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BAE SYSTEMS plc
AND
JPMORGAN CHASE BANK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Amended and Restated Deposit Agreement
Dated as of May , 2003
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TABLE OF CONTENTS
Page
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PARTIES....................................................................... 1
RECITALS...................................................................... 1
Section 1. Certain Definitions
(a) ADR Register................................................... 1
(b) ADRs; Direct Registration ADRs................................. 1
(c) ADS............................................................ 1
(d) Articles....................................................... 1
(e) Custodian...................................................... 2
(f) Deliver, execute, issue et al.................................. 2
(g) Delivery Order................................................. 2
(h) Deposited Securities........................................... 2
(i) Direct Registration System..................................... 2
(j) Holder......................................................... 2
(k) Securities Act of 1933......................................... 2
(l) Securities Exchange Act of 1934................................ 2
(m) Shares......................................................... 2
(n) Transfer Office................................................ 2
(o) Withdrawal Order............................................... 2
Section 2. ADR Certificates.................................................. 3
Section 3. Deposit of Shares................................................. 3
Section 4. Issue of ADRs..................................................... 4
Section 5. Distributions on Deposited Securities............................. 4
Section 6. Withdrawal of Deposited Securities................................ 4
Section 7. Substitution of ADRs.............................................. 4
Section 8. Cancellation and Destruction of ADRs.............................. 4
Section 9. The Custodian..................................................... 4
Section 10. Co-Registrars and Co-Transfer Agents.............................. 5
Section 11. Lists of Holders.................................................. 5
Section 12. Depositary's Agents............................................... 5
Section 13. Successor Depositary.............................................. 5
Section 14. Reports........................................................... 6
Section 15. Additional Shares................................................. 6
Section 16. Indemnification................................................... 6
Section 17. Notices........................................................... 6
Section 18. Miscellaneous..................................................... 7
Section 19. Amendment and Restatement of Old Deposit Agreement................ 7
TESTIMONIUM................................................................... 8
SIGNATURES.................................................................... 8
-i-
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EXHIBIT A
FORM OF FACE OF ADR......................................................... A-1
Introductory Paragraph................................................... A-1
(1) Issuance of ADRs................................................... A-2
(2) Withdrawal of Deposited Securities................................. A-2
(3) Transfers of ADRs.................................................. A-2
(4) Certain Limitations................................................ A-3
(5) Taxes.............................................................. A-3
(6) Disclosure of Interests............................................ A-4
(7) Charges of Depositary.............................................. A-4
(8) Available Information.............................................. A-5
(9) Execution.......................................................... A-5
Signature of Depositary.................................................. A-5
Address of Depositary's Office........................................... A-5
FORM OF REVERSE OF ADR...................................................... A-6
(10) Distributions on Deposited Securities.............................. A-6
(11) Record Dates....................................................... A-7
(12) Voting of Deposited Securities..................................... A-7
(13) Changes Affecting Deposited Securities............................. A-7
(14) Exoneration........................................................ A-7
(15) Resignation and Removal of Depositary; the
Custodian....................................................... A-8
(16) Amendment.......................................................... A-8
(17) Termination........................................................ A-9
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AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of May , 2003 (the "Deposit
Agreement") among BAE SYSTEMS plc (fka British Aerospace PLC) and its successors
(the "Company"), JPMORGAN CHASE BANK, as depositary hereunder (the
"Depositary"), and all holders from time to time of American Depositary Receipts
issued hereunder ("ADRs") evidencing American Depositary Shares ("ADSs")
representing deposited Shares (defined below).
WITNESSETH:
WHEREAS, the Company and the Depositary entered into a deposit
agreement dated as of September 28, 1998 (the "Old Deposit Agreement") to
provide for the deposit of Shares of the Company with the Depositary or with the
Custodian as agent of the Depositary for the purposes set forth in such Old
Deposit Agreement, for the creation of American depositary shares representing
the Shares so deposited and for the execution and delivery of American
depositary receipts ("Old ADRs") evidencing the ADSs;
WHEREAS, the Company and the Depositary desire to amend certain terms
of the Old Deposit Agreement in accordance with paragraph (16) of the Form of
ADR thereof and to reflect such amendments pursuant to the terms and conditions
set forth in this Deposit Agreement; and
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares of the Company from time to time
with the Custodian for the purposes set forth herein, and for the issuance of
ADRs, in respect of the Shares so deposited.
NOW THEREFORE, in consideration of the premises, it is agreed by and
among the parties hereto as follows:
1. Certain Definitions.
(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
(b) "ADRs" mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct
Registration ADRs. ADRs in physical certificated form shall be substantially in
the form of Exhibit A annexed hereto (the "form of ADR"). The term "Direct
Registration ADR" means an ADR, the ownership of which is recorded on the Direct
Registration System. References to "ADRs" shall include Direct Registration
ADRs, unless the context otherwise requires. The form of ADR is hereby
incorporated herein and made a part hereof; the provisions of the form of ADR
shall be binding upon the parties hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced by
an ADR represents the right to receive four (4) Shares and a pro rata share in
any other Deposited Securities.
(d) "Articles" means the Articles of Association of the Company, as in
effect from time to time.
(e) "Custodian" means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
(f) The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to Direct Registration ADRs,
shall refer to an entry or entries or an electronic transfer or transfers in the
Direct Registration System.
(g) "Delivery Order" is defined in Section 3.
(h) "Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(i) "Direct Registration System" means the system for the uncertificated
registration of ownership of securities established by The Depository Trust &
Clearing Corporation ("DTCC") and utilized by the Depositary pursuant to which
the Depositary may record the ownership of ADRs without the issuance of a
certificate, which ownership shall be evidenced by periodic statements issued by
the Depositary to the Holders entitled thereto. For purposes hereof, the Direct
Registration System shall include access to the Profile Modification System
maintained by DTCC which provides for automated transfer of ownership between
DTCC and the Depositary.
(j) "Holder" means the person or persons in whose name an ADR is registered
on the ADR Register.
(k) "Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
(l) "Securities Exchange Act of 1934" means the United States Securities
Exchange Act of 1934, as from time to time amended.
(m) "Shares" mean the ordinary shares of the Company and shall include the
rights to receive Shares specified in paragraph (1) of the form of ADR.
(n) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(o) "Withdrawal Order" is defined in Section 6.
2. ADR Certificates. (a) ADRs in certificated form shall be engraved,
printed or
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otherwise reproduced at the discretion of the Depositary in accordance with its
customary practices in its American depositary receipt business, or at the
request of the Company typewritten and photocopied on plain or safety paper, and
shall be substantially in the form set forth in the form of ADR, with such
changes as may be required by the Depositary or the Company to comply with their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations or restrictions to which any particular ADRs are
subject. ADRs may be issued in denominations of any whole number of ADSs. ADRs
in certificated form shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized officer of the Depositary. ADRs in
certificated form bearing the facsimile signature of anyone who was at the time
of execution a duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold such office
prior to the delivery of such ADRs.
(b) Direct Registration ADRs. Notwithstanding anything in this Deposit
Agreement or in the form of ADR to the contrary, ADSs shall be evidenced by
Direct Registration ADRs, unless certificated ADRs are specifically requested by
the Holder.
(c) Holders shall be bound by the terms and conditions of this Deposit
Agreement and of the form of ADR, regardless of whether their ADRs are Direct
Registration ADRs or certificated ADRs.
3. Deposit of Shares. In connection with the deposit of Shares hereunder,
the Depositary or the Custodian may require the following in form satisfactory
to it: (a) a written order directing the Depositary to issue to, or upon the
written order of, the person or persons designated in such order a Direct
Registration ADR or ADRs evidencing the number of ADSs representing such
deposited Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer in respect of such deposited Shares; (c) instruments
assigning to the Custodian or its nominee any distribution on or in respect of
such deposited Shares or indemnity therefor; and (d) proxies entitling the
Custodian to vote such deposited Shares. As soon as practicable after the
Custodian receives Deposited Securities pursuant to any such deposit or pursuant
to paragraph (10) or (13) of the form of ADR, the Custodian shall present such
Deposited Securities for registration of transfer into the name of the Custodian
or its nominee, to the extent such registration is practicable, at the cost and
expense of the person making such deposit (or for whose benefit such deposit is
made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities shall be held by the Custodian for the account and to the
order of the Depositary at such place or places and in such manner as the
Depositary shall determine. Deposited Securities may be delivered by the
Custodian to any person only under the circumstances expressly contemplated in
this Deposit Agreement. Shares may also be deposited hereunder by such delivery
thereof as the Depositary or the Custodian may reasonably accept, including,
without limitation, by causing them to be credited to an account maintained by
the Custodian for such purpose with an accredited intermediary, such as a bank,
acting as a registrar for the Shares or otherwise through the CREST real time
settlement system for U.K. securities, in each case together with delivery of
the documents, payments and Delivery Order referred to herein to the Custodian
or the Depositary.
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall
notify the
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Depositary of such deposit and of the information contained in any related
Delivery Order by letter, first class airmail postage prepaid, or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement, shall properly issue at the
Transfer Office, to or upon the order of any person named in such notice, an ADR
or ADRs registered as requested and evidencing the aggregate ADSs to which such
person is entitled.
5. Distributions on Deposited Securities. To the extent that the Depositary
determines in its discretion that any distribution pursuant to paragraph (10) of
the form of ADR is not practicable with respect to any Holder, the Depositary
may make such distribution as it so deems practicable, including the
distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender of
an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the Depositary may require proper endorsement in blank of
such ADR (or duly executed instruments of transfer thereof in blank) and the
Holder's written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered to, or upon the written order of, any person designated in such order
(a "Withdrawal Order"). Directions from the Depositary to the Custodian to
deliver Deposited Securities shall be given by letter, first class airmail
postage prepaid, or, at the request, risk and expense of the Holder, by cable,
telex or facsimile transmission. Delivery of Deposited Securities may be made by
the delivery of certificates (which, if required by law shall be properly
endorsed or accompanied by properly executed instruments of transfer or, if such
certificates may be registered, registered in the name of such Holder or as
ordered by such Holder in any Withdrawal Order) or by such other means as the
Depositary may deem practicable.
7. Substitution of ADRs. The Depositary shall execute and deliver a new
Direct Registration ADR in exchange and substitution for any mutilated
certificated ADR upon cancellation thereof or in lieu of and in substitution for
such destroyed, lost or stolen certificated ADR, unless the Depositary has
notice that such ADR has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary a request for such execution and delivery and
a sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary.
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the
Depositary shall be cancelled by the Depositary. The Depositary is authorized to
destroy ADRs in certificated form so cancelled in accordance with its customary
practices.
9. The Custodian. Any Custodian in acting hereunder shall be subject to the
directions of the Depositary and shall be responsible solely to it. The
Depositary may from time to time, after consultation with the Company if
practicable, appoint one or more agents to act for it as Custodian hereunder.
Each Custodian so appointed (other than JPMorgan Chase Bank) shall give written
notice to the Company and the Depositary accepting such appointment and agreeing
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to be bound by the applicable terms hereof. Any Custodian may resign from its
duties hereunder by at least 30 days written notice to the Depositary. The
Depositary may discharge any Custodian at any time upon notice to the Custodian
being discharged. Any Custodian ceasing to act hereunder as Custodian shall
deliver, upon the instruction of the Depositary, all Deposited Securities held
by it to a Custodian continuing to act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may, after
consultation with the Company if practicable, appoint and remove (i)
co-registrars to register ADRs and transfers, combinations and split-ups of ADRs
and to countersign ADRs in accordance with the terms of any such appointment and
(ii) co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of ADRs at designated transfer offices in addition to the Transfer
Office on behalf of the Depositary. Each co-registrar or co-transfer agent
(other than JPMorgan Chase Bank) shall give notice in writing to the Company and
the Depositary accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement.
11. Lists of Holders. The Company shall have the right to inspect transfer
records of the Depositary and its agents and the ADR Register, take copies
thereof and require the Depositary and its agents to supply copies of such
portions of such records as the Company may request. The Depositary or its agent
shall furnish to the Company promptly upon the written request of the Company, a
list of the names, addresses and holdings of ADSs by all Holders as of a date
within seven days of the Depositary's receipt of such request.
12. Depositary's Agents. The Depositary may perform its obligations under
this Deposit Agreement through any agent appointed by it, provided that the
Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed. The Depositary shall use its reasonable efforts under the
circumstances to consult with the Company prior to appointing any agent
hereunder (other than those agents which, on the date hereof, are acting in an
agency capacity for JPMorgan Chase Bank).
13. Successor Depositary. If the Depositary acting hereunder shall resign
or be removed, the Company shall use its best efforts to appoint a bank or trust
company having an office in the Borough of Manhattan, The City of New York, as
successor depositary hereunder. Every successor depositary shall execute and
deliver to its predecessor and to the Company written acceptance of its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become Depositary hereunder; but such predecessor,
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 and assigning all interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Holders. Any bank or trust company into or with which the Depositary may be
merged or consolidated, or to which the Depositary shall transfer substantially
all its American depositary receipt business, shall be the successor of the
Depositary without the execution or filing of any document or any further act.
Upon the appointment of any successor depositary hereunder, any agent of the
Depositary then acting hereunder shall forthwith become such agent hereunder of
such successor depositary and such successor depositary shall, on the written
request of any such agent, execute and deliver to such agent any instruments
necessary to
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give such agent authority as such agent hereunder of such successor depositary.
14. Reports. On or before the first date on which the Company makes any
communication available to holders of Deposited Securities or any securities
regulatory authority or stock exchange, by publication or otherwise, the Company
shall transmit to the Depositary a copy thereof in English or with an English
translation or summary. The Company has delivered to the Depositary, the
Custodian and any Transfer Office, a copy of all provisions of or governing the
Shares and any other Deposited Securities issued by the Company or any affiliate
of the Company and, promptly upon any change thereto, the Company shall deliver
to the Depositary, the Custodian and any Transfer Office, a copy (in English or
with an English translation) of such provisions as so changed. The Depositary
and its agents may rely upon the Company's delivery thereof for all purposes of
this Deposit Agreement.
15. Additional Shares. Neither the Company nor any company controlling,
controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933. The Depositary will
use reasonable efforts to comply with written instructions of the Company not to
accept for deposit hereunder any Shares identified in such instructions at such
times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with securities
laws in the United States.
16. Indemnification. The Company shall indemnify, defend and save harmless
each of the Depositary and its agents against any loss, liability or expense
(including reasonable fees and expenses of counsel) that may arise out of (a)
its acceptance and performance of its powers and duties in respect of this
Deposit Agreement, except to the extent such loss, liability or expense is due
to its negligence or bad faith, or (b) any offer or sale of ADRs, ADSs, Shares
or other Deposited Securities or any registration statement under the Securities
Act of 1933 in respect thereof, except to the extent such loss, liability or
expense arises out of information (or omissions from such information) relating
to it furnished in writing to the Company by it expressly for use in any such
registration statement. The Depositary shall indemnify, defend and save harmless
the Company against any loss, liability or expense incurred by the Company in
respect of this Deposit Agreement to the extent such loss, liability or expense
is due to the negligence or bad faith of the Depositary. In no event shall the
Depositary or any of its agents be liable for any indirect, special, punitive or
consequential damages. The obligations set forth in this Section 16 shall
survive the termination of this Deposit Agreement and the succession or
substitution of any indemnified person.
17. Notices. Notice to any Holder shall be deemed given when first mailed,
first class postage prepaid, to the address of such Holder on the ADR Register
or received by such Holder. Notice to the Depositary or the Company shall be
deemed given when first received by it at the address or facsimile transmission
number set forth in (a) or (b), respectively, or at such other address or
facsimile transmission number as either may specify to the other by written
notice:
(a) JPMorgan Xxxxx Xxxx
0
0 Xxxxx Xxxxxxxxx Plaza (40th Floor)
New York, New York 10081
Attention: ADR Administration
Fax: (000) 000-0000
(b) BAE SYSTEMS plc
0 Xxxxxxx Xxxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Company Secretary
Fax: x00 0000 000000
18. Miscellaneous. This Deposit Agreement is for the exclusive benefit of
the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and owners of ADRs from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable in
any respect, the remaining provisions shall in no way be affected thereby. This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one instrument.
19. Amendment and Restatement of Old Deposit Agreement. The Deposit
Agreement amends and restates the Old Deposit Agreement in its entirety to
consist exclusively of the Deposit Agreement, and each Old Receipt is hereby
deemed amended and restated to substantially conform to the form of ADR set
forth in Exhibit A annexed hereto.
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IN WITNESS WHEREOF, BAE SYSTEMS plc and JPMORGAN CHASE BANK have duly
executed this Deposit Agreement as of the day and year first above set forth and
all holders of ADRs shall become parties hereto upon acceptance by them of ADRs
issued in accordance with the terms hereof.
BAE SYSTEMS plc
By:
--------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By:
--------------------------------
Name:
Title: Vice President
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
AS PROVIDED IN THE ARTICLES OF ASSOCIATION OF BAE SYSTEMS plc AND THE DEPOSIT
AGREEMENT REFERRED TO BELOW, THE HOLDER HEREOF, THIS ADR, THE ADSs EVIDENCED
HEREBY AND THE SHARES REPRESENTED THEREBY ARE SUBJECT TO CERTAIN RESTRICTIONS
AND REQUIREMENTS, INCLUDING INFORMATION REQUIREMENTS, RESTRICTIONS ON OWNERSHIP
AND PROVISIONS FOR, AMONG OTHER THINGS, THE CANCELLATION OF ADSs AND COMPULSORY
SALE OF THE SHARES REPRESENTED THEREBY AND LIMITATION OF VOTING RIGHTS. SUCH
RESTRICTIONS MAY CHANGE FROM TIME TO TIME. SEE PARAGRAPH (6) BELOW.
No. of ADSs:
_____
Number
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Each ADS represents
Four (4) Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
BAE SYSTEMS plc
(Incorporated under the
laws of England and Wales)
JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder (the
"Depositary"), hereby certifies that ______ is the registered owner (a "Holder")
of _____ American Depositary Shares ("ADSs"), each (subject to paragraph (13)
representing four (4) ordinary
A-1
shares (including the rights to receive Shares described in paragraph (1),
"Shares" and, together with any other securities, cash or property from time to
time held by the Depositary in respect or in lieu of deposited Shares, the
"Deposited Securities"), of BAE SYSTEMS plc, a corporation organized under the
laws of England and Wales (the "Company"), deposited under the Amended and
Restated Deposit Agreement dated as of May , 2003 (as amended from time to time,
the "Deposit Agreement") among the Company, the Depositary and all Holders from
time to time of American Depositary Receipts issued thereunder ("ADRs"), each of
whom by accepting an ADR becomes a party thereto. The Deposit Agreement and this
ADR (which includes the provisions set forth on the reverse hereof) shall be
governed by and construed in accordance with the laws of the State of New York.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs for
delivery at the Transfer Office (defined in paragraph (3)) only against deposit
with the Custodian of: (a) Shares in form satisfactory to the Custodian; (b)
rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not more
than 30% of all ADSs (excluding those evidenced by Pre-released ADRs), provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary may retain for
its own account any earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. At the request, risk and expense of the person depositing
Shares, the Depositary may accept deposits for forwarding to the Custodian and
may deliver ADRs at a place other than its office. Every person depositing
Shares under the Deposit Agreement represents and warrants that such Shares are
validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly authorized so to
do and that such Shares (A) are not "restricted securities" as such term is
defined in Rule 144 under the Securities Act of 1933 unless at the time of
deposit they may be freely transferred in accordance with Rule 144(k) and may
otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance of ADRs. The Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares required
to be registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company's compliance with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5),
upon surrender of (i) a certificated ADR in form satisfactory to the Depositary
at the Transfer Office or (ii) proper instructions and documentation in the case
of a Direct Registration ADR, the Holder hereof is entitled to delivery at the
Custodian's office of the Deposited Securities at the time
A-2
represented by the ADSs evidenced by this ADR. At the request, risk and expense
of the Holder hereof, the Depositary may deliver such Deposited Securities at
such other place as may have been requested by the Holder. Notwithstanding any
other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, and,
in the case of Direct Registration ADRs, shall include the Direct Registration
System, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Deposit Agreement and (b)
facilities for the delivery and receipt of ADRs. The term ADR Register includes
the Direct Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed (in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of negotiable instruments under the laws of the State of New
York; provided that the Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this ADR is registered on the ADR Register as
the absolute owner hereof for all purposes. Subject to paragraphs (4) and (5),
this ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by duly authorized attorney upon
surrender of this ADR at the Transfer Office properly endorsed (in the case of
ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer and duly stamped as may be required by applicable law;
provided that the Depositary may close the ADR Register at any time or from time
to time when deemed expedient by it or requested by the Company. At the request
of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct Registration ADR, or vice versa, execute and
deliver a certificated ADR or a Direct Registration ADR, as the case may be, for
any authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Securities, and from time to time in the case of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law,
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regulations, provisions of or governing Deposited Securities and terms of the
Deposit Agreement and this ADR, as it may deem necessary or proper; and (c)
compliance with such regulations as the Depositary may establish consistent with
the Deposit Agreement. The issuance of ADRs, the acceptance of deposits of
Shares, the registration, registration of transfer, split-up or combination of
ADRs or, subject to the last sentence of paragraph (2), the withdrawal of
Deposited Securities may be suspended, generally or in particular instances,
when the ADR Register or any register for Deposited Securities is closed or when
any such action is deemed advisable by the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable by
or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. If the Depositary determines that any distribution
in property other than cash (including Shares or rights) on Deposited Securities
is subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto.
(6) Disclosure of Interests. (a) The Company may from time to time request
Holders or former Holders to provide information as to the capacity in which
they hold or held ADRs, regarding the identity of any other persons then or
previously holding any beneficial or other interest in such ADRs and the nature
of such interest and various other matters, including, without limitation,
information relating to nationality, residence and domicile, in order to ensure
that ownership of Shares and other securities complies with the Articles.
Notwithstanding any other provision of the Deposit Agreement or this ADR, each
Holder additionally agrees to comply with reasonable requests from the Company
pursuant to English law, the rules and requirements of each stock exchange or
automated quotation system on which the Shares are, or will be, registered or
traded, or the Articles, which are made to provide information as to such
capacity, identity and interests. Each such Holder agrees to provide promptly
any such
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information pursuant to paragraph 6(a) whether or not still a Holder at the time
of such request, in sufficient detail to enable the Company to determine
conclusively whether the Holder is, and whether the ownership of Shares and
other securities is, in compliance with the Articles. The Depositary agrees to
use its reasonable efforts to comply with written instructions received from the
Company requesting that the Depositary forward any such request to such Holders
(in some cases for further forwarding to beneficial owners holding ADSs through
such Holder) and to the last known address, if any, of such former Holders and
to forward to the Company any responses to such requests received by the
Depositary, and to use its reasonable efforts to assist the Company in obtaining
such information with respect of the ADRs received from Holders, provided that
nothing herein shall be interpreted as obligating the Depositary to provide or
obtain any such information not provided to the Depositary or its agents
appointed hereunder by such Holders or former Holders. To the extent that
provisions of or governing any Deposited Securities or the applicable laws,
rules or regulations of any governmental authority or the Articles may require
the disclosure of or limit the beneficial or other ownership of Deposited
Securities, other Shares and other securities and/or limit the aggregate number
of securities deposited at any time and may provide for blocking transfer and
voting or other rights to enforce such disclosure or limit such ownership or
deposits, the Depositary shall use its reasonable efforts to comply with Company
instructions as to American Depositary Receipts in respect of any such
enforcement or limitation or any reversal of any conversion of Shares into ADRs,
and Holders shall comply with all such disclosure requirements, ownership
limitations and reversals and shall cooperate with the Depositary's compliance
with such Company instructions.
(b) The Company may restrict transfers of the Shares where such transfer
might result in ownership of Shares or other securities exceeding limits imposed
by applicable law or the Articles. The Company may also restrict, in such manner
as it deems appropriate, transfers of the ADSs where such transfer may result in
the total number of Shares represented by the ADSs together with any other
Shares or other securities owned by one or more persons to exceed any such
limits. Notwithstanding any inability of any party to physically restrict a
transfer of ADSs, Holders agree contractually to abide by the Company's
instructions. The Company reserves the right to instruct Holders to deliver
their ADRs (including those evidencing ADSs held by such Holder for any person
or entity having a beneficial interest deriving from the ownership of an ADS)
for cancellation and withdrawal of the Deposited Securities so as to permit the
Company to deal directly with the Holder thereof as a holder of Shares. The
Company may also refuse to allow such Holder to redeposit such Shares into the
ADR facility and require such Holder to submit to the disenfranchisement or
mandatory sale of such Shares in order that the ownership of Shares and other
securities of the Company by persons complies with the Articles. The Depositary
agrees to cooperate with the Company in its efforts to inform Holders (on behalf
of such Holders in their individual capacity and the beneficial owners who hold
their ADSs through such Holders) of the Company's exercise of its rights under
this paragraph and agrees to consult with, and provide reasonable assistance
without risk or expense on the part of the Depositary to, the Company on the
manner or manners in which it may enforce such rights with respect to any
Holder. Each holder acknowledges that, as of the date hereof, the Company's
Articles limit the ownership of Shares (including Shares represented by ADSs) of
the Company by persons who are foreigners (as defined in the Articles) to an
individual foreign shareholding limit of 15% of all outstanding Shares.
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(c) Notwithstanding any provision of the Deposit Agreement or of this ADR
and without limiting the foregoing, by being a Holder of an ADR, each such
Holder agrees to provide such information as the Company may request in a
disclosure notice (a "Disclosure Notice") given pursuant to the Great Britain
Companies Act 1985 (as amended from time to time and including any statutory
modification or re-enactment thereof, the "Companies Act") or the Articles. By
accepting or holding this ADR, each Holder acknowledges that it understands that
failure to comply with a Disclosure Notice may result in the imposition of
sanctions against the holder of the Shares in respect of which the non-complying
person is or was, or appears to be or has been, interested as provided in the
Companies Act and the Articles which currently include, the withdrawal of the
voting rights of such Shares and the imposition of restrictions on the rights to
receive dividends on and to transfer such Shares. In addition, by accepting or
holding this ADR each Holder agrees to comply with the provisions of the
Companies Act with regard to the notification to the Company of interests in
Shares, which currently provide, inter alia, that any Holder who is or becomes
directly or indirectly interested (within the meaning of the Companies Act) in
3% or more of the outstanding Shares, or is aware that another person for whom
it holds such ADRs is so interested, must within two business days after
becoming so interested or so aware (and thereafter in certain circumstances upon
any change to the particulars previously notified) notify the Company as
required by the Companies Act. After the relevant threshold is exceeded, similar
notifications must be made in whole respect of whole percentage figure increases
or decreases, rounded down to the nearest whole number.
(7) Charges of Depositary. The Depositary may charge each person to whom
ADRs are issued against deposits of Shares, including deposits in respect of
Share Distributions, Rights and Other Distributions (as such terms are defined
in paragraph (10)), and each person surrendering ADRs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
evidenced by the ADRs delivered or surrendered. The Depositary may sell (by
public or private sale) sufficient securities and property received in respect
of Share Distributions, Rights and Other Distributions prior to such deposit to
pay such charge. The Company will pay all other charges and expenses of the
Depositary and any agent of the Depositary (except the Custodian) pursuant to
agreements from time to time between the Company and the Depositary, except (i)
stock transfer or other taxes and other governmental charges (which are payable
by Holders or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders delivering Shares, ADRs or Deposited Securities (which are payable by
such persons or Holders), (iii) transfer or registration fees for the
registration of transfer of Deposited Securities on any applicable register in
connection with the deposit or withdrawal of Deposited Securities (which are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date of
the Deposit Agreement) and (iv) expenses of the Depositary in connection with
the conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency). These charges may be changed in the manner indicated in
paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities, the Articles and any written communications from
the Company, which are both received by the Custodian or its nominee as a holder
of Deposited Securities and made generally available to the holders of Deposited
Securities, are available for inspection by Holders at the offices of the
Depositary and the Custodian and at the Transfer Office. The Depositary will
mail copies of such communications (or English translations or summaries
thereof) to
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Holders when furnished by the Company. The Company furnishes the United States
Securities and Exchange Commission (the "Commission") with certain public
reports and documents required by foreign law or otherwise under Rule 12g3-2(b)
under the Securities Exchange Act of 1934. Such reports and documents may be
inspected and copied at the public reference facilities maintained by the
Commission located at the date of the Deposit Agreement at Judiciary Plaza, 000
Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
(9) Execution. This ADR shall not be valid for any purpose unless executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By
---------------------------------
Authorized Officer
The Depositary's office is located at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and
(5), to the extent practicable, the Depositary will distribute by mail to each
Holder entitled thereto on the record date set by the Depositary therefor at
such Holder's address shown on the ADR Register, in proportion to the number of
Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of
any other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible or
impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that
it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means
as the Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) Shares. (i) Additional ADRs evidencing whole ADSs representing any
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) Rights. (i) Warrants or other instruments in the discretion of
the Depositary representing rights to acquire additional ADRs in respect of any
rights to subscribe for additional Shares or rights of any nature available to
the Depositary as a result of a distribution on Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute the
same (the Company has no obligation to so furnish such evidence), or (ii) to the
extent the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights as in the case of Cash, or (iii) to the extent the Company
does not so furnish such evidence and such sales cannot practicably be
accomplished by reason of the nontransferability of the Rights, limited markets
therefor, their short duration or otherwise, nothing (and any Rights may lapse).
(d) Other Distributions. (i) Securities or property available to the Depositary
resulting from any distribution on Deposited Securities other than Cash, Share
Distributions and Rights ("Other Distributions"), by any means that the
Depositary may deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable, any U.S. dollars available to the
A-8
Depositary from the net proceeds of sales of Other Distributions as in the case
of Cash. Such U.S. dollars available will be distributed by checks drawn on a
bank in the United States for whole dollars and cents (any fractional cents
being withheld without liability for interest and added to future Cash
distributions).
(11) Record Dates. The Depositary may, after consultation with the Company
if practicable, fix a record date (which shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be entitled to receive any distribution on or in respect of
Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after receipt
from the Company of notice of any meeting or solicitation of consents or proxies
of holders of Shares or other Deposited Securities, the Depositary shall mail to
Holders a notice stating (a) such information as is contained in such notice and
any solicitation materials, (b) that each Holder on the record date set by the
Depositary therefor will be entitled to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs and (c) the manner in
which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and
(5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange) or
cash, securities or property on the record date set by the Depositary therefor
to reflect any change in par value, split-up, consolidation, cancellation or
other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, regulation, the provisions of or
governing any Deposited Securities,
A-9
act of God, war or other circumstance beyond its control shall prevent, delay or
subject to any civil or criminal penalty any act which the Deposit Agreement or
this ADR provides shall be done or performed by it, or (ii) by reason of any
exercise or failure to exercise any discretion given it in the Deposit Agreement
or this ADR; (b) assume no liability except to perform its obligations to the
extent they are specifically set forth in this ADR and the Deposit Agreement
without gross negligence or bad faith; (c) in the case of the Depositary and its
agents, be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or this ADR; (d)
in the case of the Company and its agents hereunder be under no obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or this ADR, which in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
(including fees and disbursements of counsel) and liability be furnished as
often as may be required; or (e) not be liable for any action or inaction by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder, or any other person
believed by it to be competent to give such advice or information. The
Depositary, its agents and the Company may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by them
to be genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, for the
manner in which any such vote is cast or for the effect of any such vote. The
Depositary and its agents may own and deal in any class of securities of the
Company and its affiliates and in ADRs. The Company has agreed to indemnify the
Depositary and its agents under certain circumstances and the Depositary has
agreed to indemnify the Company against losses incurred by the Company to the
extent such losses are due to the negligence or bad faith of the Depositary. In
no event shall the Depositary or any of its agents be liable for any indirect,
special, punitive or consequential damages. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The Depositary
may resign as Depositary by written notice of its election to do so delivered to
the Company, or be removed as Depositary by the Company by written notice of
such removal delivered to the Depositary; such resignation or removal shall take
effect upon the appointment of and acceptance by a successor depositary. The
Depositary may appoint substitute or additional Custodians and the term
"Custodian" refers to each Custodian or all Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs and
the Deposit Agreement may be amended by the Company and the Depositary, provided
that any amendment that imposes or increases any fees or charges (other than
stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. The parties hereto agree
A-10
that any amendments or supplements which (i) are reasonably necessary (as agreed
by the Company and the Depositary) in order for (a) the ADSs to be registered on
Form F-6 under the Securities Act of 1933 or (b) the ADSs or Shares to be traded
solely in electronic book-entry form and (ii) do not in either such case impose
or increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with such
changed rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17) Termination. The Depositary may, and shall at the written direction of
the Company, terminate the Deposit Agreement and this ADR by mailing notice of
such termination to the Holders at least 30 days prior to the date fixed in such
notice for such termination. After the date so fixed for termination, the
Depositary and its agents will perform no further acts under the Deposit
Agreement and this ADR, except to receive and hold (or sell) distributions on
Deposited Securities and deliver Deposited Securities being withdrawn. As soon
as practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account the
net proceeds of such sales, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, in trust for the pro rata
benefit of the Holders of ADRs not theretofore surrendered. After making such
sale, the Depositary shall be discharged from all obligations in respect of the
Deposit Agreement and this ADR, except to account for such net proceeds and
other cash. After the date so fixed for termination, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary and its agents.
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