity of any other person then or previously interested in such Rule 144A GDS
Holder or Rule 144A ADRs and the nature of such interest. Each such Rule 144 GDS
Holder or Beneficial Owner agrees to provide any such information reasonably
requested by the Company, or such Rule 144A Depositary if instructed by the
Company to so request, pursuant to the Rule 144A Deposit Agreements.
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