Form of ADR Deposit Agreement
HSBC HOLDINGS PLC
and
THE BANK OF NEW YORK
As Depositary
and
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of o, 2002
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS........................................................1
SECTION 1.01. "American Depositary Receipt" or "Receipt"....................1
SECTION 1.02. "American Depositary Shares"..................................2
SECTION 1.03. "Beneficial Owner"............................................2
SECTION 1.04. "Business Day"................................................2
SECTION 1.05. "Commission"..................................................2
SECTION 1.06. "Company".....................................................2
SECTION 1.07. "Corporate Trust Office"......................................2
SECTION 1.08. "Custodian"...................................................2
SECTION 1.09. "Deposit Agreement"...........................................3
SECTION 1.10. "Depositary"..................................................3
SECTION 1.11. "Deposited Securities"........................................3
SECTION 1.12. "Dollars" or "$"..............................................3
SECTION 1.13. "Foreign Registrar"...........................................3
SECTION 1.14. "Holder"......................................................3
SECTION 1.15. "Registrar"...................................................3
SECTION 1.16. "Restricted Securities".......................................3
SECTION 1.17. "Securities Act"..............................................4
SECTION 1.18. "Securities Exchange Act".....................................4
SECTION 1.19. "Series"......................................................4
SECTION 1.20. "Shares"......................................................4
ARTICLE II. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.............................................5
SECTION 2.01. Form and Transferability of Receipts..........................5
SECTION 2.02. Deposit of Shares.............................................6
SECTION 2.03. Execution and Delivery of Receipts............................7
SECTION 2.04. Transfer of Receipts..........................................8
SECTION 2.05. Combinations and Split-ups of Receipts........................8
SECTION 2.06. Surrender of Receipts and Withdrawals of Shares...............9
SECTION 2.07. Limitations on Execution and Delivery, Registration of
Transfer and Surrender of Receipts.........................................10
SECTION 2.08. Lost Receipts, etc...........................................11
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts.........11
SECTION 2.10. Pre-Release of Shares and Receipts...........................11
ARTICLE III. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.......................13
SECTION 3.01. Filing Proofs, Certificates and Other Information............13
SECTION 3.02. Liability of Holders for Taxes...............................13
SECTION 3.03. Warranties on Deposit of Shares..............................14
SECTION 3.04. Disclosure of Interests......................................14
ARTICLE IV. THE DEPOSITED SECURITIES..........................................14
SECTION 4.01. Cash Distributions...........................................14
SECTION 4.02. Distribution Other Than Cash, Shares or Rights...............15
SECTION 4.03. Distribution in Shares.......................................15
SECTION 4.04. Rights.......................................................16
SECTION 4.05. Conversion of Foreign Currency...............................17
SECTION 4.06. Fixing of Record Date........................................18
SECTION 4.07. Voting of Deposited Securities...............................19
SECTION 4.08. Changes Affecting Deposited Securities, Reclassification
Recapitalizations, etc.....................................................19
SECTION 4.09. Statutory Reports............................................20
SECTION 4.10. List of Holders..............................................20
SECTION 4.11. Withholding..................................................20
ARTICLE V. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY......................21
SECTION 5.01. Maintenance of Offices and Transfer Books by the Depositary..21
SECTION 5.02. Prevention or Delay in Performance by the Depositary the
Custodian or the Company...................................................21
SECTION 5.03. Obligations of the Depositary the Custodian and the Company..22
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary....................................................23
SECTION 5.05. The Custodian................................................23
SECTION 5.06. Notices and Reports..........................................24
SECTION 5.07. Distribution of Additional Shares, Rights, etc...............25
SECTION 5.08. Indemnification..............................................25
SECTION 5.09. Charges and Expenses.........................................26
SECTION 5.10. Retention of Depositary Documents............................27
SECTION 5.11. Exclusivity..................................................27
SECTION 5.12. List of Restricted Securities Owners.........................27
ARTICLE VI. AMENDMENT AND TERMINATION.........................................28
SECTION 6.01. Amendment....................................................28
SECTION 6.02. Termination..................................................28
ARTICLE VII. MISCELLANEOUS....................................................29
SECTION 7.01. Counterparts.................................................29
SECTION 7.02. Agreement for Exclusive Benefit of Parties...................29
SECTION 7.03. Severability.................................................30
SECTION 7.04. Notices......................................................30
SECTION 7.05. Holders and Beneficial Owners of Receipts are Parties........30
SECTION 7.06. Governing Law................................................30
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of o, 2002 (as herein defined) among HSBC
Holdings plc, a company incorporated under the laws of England (the "Company"),
The Bank of New York, a New York banking corporation, as Depositary (the
"Depositary"), and all Holders and Beneficial Owners from time to time of
American Depositary Receipts issued hereunder.
WITNESSETH
WHEREAS, the Issuer has duly authorized the issue from time to time of
Shares (as defined herein), to be issued in one or more series and with such
terms and provisions as shall be specified in or pursuant to one or more
resolutions of its Board of Directors or an authorized committee thereof; 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 Depositary or with the Custodian as agent for the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
American Depositary Receipts evidencing American Depositary Shares of one or
more corresponding series representing Shares of each series so deposited; and
WHEREAS, the Issuer may from time to time issue Shares of more than one
Series and offer and sell such Shares together ("Shares Units"), and in
connection therewith, the Issuer desires to provide for the deposit of Share
Units with the Depositary or the Custodian, for the creation of a Series of
American Depositary Shares corresponding to each Series of Shares comprising
such Share Units and for the execution and delivery, on one certificate, of
American Depositary Receipts corresponding to each such Series of Shares and
evidencing American Depositary Shares which, when taken as a whole, represent
whole Share Units; and
WHEREAS, the American Depositary Receipts of each series are to be
substantially in the form of Exhibit A or, in the case of Share Units, Exhibit
B, annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE I. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. "American Depositary Receipt" or "Receipt".
"American Depositary Receipt" or "Receipt" means a receipt
issued pursuant to this Deposit Agreement substantially in the form of Exhibit A
hereto or, in the case of share units, in the form of Exhibit B hereto,
evidencing American Depositary Shares representing Deposited Securities.
SECTION 1.02. "American Depositary Shares".
"American Depositary Shares" means the securities evidenced by
the Receipts of any Series issued hereunder and the rights and interests
evidenced by the Receipts in such Series in the Deposited Securities represented
thereby. Each American Depositary Share of any Series shall represent the right
to receive one (or a fraction or multiple of one) Share of the corresponding
Series 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; each American Depositary Share of such Series shall represent the
amount of Shares of the corresponding Series or Deposited Securities of the
corresponding Series specified in such Sections.
SECTION 1.03. "Beneficial Owner".
"Beneficial Owner", with respect to a Receipt, means any
person who has a beneficial interest in the American Depositary Shares evidenced
by such Receipt.
SECTION 1.04. "Business Day".
"Business Day" means any day on which banks in both (i) New
York, New York and (ii) London, England are not required or authorized by law to
close.
SECTION 1.05. "Commission".
"Commission" means the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
SECTION 1.06. "Company".
"Company" means HSBC Holdings plc, a company incorporated
under the laws of England and Wales, having its registered office at 0 Xxxxxx
Xxxxxx, Xxxxxx X00 0XX and its successors.
SECTION 1.07. "Corporate Trust Office".
"Corporate Trust Office," when used with respect to the
Depositary, means the office of the Depositary at which its corporate trust
business shall, at any particular time, be principally administered, which
office is, at the date of this Deposit Agreement, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
SECTION 1.08. "Custodian"
"Custodian" means, at the date of this Deposit Agreement, the
London office of The Bank of New York, and any other firm or corporation which
may be appointed by the Depositary as a substitute or additional custodian
hereunder pursuant to the terms of Section 5.05.
SECTION 1.09. "Deposit Agreement".
"Deposit Agreement" means this Deposit Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
SECTION 1.10. "Depositary".
"Depositary" means The Bank of New York, a New York banking
corporation, and any successor as depositary hereunder pursuant to the terms of
Section 5.04.
SECTION 1.11. "Deposited Securities".
"Deposited Securities" as of any time means Shares of the
corresponding Series at such time deposited or deemed to be deposited (including
any Shares deposited pursuant to Section 2.10 hereof) under this Deposit
Agreement and any and all other securities, property and cash received by the
Depositary or the Custodian in respect or in lieu of such Shares deposited or
deemed to be deposited and at such time held hereunder, subject with respect to
cash to the provisions of Section 4.05.
SECTION 1.12. "Dollars" or "$".
"Dollars" or "$" means U.S. dollars; "Pounds" or "(pound)"
shall mean pounds sterling of the United Kingdom and the term "xxxxx" or "p"
shall mean xxxxx of the United Kingdom; "Euro" or "(euro)" shall mean the single
currency adopted by those states participating in the European Monetary Union
from time to time.
SECTION 1.13. "Foreign Registrar".
"Foreign Registrar" means 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 the Shares.
SECTION 1.14. "Holder".
"Holder", with respect to a Receipt means the person in whose
name such Receipt is registered on the books of the Depositary.
SECTION 1.15. "Registrar".
"Registrar" means the Depositary or any bank or trust company
having an office in the Borough of Manhattan, The City of New York, appointed by
the Depositary to register Receipts and transfers of Receipts as herein
provided.
SECTION 1.16. "Restricted Securities".
"Restricted Securities" means Shares, or Receipts representing
such Shares, which are acquired directly or indirectly from the Company or its
affiliates (as defined in Rule 144 under the Securities Act of 1933) in a
transaction or chain of transactions not involving any public offering or which
are subject to resale limitations under Regulation D under that Act or both, or
which are held by an officer, director (or persons performing similar functions)
or other affiliate of the Company, or which would require registration under the
Securities Act in connection with the offer and sale thereof in the United
States, or which are subject to other restrictions on sale or deposit under the
laws of the United States or the United Kingdom, or under a shareholder
agreement or the Articles of Association and By-laws of the Company.
SECTION 1.17. "Securities Act".
"Securities Act" means the U.S. Securities Act of 1933, as
from time to time amended.
SECTION 1.18. "Securities Exchange Act".
"Securities Exchange Act" means the U.S. Securities Exchange
Act of 1934, as from time to time amended.
SECTION 1.19. "Series".
"Series" shall mean, (a) with respect to Shares, all Shares
(1) having identical nominal value per share, dividend rights, liquidation value
per share, voting rights, redemption provisions and other rights, preferences,
privileges, limitations and restrictions and (2) designated by the Issuer by or
pursuant to a Board Resolution as constituting a single series of Shares; (b)
with respect to Deposited Securities, the Shares of the corresponding Series at
such time deposited under this Deposit Agreement and any and all other Deposited
Securities in respect of deposited Shares of such Series; (c) with respect to
American Depositary Shares, the American Depositary Shares representing
Deposited Securities of the corresponding Series; and (d) with respect to
Receipts, the Receipts evidencing American Depositary Shares of the
corresponding Series.
SECTION 1.20. "Shares".
"Shares" means Dollar-denominated Preference Shares of any
Series in registered form of the Company, heretofore validly issued and
outstanding and fully paid, nonassessable and free of any preemptive rights of
the holders of outstanding Shares of any Series or hereafter validly issued and
outstanding and fully paid, nonassessable and free of any preemptive rights of
the holders, of outstanding Shares of any Series or interim certificates
representing such Shares of any Series; provided, however, that if there shall
occur any change in nominal value, a subdivision or consolidation or any other
reclassification or, upon the occurrence of any event described in Section 4.08,
an exchange or conversion in respect of the Shares of any Series, the term
"Shares" of any Series shall thereafter represent the successor securities
resulting from such change in nominal value, sub-division, consolidation or such
other reclassification or such exchange or conversion. Reference to Shares of
any Series shall, subject to Section 2.10 hereof, include evidence of rights to
receive Shares of any Series.
ARTICLE II. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts.
Receipts shall be issued in one or more Series, each of which
shall correspond to, and evidence interests in, American Depositary Shares of
the corresponding Series. A separate Series of Receipts shall be issued
hereunder to correspond to each separate Series of Shares deposited hereunder.
Definitive Receipts of each Series shall be substantially in the form set forth
in Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided. Receipts may be issued in denominations of
any whole number of American Depositary Shares, except that Receipts
corresponding to each Series of Shares that are components of Share Units shall
be substantially in the form set forth in Exhibit B hereto with such insertions,
modifications and omissions, as hereinafter provided. Definitive Receipts of all
such Series executed and delivered to or upon the order of any person or
persons, whether upon deposit or in connection with a transfer, split-up,
combination or partial withdrawal of Deposited Securities, will be printed on
the same certificate and all the Receipts printed thereon will evidence American
Depositary Shares which, when taken as a whole, will represent whole Share
Units. No Receipt shall be entitled to any benefits under this Deposit Agreement
or be valid or obligatory for any purpose, unless it shall have been executed by
the Depositary by the manual or facsimile signature of a duly authorized
signatory of the Depositary; provided, however, that such signature may be a
facsimile if a Registrar for the Receipts of any Series shall have been
appointed and such Receipts are countersigned by the manual signature of a duly
authorized officer of the Registrar. The Depositary shall maintain books, as
hereinafter provided, on which each Receipt of such Series so signed and
delivered and the transfer of each such Receipt shall be registered. Receipts
bearing the manual or facsimile signature of a duly authorized officer of the
Depositary who was at any time an authorized signatory of the Depositary shall
bind the Depositary, notwithstanding that such signatory has ceased to hold such
office prior to the execution and delivery of such Receipts by the Registrar or
did not hold such office at the date of issuance of such Receipts.
Each Receipt shall indicate on the face thereof the Series of
Receipts of which it is a part, the Series of American Depositary Shares
evidenced thereby and the Series of Shares represented by such Series of
American Depositary Shares and may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes, including requirements with
respect to registration of transfer, not inconsistent with the provisions of
this Deposit Agreement as may be required by the Depositary or the Company to
comply with any applicable laws or regulations or with the rules and regulations
of any securities exchange upon which the Receipts or the American Depositary
Shares may be listed, or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date or manner of issuance of the
underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares
evidenced thereby), when properly endorsed or accompanied by a properly executed
instrument of transfer and transferred in accordance with the terms of this
Deposit Agreement, including, without limitation, Section 2.04 and 2.07, shall
be transferable by delivery, with the same effect as in the case of a negotiable
instrument; provided, however, that the Company and the Depositary,
notwithstanding any notice to the contrary, may treat the Holder of a Receipt as
the absolute owner thereof for all purposes.
SECTION 2.02. Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares of any Series or Shares of more than one Series or evidence of rights to
receive such Shares to the extent permitted by Section 2.10 may be deposited by
delivery thereof (including as Share Units) to the Custodian, accompanied by an
appropriate instrument or instruments of transfer or endorsement, in form
satisfactory to the Custodian, together with all such certifications and
payments as may be required by the Depositary or the Custodian in accordance
with the provisions of this Deposit Agreement, and, if the Depositary requires,
together with a written order, directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in such order, a
Receipt or Receipts of the corresponding Series for the number of American
Depositary Shares of the corresponding Series representing such deposited
Shares, provided, however, that neither the Depositary nor the Custodian shall
be obligated to accept for deposit under this Deposit Agreement Shares of a
particular Series if the Depositary determines, in its reasonable judgment after
consultation with the Company, that the acceptance and maintenance of deposits
of Shares of such Series or the discharge by the Depositary or the Custodian of
its obligations hereunder with respect to Shares of such Series deposited
hereunder or American Depositary Shares or Receipts of a corresponding Series
would, by virtue of the terms and provisions of such Series of Shares, impose
unusually onerous burdens on the Depositary or the Custodian (save that if the
Depositary has accepted any Shares of such series, it must, subject to the other
terms hereof, accept for deposit further Shares of such series). The Company
agrees that if Shares of more than one Series are to be issued by the Company
and deposited by it as Share Units under the Deposit Agreement (i) the Board of
Directors of the Company or an authorized committee thereof will (A) specify
each Series of Shares that are to be so deposited, (B) specify the number of
Shares of each such specified Series that will be included in a Share Unit and
(C) assign a designation to the Shares of each such Series that will distinguish
each such Series of Shares from the Shares of any other Series that may be
deposited as Share Units, and (ii) the Company will only deposit the Shares of
any Series so designated as Share Units.
No Share shall be accepted for deposit unless accompanied by
evidence satisfactory to the Depositary that any necessary approval has been
granted by any governmental agency in the United Kingdom which is then
performing the function of regulation of currency exchange.
If required by the Depositary, Shares of a particular Series
presented for deposit at any time, whether or not the transfer books of the
Company (or of the Foreign Registrar) are closed, shall also be accompanied by
an agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Custodian of any dividend or
right to subscribe for additional Shares of such Series or to receive other
property which any person in whose name the Shares are or have been registered
may thereafter receive upon or in respect of such deposited Shares, or in lieu
thereof, such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary. The Depositary may also require that any Shares including
Shares of any Series that are components of a Share Unit deposited be registered
in the name of the Custodian or its nominee or such other name as the Depositary
shall require.
At the request and risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
Shares to be deposited, together with the other instruments herein specified,
for the purpose of forwarding such Shares to the Custodian for deposit
hereunder.
Upon each delivery to a Custodian of Shares of any Series to
be deposited hereunder together with the other documents above specified, such
Custodian shall, as promptly as registration of transfer can be accomplished,
present such Shares of any Series to the Company or the Foreign Registrar, if
applicable, for registration of transfer and recordation of the Shares of such
Series or other Deposited Securities being deposited in the name of the
Depositary or its nominee or such Custodian or its nominee 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 Depositary or by a
Custodian for the account and to the order of the Depositary, or at such other
place or places as the Depositary shall determine.
SECTION 2.03. Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit in accordance
with the provisions of Section 2.02 (and, in addition, if the transfer books of
the Company or the Foreign Registrar are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence from the Company or
the Foreign Registrar, as the case may be, that any Deposited Securities have
been recorded upon the books of the Company or the Foreign Registrar, in the
name of the Depositary or its nominee or such Custodian or its nominee),
together with the other documents required as specified above, such Custodian
shall promptly notify the Depositary of such deposit and of the name or names of
the person or persons to whom or upon whose written order a Receipt or Receipts
of the corresponding Series are deliverable in respect thereof, the office of
the Depositary at which such Receipts are to be delivered and the number of
American Depositary Shares of the corresponding Series to be evidenced thereby.
Such notification shall be made in writing and mailed, first class air mail
postage prepaid, or, at the request, risk and expense of the person making the
deposit, by cable, or telex or facsimile transmission.
Upon receiving such notice from the Custodian, or upon receipt
of Shares of such Series or Share Units by the Depositary, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall, as
promptly as practicable, execute and deliver at its Corporate Trust Office to or
upon the order of the person or persons entitled thereto, (i) a Receipt or
Receipts of the Series of such deposited Shares or (ii) in the case of a deposit
of Share Units, a Receipt or Receipts of the Series corresponding to each Series
of Shares comprising such Share Units, registered in such name or names as
requested by such person or persons entitled thereto evidencing the number of
American Depositary Shares of the corresponding Series requested by such person
or persons but only upon payment to the Depositary of the fees of the Depositary
for the execution and delivery of such Receipt or Receipts as provided in
Section 5.09, and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Deposited Securities.
Delivery at offices other than the Depositary's Corporate Trust Office shall be
at the risk and expense of the person requesting such delivery.
SECTION 2.04. Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement,
the Depositary shall register transfers of Receipts of a particular Series on
its transfer books from time to time, upon any surrender at its designated
transfer offices of a Receipt of such Series by the Holder in person or by a
duly authorized attorney properly endorsed or accompanied by a properly executed
instrument of transfer, and duly stamped as may be required by the laws of the
State of New York and any other applicable law. Thereupon the Depositary shall
execute a new Receipt or Receipts of such Series and deliver the same to or upon
the order of the person entitled thereto evidencing the same aggregate number of
American Depositary Shares as those evidenced by the Receipt or Receipts of such
Series surrendered.
The Depositary may appoint one or more co-transfer agents for
the purpose of effecting transfers (or combinations and split-ups as under
Section 2.05) of Receipts of a particular Series at designated transfer offices
on behalf of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Holders, Beneficial Owners or other persons entitled to such
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary.
Notwithstanding anything to the contrary herein and unless
otherwise agreed to by the Issuer and the Depositary with respect to, and prior
to the issuance of, Shares of a Series that are components of a Share Unit, the
transfer of a Receipt representing Shares of a Series that is a component of a
Share Unit will only be registered if it is transferred with Receipts of all
other such Series printed on the same certificate and the American Depositary
Shares to be transferred evidenced by all such Receipts, taken as a whole,
represent whole Share Units. Each such Receipt will state on the face thereof
that it must be transferred with Receipts of all other such Series.
SECTION 2.05. Combinations and Split-ups of Receipts.
Upon surrender of a Receipt or Receipts of a particular Series
at the Depositary's designated transfer offices for the purpose of effecting a
split-up or combination of such Receipt or Receipts, and subject to the terms
and conditions of this Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts of such Series for the number of American
Depositary Shares of the corresponding Series requested, evidencing the same
aggregate number of American Depositary Shares of the corresponding Series
evidenced by the Receipt or Receipts surrendered.
SECTION 2.06. Surrender of Receipts and Withdrawals of Shares.
Upon surrender of Receipts at the Depositary's Corporate Trust
Office, or at such other offices as the Depositary may designate, for the
purpose of withdrawal of the Deposited Securities represented by the American
Depositary Shares evidenced thereby, and upon payment of the fees and expenses
of the Depositary for the cancellation of Receipts as provided in Section 5.09
and payment of all taxes and other governmental charges payable in connection
with such surrender and withdrawal of the Deposited Securities, and subject to
the terms and conditions of the Company's Articles of Association, the Deposited
Securities and this Deposit Agreement, and to any other restriction applicable
thereto, the Holder of such Receipts shall be entitled to delivery, to or upon
the order of such Holder, of the Shares and any other Deposited Securities at
the time represented by Receipts. Delivery of such Deposited Securities may be
made by the delivery of (a) certificates in the name of such Holder or as
ordered by such Holder or by the delivery of certificates properly endorsed or
accompanied by proper instruments of transfer to such Holder or as ordered by
such Holder and (b) of any other securities, property and cash to which such
Holder is then entitled in respect of the Receipts. Such delivery shall be made,
as hereinafter provided, without unreasonable delay.
Receipts surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by a properly
executed instrument of transfer in blank, and if the Depositary so requires, the
Holder thereof shall execute and deliver to the Depositary a written order
directing the Depositary to cause the Shares and any other Deposited Securities
being withdrawn to be delivered to or upon the written order of a person or
persons designated in such order. Thereupon the Depositary shall direct the
Custodian to deliver at the Custodian's office, subject to Sections 2.07, 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 Depositary as above provided, the amount of Shares and any
other Deposited Securities represented by such Receipts, except that, at the
request, risk and expense of the Holder, the Depositary may make delivery to
such person or persons at its Corporate Trust Office or at such other place as
may have been designated for such purpose by the Depositary of any dividends or
distributions with respect to the Shares and any other Deposited Securities
represented by such Receipts, or of any proceeds of sale of any such dividends,
distributions or rights, which may at the time be held by the Depositary. Such
direction shall be given by letter or, at the risk and expense of the Holder, by
cable, telex or facsimile transmission.
Neither the Depositary nor the Custodian shall deliver Shares,
by physical delivery, book-entry or otherwise (other than to the Company or its
agent as contemplated by Section 4.08), or otherwise permit Shares to be
withdrawn from the facility created hereby, except upon the receipt and
cancellation of Receipts.
At the request, risk and expense of any Holder so surrendering
Receipts, and for the account of such Holder, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) and the
certificate or certificates and other proper documents of title for the amount
of Shares and any other Deposited Securities represented by such Receipts for
delivery at its Corporate Trust Office or at such other place as may be
reasonably requested by the Holder. Such direction shall be given in writing and
mailed, first class air mail postage prepaid, or, at the risk and expense of
such Holder, by cable, telex or facsimile transmission.
Notwithstanding the foregoing and unless otherwise agreed to
between the Depositary and the Issuer, Deposited Securities represented by
American Depositary Shares representing Shares of a Series that is a component
of a Share Unit may only be withdrawn if the Shares represented thereby are
withdrawn with the Shares represented by each other Series of American
Depositary Shares representing Shares of all other Series comprising such Share
Unit and, in each case, as whole Share Units.
SECTION 2.07. Limitations on Execution and Delivery, Registration of
Transfer and Surrender of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of any Receipt, the
delivery of any distribution thereon, or withdrawal of any Deposited Securities,
the Depositary, the Company, the Custodian and the Foreign Registrar, if
applicable, may require (a) payment from the depositor of Shares or the
presenter of the Receipt of a sum sufficient to pay for (i) any tax or other
governmental charge and any stock transfer or registration fees in respect of
Receipts or with respect to the Receipts of such other Series as may be printed
on the same certificate, (ii) any tax or other governmental charge and any stock
transfer or registration fees in respect of registration of transfers of Shares
or other Deposited Securities upon any applicable register and (iii) any fees of
the Depositary as provided in Section 5.09; (b) the production of proof
satisfactory to it as to the identity and genuineness of any signature and as to
any other matter contemplated by Section 3.01; and (c) compliance with such
reasonable regulations, if any, as the Depositary and Company may establish
consistent with the provisions of this Deposit Agreement.
The delivery of Receipts of a particular Series against
deposits of Shares of the corresponding Series generally or against deposits of
particular Shares of the corresponding Series may be suspended or the transfer
of Receipts of a particular Series in particular instance, may be refused, or
the registration of transfer of outstanding Receipts of a particular Series or
the combination or split-up of Receipts of a particular Series, generally may be
suspended, during any period when the transfer books of the Depositary or any
register for such Shares or Series or other Deposited Securities are closed, or
if any such action is deemed necessary or advisable by the Depositary or the
Company 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 the Receipts, or for any other reason. Notwithstanding
any provision of this Deposit Agreement or the Receipts to the contrary, the
surrender of outstanding Receipts and withdrawal of Deposited Securities may be
suspended only for (i) temporary delays caused by closing the transfer books of
the Depositary or the Company or the deposit of Shares in connection with voting
at a shareholders' meeting, or the payment of dividends, (ii) the payment of
fees, taxes and similar charges, and (iii) compliance with any U.S. or foreign
laws or governmental regulations relating to the Receipts or to the withdrawal
of the Deposited Securities, or (iv) any other reason that may at any time be
specified in paragraph I(A)(1) of the General Instructions to Form F-6, as from
time to time in effect, or any successor provision thereto. Without limitation
of the foregoing, the Depositary shall not knowingly accept for deposit under
this Deposit Agreement any Shares of a particular Series which are required to
be registered under the Securities Act unless a registration statement under the
Securities Act is in effect as to such Shares.
SECTION 2.08. Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or
stolen, the Depositary shall execute and deliver a new Receipt of like form and
tenor and of the same Series 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, upon the Holder thereof (a) filing with the
Depositary (i) a request for such execution and delivery before the Depositary
has notice that any such Receipt has been acquired by a bona fide purchaser,
(ii) furnishing the Depositary with a sufficient indemnity bond and (b)
satisfying any other reasonable requirements imposed by the Depositary.
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts.
All receipts surrendered to the Depositary shall be cancelled
by the Depositary. The Depositary is authorized to destroy Receipts so
cancelled. Cancelled Receipts shall not be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose.
SECTION 2.10. Pre-Release of Shares and Receipts.
The Depositary may issue Receipts of a Series against rights
to receive Shares of a corresponding Series from the Company (or any agent of
the Company recording Share ownership). No such issue of Receipts will be deemed
a "Pre-Release" subject to the restrictions of the following paragraph.
The Depositary may execute and deliver Receipts prior to the
receipt of Shares pursuant to Section 2.02 (each such transaction is hereinafter
referred to as a "Pre-Release"). The Depositary may, subject to the provisions
of Section 2.06, deliver Shares of a Series upon the receipt and cancellation of
Receipts of the corresponding Series which have been pre-released, whether or
not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such Receipt has been pre-released. The Depositary may
receive Receipts of a Series in lieu of Shares of the corresponding Series in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation and agreement from the person to whom
Receipts or Shares are to be delivered that such person, or its customer,
beneficially owns the Shares or Receipts to be remitted, as the case may be, (b)
at all times fully collateralized with cash or other collateral the Depositary
deems appropriate, (c) terminable by the Depositary on five (5) business days'
notice or less and (d) subject to such further indemnities and credit regulation
as the Depositary deems appropriate. The number of Shares of a Series not
deposited but represented by American Depositary Shares outstanding at any time
as a result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares of such Series deposited hereunder; provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate, and may after consultation with the Company change
such limit for purposes of general application. The Depositary will also set
Dollar limits with respect to Pre-Release transactions to be entered into
hereunder with any particular Pre-Release on a case-by-case basis as the
Depositary deems appropriate. For purposes of enabling the Depositary to fulfill
its obligations to the Holders under this Deposit Agreement, the collateral
referred to in clause (b) above shall be held by the Depositary as security for
the performance of the Pre-Releasee's obligations to the Depositary in
connection with a Pre-Release transaction, including the Pre-Release's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
SECTION 2.11. Redemption.
(a) If the Depositary receives a notice from or on behalf of
the Company that Shares of any Series are called for redemption, the Depositary
shall send to the Holders:
(i) a copy of that notice; and
(ii) a notice calling for the surrender of Receipts evidencing
a number of American Depositary Shares representing the number of deposited
Shares that the Company called for redemption.
(b) On or prior to the date set by the Company for the
redemption, the Depositary shall deliver for redemption a number of deposited
Shares represented by the American Depositary Shares evidenced by the Receipts
that have been surrendered to the Depositary prior to that date pursuant to the
Depositary's call for surrender. Thereafter, the Depositary shall deliver for
redemption deposited Shares that the Company called for redemption but that the
Depositary has not already surrendered hereunder, such delivery being without
unreasonable delay after Receipts evidencing a number of American Depositary
Shares representing those Shares are surrendered to the Depositary pursuant to
the Depositary's call for surrender, provided that the Company shall be under no
obligation hereunder to redeem any such further Shares so delivered.
(c) When the Depositary receives entitlements in respect of
deposited Shares delivered by the Depositary for redemption, the Depositary
shall cancel surrendered Receipts evidencing the corresponding number of
American Depositary Shares and distribute those entitlements to the Holders
entitled to them in accordance with applicable provisions of this Deposit
Agreement, after deduction or upon payment of the fees and expenses of the
Depositary applicable in the case of surrender of Receipts for the purpose of
withdrawal of Deposited Securities. If the Depositary will distribute
entitlements in respect of less than all the American Depositary Shares
evidenced by a Receipt, the Depositary shall execute and deliver to the Holder
of that Receipt a Receipt evidencing American Depositary Shares in respect of
which it is not distributing entitlements.
(d) The Company is not entitled to exercise any right to
redeem deposited Shares that form part of deposited Units of Shares unless it
redeems whole deposited Units of Shares.
(e) If the Depositary receives a notice of redemption of less
than all of the deposited Shares of any Series, the Depositary may determine
which Receipts to call for surrender or what number of American Depositary
Shares evidenced by any Receipt to call for surrender in any manner that it
reasonably determines to be fair and practical.
ARTICLE III. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Holder or
Beneficial Owner may be required by the Depositary from time to time (i) to file
with the Depositary or the Custodian such proof of citizenship or residence,
exchange control approval, payment of applicable taxes or other governmental
charges, legal or beneficial ownership of Receipts, Deposited Securities or
other securities, compliance with all applicable laws or regulations or terms of
this Deposit Agreement or the Receipts, or such information relating to the
registration on the books of the Company or the Foreign Registrar, if
applicable, or any other information the Depositary or the Company may deem
necessary or appropriate to evidence compliance with all applicable laws and
regulations, and (ii) to execute such certificates and to make such
representations and warranties as the Depositary may deem necessary or proper or
as the Company may reasonably request by written request to the Depositary. The
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 are made to the Depositary's satisfaction, and if
the Company so requests in writing to the Depositary, to the Company's
satisfaction. The Depositary shall provide the Company, in a timely manner, with
copies of any such proofs, certificates or other information upon written
request by the Company, unless such disclosure is prohibited by law.
SECTION 3.02. Liability of Holders for Taxes.
If any tax or other governmental charge shall become payable
with respect to any Receipt or with respect to any Deposited Securities
represented by American Depositary Shares of any other Series evidenced by any
Receipt, such tax or other governmental charge shall be payable by the Holder of
such Receipt to the Depositary. The Depositary may deduct the amount of any
taxes owed from any payments to the Holder. The Depositary may restrict or
refuse to effect any transfer of such Receipt or any combination or split-up
thereof or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced thereby until such payment is made, and may withhold
any dividends or other distributions or may sell any part or all of the
Deposited Securities represented by American Depositary Shares evidenced by such
Receipt and may apply such dividends or other distributions or the proceeds of
any such sale to payment of such tax or other governmental charge (and any taxes
or expenses arising out of such sale), the Holder of such Receipt remaining
liable for any deficiency. If the Depositary sells deposited securities, it
will, if appropriate, reduce the number of ADSs held by the Holder to reflect
the sale and pay to the Holder any proceeds, or send to the Holder any property,
remaining after it has paid the taxes.
SECTION 3.03. Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefore are validly issued, fully paid, non-assessable and free of
any preemptive right of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that (i) Shares presented for deposit are not, and the
Receipts evidencing the American Depositary Shares representing such Shares
would not be, restricted securities within the meaning of Rule 144(a)(3) under
the Securities Act of 1933, and (ii) the deposit of Shares or the sale of the
Receipts issued upon such deposit is not otherwise restricted under the
securities laws of the United States. Such representations and warranties shall
survive the deposit of Shares and the execution and delivery of Receipts in
respect thereof.
SECTION 3.04. Disclosure of Interests.
To the extent that provisions of or governing any Deposited
Securities including, without limitation, the provisions of the Company's
Articles of Association as in effect from time to time and resolutions and
regulations of the Company's Board of Directors adopted pursuant to such
Articles of Association or any applicable laws or regulations in the United
Kingdom, the United States or any other country, may require the disclosure of
beneficial or other ownership of Deposited Securities, other Shares and other
securities of the Company and may provide for blocking transfer and voting or
other rights to enforce such disclosure or limit such ownership, the Depositary
shall use its reasonable efforts to comply with the Company's written
instructions as to Receipts in respect of any such enforcement or limitation and
Holders shall comply with all such disclosure requirements and ownership
limitations and shall cooperate with the Depositary's compliance with such
Company instructions.
ARTICLE IV. THE DEPOSITED SECURITIES.
SECTION 4.01. Cash Distributions.
Whenever the Depositary or the Custodian shall receive any
cash dividend or other cash distribution on any Deposited Securities, the
Depositary shall, subject to the provisions of Section 4.05, as promptly as
practicable convert or cause to be converted such dividend or distribution into
Dollars and shall promptly distribute the Dollars thereby received (net of the
fees, expenses and charges of the Depositary as provided in Section 5.09) to
Holders of Receipts on the record date fixed pursuant to Section 4.06 in
proportion to the number of American Depositary Shares held by each of them,
respectively; provided, however that in the event that any of the deposited
Shares are not entitled, by reason of their dates of issuance, or otherwise, to
receive the full amount of such cash dividend or distribution, the Depositary
shall make appropriate adjustments in the amounts distributed to the Holders of
the Receipts issued in respect of such Shares; and provided, further, that in
the event that the Company or the Depositary shall be required to withhold and
does withhold from any cash dividend or other cash distribution in respect of
any Deposited Securities an amount on account of taxes, the amount distributed
on the Receipts issued in respect of such Deposited Securities shall be reduced
accordingly. The Depositary shall distribute only such amounts, however, as can
be distributed without attributing to any Holder of a Receipt a fraction of one
cent. Any such fractional amounts shall be rounded to the nearest whole cent and
so distributed to Holders entitled thereto. The Company or its agent will remit
to the appropriate governmental agency in the United Kingdom all amounts
withheld and owing to such agency. The 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 Depositary or the Company or its agent may file
any such reports necessary to obtain benefits under the applicable tax treaties
for the Holders of Receipts.
SECTION 4.02. Distribution Other Than Cash, Shares or Rights.
Whenever the Depositary shall receive any distribution on the
Deposited Securities of a particular Series other than cash, Shares of the
corresponding Series or rights pursuant to Section 4.01, 4.03 or 4.04, the
Depositary shall cause such amount of the securities or property received by it
to be distributed as promptly as practicable to the Holders of Receipts of such
Series on the record date fixed pursuant to Section 4.06, in proportion to the
number of American Depositary Shares of the corresponding Series representing
such Deposited Securities held by each of them, respectively, in any manner that
the Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however that if in the opinion of the Depositary such
distribution cannot be made among the Holders of such Receipts entitled thereto
in proportion to the number of American Depositary Shares of the corresponding
Series held by each of them, or if for any other reason (including, but not
limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act in order to be distributed to
Holders) the Depositary deems such distribution not to be lawful or feasible,
the Depositary may after consultation with the Company to the extent practicable
adopt such method as it deems equitable and practicable for the purpose of
effecting such distribution, including, but not limited to, the sale, at public
or private sale, of the securities or property thus received, or any part
thereof, at such place or places and upon such terms as it deems proper, and the
net proceeds of any such sale (net of the fees, expenses and charges of the
Depositary as provided in Section 5.09) shall be distributed by the Depositary
to the Holders of Receipts entitled thereto as in the case of a distribution
received in cash.
SECTION 4.03. Distribution in Shares.
If any distribution upon Deposited Securities of a particular
Series consists of a dividend in, or free distribution of, Shares of the
corresponding Series, the Depositary may, and shall if the Company so requests,
and furnishes it promptly with satisfactory evidence that it is legal to do so,
distribute to the Holders of Receipts on the record date fixed pursuant to
Section 4.06, in proportion to the number of American Depositary Shares held by
each of them, respectively, additional Receipts in the same form for an
aggregate number of American Depositary Shares of the corresponding Series
representing the amount of such Shares received as such dividend or free
distribution, subject to the terms and conditions of this Deposit Agreement with
respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of the fees,
expenses and charges of the Depositary as provided in Section 5.09.
Notwithstanding the foregoing, the Depositary will not distribute additional
Receipts in respect of any securities so received by it in respect of Shares of
a Series that is a component of a Share Unit unless the securities so received
consist of a dividend in, or free distribution of Shares of all the Series
comprising such Share Unit. In lieu of delivering Receipts for fractional
American Depositary Shares the Depositary will sell the amount of Shares
represented by the aggregate of such fractions, at public or private sale, at
such place or places and upon such terms as it may deem proper, and distribute
the net proceeds of any such sale in accordance with Section 4.01. If additional
Receipts of a particular Series are not so distributed (except as pursuant to
the preceding sentence), each American Depositary Share of the corresponding
Series shall thenceforth also represent its proportionate interest in the
additional Shares so distributed upon such Deposited Securities.
SECTION 4.04. Rights.
In the event that the Company shall offer or cause to be
offered to the Holders of any Deposited Securities of a particular Series any
rights to subscribe for additional Shares of the corresponding Series or any
rights of any other nature, the Depositary shall have discretion as to the
procedure to be followed in making such rights available to any Holders of
Receipts or in disposing of such rights on behalf of any Holders and making the
net proceeds available to such Holders in accordance with the procedures for
distributing cash provided for in Section 4.01, or, if by the terms of such
rights offering or for any other reason it would not be lawful or feasible for
the Depositary either to make such rights available to any Holders or to dispose
of such rights and make the net proceeds available to such Holders, then the
Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the Depositary determines in its discretion that it is lawful and
feasible to make such rights available to all or certain Holders but not to
other Holders, the Depositary may, and shall 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 American Depositary Shares representing
such Deposited Securities 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 generally, if the Depositary determines in it discretion that it is
lawful and feasible to make such rights available to certain Holders, the
Depositary will, subject to applicable law, make such rights available to such
Holders upon written notice from the Company to the Depositary 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 and the
Depositary have determined are reasonably required under applicable law.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Holders, then upon instruction from any
such Holder pursuant to such warrants or other instruments to the Depositary
from such Holder to exercise such rights, upon payment by such Holder to the
Depositary for the account of such Holder of an amount equal to the purchase
price of the Shares of a particular Series to be received upon the exercise of
the rights, and upon payment of the fees and expenses of the Depositary and any
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Holder, exercise the rights and purchase the Shares of
the corresponding Series, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Holder. As agent for such
Holder, the 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 of the
corresponding Series to such Holder. In the case of a distribution pursuant to
the second paragraph of this Section 4.04, such Receipts shall bear a legend 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 Depositary determines in its discretion that it is not
lawful or feasible to make such rights available to all or certain Holders, it
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares of a particular Series held by the 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, expenses and
charges of the Depositary as provided in Section 5.09 and all taxes and other
governmental charges payable in connection with such rights, and subject to the
terms and conditions of this Deposit Agreement) for the account of such Holders
otherwise entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any distinctions among such
Holders on account of exchange restrictions or the date of delivery of any
Receipt or otherwise.
The Depositary will not offer rights to Holders, unless it has
received from the Company evidence, as provided in Section 5.07, to the effect
that (i) a registration statement under the Securities Act covering such
offering is in effect or (ii) such offering does not require registration under
the Securities Act. If a Holder of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no
registration under the Securities Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Company satisfactory to the Depositary upon which the
Depositary may rely that such distribution to such Holder is exempt from such
registration.
The Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Holders in general or any Holder in particular.
SECTION 4.05. Conversion of Foreign Currency.
Whenever the Depositary shall receive foreign currency,
received by way of dividends or other distributions or in the form of net
proceeds from the sale of securities, property or rights, and if, at the time,
the foreign currency so received can, in the reasonable judgment of the
Depositary, be converted on a reasonable basis into Dollars and the resulting
Dollars transferred to the United States, the Depositary shall as promptly as
practicable 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
(less any reasonable and customary expenses incurred by the Depositary in the
conversion of such foreign currency) shall be promptly distributed to the
Holders entitled thereto or, if the Depositary shall have distributed any
warrants, or other instruments which entitle the holders thereof to such
Dollars, then to the holders of such warrants or instruments, upon surrender
thereof for cancellation. Such distribution may be made upon an averaged or
other practicable basis without regard to any distinctions among 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 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 Depositary
shall file such application for approval or license, if any, as it may deem
desirable.
If at any time the Depositary shall determine that in its
reasonable judgment any foreign currency received by the Depositary is not
convertible on a reasonable basis into Dollars transferable to the United
States, or if any approval or license of any government or agency thereof which
is required for such conversion is denied or in the opinion of the Depositary
cannot be obtained, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may in its
discretion, but subject to applicable laws and regulations, either (i)
distribute such foreign currency (or an appropriate document evidencing the
right to receive such foreign currency) to the Holders of Receipts entitled to
receive the same, or (ii) hold such foreign currency for the respective accounts
of such persons, uninvested and without liability for interest.
If any such conversion of foreign currency, in whole or in
part, can be effected as aforesaid for distribution to some but not all of the
Holders of Receipts entitled thereto, the Depositary may in its discretion make
such conversion and distribution in Dollars, to the extent such currency shall
be convertible as aforesaid, to the Holders of Receipts entitled thereto and,
with respect to the balance of such foreign currency, shall in its discretion,
but subject to any applicable law and regulations, either (i) distribute or make
available for distribution such balance to the persons who were Holders of
Receipts entitled thereto with respect to whom such conversion could not then be
effected, or (ii) hold such balance for the respective accounts of such persons,
uninvested and without liability for interest.
SECTION 4.06. 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 of a particular
Series, or whenever for any reason the Depositary causes a change in the number
of Shares of a particular Series that are represented by each American
Depositary Share of the corresponding Series, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date (a) for the determination of
the Holders of Shares of a particular Series who shall be (i) entitled to
receive such dividend, distribution or rights or the net proceeds of the sale
thereof or (ii) entitled to give instructions for the exercise of voting rights
at any such meeting, or (b) on or after which each American Depositary Share
will represent the changed number of Shares. Such record date shall be the same
record date as any corresponding record date set by the Company for such purpose
or, if different, fixed after consultation with the Company. Subject to the
provisions of Sections 4.01 through 4.05 and to the other terms and conditions
of this Deposit Agreement, the Holders on such record date shall be entitled, as
the case may be, to receive the amount distributable by the Depositary with
respect to such dividend or other distribution or such rights or the net
proceeds of sale thereof in proportion to the number of American Depositary
Shares of the corresponding Series held by them, respectively, and to give
voting instructions and to act in respect of any other such matter.
SECTION 4.07. Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares of
a particular Series or other Deposited Securities, if requested in writing by
the Company, the Depositary shall, as soon as practicable thereafter, mail to
the Holders of Receipts of the corresponding Series a notice, the form of which
notice shall be in the sole discretion of the Depositary, which shall contain
(a) such information as is contained in such notice of meeting, (b) a statement
that such Holders of Receipts of the corresponding Series at the close of
business on a specified record date will be entitled, subject to any applicable
provision of English law, or of the Articles of Association of the Company, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares of such Series or other Deposited Securities
of the corresponding Series represented by their respective American Depositary
Shares, and (c) a brief statement as to the manner in which such instructions
may be given. Upon the written request of a Holder of a Receipt on such record
date, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor insofar as practicable to vote or cause
to be voted the amount of Shares of such Series or other Deposited Securities
represented by such Receipt in accordance with the instructions set forth in
such request. The Depositary shall not vote or attempt to exercise the right to
vote that attaches to the Shares of such Series or other Deposited Securities
except in accordance with such instructions.
There can be no assurance that Holders generally or any Holder
in particular will receive the notice described in the preceding paragraph
sufficiently to ensure that the Holder can instruct the Depositary to vote the
Shares of a particular Series or Deposited Securities of the corresponding
Series in accordance with the provisions set forth in the preceding paragraph.
SECTION 4.08. Changes Affecting Deposited Securities, Reclassification
Recapitalizations, etc.
In circumstances where the provisions of Section 4.03 do not
apply, upon any change in par or nominal value, sub-division, consolidation or
any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or the Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under this Deposit Agreement and each ADS will thenceforth
represent, in addition to the existing Deposited securities, if any, the right
to receive a proportional interest in the new deposited securities, and Receipts
of the Series then outstanding shall thenceforth represent, in addition to the
existing Deposited securities, if any, the new Deposited Securities so received
in exchange for or on conversion of or in respect of Deposited Securities of the
Series unless additional or new Receipts are delivered pursuant to the following
sentence. In any such case, the Depositary may, and shall if the Company shall
so request, execute and deliver additional Receipts as in the case of a dividend
in Shares, or may call for the surrender of outstanding Receipts to be exchanged
for new Receipts of the corresponding Series specifically describing such new
Deposited Securities; provided, however, that the Depositary will not distribute
additional Receipts in respect of any securities so received by it in respect of
Shares of a Series comprising a Share Unit unless the securities so received
consist of Shares of all Series comprising such Share Unit.
SECTION 4.09. Statutory Reports.
The Depositary shall make available for inspection by Holders
of Receipts of any Series at the Depositary's Corporate Trust Office any
notices, reports and other communications received from the Company which are
both (a) received by the Depositary, the Custodian or their respective nominees
as the holder of Deposited Securities of the corresponding Series and (b) made
generally available to the holders of Deposited Securities by the Company. The
Depositary shall also, upon the Company's written request, send to the Holders
copies of such reports furnished by the Company pursuant to Section 5.06. Any
such reports and communications, including any proxy soliciting material,
furnished to the Depositary by the Company shall be furnished in English, to the
extent such materials are required to be translated into English pursuant to any
rules or regulations of the Commission.
SECTION 4.10. List of Holders.
Promptly upon the written request of the Company, the
Depositary shall furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares of any Series by all
persons in whose names Receipts are registered on the books of the Depositary.
SECTION 4.11. Withholding.
In connection with any distribution to Holders, (i) the
Company will remit to the appropriate governmental authority or agency any
amounts (a) required to be withheld by the Company and (b) owing to such
authority or agency by the Company, and (ii) the Depositary and the Custodian
will remit to the appropriate governmental authority or agency any amounts (a)
required to be withheld and (b) owing to such authority or agency by the
Depositary or the Custodian. In the event that the Depositary determines that
any distribution in property (including Shares and rights to subscribe therefor)
is subject to any tax or other governmental charge which the Depositary is
obligated to withhold, the Depositary may, by public or private sale, dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay any such taxes or charges and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Holders entitled thereto in proportion to the number of American
Depositary Shares held by them, respectively. The 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 Depositary or the Company or its agent may
file any such reports necessary to obtain benefits under the applicable tax
treaties for the Holders of Receipts.
ARTICLE V. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.
SECTION 5.01. Maintenance of Offices and Transfer Books by the
Depositary.
Until termination of this Deposit Agreement in accordance with
its terms, the Depositary shall maintain, at its Corporate Trust Office,
facilities for the execution and delivery, registration of transfer, and
surrender of Receipts of each Series, all in accordance with the provisions of
this Deposit Agreement.
The Depositary shall keep at its Corporate Trust Office a book
or books for the transfer and registration of Receipts for each Series, which at
all reasonable times shall be open for inspection by Holders of such Receipts;
provided that such inspection shall not be for the purpose of communicating with
Holders of such Receipts 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 of such Series. The Depositary may close the books, at any time or from
time to time, when reasonably deemed expedient by it in connection with the
performance of its duties hereunder or at the request of the Company.
If any Receipts of a particular Series or the American
Depositary Shares evidenced thereby are listed on one or more stock exchanges in
the United States, the Depositary shall act as Registrar or appoint a Registrar
or one or more co-registrars for registry of such Receipts in accordance with
any requirements of such exchange or exchanges.
SECTION 5.02. Prevention or Delay in Performance by the Depositary, the
Custodian or the Company.
Neither the Depositary, the Custodian nor the Company 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 or regulation of the United States, any state
thereof, the United Kingdom or of any other country, or of any other action of
any governmental or regulatory authority of the United States, the United
Kingdom or any other country, or of any stock exchange, or by reason of any
provision, present or future, of the Articles of Association of the Company, or
by reason of any act of God or war or terrorism or other circumstance beyond its
control, the Depositary, the Custodian or the Company, as the case may be, shall
be delayed in, prevented or forbidden from, or subjected to any civil or
criminal penalty on account of doing or performing any act or thing which by the
terms of this Deposit Agreement it is provided shall be done or performed; nor
shall the Depositary, the Custodian or the Company incur any liability to any
Holder or Beneficial Owner of a Receipt by reason of any non-performance or
delay, caused as aforesaid, in the performance of any act or thing which, by the
terms of this Deposit Agreement, it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement. Where, by the terms of a
distribution pursuant to 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 Holders, and the Depositary may not dispose of such
distribution or offering on behalf of such Holders and make the net proceeds
available to such Holders, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse. The Depositary
shall not perform any action required or permitted under this Deposit Agreement
which shall be prohibited by the rules of any securities exchange on which the
American Depositary Shares are listed for trading.
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company.
Neither the Depositary nor the Company assumes any obligation
or shall be subject to any liability under this Deposit Agreement to Holders or
Beneficial Owners of Receipts, other than that each of them agrees to perform
its obligations and duties specifically set forth in this Deposit Agreement
without negligence or bad faith.
The Depositary shall not be subject to any liability with
respect to the validity or worth of the Deposited Securities. Neither the
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 against all expenses
and liabilities be furnished as often as may be required, and the Custodian
shall not be under any obligation whatsoever with respect to such proceedings,
the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary, the Custodian nor the Company shall be
liable for any action or non-action by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder or Beneficial Owner of a Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary, the Custodian and the Company may rely and shall be protected in
acting 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 Depositary shall not be liable for any acts or omissions
made by a successor depositary whether in connection with a previous act or
omission of the Depositary or in connection with any matter arising wholly after
the removal or resignation of the Depositary, provided that in connection with
the issue out of which such potential liability arises the Depositary performed
its obligations without negligence or bad faith while it acted as Depositary.
Neither the Depositary nor the Custodian shall be responsible
for any failure to carry out any instructions to vote any of the Deposited
Securities, or for the manner or effect of any such vote made either with or
without request, or for not exercising any right to vote, as long as any such
action or non-action is in good faith.
The Depositary and the Custodian may own and deal in any class
of securities of the Company and its affiliates, and in Receipts.
No disclaimer of liability under the Securities Act is
intended by any provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary.
The Depositary may at any time resign as Depositary hereunder
with respect to any or all Series of Deposited Securities by written notice of
its election so to do delivered to the Company and the Custodian, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may with respect to any or all Series of
Deposited Securities at any time be removed by the Company by 90 days prior
written notice of such removal delivered to the Depositary and the Custodian,
such removal to become effective upon the later of the (i) 90th day after
delivery of the notice to the Depositary or (ii) appointment of a successor
depositary in respect of the Series of Deposited Securities with respect to
which the Depositary is to be removed and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company, unless the Company shall desire the
termination of this Deposit Agreement as provided in Section 6.02, shall use its
best efforts to appoint a successor depositary, which shall be a bank or trust
company having its principal 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; provided, however that 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, 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 Holders of all outstanding Receipts. Any successor
depositary shall promptly mail notice of its appointment to the Holders of
Receipts and the Custodian.
Any corporation into or with which the Depositary may be
converted, merged or consolidated shall be the successor of such Depositary
without the execution or filing of any document or any further act.
SECTION 5.05. The Custodian.
The Depositary may appoint one or more agents to act as its
Custodian hereunder. Any Custodian in acting hereunder shall be subject at all
times and in all respects to the directions of the Depositary, and shall be
responsible solely to it. The Depositary shall be solely responsible for the
Custodian. Any Custodian may resign and be discharged from its duties hereunder
with respect to any or all Series of Deposited Securities by notice of such
resignation delivered to the Depositary at least thirty (30) days prior to the
date on which such resignation is to become effective. If upon such resignation
there shall be no Custodian acting hereunder, the Depositary shall, promptly
after receiving such notice, appoint a substitute custodian or custodians with
respect to the Series of Deposited Securities with respect to which the
Custodian has resigned, each of which shall thereafter be a Custodian hereunder.
Whenever the Depositary in its discretion determines that it is in the best
interest of the Holders to do so, it may appoint a substitute or additional
custodian or custodians, which shall thereafter be one of the Custodians
hereunder. Upon demand of the Depositary any previous Custodian shall deliver
the Deposited Securities held by it to any other Custodian or such substitute or
additional custodian or custodians with respect to any or all Series of
Deposited Securities as the Depositary shall instruct. Each such substitute or
additional custodian or custodians shall deliver to the Depositary, forthwith
upon its appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary hereunder,
any 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
any Custodian hereunder provided, however that the successor depositary so
appointed shall, 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 5.06. 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 of a particular Series, or of any adjourned meeting of such
holders, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights, the Company agrees to transmit to
the Depositary and the Custodian a copy of the notice thereof in the form given
or to be given to holders of Shares or other Deposited Securities of such
Series.
The Company will arrange for the translation into English, if
not already in English, to the extent required pursuant to any rules or
regulations of the Commission, and the prompt transmittal by the Company to the
Depositary and the Custodian, of such notices and any other reports and
communications, including any proxy soliciting materials, which are made
generally available by the Company to holders of its Shares or other Deposited
Securities of a particular Series. If requested in writing by the Company, the
Depositary will arrange for the mailing, at the Company's expense, of copies of
such notices, reports and communications that are made generally available by
the Company to holders of its Shares or other Deposited Securities of the
corresponding Series and/or, at the written request of the Company and at the
Company's expense, make such notices, reports and other communications available
to all Holders on a basis similar to that for holders of Shares or other
Deposited Securities of the corresponding Series, or on such other basis as the
Company may advise the Depositary is required or as the Depositary may be
required by any applicable law or regulation. The Company will timely provide
the Depositary with the quantity of such notices, reports and communications,
including any proxy soliciting materials, as requested by the Depositary from
time to time, in order for the Depositary to effect such mailings. The
Depositary will, at the expense of the Company, make such copies and such
notices, reports and communications available for inspection by Holders at the
Depositary's Corporate Trust Office, at the office of the Custodian and at any
other designated transfer offices.
SECTION 5.07. Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any future issuances
or distributions (collectively, a "Distribution") of (a) additional Shares of
any Series or other securities that are Deposited Securities of a particular
Series ("ADS Securities"), (b) rights, preferences or privileges to subscribe
for ADS Securities, (c) securities convertible into or exchangeable for ADS
Securities or (d) rights, preferences or privileges to subscribe for securities
convertible into or exchangeable for ADS Securities, such Distribution shall be
effected by the Company in a manner so as not to violate the Securities Act, or
any securities or "Blue Sky" law of any relevant jurisdictions in the United
States. The Company shall direct the Depositary in writing to take, or to cause
the Custodian to take, specified, reasonable measures with respect to the
acceptance for deposit of ADS Securities as shall be required to prevent any
violation of the registration requirements of the Securities Act or any
securities or "Blue Sky" law of any relevant jurisdictions in the United States.
The Company will promptly furnish to the Depositary evidence
satisfactory to the Depositary and its counsel that a registration statement
under the Securities Act is in effect with respect to such Distribution, or a
written opinion from U.S. counsel for the Company, which counsel shall be
reasonably satisfactory to the Depositary, stating that registration under the
Securities Act is not required with respect to such Distribution in order to
prevent violation of the registration requirements of the Securities Act or any
securities or "Blue Sky" law of any relevant jurisdictions in the United States.
The Company agrees with the Depositary that neither the
Company nor any person controlled by, controlling or under common control with
the Company will at any time deposit any ADS Securities hereunder, either upon
original issuance or upon a sale of ADS Securities previously issued and
reacquired by the Company or by any person controlled by, controlling or under
common control with the Company, unless such ADS Securities have been registered
under the Securities Act or an exemption from the registration requirements of
the Securities Act is available.
SECTION 5.08. Indemnification.
The Company agrees to indemnify the Depositary, any Custodian,
any other agent of the Company or the Depositary hereunder and their respective
directors, officers, employees, agents and affiliates (each, an "Indemnified
Person") against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may be based on or arise out of (a) 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 an
Indemnified Person, except for any liability or expense arising out of the
negligence or bad faith of such Indemnified Person, or (ii) by the Company or
any of its directors, officers, employees, agents and affiliates or (b) out of
or in connection with any offer or sale of Receipts, American Depositary Shares,
Shares, other Deposited Securities, proxy statement, prospectus (or placement
memorandum) or preliminary prospectus (or preliminary placement memorandum) or
any registration statement under the Securities Act in respect thereof, except
to the extent such loss, liability or expense arises out of information (or
omissions from such information) relating to such Indemnified Person, furnished
in writing to the Company, and not materially changed or altered by the Company,
by such Indemnified Person expressly for use in a registration statement, proxy
statement, prospectus (or placement memorandum) or preliminary prospectus (or
preliminary placement memorandum) under the Securities Act.
The indemnities contained in the preceding paragraph shall not
extend to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.10) of a Receipt or Receipts of any Series
in accordance with Section 2.10 and which would not otherwise have arisen had
such Receipt or Receipts not been the subject of a Pre-Release pursuant to
Section 2.10; provided, however that the indemnities provided in the preceding
paragraph shall apply to any such liability or expense (i) to the extent that
such liability or expense would have arisen had a Receipt or Receipts of any
Series not been the subject of a Pre-Release, or (ii) which may arise out of any
misstatement or alleged misstatement or omission or alleged omission in any
registration statement, proxy statement, prospectus (or placement memorandum) or
preliminary prospectus (or preliminary placement memorandum) relating to the
offer of sale of American Depositary Shares, except to the extent any such
liability or expense arises out of (i) information relating to the Depositary or
any Custodian (other than the Company), as applicable, furnished in writing and
not materially changed or altered by the Company expressly for use in any of the
foregoing documents, or, (ii) if such information is provided, the failure to
state a material fact necessary to make the information provided not misleading.
The Depositary agrees to Indemnify the Company, its directors,
officers, employees, agents and affiliates against, and hold each of them
harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may be based on or arise out of
acts performed or omitted by such Indemnified Person, due to its negligence or
bad faith.
The obligations set forth in this Section 5.08 shall survive
the termination of this Deposit Agreement or the succession or substitution of
any Indemnified Person hereunder.
SECTION 5.09. Charges and Expenses.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company at least once every three months. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
The following charges shall be incurred by any party
depositing or withdrawing Shares of any Series or by any party surrendering
Receipts of a particular Series or to whom such Receipts are 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 of a particular Series or a distribution of Receipts
pursuant to Section 4.03), or by Holders, as 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 of any Series generally on
the Share register of the Company or Foreign Registrar for the corresponding
Series and applicable to transfers of Shares of any Series to or from the name
of the Depositary or its nominee or the Custodian or its nominee on the making
of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts of the corresponding Series pursuant to Section 2.03, 4.03 or 4.04 and
the surrender of Receipts of the corresponding Series pursuant to Section 2.05
or 6.02, (6) 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
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Holders and (7) any other charge payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares of
any Series or other Deposited Securities (which charge shall be assessed against
Holders as of the date or dates set by the Depositary in accordance with Section
4.06 and shall be payable at the sole discretion of the Depositary by billing
such Holders for such charge or by deducting such charge from one or more cash
dividends or other cash distributions).
SECTION 5.10. Retention of Depositary Documents.
The Depositary is authorized to destroy those documents,
records, bills and other data compiled during the term of this Deposit Agreement
at the time permitted by the laws or regulations governing the Depositary,
unless the Company requests in writing 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 American Depositary Receipts so long as The Bank of New York is
acting as Depositary hereunder.
SECTION 5.12. List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary
a list setting forth, to the actual knowledge of the Company, those persons or
entities who beneficially own Restricted Securities of any Series and the
Company shall update that list on a regular basis. The Company agrees to advise
in writing each of the persons or entities so listed that such Restricted
Securities are ineligible for deposit hereunder. The Depositary may rely on such
a list or update but shall not be liable for any action or omission made in
reliance thereon.
ARTICLE VI. AMENDMENT AND TERMINATION.
SECTION 6.01. Amendment.
The forms of the Receipts and any provisions of this Deposit
Agreement, including with respect to any Series, may at any time and from time
to time be amended by agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or have the effect of increasing any fees or charges payable by the
Holders of Receipts of a particular Series, (other than taxes or other
governmental charges, registration fees and cable, telex or facsimile
transmission and delivery expenses) or which shall otherwise prejudice any
substantial existing right of Holders of such Receipts, shall not become
effective as to outstanding Receipts of such Series until the expiration of
thirty (30) days after notice of such amendment shall have been given to the
Holders of outstanding Receipts of such Series. Every Holder of an outstanding
Receipt of such Series at the time such amendment so becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Holder of any Receipt of any
Series to surrender such Receipt and receive therefor the Deposited Securities
of the corresponding Series represented thereby, except an order to comply with
mandatory provisions of applicable law.
SECTION 6.02. Termination.
The Depositary shall at any time at the direction of the
Company terminate this Deposit Agreement as to Shares of any or all Series and
the Deposited Securities, American Depositary Shares and Receipts of all
corresponding Series by mailing notice of such termination to the Holders of all
Receipts of such Series then outstanding at least ninety (90) days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate this Deposit Agreement as to Shares of any or all Series and the
Deposited Securities, American Depositary Shares and Receipts of all
corresponding Series by mailing notice of such termination to the Company and
the Holders of all Receipts of such Series then outstanding if at any time
ninety (90) days shall have expired after the 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
such Receipt will, upon (a) surrender of such Receipt at the Corporate Trust
Office of the Depositary, (b) payment of the fee of the Depositary for the
surrender of Receipts referred to in Section 5.09 and (c) payment of any
applicable taxes or other governmental charges, be entitled to delivery, to him
or upon his order, of the amount of Deposited Securities of a particular Series
represented by the American Depositary Shares of the corresponding Series
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts of such Series, shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under this Deposit Agreement, except that
the Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities of the corresponding Series, shall sell
rights and other property as provided in this Deposit Agreement, and shall
continue to deliver Deposited Securities, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts of the corresponding
Series surrendered to the Depositary (without liability for interest and after
deducting, in each case, the fee of the Depositary for the surrender of such
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 other governmental charges). At any time after the
expiration of one year from the date of termination, the Depositary may sell the
Deposited Securities of a particular Series then held hereunder and may
thereafter hold uninvested and without liability for interest 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
Holders of Receipts of such Series which have not theretofore been surrendered,
such Holders thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement as to the Receipts of such
Series, and the Shares, Deposited Securities and American Depositary Shares of
the corresponding Series, except to account for such net proceeds and other cash
(after deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder of such Receipt in
accordance with the terms and conditions of this Deposit Agreement and any
applicable taxes or other governmental charges). Upon the termination of this
Deposit Agreement, the Depositary and the Company shall be discharged from all
obligations under this Deposit Agreement as to the Receipts of such Series, and
the Shares, Deposited Securities and American Depositary Shares of the
corresponding Series, except for their respective obligations under Section 5.08
and the Company's obligations to the Depositary under Section 5.09.
SECTION 6.03. Severability.
Any amendment or termination of this Deposit Agreement with
respect to one series of ADSs will not necessarily occur concurrently with the
amendment or termination of any other series of ADSs. The substitution of the
Depositary by another depositary, or the termination of this Deposit Agreement,
with respect to any series of ADRs representing dollar preference shares of a
series that is a component of a unit will result in the substitution of the
depositary or the termination of the deposit agreement with respect to all of
the ADRs representing the dollar preference shares of all other series
comprising the unit.
ARTICLE VII. MISCELLANEOUS.
SECTION 7.01. Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodian, and
shall be open to inspection at the Depositary's Corporate Trust Office and the
principal office of the Custodian by any Holder of a Receipt during business
hours.
SECTION 7.02. Agreement for Exclusive Benefit of Parties.
This Deposit Agreement is for the exclusive benefit of the
parties hereto, and their respective successors hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any
other person.
SECTION 7.03. Severability.
In the event that any one or more of the provisions contained
is this Deposit Agreement or in the Receipts shall 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 7.04. 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 by cable,
telex or facsimile transmission confirmed by letter, addressed to: 0 Xxxxxx
Xxxxxx, Xxxxxx X0 0XX or any other place to which the Company may have
transferred its principal office.
Any and all notices to be given to the Depositary shall be
deemed to have been duly given if in English and personally delivered or sent by
mail, first-class airmail postage prepaid or by cable, telex or facsimile
transmission confirmed by letter, addressed to: The Bank of New York, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 or any other place to which the
Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Holder of a Receipt of
a particular Series shall be deemed to have been duly given if personally
delivered or sent by mail, first-class airmail postage prepaid, or by 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 of the
Depositary, or, if such Holder shall have filed with the 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 by cable, telex or
facsimile transmission shall be deemed to be effected at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of
cable or telex or facsimile transmission message) is deposited, first-class
airmail postage prepaid, in a post-office letter box. The Depositary or the
Company, however, may act upon any cable, telex or facsimile transmission
message received by it from the other or from any Holder of a Receipt,
notwithstanding that such cable, telex or, facsimile transmission message shall
not subsequently be confirmed by letter as aforesaid.
SECTION 7.05. Holders and Beneficial Owners of Receipts are Parties.
The Holders and 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 7.06. Governing Law.
This Deposit Agreement and the Receipts shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflicts of law principles.
SECTION 7.07. Submission to Jurisdiction; Appointment of Agent for
Service of Process.
The Company hereby (i) irrevocably has designated and
appointed HSBC Bank USA of 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as the
Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or the Deposit Agreement, (ii) consents
and submits to the jurisdiction of any state or federal court in the State of
New York in which any such suit or proceeding may be instituted, and (iii)
agrees that service of process upon said authorized agent shall be deemed in
every respect effective service of process upon the Company in any such suit or
proceeding. The Company agrees to take any and all action, including the filing
of any and all such documents and instruments, as may be necessary to continue
such designation and appointment in full force and effect for so long as any
American Depositary Shares or Receipts remain outstanding or this Deposit
Agreement remains in force. In the event the Company fails to continue such
designation and appointment in full force and effect, the Company hereby waives
personal service of process upon it and consents that any such service of
process may be made by certified or registered mail, return receipt requested,
directed to the Company at its address last specified for notices hereunder, and
service so made shall be deemed completed five (5) days after the same shall
have been so mailed.
IN WITNESS WHEREOF, HSBC Holdings plc and The Bank of New York have
duly executed this Agreement as of the day and year first set forth above and
all Holders and Beneficial Owners of Receipts shall become parties hereto upon
acceptance by them of Receipts issued in accordance with the terms hereof.
HSBC HOLDINGS PLC
By: __________________________
Name:
Title:
THE BANK OF NEW YORK
By: _________________________
Name:
Title:
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share of any Series shall
represent the right to receive
one (or a fraction or multiple
of one) Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR DOLLAR-DENOMINATED PREFERENCE SHARES OF
SERIES____________*
(NOMINAL VALUE $0.01)
HSBC HOLDINGS PLC
(A COMPANY INCORPORATED UNDER THE LAWS OF ENGLAND)
THE BANK OF NEW YORK, as depositary (hereinafter called the
"Depositary"), hereby certifies that
_____________________________________________________________, or registered
assigns IS THE OWNER OF___________________________________________.
AMERICAN DEPOSITARY SHARES
representing deposited Dollar-denominated Preference Shares of Series
___________*, nominal value $0.01 each (herein called "Shares") of HSBC Holdings
plc, a company incorporated under the laws of England (herein called the
"Company"). At the date hereof, each American Depositary Share shall represent
the right to receive one (or a fraction or multiple of one) Share deposited or
subject to deposit under the Deposit Agreement (as such is hereinafter defined)
at the London office of The Bank of New York, (herein called the "Custodian").
The Depositary's Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, X.X. 00000. The Depositary's principal executive office is located at Xxx
Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000.
--------
* Insert Series designation and any additional designation of the relevant
Series of Dollar-denominated Preference Shares.
1. THE DEPOSIT AGREEMENT.
This American 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 o 2002 (herein called the
"Depositary Agreement"), by and among the Company, the Depositary, and 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 Deposit Agreement sets forth the
rights of Holders and Beneficial Owners of the Receipts and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of such shares and held thereunder (such Shares, securities, property,
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Depositary's Corporate Trust Office in New York
City 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 Deposit Agreement and are qualified
by and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms defined in the Deposit Agreement and
not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender of this Receipt at the Depositary's Corporate
Trust Office, or at such other office as the Depositary may designate, for the
purpose of withdrawal of the Deposited Securities represented by the American
Depositary Shares evidenced hereby, and upon payment of the fees and expenses of
the Depositary for the cancellation of Receipts provided in Section 5.09 of the
Deposit Agreement and payment of all taxes and other governmental charges
payable in connection with such surrender and withdrawal of the Deposited
Securities, and subject to the terms and conditions of the Company's Articles of
Association, the Deposited Securities and the Deposit Agreement, and to any
other restriction applicable thereto, the Holder hereof is entitled to delivery,
to him or upon his order, of the Shares and any other Deposited Securities at
the time represented by this Receipt. Delivery of such Deposited Securities may
be made by the delivery of (a) certificates in the name of the Holder hereof or
as ordered by him or by the delivery of certificates properly endorsed or
accompanied by proper instruments of transfer to such Holder or as ordered by
him and (b) of any other securities, property and cash to which such Holder is
then entitled in respect of this Receipt. Such delivery will be made either at
the Corporate Trust Office of the Depositary or at such other place as may be
reasonably requested by the Holder, as provided in the Deposit Agreement;
provided that the forwarding of certificates for Shares or other Deposited
Securities for such delivery at the Corporate Trust Office of the Depositary or
at such other place shall be at the risk and expense of the Holder hereof.
3. TRANSFER OF RECEIPTS; COMBINATIONS AND SPLIT-UPS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of
the Depositary by the Holder hereof in person or by a duly authorized attorney,
upon surrender at the Depositary's designated transfer offices of this Receipt
properly endorsed or accompanied by a properly executed instrument of transfer
and duly stamped as required by applicable law. This Receipt may be split into
other such Receipts, or may be combined with other such Receipts into one
Receipt, evidencing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt,
the delivery of any distribution thereon, or withdrawal of any Deposited
Securities, the Depositary, the Company, the Custodian, or Foreign Registrar, if
applicable, may require (a) payment from the depositor of the Shares or the
presenter of the Receipt of a sum sufficient to pay for (i) any tax or other
governmental charge and any stock transfer or registration fees in respect of
Receipts, (ii) any tax or other governmental charge and any stock transfer or
registration fees in respect of registration of transfers of Shares or the
Deposited Securities upon any applicable register; and (iii) any fees of the
Depositary as provided in Section 5.09 of the Deposit Agreement; (b) the
production of proof satisfactory to it as to the identity and genuineness of any
signature and as to any other matter contemplated by Section 3.01 of the Deposit
Agreement; and (c) compliance with such reasonable regulations, if any, as the
Depositary and Company may establish consistent with the provisions of the
Deposit Agreement or this Receipt, including, without limitation, this Article
3.
The delivery of Receipts against deposits of Shares generally
or against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts, or the combination or split-up of Receipts, generally
may be suspended, during any period when the transfer books of the Depositary or
any register for Shares or other Deposited Securities are closed, or if any such
action is deemed necessary or advisable by the Depositary or the Company at any
time or from time to time because of any requirement of law or of any government
or governmental agency or commission, or under any provision of the Deposit
Agreement or this Receipt, or for any other reason. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, the surrender of outstanding
Receipts and withdrawal of Deposited Securities may be suspended only for (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a shareholders'
meeting, or the payment of dividends, (ii) the payment of fees, taxes and
similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, or (iv) any other reason that may at any time be specified
in paragraph I(A)(1) of the General Instructions to Form F-6, as from time to
time in effect, or any successor provision thereto. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under the
Deposit Agreement any Shares which are required to be registered under the
provisions of the Securities Act of 1933, unless a registration statement is in
effect as to such Shares.
4. LIABILITY OF HOLDER FOR TAXES.
If any tax or other governmental charge shall become payable
with respect to this Receipt or with respect to any Deposited Securities
represented by American Depositary Shares evidenced hereby, such tax or other
governmental charge shall be payable by the Holder hereof to the Depositary. The
Depositary may deduct the amount of any taxes owed from any payments to the
Holder hereof. The Depositary may restrict or refuse to effect any transfer of
this Receipt or any combination or split-up hereof or any withdrawal of
Deposited Securities represented by American Depositary Shares evidenced hereby
until such payment is made, and may withhold any dividends or other
distributions or may sell any part or all of the Deposited Securities
represented by the American 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 any taxes or expenses
arising out of such sale), the Holder hereof remaining liable for any
deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder and under the Deposit
Agreement shall be deemed thereby to represent and warrant that such Shares and
each certificate therefor are validly issued, fully paid, non-assessable, and
free of any pre-emptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that (i) Shares presented for deposit are not, and
the Receipts evidencing the American Depositary Shares representing such Shares
would not be, restricted securities within the meaning of Rule 144(a)(3) under
the Securities Act of 1933, and (ii) the deposit of such Shares and the sale of
Receipts evidencing American Depositary Shares representing such Shares by that
person are not restricted under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of Shares and the execution and
delivery of Receipts in respect thereof.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Holder or
Beneficial Owner hereof may be required by the Depositary from time to time (i)
to file with the Depositary or the Custodian such proof of citizenship or
residence, exchange control approval, payment of applicable taxes or other
governmental charges, legal or beneficial ownership of Receipts, Deposited
Securities or other securities, compliance with all applicable laws or
regulations or terms of the Deposit Agreement or such Receipt, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, or any other information the Depositary or the
Company may deem necessary or appropriate to evidence compliance with all
applicable laws and regulations, and (ii) to execute such certificates and to
make such representations and warranties, as the Depositary may deem necessary
or proper or as the Company may reasonably request by written request to the
Depositary. The 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 are made to the Depositary's satisfaction,
and if the Company so requests in writing to the Depositary, to the Company's
satisfaction. No Share shall be accepted for deposit unless accompanied by
evidence satisfactory to the Depositary that any necessary approval has been
granted by any governmental agency in the United Kingdom which is then
performing the function of regulation of currency exchange. The Depositary shall
provide the Company, in a timely manner, with copies of any such proofs,
certificates or other information upon written request by the Company, unless
such disclosure is prohibited.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company at least once every three months. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
The following charges shall be incurred by any party
depositing or withdrawing Shares of any Series or by any party surrendering
Receipts of a particular Series or to whom such Receipts are 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 of a particular Series or a distribution of Receipts
pursuant to Section 4.03), or by Holders, as 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 of any Series generally on
the Share register of the Company or Foreign Registrar for the corresponding
Series and applicable to transfers of Shares of any Series to or from the name
of the Depositary or its nominee or the Custodian or its nominee on the making
of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts of the corresponding Series pursuant to Section 2.03, 4.03 or 4.04 and
the surrender of Receipts of the corresponding Series pursuant to Section 2.05
or 6.02, (6) 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
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Holders and (7) any other charge payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares of
any Series or other Deposited Securities (which charge shall be assessed against
Holders as of the date or dates set by the Depositary in accordance with Section
4.06 and shall be payable at the sole discretion of the Depositary by billing
such Holders for such charge or by deducting such charge from one or more cash
dividends or other cash distributions).
8. PRE-RELEASE OF SHARES AND RECEIPTS.
The Depositary may issue Receipts against rights to receive
Shares from the Company (or any agent of the Company recording Share ownership).
No such issue of Receipts will be deemed a "Pre-Release" subject to the
restrictions of the following paragraph.
The Depositary may execute and deliver Receipts prior to the
receipt of Shares pursuant to Section 2.02 of the Deposit Agreement (each such
transaction is hereinafter referred to as a "Pre-Release"). The Depositary may,
subject to the provisions of Section 2.06 of the 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 Depositary knows that such Receipt has been
pre-released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation and agreement from the person to whom
Receipts or Shares are to be delivered that such person, or its customer,
beneficially owns the Shares or Receipts to be remitted, as the case may be, (b)
at all times fully collateralized with cash or other collateral the Depositary
deems appropriate, (c) terminable by the Depositary on five (5) business days'
notice or less, and (d) subject to such further indemnities and credit
regulation as the Depositary deems appropriate. The number of Shares not
deposited but represented by American Depositary Shares outstanding at any time
as a result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited hereunder, provided, however, that the Depositary reserves the
right to change or disregard such limit from time to time as it deems
appropriate, and may after consultation with the Company change such limit for
purposes of general application. The Depositary will also set Dollar limits with
respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Release on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Holder under this Receipt and the Deposit Agreement, the collateral
referred to in clause (b) above shall be held by the Depositary as security for
the performance of the Pre-Releasee's obligations to the Depositary in
connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination for a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder
of this Receipt by accepting or holding the same consents and agrees, that title
to this Receipt when properly endorsed or accompanied by a properly executed
instrument of transfer and transferred in accordance with the terms of the
Deposit Agreement, including, without limitation, Section 2.04 and 2.07, is
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary and the Company,
notwithstanding any notice to the contrary, may treat the person in whose name
this Receipt is registered on the books of the Depositary as the absolute owner
hereof for all purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose, unless this Receipt
shall have been executed by the Depositary by the manual or facsimile signature
of a duly authorized signatory of the Depositary, provided, however, that such
signature may be a facsimile if a Registrar for this Receipt shall have been
appointed and the Receipt is countersigned by the manual signature of a duly
authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to periodic reporting requirements of
the Securities Exchange Act of 1934 and, accordingly, files certain reports with
the Securities and Exchange Commission (hereinafter called the "Commission").
Such reports and documents are available for inspection and copying by Holders
at the public reference facilities maintained by the Commission located at 000
Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Holders
of this Receipt at the Depositary's Corporate Trust Office any notices, reports
and other communications received from the Company which may be (a) received by
the Depositary, the Custodian or their respective nominees as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company.
The Company will arrange for the translation into English, if
not already in English, to the extent required pursuant to any rules or
regulations of the Commission, and the prompt transmittal by the Company to the
Depositary and the Custodian, of such notices and any other reports and
communications, including any proxy soliciting materials, which are made
generally available by the Company to holders of its Shares or other Deposited
Securities. If requested in writing by the Company, the Depositary will arrange
for the mailing, at the Company's expense, of copies of such notices, reports
and communication that are made generally available by the Company to holders of
its Shares or other Deposited Securities and/or, at the written request of the
Company and at the Company's expense, make such notices, reports and other
communications available to all Holders on a basis similar to that for Holders
of Shares or other Deposited Securities, or on such other basis as the Company
may advise the Depositary is required or as the Depositary may be required by
any applicable law or regulation. The Company will timely provide the Depositary
with the quantity of such notices, reports and communications, including any
proxy soliciting materials, as requested by the Depositary from time to time, in
order for the Depositary to effect such mailings. The Depositary will, at the
expense of the Company, make such copy and such notices, reports and
communications available for inspection by Holders at the Depositary's Corporate
Trust Office, at the office of the Custodian and at any other designated
transfer offices.
The Depositary will keep at its Corporate Trust Office a book
or books for the transfer and registration of Receipts, which at all reasonable
times shall be open for inspection by the Holders hereof; provided that such
inspection shall not be for the purpose of communicating with Holders hereof in
the interest of a business or object other than the business of the Company or a
matter related to the Deposit Agreement or this Receipt.
The Depositary may close the books, at any time from time to
time, when reasonably deemed expedient by it in connection with the performance
of its duties under the Deposit Agreement or at the request of the Company.
12. DIVIDENDS AND DISBURSEMENTS.
Whenever the Depositary or the Custodian receives any cash
dividend or other cash distribution on any Deposited Securities, the Depositary
will, if at the time of receipt thereof any amounts received in a foreign
currency can in the judgment of the Depositary be converted on a reasonable
basis into Dollars transferable to the United States, and subject to the Deposit
Agreement, as promptly as practicable convert or cause to be converted such
dividend or distribution into Dollars and will promptly distribute the Dollars
thereby received (net of the fees, expenses and charges of the Depositary as
provided in Section 5.09 of the Deposit Agreement) to each Holder of this
Receipt on the record date fixed pursuant to Section 4.06 of the Deposit
Agreement in proportion to the number of American Depositary Shares held by each
such Holder, respectively; provided, however, that in the event that any of the
deposited Shares are not entitled, by reason of their dates of issuance, or
otherwise, to receive the full amount of such cash dividend or distribution, the
Depositary will make appropriate adjustments in the amounts distributed to the
Holders of the Receipts issued in respect of such Shares; and provided, further,
that in the event that the Company or the Depositary is required to withhold and
does withhold from such cash dividend or other cash distribution in respect of
any Deposited Securities an amount on account of taxes, the amount distributed
on the Receipts issued in respect of such Deposited Securities shall be reduced
accordingly. The Depositary shall distribute only such amounts, however, as can
be distributed without attributing to any Holder of a Receipt a fraction of one
cent. Any such fractional amounts shall be rounded to the nearest whole cent and
so distributed to Holders entitled thereto. The Company or its agent will remit
to the appropriate governmental agency in the United Kingdom all amounts
withheld and owing to such agency. The 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 Depositary or the Company or its agent may file
any such reports necessary to obtain benefits under the applicable tax treaties
for the Holders of Receipts.
Whenever the Depositary receives any distribution upon the
Deposited Securities other than cash, Shares or rights pursuant to Section 4.01,
4.03 or 4.04 of the Deposit Agreement, the Depositary will cause such amount of
the securities or property received by it to be distributed as promptly as
practicable to the Holders of Receipts on the record date fixed pursuant to
Section 4.06 of the Deposit Agreement, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by each of them,
respectively in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made among the Holders
of Receipts entitled thereto in proportion to the number of American Depositary
Shares held by each of them or if for any other reason (including, but not
limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Holders of this Receipt) the Depositary deems such distribution not to be
lawful or feasible, the Depositary may after consultation with the Company to
the extent practicable adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including, but not limited to,
the sale, at public or private sale, of the securities or property thus
received, or any part thereof, at such place or places and upon such terms as it
deems proper and the net proceeds of any such sale (net of the fees, expenses
and charges of the Depositary as provided in Article 7 hereof and Section 5.09
of the Deposit Agreement) shall be distributed by the Depositary to the Holders
of Receipts entitled thereto as in the case of a distribution received in cash,
all in the manner and subject to the conditions set forth in the Deposit
Agreement.
If any distribution consists of a dividend in, or free
distribution of Shares, the Depositary may, and shall, if the Company so
requests, distribute to the Holders of Receipts on the record date fixed
pursuant to Section 4.06 of the Deposit Agreement, in proportion to the number
of American Depositary Shares held by each of them, additional Receipts in the
same form or an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 of the Deposit Agreement and the payment of the fees, expenses and
charges of the Depositary as provided in Article 7 hereof and Section 5.09 of
the Deposit Agreement. In lieu of delivering Receipts for fractional American
Depositary Shares, the Depositary will sell the amount of Shares represented by,
the aggregate of such fractions, at public or private sale, at such place or
places and upon such terms as it may deem proper, and distribute the net
proceeds of any such sale in accordance with Section 4.01 of the Deposit
Agreement. If additional Receipts are not so distributed (except as pursuant to
the preceding sentence), each American Depositary Share shall thenceforth also
represent its proportionate interest in the additional Shares so distributed
upon such Deposited Securities.
In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charge which the Depositary is
obligated to withhold, the Depositary may, by public or private sale, dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay any such taxes or charges and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Holders of this Receipt entitled thereto in proportion to the
number of American Depositary Shares held by them, respectively.
The Company or its agent will remit to the appropriate
governmental agency in the United Kingdom all amounts withheld and owing to such
agency. The 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 agencies, and the Depositary or the
Company or its agent may file any such reports necessary to obtain benefits
under the applicable tax treaties for the Holders of Receipts.
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 Depositary shall have
discretion as to the procedure to be followed in making such rights available to
any Holders or in disposing of such rights on behalf of any Holders and making
the net proceeds available to such Holders in accordance with the procedures for
distributing cash provided for in Section 4.01 of the Deposit Agreement, or, if
by the terms of such rights offering or for any other reason it would not be
lawful or feasible for the Depositary either to make such rights available to
any Holders or to dispose of such rights and make the net proceeds available to
such Holders, then the Depositary shall allow the rights to lapse. If at the
time of the offering of any rights the Depositary determines in its discretion
that it is lawful and feasible to make such rights available to all or certain
Holders but not to other Holders, the Depositary may, and shall 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 American 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 generally, if the Depositary determines in its discretion that it is
lawful and feasible to make such rights available to certain Holders, the
Depositary will, subject to applicable law, make such rights available to such
Holders upon written notice from the Company to the Depositary 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 and the
Depositary have determined are reasonably required under applicable law.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Holders, then upon instruction from any
such Holder pursuant to such warrants or other instruments to the Depositary
from such Holder to exercise such rights, upon payment by such Holder to the
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 Depositary and any other charges as set
forth in such warrants or other instruments, the 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 Depositary on behalf of
such Holder. As agent for such Holder, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and
shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver
Receipts to such Holder. In the case of a distribution pursuant to this
paragraph, such Receipts shall bear a legend 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 Depositary determines in its discretion that it is not
lawful or feasible to make such rights available to all or certain Holders, it
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the 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, expenses and charges of the Depositary
as provided in Section 5.09 of the Deposit Agreement and all taxes and other
governmental charges payable in connection with such rights, and subject to the
terms and conditions of the Deposit Agreement) for the account of such Holders
otherwise entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any distinctions among such
Holders on account of exchange restrictions or the date of delivery of any
Receipt or otherwise.
The Depositary will not offer rights to Holders unless it has
received from the Company evidence, as provided in Section 5.07 of the Deposit
Agreement, to the effect that (i) a registration statement under the Securities
Act covering such offering is in effect or (ii) such offering does not require
registration under the Securities Act. If a Holder of Receipts requests the
distribution of warrants or other instruments, notwithstanding that there has
been no registration under the Securities Act, the Depositary will not effect
such distribution unless it has received an opinion from recognized counsel in
the United States for the Company satisfactory to the Depositary upon which the
Depositary may rely that such distribution to such Holder is exempt from such
registration.
The Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Holders in general or any Holder in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency,
received by way of dividends or other distributions or in the form of the net
proceeds from the sale of securities, property or rights, and if, at the time,
the foreign currency so received can in the judgment of the Depositary be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall promptly 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 (less any reasonable and
customary expenses incurred by the Depositary in the conversion of such foreign
currency) shall be promptly distributed to the Holders entitled thereto or, if
the Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among 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 Depositary as provided in
Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with
the approval or license of any government or agency thereof, the Depositary
shall file such application for approval or license, if any, as it may deem
desirable.
If at any time the Depositary shall determine that in its
judgment any foreign currency received by the Depositary is not convertible into
Dollars transferable to the United States, or if any approval or license of any
government or agency thereof which is required for such conversion is denied or
in the opinion of the Depositary cannot be obtained, or if any such approval or
license is not obtained within a reasonable period as determined by the
Depositary, the Depositary may in its discretion, but subject to applicable laws
and regulations, either (i) distribute such foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) to the Holders
of Receipts entitled to receive the same, or (ii) hold such foreign currency for
the respective accounts of such persons, uninvested and without liability for
interest.
If any such conversion of foreign currency, in whole or in
part, can be effected as aforesaid for distribution to some but not all of the
Holders of Receipts entitled thereto, the Depositary may in its discretion make
such conversion and distribution in Dollars, to the extent such currency shall
be convertible as aforesaid, to the Holders of Receipts entitled thereto and,
with respect to the balance of such foreign currency, shall in its discretion,
but subject to any applicable law and regulations, either (i) distribute or make
available for distribution such balance to the persons who were Holders of
Receipts entitled thereto with respect to whom such conversion could not then be
effected, or (ii) hold such balance for the respective accounts of such persons,
uninvested and without liability for interest.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued with respect to the Deposited Securities, or whenever for
any reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date (a) for the determination of
the Holders of Receipts who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii) entitled
to give instructions for the exercise of voting rights at any such meeting, or
(b) on or after which each American Depositary Share will represent the changed
number of Shares, subject to the provisions of the Deposit Agreement. Such
record date will, to the extent practicable, be the same record date as any
corresponding record date set by the Company for such purpose or, if different,
fixed after consultation with the Company.
16. VOTING OF DEPOSITED SECURITIES.
(a) Upon receipt of notice of any meeting of holders of Shares
or other Deposited Securities, if requested in writing by the Company, the
Depositary shall, as soon as practicable thereafter, mail to the Holders of
Receipts a notice, the form of which notice shall be in the sole discretion of
the Depositary, which shall contain (a) such information as is contained in such
notice of meeting, (b) a statement that such Holders of Receipts at the close
business on a specified record date will be entitled, subject to any applicable
provision of English law or of the Articles of Association of the Company, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares or other Deposited Securities represented by
their respective American Depositary Shares, and (c) a brief statement as to the
manner in which such instructions may be given. Upon the written request of a
Holder of a Receipt on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor,
in so far as practicable to vote or cause to be voted the amount of Shares or
other Deposited Securities represented by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities except in accordance with such instructions.
There can be no assurance that Holders generally or any Holder
in particular will receive the notice described in the preceding paragraph
sufficiently to ensure that the Holder can instruct the Depositary to vote the
Shares or Deposited Securities in accordance with the provisions set forth in
the preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES, RECLASSIFICATION,
RECAPITALIZATIONS, ETC.
In circumstances where the provisions of Section 4.03 of the
Deposit Agreement do not apply, upon any change in par or nominal value,
sub-division, consolidation, or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger, amalgamation
or consolidation, or sale of assets affecting the Company or to which it is a
party, any securities which shall be received by the Depositary or the Custodian
in exchange for or in conversion of or in respect of Deposited Securities shall
be treated as new Deposited Securities under the Deposit Agreement, and each
American Depositary Share will thenceforth represent, in addition to the
existing Deposited Securities, if any, the right to receive a proportional
interest in the new deposited securities; Receipts then outstanding shall
thenceforth represent, in addition to the existing Deposited Securities, if any,
the new Deposited Securities so received in exchange for or on conversion of or
in respect of Deposited Securities, unless additional or new Receipts are
delivered pursuant to the following sentence. In any such case, the Depositary
may, and shall if the Company shall so request, execute and deliver additional
Receipts as in the case of a dividend in Shares, or may 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 DEPOSITARY.
Neither the Depositary, the Custodian nor the Company 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 or regulation of the United
States of America, any state thereof, the United Kingdom or of any other
country, or of any other action of any governmental or regulatory authority of
the United States, the United Kingdom, or any other country or of any stock
exchange, or by reason of any provision, present or future, of the Articles of
Association of the Company, or by reason of any act of God or war or terrorism
or other circumstances beyond its control, the Depositary, the Custodian or the
Company, as the case may be, shall be delayed in, prevented or forbidden from or
subjected to any civil or criminal penalty on account of doing or performing any
act or thing which by the terms of the Deposit Agreement it is provided shall be
done or performed; nor shall the Depositary, the Custodian or the Company incur
any liability to any Holder or Beneficial Owner of a Receipt by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which, by the terms of the 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 Deposit Agreement. Where, by the terms of a
distribution pursuant to Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or
an offering or distribution pursuant to Section 4.04 of the Deposit Agreement,
such distribution or offering may not be made available to Holders of Receipts,
and the Depositary may not dispose of such distribution or offering, on behalf
of such Holder and make the net proceeds available to such Holder, then the
Depositary shall not make such distribution or offering and shall allow any
rights, if applicable, to lapse. The Depositary shall not perform any action
required or permitted under the Deposit Agreement which shall be prohibited by
the rules of any securities exchange on which the American Depositary Shares are
listed for trading.
Neither the Depositary, the Custodian nor the Company assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Holders or Beneficial Owners of this Receipt, other than that each of them
agrees to perform its obligations and duties specifically set forth in the
Deposit Agreement without negligence or bad faith. The Depositary shall not be
subject to any liability with respect to the validity or worth of the Deposited
Securities. Neither the 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 against all expenses and liabilities shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary. Neither the Depositary, the Custodian, nor the Company shall be
liable for any action or non-action by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder or Beneficial Owner of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary, the Custodian and the Company may rely and shall be protected in
acting 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. Neither the Depositary nor the Custodian shall be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner or effect of any such vote made either with or without
request, or for not exercising any right to vote, as long as any such action or
non-action is in good faith. The Depositary shall not be liable for any acts or
omissions made by a successor depositary whether in connection with a previous
act or omission of the Depositary or in connection with a matter arising wholly
after the removal or resignation of the Depositary, provided that in connection
with the issue out of which such potential liability arises, the Depositary
performed its obligations without negligence or bad faith while it acted as
Depositary.
No disclaimer of liability under the Securities Act is
intended by any provisions of the Deposit Agreement.
The Depositary may own and deal in any class of securities of
the Company and its affiliates and in Receipts.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY; APPOINTMENT OF SUBSTITUTE OR CUSTODIANS.
The Depositary may at any time resign as Depositary hereunder
by written notice of its election so to do delivered to the Company and the
Custodian, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by 90 days'
prior written notice of such removal delivered to the Depositary and the
Custodian, such removal to become effective upon the later of the (i) 90th day
after delivery of the notice to the Depositary or (ii) appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. Whenever the Depositary in its discretion determines that it
is in the best interest of the Holders of Receipts to do so, it may appoint a
substitute or additional custodian or custodians, which shall thereafter be one
of the Custodians under the Deposit Agreement.
20. AMENDMENT.
The form of this Receipt and any provisions of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose or have the effect of increasing any
fees or charges payable by the Holders of Receipts (other than taxes or other
governmental charges, registration fees and cable, telex or facsimile
transmission and delivery expenses), or which shall otherwise prejudice any
substantial existing right of Holders of Receipts, shall not become effective as
to outstanding Receipts until the expiration of thirty (30) days after notice of
such amendment shall have been given to the Holders of outstanding Receipts.
Every Holder of an outstanding Receipt at the time any such amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the 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.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the
Company terminate the Deposit Agreement by mailing notice of such termination to
the Holders hereof at least ninety (90) days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Holders,
if at any time ninety (90) days shall have expired after the 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 the Deposit Agreement. On and after the date of termination, the
Holder of a Receipt will, upon (a) surrender of such Receipt at the Corporate
Trust Office of the Depositary, (b) payment of the fee of the Depositary for the
surrender of Receipts referred to in Section 5.09 of the Deposit Agreement, and
(c) payment of any applicable taxes or other governmental charges, be entitled
to delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Holders thereof, and shall not give
any further notices or perform any further acts under the Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property 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 Depositary (without
liability for interest and after deducting, in each case, the fee of the
Depositary for the surrender of such Receipt, any expenses for the account of
the Holder of such Receipt in accordance with the terms and conditions of the
Deposit Agreement and any applicable taxes or other governmental charges). At
any time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held under the Deposit
Agreement and may thereafter hold uninvested and without liability for interest
the net proceeds of any such sale, together with any other cash then held by it
thereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Holders of Receipts which have not theretofore been surrendered,
such Holders thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement as to the Receipts, and the
Shares, Deposited Securities and American Depositary Shares, except to account
for such net proceeds and other cash (after deducting, in each case, the fee of
the Depositary for the surrender of a Receipt, any expenses for the account of
the Holder of such Receipt in accordance with the terms and conditions of the
Deposit Agreement, and any applicable taxes or other governmental charges). Upon
the termination of the Deposit Agreement, the Depositary and the Company shall
be discharged from all obligations under the Deposit Agreement as to the
Receipts, and the Shares, Deposited Securities and American Depositary Shares,
except for their respective obligations under Section 5.08 of the Deposit
Agreement and the Company's obligations to the Depositary under Section 5.09 of
the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this
Receipt to the contrary, the Company and the Depositary each agrees that it will
not exercise any rights it has under the Deposit Agreement to permit the
withdrawal or delivery of Deposited Securities in a manner which would violate
the U.S. securities laws, including, but not limited to, Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
23. REDEMPTION.
If the Depositary receives a notice from or on behalf of the
Company that Shares of any Series are called for redemption, the Depositary
shall send to the Holders:
(i) a copy of that notice; and
(ii) a notice calling for the surrender of Receipts evidencing
a number of American Depositary Shares representing the number of deposited
Shares that the Company called for redemption.
On or prior to the date set by the Company for the redemption,
the Depositary shall deliver for redemption a number of deposited Shares
represented by the American Depositary Shares evidenced by the Receipts that
have been surrendered to the Depositary prior to that date pursuant to the
Depositary's call for surrender. Thereafter, the Depositary shall deliver for
redemption deposited Shares that the Company called for redemption but that the
Depositary has not already surrendered hereunder, such delivery being without
unreasonable delay after Receipts evidencing a number of American Depositary
Shares representing those Shares are surrendered to the Depositary pursuant to
the Depositary's call for surrender, provided that the Company shall be under no
obligation hereunder to redeem any such further Shares so delivered.
When the Depositary receives entitlements in respect of
deposited Shares delivered by the Depositary for redemption, the Depositary
shall cancel surrendered Receipts evidencing the corresponding number of
American Depositary Shares and distribute those entitlements to the Holders
entitled to them in accordance with applicable provisions of this Deposit
Agreement, after deduction or upon payment of the fees and expenses of the
Depositary applicable in the case of surrender of Receipts for the purpose of
withdrawal of Deposited Securities. If the Depositary will distribute
entitlements in respect of less than all the American Depositary Shares
evidenced by a Receipt, the Depositary shall execute and deliver to the Holder
of that Receipt a Receipt evidencing American Depositary Shares in respect of
which it is not distributing entitlements.
The Company is not entitled to exercise any right to redeem
deposited Shares that form part of deposited Units of Shares unless it redeems
whole deposited Units of Shares.
If the Depositary receives a notice of redemption of less than
all of the deposited Shares of any Series, the Depositary may determine which
Receipts to call for surrender or what number of American Depositary Shares
evidenced by any Receipt to call for surrender in any manner that it reasonably
determines to be fair and practical.
EXHIBIT B
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share of any Series shall
represent the right to receive
one (or a fraction or multiple
of one) Share of such Series)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR SHARE UNITS
CONSISTING OF
DOLLAR-DENOMINATED PREFERENCE SHARES OF
SERIES____________*
(NOMINAL VALUE $0.01)
HSBC HOLDINGS PLC
(A COMPANY INCORPORATED UNDER THE LAWS OF ENGLAND)
THE BANK OF NEW YORK, as depositary (hereinafter called the
"Depositary"), hereby certifies that
__________________________________________________________, or registered
assigns IS THE OWNER OF _____________________________________________.
AMERICAN DEPOSITARY SHARES
representing deposited Dollar-denominated Preference Shares of Series________*,
nominal value $0.01 each (herein called "Shares") of HSBC Holdings plc, a
company incorporated under the laws of England (herein called the "Company"). At
the date hereof, each American Depositary Share of any Series shall represent
the right to receive one (or a fraction or multiple of one) Share deposited or
subject to deposit under the Deposit Agreement (as such is hereinafter defined)
at the London office of The Bank of New York, (herein called the "Custodian").
The Depositary's Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, X.X. 00000. The Depositary's principal executive office is located at Xxx
Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
---------------
* Insert Series designation(s) and any additional designation of the relevant
Series of Dollar-denominated Preference Shares.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000.
1. THE DEPOSIT AGREEMENT.
This American 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 o 2002 (herein called the
"Depositary Agreement"), by and among the Company, the Depositary, and 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 Deposit Agreement sets forth the
rights of Holders and Beneficial Owners of the Receipts and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of such shares and held thereunder (such Shares, securities, property,
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Depositary's Corporate Trust Office in New York
City 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 Deposit Agreement and are qualified
by and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms defined in the Deposit Agreement and
not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender of this Receipt at the Depositary's Corporate
Trust Office, or at such other office as the Depositary may designate, for the
purpose of withdrawal of the Deposited Securities represented by the American
Depositary Shares evidenced hereby, and upon payment of the fees and expenses of
the Depositary for the cancellation of Receipts provided in Section 5.09 of the
Deposit Agreement and payment of and subject to the terms and conditions of the
Company's Articles of Association, the Deposited Securities and the Deposit
Agreement, and to any other restriction applicable thereto, the Holder hereof is
entitled to delivery, to him or upon his order, of the Shares and any other
Deposited Securities at the time represented by this Receipt. Delivery of such
Deposited Securities may be made by the delivery of (a) certificates in the name
of the Holder hereof or as ordered by him or, by the delivery of certificates
properly endorsed or accompanied by proper instruments of transfer to such
Holder or as ordered by him and (b) of any other securities, property and cash
to which such Holder is then entitled in respect of this Receipt. Such delivery
will be made either at the Corporate Trust Office of the Depositary or at such
other place as may be reasonably requested by the Holder, as provided in the
Deposit Agreement; provided that the forwarding of certificates for Shares or
other Deposited Securities for such delivery at the Corporate Trust Office of
the Depositary or at such other place shall be at the risk and expense of the
Holder hereof.
3. TRANSFER OF RECEIPTS; COMBINATIONS AND SPLIT-UPS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of
the Depositary by the Holder hereof in person or by a duly authorized attorney,
upon surrender at the Depositary's designated transfer offices of this Receipt
of a particular Series properly endorsed or accompanied by a properly executed
instrument of transfer and duly stamped as required by applicable law. This
Receipt of such Series may be split into other such Receipts, or may be combined
with other such Receipts into one Receipt of such Series, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts of
such Series surrendered.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt,
the delivery of any distribution thereon, or withdrawal of any Deposited
Securities, the Depositary, the Company, the Custodian, or Foreign Registrar, if
applicable, may require (a) payment from the depositor of the Share or the
presenter of the Receipt of a sum sufficient to pay (i) any tax or other
governmental charge and any stock transfer or registration fees in respect of
Receipts or with respect to the Receipts of such other Series as may be printed
on the same certificate, (ii) any tax or other governmental charge and any stock
transfer or registration fees in respect of registration of transfers of Shares
or the Deposited Securities upon any applicable register; and (iii) any fees of
the Depositary as provided in Section 5.09 of the Deposit Agreement; (b) the
production of proof satisfactory to it as to the identity and genuineness of any
signature and as to any other matter contemplated by Section 3.01 of the Deposit
Agreement; and (c) compliance with such reasonable regulations as the Depositary
and Company may establish consistent with the provisions of the Deposit
Agreement or this Receipt, including, without limitation, this Article 3.
The delivery of Receipts of a particular Series against
deposits of Shares of the corresponding Series generally or against deposits of
particular Shares of the corresponding Series may be suspended, or the transfer
of Receipts of a particular Series in particular instances may be refused, or
the registration of transfer of outstanding Receipt of a particular Series, or
the combination or split-up of Receipts of a particular Series, generally may be
suspended, during any period when the transfer books of the Depositary or any
register for such Shares or Series or other Deposited Securities are closed, or
if any such action is deemed necessary or advisable by the Depositary or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental agency or commission, or under any provision of
the Deposit Agreement or this Receipt, or for any other reason. Notwithstanding
any other provision of the Deposit Agreement or this Receipt, the surrender of
outstanding Receipts and withdrawal of Deposited Securities may be suspended
only for (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with voting at
a shareholders' meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, or (iv) any other reason that may at any time be specified
in paragraph I(A)(l) of the General Instructions to Form F-6, as from time to
time in effect, or any successor provision thereto. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under the
Deposit Agreement any Shares of a particular Series which are required to be
registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares.
4. LIABILITY OF HOLDER FOR TAXES.
If any tax or other governmental charge shall become payable
with respect to this Receipt or with respect to any Deposited Securities
represented by American Depositary Shares of any other Series evidenced hereby,
such tax or other governmental charge shall be payable by the Holder hereof to
the Depositary. The Depositary may deduct the amount of any taxes owed from any
payments to the Holder hereof. The Depositary may restrict or refuse to effect
any transfer of this Receipt or any combination or split-up thereof or any
withdrawal of Deposited Securities represented by American Depositary Shares
evidenced hereby until such payment is made, and may withhold any dividends or
other distributions or may sell any part or all of the Deposited Securities
represented by the American 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 any taxes or expenses
arising out of such sale), the Holder hereof remaining liable for any
deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder and under the Deposit
Agreement shall be deemed thereby to represent and warrant that such Shares and
each certificate therefor are validly issued, fully paid, non-assessable, and
free of any pre-emptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that (i) Shares presented for deposit are not, and
the Receipts evidencing the American Depositary Shares representing such Shares
would not be, restricted securities within the meaning of Rule 144(a)(3) under
the Securities Act of 1933, and (ii) the deposit of such Shares and the sale of
Receipts evidencing American Depositary Shares representing such Shares by that
person are not otherwise restricted under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and the
execution and delivery of Receipts in respect thereof.
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 by the Depositary from time to
time (i) to file with the Depositary or the Custodian such proof of citizenship
or residence, exchange control approval, payment of applicable taxes or other
governmental charges, legal or beneficial ownership of Receipts, Deposited
Securities or other securities, compliance with all applicable laws or
regulations or terms of the Deposit Agreement or such Receipt, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, or any other information the Depositary or the
Company may deem necessary or appropriate to evidence compliance with all
applicable laws and regulations, and (ii) to execute such certificates and to
make such representations and warranties, as the Depositary may deem necessary
or proper or as the Company may reasonably request by written request to the
Depositary. The 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 are made to the Depositary's satisfaction,
and if the Company so requests in writing to the Depositary, to the Company's
satisfaction. No Share shall be accepted for deposit unless accompanied by
evidence satisfactory to the Depositary that any necessary approval has been
granted by any governmental agency in the United Kingdom which is then
performing the function of regulation of currency exchange. The Depositary shall
provide the Company, in a timely manner, with copies of any such proofs,
certificates or other information upon written request by the Company, unless
such disclosure is prohibited.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company at least once every three months. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
The following charges shall be incurred by any party
depositing or withdrawing Shares of any Series or by any party surrendering
Receipts of a particular Series or to whom such Receipts are 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 of a particular Series or a distribution of Receipts
pursuant to Section 4.03), or by Holders, as 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 of any Series generally on
the Share register of the Company or Foreign Registrar for the corresponding
Series and applicable to transfers of Shares of any Series to or from the name
of the Depositary or its nominee or the Custodian or its nominee on the making
of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts of the corresponding Series pursuant to Section 2.03, 4.03 or 4.04 and
the surrender of Receipts of the corresponding Series pursuant to Section 2.05
or 6.02, (6) 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
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Holders and (7) any other charge payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares of
any Series or other Deposited Securities (which charge shall be assessed against
Holders as of the date or dates set by the Depositary in accordance with Section
4.06 and shall be payable at the sole discretion of the Depositary by billing
such Holders for such charge or by deducting such charge from one or more cash
dividends or other cash distributions).
8. PRE-RELEASE OF SHARES AND RECEIPTS.
The Depositary may issue Receipts of a Series against rights
to receive Shares of a corresponding Series from the Company (or any agent of
the Company recording Share ownership). No such issue of Receipts will be deemed
a "Pre-Release" subject to the restrictions of the following paragraph.
The Depositary may execute and deliver Receipts prior to the
receipt of Shares pursuant to Section 2.02 of the Deposit Agreement (each such
transaction is hereinafter referred to as a "Pre-Release"). The Depositary may,
subject to the provisions of Section 2.06 of the Deposit Agreement, deliver
Shares of a Series upon the receipt and cancellation of Receipts of the
corresponding which have been pre-released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been pre-released. The Depositary may receive Receipts of a Series
in lieu of Shares of the corresponding Series in satisfaction of a Pre-Release.
Each Pre-Release will be (a) preceded or accompanied by a written representation
and agreement from the person to whom Receipts or Shares are to be delivered
that such person, or its customer, beneficially owns the Shares or Receipts to
be remitted, as the case may be, (b) at all times fully collateralized with cash
or other collateral the Depositary deems appropriate, (c) terminable by the
Depositary on five (5) business days notice or less, and (d) subject to such
further indemnities and credit regulation as the Depositary deems appropriate.
The number of Shares of a Series not deposited but represented by American
Depositary Shares outstanding at any time as a result of Pre-Releases will not
normally exceed thirty percent (30%) of the Shares of such Series deposited
hereunder, provided, however, that the Depositary reserves the right to change
or disregard such limit from time to time as it deems appropriate and may change
such limit for purposes of general application. The Depositary will also set
Dollar limits with respect to Pre-Release transactions to be entered into
hereunder with any particular Pre-Release on a case-by-case basis as the
Depositary deems appropriate. For purposes of enabling the Depositary to fulfill
its obligations to the Holder under this Receipt and the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination for a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder
of this Receipt by accepting or holding the same consents and agrees, that title
to this Receipt when properly endorsed or accompanied by a properly executed
instrument of transfer and transferred in accordance with the terms of the
Deposit Agreement, including, without limitation, Section 2.04 and 2.07, is
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary and the Company,
notwithstanding any notice to the contrary, may treat the person in whose name
this Receipt is registered on the books of the Depositary as the absolute owner
hereof for all purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose, unless this Receipt
of any Series shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary, provided,
however, that such signature may be a facsimile if a Registrar for this Receipt
shall have been appointed and such Receipts are countersigned by the manual
signature of a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to periodic reporting requirements of
the Securities Exchange Act of 1934 and, accordingly, files certain reports with
the Securities and Exchange Commission (hereinafter called the "Commission").
Such reports and documents are available for inspection and copying by Holders
at the public reference facilities maintained by the Commission located at 000
Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Holders
of Receipts of any Series at the Depositary's Corporate Trust Office any
notices, reports and other communications received from the Company which may be
(a) received by the Depositary, the Custodian or their respective nominees as
the holder of the Deposited Securities of the corresponding Series and (b)
generally available to the holders of such Deposited Securities by the Company.
The Company will arrange for the translation into English, if
not already in English, to the extent required pursuant to any rules or
regulations of the Commission, and the prompt transmittal by the Company to the
Depositary and the Custodian, of such notices and any other reports and
communications, including any proxy soliciting materials, which are made
generally available by the Company to holders of its Shares or other Deposited
Securities. If requested in writing by the Company, the Depositary will arrange
for the mailing, at the Company's expense, of copies of such notices reports and
communication that are made generally available by the Company to holders of its
Shares or other Deposited Securities and/or, at the written request of the
Company and at the Company's expense, make such notices, reports and other
communications available to all Holders on a basis similar to that for Holders
of Shares or other Deposited Securities, or on such other basis as the Company
may advise the Depositary is required or as the Depositary may be required by
any applicable law or regulation. The Company will timely provide the Depositary
with the quantity of such notices, reports and communications, including any
proxy soliciting materials, as requested by the Depositary from time to time, in
order for the Depositary to effect such mailings. The Depositary will, at the
expense of the Company, make such copy and such notices, reports and
communications available for inspection by Holders at the Depositary's Corporate
Trust Office, at the office of the Custodian and at any other designated
transfer offices.
The Depositary will keep at its Corporate Trust Office a book
or books for the transfer and registration of Receipts for each Series, which at
all reasonable times shall be open for inspection by the Holders of such
Receipts; provided that such inspection shall not be for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or a matter related to the Deposit
Agreement or the Receipts of such Series.
The Depositary may close the books, at any time from time to
time, when reasonably deemed expedient by it in connection with the performance
of its duties under the Deposit Agreement or at the request of the Company.
12. DIVIDENDS AND DISBURSEMENTS.
Whenever the Depositary or the Custodian receives any cash
dividend or other cash distribution on any Deposited Securities, the Depositary
will, if at the time of receipt thereof any amounts received in a foreign
currency can in the judgment of the Depositary be converted on a reasonable
basis into Dollars transferable to the United States, and subject to the Deposit
Agreement, as promptly as practicable convert or cause to be converted such
dividend or distribution into Dollars and will promptly distribute the Dollars
thereby received (net of the fees, expenses and charges of the Depositary as
provided in Section 5.09 of the Deposit Agreement) to each Holder of this
Receipt on the record date fixed pursuant to Section 4.06 of the Deposit
Agreement in proportion to the number of American Depositary Shares held by each
such Holder, respectively; provided, however, that in the event that any of the
deposited Shares are not entitled, by reason of their dates of issuance, or
otherwise, to receive the full amount of such cash dividend or distribution, the
Depositary will make appropriate adjustments in the amounts distributed to the
Holders of the Receipts issued in respect of such Shares; and provided, further,
that in the event that the Company or the Depositary is required to withhold and
does withhold from such cash dividend or other cash distribution in respect of
any Deposited Securities an amount on account of taxes, the amount distributed
on the Receipts issued in respect of such Deposited Securities shall be reduced
accordingly. The Depositary shall distribute only such amounts, however, as can
be distributed without attributing to any Holder of a Receipt a fraction of one
cent. Any such fractional amounts shall be rounded to the nearest whole cent and
so distributed to Holders entitled thereto. The Company or its agent will remit
to the appropriate governmental agency in the United Kingdom all amounts
withheld and owing to such agency. The 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 Depositary or the Company or its agent may file
any such reports necessary to obtain benefits under the applicable tax treaties
for the Holders of Receipts.
Whenever the Depositary receives any distribution upon the
Deposited Securities other than cash, Shares of the corresponding Series or
rights pursuant to Section 4.01, 4.03 or 4.04 of the Deposit Agreement of a
particular Series, the Depositary will cause such amount of the securities or
property received by it to be distributed to the Holders of Receipts of such
Series on the record date fixed pursuant to Section 4.06 of the Deposit
Agreement, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by each of them, respectively in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution; provided, however, that if in the opinion of the Depositary
such distribution cannot be made among the Holders of such Receipts entitled
thereto in proportion to the number of American Depositary Shares of the
corresponding Series held by each of them or if for any other reason (including,
but not limited to, any requirement that the Company or the Depositary withhold
an amount on account of taxes or other governmental charges or that such
securities must be registered under the Securities Act of 1933 in order to be
distributed to Holders of this Receipt) the Depositary deems such distribution
not to be lawful or feasible, the Depositary may after consultation with the
Company to the extent practicable adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including, but not
limited to, the sale, at public or private sale, of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it deems proper and the net proceeds of any such sale (net of the fees,
expenses and charges of the Depositary as provided in Article 7 hereof and
Section 5.09 of the Deposit Agreement) shall be distributed by the Depositary to
the Holders of Receipts entitled thereto as in the case of a distribution
received in cash, all in the manner and subject to the conditions set forth in
the Deposit Agreement.
If any distribution consists of a dividend in, or free
distribution of, Shares of the corresponding Series, the Depositary may, and
shall, if the Company so requests, distribute to the Holders of Receipts on the
record date fixed pursuant to Section 4.06 of the Deposit Agreement, in
proportion to the number of American Depositary Shares held by each of them,
additional Receipts in the same form or an aggregate number of American
Depositary Shares of the corresponding Series representing the amount of such
Shares received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.11
of the Deposit Agreement and the payment of the fees, expenses and charges of
the Depositary as provided in Article 7 hereof and Section 5.09 of the Deposit
Agreement. Notwithstanding the foregoing, the Depositary will not distribute
additional Receipts in respect of any securities so received by it in respect of
Shares of a Series that is a component of a Share Unit unless the securities so
received consist of a dividend in, or free distribution of Shares of all the
Series comprising such Share Unit. In lieu of delivering Receipts for fractional
American Depositary Shares, the Depositary will sell the amount of Shares
represented by, the aggregate of such fractions, at public or private sale, at
such place or places and upon such terms as it may deem proper, and distribute
the net proceeds of any such sale in accordance with Section 4.01 of the Deposit
Agreement. If additional Receipts of a particular Series are not so distributed
(except as pursuant to the preceding sentence), each American Depositary Share
of the corresponding Series shall thenceforth also represent its proportionate
interest in the additional Shares so distributed upon such Deposited Securities.
In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charge which the Depositary is
obligated to withhold, the Depositary may, by public or private sale, dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay any such taxes or charges, and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Holders of Receipts entitled thereto in proportion to the number
of American Depositary Shares held by them, respectively.
The Company or its agent will remit to the appropriate
governmental agency in the United Kingdom all amounts withheld and owing to such
agency. The 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 agencies, and the Depositary or the
Company or its agent may file any such reports necessary to obtain benefits
under the applicable tax treaties for the Holders of Receipts.
13. RIGHTS.
In the event that the Company shall offer or cause to be
offered to the Holders of any Deposited Securities of a particular Series any
rights to subscribe for additional Shares of the corresponding Series or any
rights of any other nature, the Depositary shall have discretion as to the
procedure to be followed in making such rights available to any Holders or in
disposing of such rights on behalf of any Holders and making the net proceeds
available to such Holders in accordance with the procedures for distributing
cash provided for in Section 4.01 of the Deposit Agreement, or, if by thc terms
of such rights offering or for any other reason it would not be lawful or
feasible for the Depositary either to make such rights available to any Holders
or to dispose of such rights and make the net proceeds available to such
Holders, then the Depositary shall allow the rights to lapse. If at the time of
the offering of any rights the Depositary determines in its discretion that it
is lawful and feasible to make such rights available to all or certain Holders
but not to other Holders, the Depositary may, and shall 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 American 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 generally, if the Depositary determines in its discretion that it is
lawful and feasible to make such rights available to certain Holders, the
Depositary will, subject to applicable law, make such rights available to such
Holders upon written notice from the Company to the Depositary 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 and the
Depositary have determined are reasonably required under applicable law.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Holders, then upon instruction from any
such Holder pursuant to such warrants or other instruments to the Depositary
from such Holder to exercise such rights, upon payment by such Holder to the
Depositary for the account of such Holder of an amount equal to the purchase
price of the Shares of a particular Series to be received upon the exercise of
the rights, and upon payment of the fees and expenses of the Depositary and any
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Holder, exercise the rights and purchase the Shares of
the corresponding Series, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Holder. As agent for such
Holder, the Depositary will cause the Shares so purchased to be deposited
pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to
Section 2.03 of the Deposit Agreement, execute and deliver Receipts of the
corresponding Series to such Holder. In the case of a distribution pursuant to
this paragraph, such Receipts shall bear a legend 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 Depositary determines in its discretion that it is not
lawful or feasible to make such rights available to all or certain Holders, it
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares of a particular Series held by the Holders to whom
it has determined it may not lawfully or feasibly make such rights available,
allocate the net proceeds of such sales (net of the fees, expenses and charges
of the Depositary as provided in Section 5.09 of the Deposit Agreement and all
taxes and other governmental charges payable in connection with such rights, and
subject to the terms and conditions of the Deposit Agreement) for the account of
such Holders otherwise entitled to such rights, warrants or other instruments,
upon an averaged or other practical basis without regard to any distinctions
among such Holders on account of exchange restrictions or the date of delivery
of any Receipt or otherwise.
The Depositary will not offer rights to Holders unless it has
received from the Company evidence, as provided in Section 5.07 of the Deposit
Agreement, to the effect that (i) a registration statement under the Securities
Act covering such offering is in effect or (ii) such offering does not require
registration under the Securities Act. If a Holder of Receipts requests the
distribution of warrants or other instruments, notwithstanding that there has
been no registration under the Securities Act, the Depositary will not effect
such distribution unless it has received an opinion from recognized counsel in
the United States for the Company reasonably satisfactory to the Depositary upon
which the Depositary may rely that such distribution to such Holder is exempt
from such registration.
The Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Holders in general or any Holder in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency,
received by way of dividends or other distributions or in the form of the net
proceeds from the sale of securities, property or rights, and if; at the time,
the foreign currency so received can in the judgment of the Depositary be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall promptly 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 (less any reasonable and
customary expenses incurred by the Depositary in the conversion of such foreign
currency) shall be promptly distributed to the Holders entitled thereto or, if
the Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among 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 Depositary as provided in
Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with
the approval or license of any government or agency thereof, the Depositary
shall file such application for approval or license, if any, as it may deem
desirable.
If at any time the Depositary shall determine that in its
judgment any foreign currency received by the Depositary is not convertible into
Dollars transferable to the United States, or if any approval or license of any
government or agency thereof which is required for such conversion is denied or
in the opinion of the Depositary cannot be obtained, or if any such approval or
license is not obtained within a reasonable period as determined by the
Depositary, the Depositary may in its discretion, but subject to applicable laws
and regulations, either (i) distribute such foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) to the Holders
of Receipts entitled to receive the same, or (ii) hold such foreign currency for
the respective accounts of such persons, uninvested and without liability for
interest.
If any such conversion of foreign currency, in whole or in
part, can be effected as aforesaid for distribution to some but not all of the
Holders of Receipts entitled thereto, the Depositary may in its discretion make
such conversion and distribution in Dollars, to the extent such currency shall
be convertible as aforesaid, to the Holders of Receipts entitled thereto and,
with respect to the balance of such foreign currency, shall in its discretion,
but subject to any applicable law and regulations, either (i) distribute or make
available for distribution such balance to the persons who were Holders of
Receipts entitled thereto with respect to whom such conversion could not then be
effected, or (ii) hold such balance for the respective accounts of such persons,
uninvested and without liability for interest.
15. RECORD DATES.
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 of a particular
Series, or whenever for any reason the Depositary causes a change in the number
of Shares of a particular Series that are represented by each American
Depositary Share of the corresponding Series, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date (a) for the determination of
the Holders of Shares of a particular Series of Receipts who shall be (i)
entitled to receive such dividend, distribution or rights or the net proceeds of
the sale thereof or (ii) entitled to give instructions for the exercise of
voting rights at any such meeting, or (b) on or after which each American
Depositary Share will represent the changed number of Shares, subject to the
provisions of the Deposit Agreement. Such record date will, to the extent
practicable, be the same record date as any corresponding record date set by the
Company for such purpose or, if different, fixed after consultation with the
Company.
16. VOTING OF DEPOSITED SECURITIES.
(a) Upon receipt of notice of any meeting of holders of Shares
of a particular Series or other Deposited Securities, if requested in writing by
the Company, the Depositary shall, as soon as practicable thereafter, mail to
the Holders of Receipts of the corresponding Series a notice, the form of which
notice shall be in the sole discretion of the Depositary, which shall contain
(a) such information as is contained in such notice of meeting, (b) a statement
that such Holders of Receipts of the corresponding Series at the close of
business on a specified record date will be entitled, subject to any applicable
provision of English law or of the Articles of Association of the Company, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares of such Series or other Deposited Securities
of the corresponding Series represented by their respective American Depositary
Shares, and (c) a brief statement as to the manner in which such instructions
may be given. Upon the written request of a Holder of a Receipt on such record
date, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor, in so far as practicable to vote or
cause to be voted the amount of Shares of such Series or other Deposited
Securities represented by such Receipt in accordance with the instructions set
forth in such request. The Depositary shall not vote or attempt to exercise the
right to vote that attaches to the Shares of such Series or other Deposited
Securities except in accordance with such instructions.
There can be no assurance that Holders generally or any Holder
in particular will receive the notice described in the preceding paragraph
sufficiently to ensure that the Holder can instruct the Depositary to vote the
Shares of a particular Series or Deposited Securities of the corresponding
Series in accordance with the provisions set forth in the preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES, RECLASSIFICATION,
RECAPITALIZATIONS, ETC.
(a) In circumstances where the provisions of Section 4.03 of
the Deposit Agreement do not apply, upon any change in par or nominal value,
sub-division, consolidation, or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger, amalgamation
or consolidation, or sale of assets affecting the Company or to which it is a
party, any securities which shall be received by the Depositary or the Custodian
in exchange for or in conversion of or in respect of Deposited Securities shall
be treated as new Deposited Securities under the Deposit Agreement and each
American Depositary Share will thenceforth represent, in addition to the
existing Deposited Securities, if any, the right to receive a proportional
interest in the new deposited securities; Receipts then outstanding shall
thenceforth represent, in addition to the existing Deposited Securities, if any,
the new Deposited Securities so received in exchange for or on conversion of or
in respect of Deposited Securities of the Series, unless additional or new
Receipts are delivered pursuant to the following sentence. In any such case, the
Depositary may, and shall if the Company shall so request, execute and deliver
additional Receipts as in the case of a dividend in Shares, or may call for the
surrender of outstanding Receipts to be exchanged for new Receipts of the
corresponding Series specifically describing such new Deposited Securities;
provided, however, that the Depositary will not distribute additional Receipts
in respect of any securities so received by it in respect of Shares of a Series
comprising a Share Unit unless the securities so received consist of Shares of
all Series comprising such Share Unit.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary, the Custodian nor the Company 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 or regulation of the United
States of America, any state thereof, the United Kingdom or of any other
country, or of any other action of any governmental or regulatory authority of
the United States, the United Kingdom, or any other country or of any stock
exchange, or by reason of any provision, present or future, of the Articles of
Association of the Company, or by reason of any act of God or war or terrorism
or other circumstances beyond its control, the Depositary, the Custodian or the
Company, as the case may be, shall be delayed in, prevented or forbidden from or
subjected to any civil or criminal penalty on account of doing or performing any
act or thing which by the terms of the Deposit Agreement it is provided shall be
done or performed; nor shall the Depositary, the Custodian or the Company incur
any liability to any Holder or Beneficial Owner of a Receipt by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which, by the terms of the 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 Deposit Agreement. Where, by the terms of a
distribution pursuant to Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or
an offering or distribution pursuant to Section 4.04 of the Deposit Agreement,
such distribution or offering may not be made available to Holders of Receipts,
and the Depositary may not dispose of such distribution or offering, on behalf
of such Holder and make the net proceeds available to such Holder, then the
Depositary shall not make such distribution or offering and shall allow any
rights, if applicable, to lapse. The Depositary shall not perform any action
required or permitted under the Deposit Agreement which shall be prohibited by
the rules of any securities exchange on which the American Depositary Shares are
listed for trading.
Neither the Depositary, the Custodian nor the Company assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Holders or Beneficial Owners of Receipts, other than that each of them agrees
to perform its obligations and duties specifically set forth in the Deposit
Agreement without negligence or bad faith. The Depositary shall not be subject
to any liability with respect to the validity or worth of the Deposited
Securities. Neither the 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 against all expenses and liabilities shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary. Neither the Depositary, the Custodian, nor the Company shall be
liable for any action or non-action by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder or Beneficial Owner of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary, the Custodian and the Company may rely and shall be protected in
acting 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. Neither the Depositary nor the Custodian shall be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner or effect of any such vote made either with or without
request, or for not exercising any right to vote, as long as any such action or
non-action is in good faith. The Depositary shall not be liable for any acts or
omissions made by a successor depositary whether in connection with a previous
act or omission of the Depositary or in connection with a matter arising wholly
after the removal or resignation of the Depositary, provided that in connection
with the issue out of which such potential liability arises, the Depositary
performed its obligations without negligence or bad faith while it acted as
Depositary.
No disclaimer of liability under the Securities Act is
intended by any provisions of the Deposit Agreement.
The Depositary may own and deal in any class of securities of
the Company and its affiliates and in Receipts.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY; APPOINTMENT OF SUBSTITUTE OR CUSTODIANS.
The Depositary may at any time resign as Depositary hereunder
with respect to any or all Series of Deposited Securities by written notice of
its election so to do delivered to the Company and the Custodian, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may with respect to any or all Series of Deposited Securities at any
time be removed by the Company by 90 days' prior written notice of such removal
delivered to the Depositary and the Custodian, such removal to become effective
upon the later of the (i) 90th day after delivery of the notice to the
Depositary or (ii) appointment of a successor depositary in respect of the
Series of Deposited Securities with respect to which the Depositary is to be
removed and its acceptance of such appointment as provided in the Deposit
Agreement. Whenever the Depositary in its discretion determines that it is in
the best interest of the Holders of Receipts to do so, it may appoint a
substitute or additional custodian or custodians, which shall thereafter be one
of the Custodians under the Deposit Agreement.
20. AMENDMENT.
The form of the Receipts of any particular Series and any
provisions of the Deposit Agreement with respect to such Series may at any time
and from time to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable. Any
amendment which shall impose or have the effect of increasing any fees or
charges payable by the Holders of Receipts of a particular Series (other than
taxes or other governmental charges, registration fees and cable, telex or
facsimile transmission and delivery expenses), or which shall otherwise
prejudice any substantial existing right of Holders of such Receipts, shall not
become effective as to outstanding Receipts of such Series until the expiration
of thirty (30) days after notice of such amendment shall have been given to the
Holders of outstanding Receipts of such Series. Every Holder of an outstanding
Receipt of such Series at the time any such amendment so becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Holder of any Receipt of any
Series to surrender such Receipt and receive therefor the Deposited Securities
of the corresponding Series represented thereby except in order to comply with
mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary at any time, at the direction of the Company,
shall terminate the Deposit Agreement as to Shares of any or all Series and the
Deposited Securities, American Depositary Share and Receipts of all
corresponding Series by mailing notice of such termination to the Holders of all
Receipts of such Series then Outstanding at least ninety (90) days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement as to Shares of any or all Series and the
Deposited Securities, American Depositary Share and Receipts of all
corresponding Series by mailing notice of such termination to the Company and
the Holders of all Receipts of such Series then outstanding, if at any time
ninety (90) days shall have expired after the 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 the Deposit Agreement. On and after the date of termination, the
Holder of such Receipt will, upon (a) surrender of such Receipt at the Corporate
Trust Office of the Depositary, (b) payment of the fee of the Depositary for the
surrender of Receipts referred to in Section 5.09 of the Deposit Agreement, and
(c) payment of any applicable taxes or other governmental charges, be entitled
to delivery, to him or upon his order, of the amount of Deposited Securities of
a particular Series represented by the American Depositary Shares of the
corresponding Series evidenced by such Receipt. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter shall
discontinue the registration of transfers of Receipts of such Series, shall
suspend the distribution of dividends to the Holders thereof and shall not give
any further notices or perform any further acts under the Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities of the corresponding Series,
shall sell rights 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 of the corresponding Series surrendered
to the Depositary (without liability for interest and after deducting, in each
case, the fee of the Depositary for the surrender of such Receipt, any expenses
for the account of the Holder of such Receipt in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or other
governmental charges). At any time after the expiration of one year from the
date of termination, the Depositary may sell the Deposited Securities of a
particular Series then held under the Deposit Agreement and may thereafter hold
uninvested and without liability for interest the net proceeds of any such sale,
together with any other cash then held by it thereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Holders of
Receipts of such Series which have not theretofore been surrendered, such
Holders thereupon becoming general creditors of the Depositary with respect to
such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement as to the Receipts of such
Series, and the Shares, Deposited Securities and American Depositary Shares of
the corresponding Series, except to account for such net proceeds and other cash
(after deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or other governmental charges). Upon the termination of the
Deposit Agreement, the Depositary and the Company shall be discharged from all
obligations under the Deposit Agreement as to the Receipts of such Series, and
the Shares, Deposited Securities and American Depositary Share of the
corresponding Series, except for their respective obligations under Section 5.08
of the Deposit Agreement and the Company's obligations to the Depositary under
Section 5.09 of the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this
Receipt to the contrary, the Company and the Depositary each agrees that it will
not exercise any rights it has under the Deposit Agreement to permit the
withdrawal or delivery of Deposited Securities in a manner which would violate
the U.S. securities laws, including, but not limited to, Section I.A.(l) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
23. REDEMPTION.
If the Depositary receives a notice from or on behalf of the
Company that Shares of any Series are called for redemption, the Depositary
shall send to the Holders:
(i) a copy of that notice; and
(ii) a notice calling for the surrender of Receipts evidencing
a number of American Depositary Shares representing the number of deposited
Shares that the Company called for redemption.
On or prior to the date set by the Company for the redemption,
the Depositary shall deliver for redemption a number of deposited Shares
represented by the American Depositary Shares evidenced by the Receipts that
have been surrendered to the Depositary prior to that date pursuant to the
Depositary's call for surrender. Thereafter, the Depositary shall deliver for
redemption deposited Shares that the Company called for redemption but that the
Depositary has not already surrendered hereunder, such delivery being without
unreasonable delay after Receipts evidencing a number of American Depositary
Shares representing those Shares are surrendered to the Depositary pursuant to
the Depositary's call for surrender, provided that the Company shall be under no
obligation hereunder to redeem any such further Shares so delivered.
When the Depositary receives entitlements in respect of
deposited Shares delivered by the Depositary for redemption, the Depositary
shall cancel surrendered Receipts evidencing the corresponding number of
American Depositary Shares and distribute those entitlements to the Holders
entitled to them in accordance with applicable provisions of this Deposit
Agreement, after deduction or upon payment of the fees and expenses of the
Depositary applicable in the case of surrender of Receipts for the purpose of
withdrawal of Deposited Securities. If the Depositary will distribute
entitlements in respect of less than all the American Depositary Shares
evidenced by a Receipt, the Depositary shall execute and deliver to the Holder
of that Receipt a Receipt evidencing American Depositary Shares in respect of
which it is not distributing entitlements.
The Company is not entitled to exercise any right to redeem
deposited Shares that form part of deposited Units of Shares unless it redeems
whole deposited Units of Shares.
If the Depositary receives a notice of redemption of less than
all of the deposited Shares of any Series, the Depositary may determine which
Receipts to call for surrender or what number of American Depositary Shares
evidenced by any Receipt to call for surrender in any manner that it reasonably
determines to be fair and practical.
