Exhibit 4.1
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DEPOSIT AGREEMENT
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by and among
WNS (HOLDINGS) LIMITED
as Issuer
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of [ ], 2006
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS................................................................2
SECTION 1.1 "Affiliate".....................................................2
SECTION 1.2 "Agent".........................................................2
SECTION 1.3 "American Depositary Share(s)" and "ADS(s)".....................3
SECTION 1.4 "ADS Record Date"...............................................3
SECTION 1.5 "Beneficial Owner"..............................................3
SECTION 1.6 "Business Day"..................................................3
SECTION 1.7 "Commission"....................................................3
SECTION 1.8 "Company".......................................................3
SECTION 1.9 "Custodian".....................................................3
SECTION 1.10 "Deliver" and "Delivery".......................................3
SECTION 1.11 "Deposit Agreement"............................................3
SECTION 1.12 "Depositary"...................................................4
SECTION 1.13 "Deposited Securities".........................................4
SECTION 1.14 "Dollars" and "U.S.$"..........................................4
SECTION 1.15 "DRS/Profile"..................................................4
SECTION 1.16 "DTC"..........................................................4
SECTION 1.17 "Exchange Act".................................................4
SECTION 1.18 "Foreign Currency".............................................4
SECTION 1.19 "Foreign Registrar"............................................4
SECTION 1.20 "Holder".......................................................4
SECTION 1.21 "Indemnified Person" and "Indemnifying Person".................4
SECTION 1.22 "Xxxxx"........................................................4
SECTION 1.23 "Pre-Release"..................................................4
SECTION 1.24 "Principal Office".............................................5
SECTION 1.25 "Receipt(s)," "American Depositary Receipt(s)" and "ADR(s)"....5
SECTION 1.26 "Registrar"....................................................5
SECTION 1.27 "Restricted Securities"........................................5
SECTION 1.28 "Securities Act"...............................................5
SECTION 1.29 "Shares".......................................................5
SECTION 1.30 "United States" or "U.S."......................................5
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS...................6
SECTION 2.1 Appointment of Depositary.......................................6
SECTION 2.2 Form and Transferability of Receipts............................6
SECTION 2.3 Deposits........................................................7
SECTION 2.4 Execution and Delivery of Receipts..............................8
SECTION 2.5 Transfer of Receipts; Combination and Split-up of Receipts......9
SECTION 2.6 Surrender of Receipts and Withdrawal of Deposited Securities...10
(i)
TABLE OF CONTENTS
(continued)
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SECTION 2.7 Limitations on Execution and Delivery, Transfer, etc.
of Receipts; Suspension of Delivery, Transfer, etc.............11
SECTION 2.8 Lost Receipts, etc.............................................11
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records.........................................12
SECTION 2.10 Pre-Release...................................................12
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS.........13
SECTION 3.1 Proofs, Certificates and Other Information.....................13
SECTION 3.2 Liability for Taxes and Other Charges..........................13
SECTION 3.3 Representations and Warranties on Deposit of Shares............14
SECTION 3.4 Compliance with Information Requests...........................14
ARTICLE IV THE DEPOSITED SECURITIES..................................................15
SECTION 4.1 Cash Distributions.............................................15
SECTION 4.2 Distribution in Shares.........................................15
SECTION 4.3 Elective Distributions in Cash or Shares.......................16
SECTION 4.4 Distribution of Rights to Purchase Shares......................16
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares................................................18
SECTION 4.6 Conversion of Foreign Currency.................................19
SECTION 4.7 Fixing of Record Date..........................................20
SECTION 4.8 Voting of Deposited Securities.................................20
SECTION 4.9 Changes Affecting Deposited Securities.........................21
SECTION 4.10 Available Information.........................................22
SECTION 4.11 Reports.......................................................22
SECTION 4.12 List of Holders...............................................22
SECTION 4.13 Taxation; Withholding.........................................22
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY..............................23
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar......23
SECTION 5.2 Exoneration....................................................24
SECTION 5.3 Standard of Care...............................................25
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary...........................................25
SECTION 5.5 The Custodian..................................................26
SECTION 5.6 Notices and Reports............................................27
SECTION 5.7 Issuance of Additional Shares, ADSs etc........................28
SECTION 5.8 Indemnification................................................29
SECTION 5.9 Fees and Charges of Depositary.................................30
SECTION 5.10 Restricted Securities Owners/Ownership Restrictions...........31
ARTICLE VI AMENDMENT AND TERMINATION................................................31
(ii)
TABLE OF CONTENTS
(continued)
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SECTION 6.1 Amendment/Supplement...........................................31
SECTION 6.2 Termination....................................................32
ARTICLE VII MISCELLANEOUS............................................................33
SECTION 7.1 Counterparts...................................................33
SECTION 7.2 No Third-Party Beneficiaries...................................33
SECTION 7.3 Severability...................................................33
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect.......33
SECTION 7.5 Notices........................................................33
SECTION 7.6 Governing Law and Jurisdiction.................................34
SECTION 7.7 Assignment.....................................................36
SECTION 7.8 Agents.........................................................36
SECTION 7.9 Exclusivity....................................................36
SECTION 7.10 Compliance with U.S. Securities Laws..........................36
SECTION 7.11 Titles........................................................36
EXHIBIT A Form of Face of Receipt...................................................A-1
EXHIBIT B Form of Reverse of Receipt................................................B-1
(iii)
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [ ], by and among (i) WNS (Holdings)
Limited, a company incorporated under the laws of Jersey, Channel Islands, and
its successors (the "Company"), (ii) Deutsche Bank Trust Company Americas, an
indirect wholly owned subsidiary of Deutsche Bank A.G., acting in its capacity
as depositary, and any successor depositary hereunder (the "Depositary"), and
(iii) all Holders and Beneficial Owners of American Depositary Shares evidenced
by American Depositary Receipts issued hereunder (all such capitalized terms as
hereinafter defined).
WITNESSETH THAT:
WHEREAS, the Company desires to establish an ADR facility with the
Depositary to provide for the deposit of the Shares and the creation of American
Depositary Shares representing the Shares so deposited;
WHEREAS, the Depositary is willing to act as the Depositary for such
ADR facility upon the terms set forth in this Deposit Agreement;
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are to
be substantially in the form of Exhibits A and B annexed hereto, with
appropriate insertions, modifications and omissions, as hereinafter provided in
this Deposit Agreement;
WHEREAS, the American Depositary Shares to be issued pursuant to the
terms of this Deposit Agreement are listed on The New York Stock Exchange, Inc.;
and
WHEREAS, the Board of Directors of the Company (or an authorized
committee thereof) has duly approved the establishment of an ADR facility upon
the terms set forth in this Deposit Agreement, the execution and delivery of
this Deposit Agreement on behalf of the Company, and the actions of the Company
and the transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall
have the meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1 "Affiliate" shall have the meaning assigned to such term
by the Commission under Regulation C promulgated under the Securities Act.
SECTION 1.2 "Agent" shall mean such entity or entities as the
Depositary may appoint under Section 7.8, including the Custodian or any
successor or addition thereto.
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SECTION 1.3 "American Depositary Share(s)" and "ADS(s)" shall mean the
securities representing the rights and interests in the Deposited Securities
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of this Deposit Agreement and evidenced by the American Depositary
Receipts issued hereunder. Each American Depositary Share shall represent the
right to receive one Share, until there shall occur a distribution upon
Deposited Securities referred to in Section 4.2 or a change in Deposited
Securities referred to in Section 4.9 with respect to which additional American
Depositary Receipts are not executed and delivered, and thereafter each American
Depositary Share shall represent the Shares or Deposited Securities specified in
such Sections.
SECTION 1.4 "ADS Record Date" shall have the meaning given to such
term in Section 4.7.
SECTION 1.5 "Beneficial Owner" shall mean as to any ADS, any person or
entity having a beneficial interest in any ADSs. A Beneficial Owner need not be
the Holder of the ADR evidencing such ADSs. A Beneficial Owner may exercise any
rights or receive any benefits hereunder solely through the Holder of the ADR(s)
evidencing the ADSs in which such Beneficial Owner has an interest.
SECTION 1.6 "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not (a) a day on which banking institutions in the
Borough of Manhattan, The City of New York are authorized or obligated by law or
executive order to close and (b) a day on which the market(s) in which Receipts
are traded are closed.
SECTION 1.7 "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.8 "Company" shall mean WNS (Holdings) Limited, a company
incorporated and existing under the laws of Jersey, Channel Islands, and its
successors.
SECTION 1.9 "Custodian" shall mean, as of the date hereof, [
], having its principal office at [
], as the custodian for the
purposes of this Deposit Agreement, and any other firm or corporation which may
hereinafter be appointed by the Depositary pursuant to the terms of Section 5.5
as a successor or an additional custodian or custodians hereunder, as the
context shall require. The term "Custodian" shall mean all custodians,
collectively.
SECTION 1.10 "Deliver" and "Delivery" shall mean, when used in respect
of American Depositary Shares, Receipts, Deposited Securities and Shares, the
physical delivery of the certificate representing such security, or the
electronic delivery of such security by means of book-entry transfer, as
appropriate, including, without limitation, through DRS/Profile. With respect to
DRS/Profile ADRs, the terms "execute," "issue," "register," "surrender,"
"transfer" or "cancel" refer to applicable entries or movements to or within
DRS/Profile.
SECTION 1.11 "Deposit Agreement" shall mean this Deposit Agreement and
all exhibits hereto, as the same may from time to time be amended and
supplemented in accordance with the terms hereof.
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SECTION 1.12 "Depositary" shall mean Deutsche Bank Trust Company
Americas, an indirect wholly owned subsidiary of Deutsche Bank A.G., in its
capacity as depositary under the terms of this Deposit Agreement, and any
successor depositary hereunder.
SECTION 1.13 "Deposited Securities" as of any time shall mean Shares
at such time deposited or deemed to be deposited under this Deposit Agreement
and any and all other securities, property and cash received or deemed to be
received by the Depositary or the Custodian in respect thereof and held
hereunder, subject, in the case of cash, to the provisions of Section 4.6. The
collateral delivered in connection with Pre-Release Transactions described in
Section 2.10 hereof shall not constitute Deposited Securities.
SECTION 1.14 "Dollars" and "U.S.$" shall refer to the lawful currency
of the United States.
SECTION 1.15 "DRS/Profile" means the system for the uncertificated
registration of ownership of securities pursuant to which ownership of ADSs is
maintained on the books of the Depositary without the issuance of a physical
certificate and transfer instructions may be given to allow for the automated
transfer of ownership between the books of DTC and the Depositary. Ownership of
ADSs held in DRS/Profile are evidenced by periodic statements issued by the
Depositary to the Holders entitled thereto.
SECTION 1.16 "DTC" shall mean The Depository Trust and Clearing
Corporation, the central book-entry clearinghouse and settlement system for
securities traded in the United States, and any successor thereto.
SECTION 1.17 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.18 "Foreign Currency" shall mean any currency other than
Dollars.
SECTION 1.19 "Foreign Registrar" shall mean the entity, if any, that
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.20 "Holder" shall mean the person in whose name a Receipt is
registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. A Holder shall
be deemed to have all requisite authority to act on behalf of those Beneficial
Owners of the ADRs registered in such Holder's name.
SECTION 1.21 "Indemnified Person" and "Indemnifying Person" shall have
the meaning set forth in Section 5.8 hereof.
SECTION 1.22 "Xxxxx" shall refer to the lawful currency of the United
Kingdom and Jersey, Channel Islands.
SECTION 1.23 "Pre-Release" shall have the meaning set forth in Section
2.10 hereof.
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SECTION 1.24 "Principal Office" when used with respect to the
Depositary, shall mean the principal office of the Depositary at which at any
particular time its depositary receipts business shall be administered, which,
at the date of this Deposit Agreement, is located at 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
SECTION 1.25 "Receipt(s)," "American Depositary Receipt(s)" and
"ADR(s)" shall mean the certificate(s) or DRS/Profile statements issued by the
Depositary evidencing the American Depositary Shares issued under the terms of
this Deposit Agreement, as such Receipts may be amended from time to time in
accordance with the provisions of this Deposit Agreement. References to Receipts
shall include physical certificated Receipts as well as ADSs issued through
DRS/Profile, unless the context otherwise requires.
SECTION 1.26 "Registrar" shall mean the Depositary or any bank or
trust company having an office in the Borough of Manhattan, The City of New
York, which shall be appointed by the Depositary to register ownership of
Receipts and transfer of Receipts as herein provided, and shall include any
co-registrar appointed by the Depositary for such purposes. Registrars (other
than the Depositary) may be removed and substitutes appointed by the Depositary.
SECTION 1.27 "Restricted Securities" shall mean Shares, or American
Depositary Shares representing such Shares, which (i) have been acquired
directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and
subject to resale limitations under the Securities Act or the rules issued
thereunder, or (ii) are held by an officer or director (or persons performing
similar functions) or other Affiliate of the Company, or (iii) are subject to
other restrictions on sale or deposit under the laws of the United States or
Jersey, or under a shareholders' agreement or the Company's Memorandum and
Articles of Association or under the regulations of an applicable securities
exchange unless, in each case, such Shares are being sold to persons other than
an Affiliate of the Company in a transaction (x) covered by an effective resale
registration statement or (y) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares are not, when held by
such person, Restricted Securities.
SECTION 1.28 "Securities Act" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.29 "Shares" shall mean ordinary shares in registered form of
the Company, par value 10 xxxxx each, heretofore validly issued and outstanding
and fully paid or hereafter validly issued and outstanding and fully paid.
References to Shares shall include evidence of rights to receive Shares, whether
or not stated in the particular instance; provided, however, that in no event
shall Shares include evidence of rights to receive Shares with respect to which
the full purchase price has not been paid or Shares as to which pre-emptive
rights have theretofore not been validly waived or exercised; provided further,
however, that, if there shall occur any change in par value, split-up,
consolidation, reclassification, conversion or any other event described in
Section 4.9, in respect of the Shares of the Company, the term "Shares" shall
thereafter, to the extent permitted by law, represent the successor securities
resulting from such change in par value, split-up, consolidation, exchange,
conversion, reclassification or event.
SECTION 1.30 "United States" or "U.S." shall mean the United States of
America.
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ARTICLE II
APPOINTMENT OF DEPOSITARY;
FORM OF RECEIPTS DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as exclusive depositary for the Deposited Securities and hereby
authorizes and directs the Depositary to act in accordance with the terms set
forth in this Deposit Agreement. Each Holder and each Beneficial Owner, upon
acceptance of any ADSs (or any interest therein) issued in accordance with the
terms of this Deposit Agreement, shall be deemed for all purposes to (a) be a
party to and bound by the terms of this Deposit Agreement and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in this Deposit Agreement,
to adopt any and all procedures necessary to comply with applicable law and to
take such action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement (the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof).
SECTION 2.2 Form and Transferability of Receipts.
(a) Definitive Receipts shall be substantially in the form set forth in
Exhibits A and B annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Receipts may be issued in
denominations of any number of American Depositary Shares. No definitive Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose, unless such Receipt shall have been executed by the
Depositary by the manual or facsimile signature of a duly authorized signatory
of the Depositary. The Depositary shall maintain books on which each Receipt so
executed and delivered, in the case of definitive Receipts, and each Receipt
issued through the DRS/Profile, in either case as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts in certificated form
bearing the manual or facsimile signature of a duly authorized signatory of the
Depositary who was at any time a proper 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 Depositary or
the Registrar or did not hold such office on the date of issuance of such
Receipts.
In addition to the foregoing, the Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications not
inconsistent with the provisions of this Deposit Agreement as may be reasonably
required by the Depositary in order to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which 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
of issuance of the underlying Deposited Securities or otherwise.
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Notwithstanding anything in this Deposit Agreement or in the Receipt to
the contrary, to the extent available by the Depositary, American Depositary
Shares shall be evidenced by Receipts issued through DRS/Profile unless
certificated Receipts are specifically requested by the Holder. Holders and
Beneficial Owners shall be bound by the terms and conditions of this Deposit
Agreement and of the form of Receipt, regardless of whether their Receipts are
certificated or issued through DRS/Profile.
(b) Subject to the limitations contained herein and in the form of
Receipt, title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed (in the case of certificated Receipts) or upon
delivery to the Depositary of proper instruments of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument under the laws of the State of New York; provided, however, that the
Depositary, notwithstanding any notice to the contrary, may treat the Holder
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes and neither
the Depositary nor the Company will have any obligation or be subject to any
liability under this Deposit Agreement to any holder of a Receipt, unless such
holder is the Holder thereof.
SECTION 2.3 Deposits.
(a) Subject to the terms and conditions of this Deposit Agreement and
applicable law, Shares or evidence of rights to receive Shares (other than
Restricted Securities) may be deposited by any person (including the Depositary
in its individual capacity but subject, however, in the case of the Company or
any Affiliate of the Company, to Section 5.7 hereof) at any time, whether or not
the transfer books of the Company or the Foreign Registrar, if any, are closed,
by Delivery of the Shares to the Custodian. Every deposit of Shares shall be
accompanied by the following: (A)(i) in the case of Shares issued in registered
form, appropriate instruments of transfer or endorsement, in a form satisfactory
to the Custodian, (ii) in the case of Shares issued in bearer form, such Shares
or the certificates representing such Shares and (iii) in the case of Shares
delivered by book-entry transfer, confirmation of such book-entry transfer to
the Custodian or that irrevocable instructions have been given to cause such
Shares to be so transferred, (B) such certifications and payments (including,
without limitation, the Depositary's fees and related charges) and evidence of
such payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement, (C) if the
Depositary so requires, 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 for the number of American Depositary Shares
representing the Shares so deposited, (D) evidence satisfactory to the
Depositary (which may include an opinion of counsel reasonably satisfactory to
the Depositary provided at the cost of the person seeking to deposit Shares)
that all conditions to such deposit have been met and all necessary approvals
have been granted by, and there has been compliance with the rules and
regulations of, any applicable governmental agency in Jersey, and (E) if the
Depositary so requires, (i) an agreement, assignment or instrument satisfactory
to the Depositary or the Custodian which provides for the prompt transfer by any
person in whose name the Shares are or have been recorded to the Custodian of
any distribution, or right to subscribe for additional Shares or to receive
other property in respect of any such deposited
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Shares or, in lieu thereof, such indemnity or other agreement as shall be
satisfactory to the Depositary or the Custodian and (ii) if the Shares are
registered in the name of the person on whose behalf they are presented for
deposit, a proxy or proxies entitling the Custodian to exercise voting rights in
respect of the Shares for any and all purposes until the Shares so deposited are
registered in the name of the Depositary, the Custodian or any nominee. No Share
shall be accepted for deposit unless accompanied by confirmation or such
additional evidence, if any is required by the Depositary, that is reasonably
satisfactory to the Depositary or the Custodian that all conditions to such
deposit have been satisfied by the person depositing such Shares under the laws
and regulations of Jersey and any necessary governmental approval has been
granted. The Depositary may issue Receipts against evidence of rights to receive
Shares from the Company, any agent of the Company or any custodian, registrar,
transfer agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under this
Deposit Agreement any Shares required to be registered under the provisions of
the Securities Act, unless a registration statement is in effect as to such
Shares. The Depositary will use commercially reasonable efforts to comply with
reasonable written instructions of the Company that the Depositary shall not
accept for deposit hereunder any Shares specifically identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company's compliance
with the securities laws in the United States.
(b) As soon as practicable after receipt of any permitted deposit
hereunder and compliance with the provisions of this Deposit Agreement, the
Custodian shall present the Shares so deposited, together with the appropriate
instrument or instruments of transfer or endorsement, duly stamped, to the
Foreign Registrar for transfer and registration of the Shares (as soon as
transfer and registration can be accomplished and at the expense of the person
for whom the deposit is made) in the name of the Depositary, the Custodian or a
nominee of either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee, in
each case for the account of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
(c) In the event any Shares are deposited which entitle the holders
thereof to receive a per-share distribution or other entitlement in an amount
different from the Shares then on deposit, the Depositary is authorized to take
any and all actions as may be necessary (including, without limitation, making
the necessary notations on Receipts) to give effect to the issuance of such ADSs
and to ensure that such ADSs are not fungible with other ADSs issued hereunder
until such time as the entitlement of the Shares represented by such
non-fungible ADSs equals that of the Shares represented by ADSs prior to the
original such deposit. The Company agrees to give timely written notice to the
Depositary if any Shares issued or to be issued contain rights different from
those of any other Shares theretofore issued and shall assist the Depositary
with the establishment of procedures enabling the identification of such
non-fungible Shares upon Delivery to the Custodian.
SECTION 2.4 Execution and Delivery of Receipts. After the deposit of
any Shares pursuant to Section 2.2, the Custodian shall notify the Depositary of
such deposit and the person or persons to whom or upon whose written order a
Receipt or Receipts are deliverable in respect thereof and the number of
American Depositary Shares to be evidenced thereby. Such
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notification shall be made by letter, first class airmail postage prepaid, or,
at the request, risk and expense of the person making the deposit, by cable,
telex, SWIFT, facsimile or electronic transmission. After receiving such notice
from the Custodian, the Depositary, subject to this Deposit Agreement
(including, without limitation, the payment of the fees, expenses, taxes and
other charges owing hereunder), shall issue the ADSs representing the Shares so
deposited to or upon the order of the person or persons named in the notice
delivered to the Depositary and shall execute and deliver a Receipt registered
in the name or names requested by such person or persons evidencing in the
aggregate the number of American Depositary Shares to which such person or
persons are entitled. Nothing herein shall prohibit any Pre-Release Transaction
upon the terms set forth in this Deposit Agreement.
SECTION 2.5 Transfer of Receipts; Combination and Split-up of Receipts.
(a) Transfer. The Depositary, or, if a Registrar (other than the
Depositary) for the Receipts shall have been appointed, the Registrar, subject
to the terms and conditions of this Deposit Agreement, shall register transfers
of Receipts on its books, upon surrender at the Principal Office of the
Depositary of a Receipt by the Holder thereof in person or by duly authorized
attorney, properly endorsed in the case of a certificated Receipt or accompanied
by proper instruments of transfer (including signature guarantees in accordance
with standard industry practice) and duly stamped as may be required by the laws
of the State of New York and of the United States, of Jersey and any other
applicable law. Subject to the terms and conditions of this Deposit Agreement,
including payment of the applicable fees and charges of the Depositary set forth
in Section 5.9 and Exhibit A hereto, the Depositary shall execute a new Receipt
or Receipts 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 Receipts surrendered.
(b) Combination & Split Up. The Depositary, subject to the terms and
conditions of this Deposit Agreement shall, upon surrender of a Receipt or
Receipts for the purpose of effecting a split-up or combination of such Receipt
or Receipts and upon payment to the Depositary of the applicable fees and
charges set forth in Section 5.9 and Exhibit A hereto, execute and deliver a new
Receipt or Receipts for any authorized number of American Depositary Shares
requested, evidencing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered.
(c) Co-Transfer Agents. The Depositary may appoint one or more
co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
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 or persons entitled to such Receipts and will be entitled to
protection and indemnity, in each case to the same extent as the Depositary.
Such co-transfer agents may be removed and substitutes appointed by the
Depositary. Each co-transfer agent appointed under this Section 2.5 (other than
the Depositary) shall give notice in writing to the Depositary accepting such
appointment and agreeing to be bound by the applicable terms of this Deposit
Agreement.
(d) At the request of a Holder, the Depositary shall, for the purpose
of substituting a certificated Receipt with a Receipt issued through
DRS/Profile, or vice versa, execute and
9
deliver a certificated Receipt or DRS/Profile statement, as the case may be, for
any authorized number of American Depositary Shares requested, evidencing the
same aggregate number of American Depositary Shares as those evidenced by the
certificated Receipt or DRS/Profile statement, as the case may be, substituted.
SECTION 2.6 Surrender of Receipts and Withdrawal of Deposited
Securities. Upon surrender, at the Principal Office of the Depositary, of
American Depositary Shares for the purpose of withdrawal of the Deposited
Securities represented thereby, and upon payment of (i) the fees and charges of
the Depositary for the making of withdrawals of Deposited Securities and
cancellation of Receipts (as set forth in Section 5.9 and Exhibit A hereof) and
(ii) all applicable taxes and governmental charges payable in connection with
such surrender and withdrawal, and subject to the terms and conditions of this
Deposit Agreement, the Company's Memorandum and Articles of Association, Section
7.10 hereof and any other provisions of or governing the Deposited Securities
and other applicable laws, the Holder of such American Depositary Shares shall
be entitled to Delivery, to him or upon his order, of the Deposited Securities
at the time represented by the American Depositary Shares so surrendered.
American Depositary Shares may be surrendered for the purpose of withdrawing
Deposited Securities by delivery of a Receipt evidencing such American
Depositary Shares (if held in certificated form) or by book-entry delivery of
such American Depositary Shares to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
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 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 (without
unreasonable delay) at the designated office of the Custodian or through a book
entry delivery of the Shares (in either case, subject to Sections 2.7, 3.1, 3.2,
5.9, and to the other terms and conditions of this Deposit Agreement, to the
Company's Memorandum and Articles of Association, to the provisions of or
governing the Deposited Securities and to applicable laws, now or hereafter in
effect) to or upon the written order of the person or persons designated in the
order delivered to the Depositary as provided above, the Deposited Securities
represented by such American Depositary Shares, together with any certificate or
other proper documents of or relating to title of the Deposited Securities as
may be legally required, as the case may be, to or for the account of such
person.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares representing a number other than a whole
number of Shares. In the case of surrender of a Receipt evidencing a number of
American Depositary Shares representing other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares to be
Delivered in accordance with the terms hereof, and shall, at the discretion of
the Depositary, either (i) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing American Depositary Shares representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the Receipt surrendered and remit the proceeds of such
sale (net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the Receipt.
10
At the request, risk and expense of any Holder so surrendering a
Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward (to the extent permitted by law) any cash or other property
(other than securities) held in respect of, and any certificate or certificates
and other proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission. Upon receipt by the
Depositary, the Depositary may make delivery to such person or persons entitled
thereto at the Principal Office of the Depositary of any dividends or cash
distributions with respect to the Deposited Securities represented by such
American Depositary Shares, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
SECTION 2.7 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution
and delivery, registration, 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 or the Custodian may require (i)
payment from the depositor of Shares or presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees and charges of the Depositary as provided in
Section 5.9 and Exhibit A hereof, (ii) the production of proof satisfactory to
it as to the identity and genuineness of any signature or any other matter
contemplated by Section 3.1 hereof and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts or
American Depositary Shares or to the withdrawal or delivery of Deposited
Securities and (B) such reasonable regulations as the Depositary or the Company
may establish consistent with the provisions of this Deposit Agreement and
applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be suspended, or
the issuance of ADSs against the deposit of particular Shares may be withheld,
or the registration of transfer of Receipts in particular instances may be
refused, or the registration of transfers of Receipts generally may be
suspended, during any period when the transfer books of the Depositary are
closed or if any such action is deemed necessary or advisable by the Depositary
or the Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange on which the Receipts or Shares are listed, or under any
provision of this Deposit Agreement or provisions of, or governing, the
Deposited Securities, or any meeting of shareholders of the Company or for any
other reason, subject, in all cases, to Section 7.10 hereof.
SECTION 2.8 Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, unless the Depositary has notice that such ADR has
been acquired by a bona fide purchaser, subject to Section 5.9 hereof, the
Depositary shall execute and deliver a new Receipt (which, in the discretion of
the Depositary may be issued through DRS/Profile unless specifically
11
requested otherwise) in exchange and substitution for such mutilated Receipt
upon cancellation thereof, or in lieu of and in substitution for such destroyed,
lost or stolen Receipt. Before the Depositary shall execute and deliver a new
Receipt in substitution for a destroyed, lost or stolen Receipt, the Holder
thereof shall have (a) filed with the Depositary (i) a request for such
execution and delivery before the Depositary has notice that the Receipt has
been acquired by a bona fide purchaser and (ii) a sufficient indemnity bond in
form and amount acceptable to the Depositary and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy Receipts so
cancelled in accordance with its customary practices. 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. Subject to the further terms and provisions
of this Section 2.10, the Depositary, its Affiliates and their agents, on their
own behalf, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however that the Depositary may (i) issue ADSs
prior to the receipt of Shares (each such transaction a "Pre-Release
Transaction") as provided below and (ii) deliver Shares upon the receipt and
cancellation of ADSs that were issued in a Pre-Release Transaction, but for
which Shares may not yet have been received. The Depositary may receive ADSs in
lieu of Shares under (i) above and receive shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or Shares
are to be delivered (1) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (2) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (3) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs, (4) assigns all beneficial right, title and interest in and to the Shares
or ADSs to the Depositary in its capacity as such, (5) will not take any action
with respect to such Shares or ADSs, as applicable, that is inconsistent with
the beneficial ownership (including disposing of such Shares or ADSs, as
applicable), other than to deliver such Shares or ADSs, as applicable, to the
Depositary in its capacity as such, and (6) agrees to any additional
restrictions or requirements that the Depositary deems appropriate, (b) at all
times fully collateralized with cash, United States government securities or
such other collateral as the Depositary deems appropriate, (c) terminable by the
Depositary on not more than five (5) business days' notice and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The Depositary will normally limit the number of ADSs and Shares
involved in such Pre-Release Transactions at any one time to thirty percent
(30%) of the ADSs outstanding (without giving effect to ADSs outstanding under
(i) above), provided, however, that the Depositary reserves the right to
disregard such limit from time to time as it deems appropriate. The Depositary
may also set limits with respect to the number of ADSs and Shares involved in
Pre-Release Transactions with any one person on a case by case basis as it deems
appropriate.
12
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF RECEIPTS
The Depositary may retain for its own account any compensation received
by it in conjunction with the foregoing. Collateral provided pursuant to (b)
above, but not the earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
SECTION 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary or the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of this Deposit Agreement and the provisions of, or governing, the Deposited
Securities or other information; to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation as the Depositary may deem necessary or proper or as the Company
may reasonably require by written request to the Depositary consistent with its
obligations hereunder. The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof, or to the extent not limited by the terms of Section 7.10
hereof, the delivery of any Deposited Securities, until such proof or other
information is filed or such certifications are executed, or such
representations and warranties are made, or such other documentation or
information provided, in each case to the Depositary's and the Company's
satisfaction. The Depositary shall from time to time on the written request
advise the Company of the availability of any such proofs, certificates or other
information and shall, at the Company's sole expense, provide or otherwise make
available copies thereof to the Company upon written request thereof by the
Company, unless such disclosure is prohibited by law. Each Holder and Beneficial
Owner agrees to provide any information requested by the Company or the
Depositary pursuant to this paragraph. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if not provided by the
Holders or Beneficial Owners or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
SECTION 3.2 Liability for Taxes and Other Charges. If any present or
future tax or other governmental charge shall become payable by the Depositary
or the Custodian with respect to any ADR or any Deposited Securities or American
Depositary Shares, such tax or other governmental charge shall be payable by the
Holders and Beneficial Owners to the Depositary and such Holders and Beneficial
Owners shall be deemed liable therefor. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or charges, with the Holder and the Beneficial Owner remaining fully
liable for any deficiency. In addition to any other remedies available to it,
the Depositary and the Custodian may refuse the deposit of Shares, and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer,
split-up or combination of ADRs
13
and (subject to Section 7.10) the withdrawal of Deposited Securities, until
payment in full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the
Custodian, and each of their respective agents, officers, directors, employees
and Affiliates for, and to hold each of them harmless from, any claims with
respect to taxes (including applicable interest and penalties thereon) arising
from any tax benefit obtained for such Holder and/or Beneficial Owner. The
obligations of Holders and Beneficial Owners of Receipts under this Section 3.2
shall survive any transfer of Receipts, any surrender of Receipts and withdrawal
of Deposited Securities, or the termination of this Deposit Agreement.
SECTION 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and were legally
obtained by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares have been validly waived or exercised, (iii) the person
making such deposit is duly authorized so to do, (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim, and are not, and the American Depositary Shares
issuable upon such deposit will not be, Restricted Securities and (v) the Shares
presented for deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of American Depositary Shares in respect
thereof and the transfer of such American Depositary Shares. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
SECTION 3.4 Compliance with Information Requests. Notwithstanding any
other provision of this Deposit Agreement, the Memorandum and Articles of
Association of the Company and applicable law, each Holder and Beneficial Owner
agrees to (a) provide such information as the Company or the Depositary may
request pursuant to law (including, without limitation, relevant Jersey law, any
applicable law of the United States, the Memorandum and Articles of Association
of the Company, any resolutions of the Company's Board of Directors adopted
pursuant to such Memorandum and Articles of Association, the requirements of any
markets or exchanges upon which the Shares, ADSs or Receipts are listed or
traded, or to any requirements of any electronic book-entry system by which the
ADSs or Receipts may be transferred, and (b) be bound by and subject to
applicable provisions of the laws of Jersey, the Memorandum and Articles of
Association of the Company and the requirements of any markets or exchanges upon
which the ADSs, Receipts or Shares are listed or traded, or pursuant to any
requirements of any electronic book-entry system by which the ADSs, Receipts or
Shares may be transferred, to the same extent as if such Holder and Beneficial
Owner held Shares directly, in each case irrespective of whether or not they are
Holders or Beneficial Owners at the time such request is made. The Depositary
agrees to use its reasonable efforts to forward upon the request of the Company,
and at the Company's expense, any such request from the Company to the Holders
and to forward to the Company any such responses to such requests received by
the Depositary.
14
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Shares, rights, securities or other entitlements under the terms hereof, the
Depositary will, if at the time of receipt thereof any amounts received in a
Foreign Currency can in the judgment of the Depositary (pursuant to Section 4.6
hereof) be converted on a practicable basis into Dollars transferable to the
United States, promptly convert or cause to be converted such cash dividend,
distribution or proceeds into Dollars (on the terms described in Section 4.6)
and will distribute promptly the amount thus received (net of (a) the applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of American Depositary Shares held by such Holders respectively as of
the ADS Record Date. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Holder a fraction of one cent.
Any such fractional amounts shall be rounded to the nearest whole cent and so
distributed to Holders entitled thereto. Holders and Beneficial Owners
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which exceeds three or four decimal places (the number
of decimal places used by the Depositary to report distribution rates). The
excess amount may be retained by the Depositary as an additional cost of
conversion, irrespective of any other fees and expenses payable or owing
hereunder and shall not be subject to escheatment. If the Company, the Custodian
or the Depositary is 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, duties or other governmental charges, the amount
distributed to Holders on the American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request. 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, such reports necessary to obtain
benefits under the applicable tax treaties for the Holders and Beneficial Owners
of Receipts.
SECTION 4.2 Distribution in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
any of their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.7 and shall, subject to Section 5.9 hereof, either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes), or (ii) if additional American Depositary Shares are not so distributed,
each American Depositary Share issued and
15
outstanding after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes). In lieu of delivering fractional American Depositary Shares, the
Depositary shall sell the number of Shares represented by the aggregate of such
fractions and distribute the proceeds upon the terms described in Section 4.1.
The Depositary may withhold any such distribution of Receipts if it has not
received satisfactory assurances from the Company (including an opinion of
counsel to the Company furnished at the expense of the Company) that such
distribution does not require registration under the Securities Act or is exempt
from registration under the provisions of the Securities Act. To the extent such
distribution may be withheld, the Depositary may dispose of all or a portion of
such distribution in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of applicable (a) taxes and (b) fees and charges of, and expenses incurred by,
the Depositary) to Holders entitled thereto upon the terms described in Section
4.1.
SECTION 4.3 Elective Distributions in Cash or Shares. Whenever the
Company intends to distribute a dividend payable at the election of the holders
of Shares in cash or in additional Shares, the Company shall give notice thereof
to the Depositary at least 30 days prior to the proposed distribution stating
whether or not it wishes such elective distribution to be made available to
Holders of ADSs. Upon receipt of notice indicating that the Company wishes such
elective distribution to be made available to Holders of ADSs, the Depositary
shall consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Company shall have timely requested that the elective distribution is
available to Holders of ADRs, (ii) the Depositary shall have determined that
such distribution is reasonably practicable and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7. If the
above conditions are not satisfied, the Depositary shall, to the extent
permitted by law, distribute to the Holders, on the basis of the same
determination as is made in the local market in respect of the Shares for which
no election is made, either (x) cash upon the terms described in Section 4.1 or
(y) additional ADSs representing such additional Shares upon the terms described
in Section 4.2. If the above conditions are satisfied, the Depositary shall
establish an ADS Record Date (on the terms described in Section 4.7) and
establish procedures to enable Holders to elect the receipt of the proposed
dividend in cash or in additional ADSs. The Company shall assist the Depositary
in establishing such procedures to the extent necessary. Subject to Section 5.9
hereof, if a Holder elects to receive the proposed dividend (x) in cash, the
dividend shall be distributed upon the terms described in Section 4.1, or (y) in
ADSs, the dividend shall be distributed upon the terms described in Section 4.2.
Nothing herein shall obligate the Depositary to make available to Holders a
method to receive the elective dividend in Shares (rather than ADSs). There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
16
SECTION 4.4 Distribution of Rights to Purchase Shares.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
least 45 days prior to the proposed distribution stating whether or not it
wishes such rights to be made available to Holders of ADSs. Upon receipt of a
notice indicating that the Company wishes such rights to be made available to
Holders of ADSs, the Depositary shall consult with the Company to determine, and
the Company shall determine, whether it is lawful and reasonably practicable to
make such rights available to the Holders. The Depositary shall make such rights
available to Holders only if (i) the Company shall have timely requested that
such rights be made available to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary shall have determined that such distribution of rights is lawful
and reasonably practicable. In the event any of the conditions set forth above
are not satisfied, the Depositary shall proceed with the sale of the rights as
contemplated in Section 4.4(b) below or, if timing or market conditions may not
permit, do nothing thereby allowing such rights to lapse. In the event all
conditions set forth above are satisfied, the Depositary shall establish an ADS
Record Date (upon the terms described in Section 4.7) and establish procedures
(x) to distribute such rights (by means of warrants or otherwise) and (y) to
enable the Holders to exercise the rights (upon payment of applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes and other
governmental charges). Nothing herein shall obligate the Depositary to make
available to the Holders a method to exercise such rights to subscribe for
Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines it is
not lawful or reasonably practicable to make the rights available to Holders, or
(iii) any rights made available are not exercised and appear to be about to
lapse, the Depositary shall determine whether it is lawful and reasonably
practicable to sell such rights, in a riskless principal capacity or otherwise,
at such place and upon such terms (including public or private sale) as it may
deem proper. The Company shall assist the Depositary to the extent necessary to
determine such legality and practicability. The Depositary shall, upon such
sale, convert and distribute proceeds of such sale (net of applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes) upon the
terms set forth in Section 4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights
17
to the Holders (i) unless and until a registration statement under the
Securities Act covering such offering is in effect or (ii) unless the Company
furnishes at its expense the Depositary with opinion(s) of counsel for the
Company in the United States and counsel to the Company in any other applicable
country in which rights would be distributed, in each case reasonably
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable
laws. In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders shall be reduced accordingly. 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 charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or be able to exercise such rights.
Nothing herein shall obligate the Company to file any registration statement in
respect of any rights or Shares or other securities to be acquired upon the
exercise of such rights.
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to purchase
additional Shares, the Company shall give notice thereof to the Depositary at
least 30 days prior to the proposed distribution and shall indicate whether or
not it wishes such distribution to be made to Holders of ADSs. Upon receipt of a
notice indicating that the Company wishes such distribution be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have timely requested the Depositary
to make such distribution to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7, and (iii) the
Depositary shall have determined that such distribution is reasonably
practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary may distribute the
property so received to the Holders of record as of the ADS Record Date, in
proportion to the number of ADSs held by such Holders respectively and in such
manner as the Depositary may deem practicable for accomplishing such
distribution (i) upon receipt of payment or net of the applicable fees and
charges of, and expenses incurred by, the Depositary, and (ii) net of any taxes
and other governmental charges withheld. The Depositary may dispose of all or a
portion of the property so distributed and deposited, in such amounts and in
such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the distribution.
18
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable or feasible, the Depositary shall
endeavor to sell or cause such property to be sold in a public or private sale,
at such place or places and upon such terms as it may deem proper and shall
distribute the net proceeds, if any, of such sale received by the Depositary
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) to the Holders as of the ADS Record Date upon the
terms of Section 4.1. If the Depositary is unable to sell such property, the
Depositary may dispose of such property in any way it deems reasonably
practicable under the circumstances for nominal or no consideration and Holders
and Beneficial Owners shall have no rights thereto or arising therefrom.
SECTION 4.6 Conversion of Foreign Currency. Whenever the Depositary or
the Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, and in the judgment of the Depositary such Foreign Currency can at such
time be converted on a practicable basis (by sale or in any other manner that it
may determine in accordance with applicable law) into Dollars transferable to
the United States and distributable to the Holders entitled thereto, the
Depositary shall convert or cause to be converted, by sale or in any other
manner that it may determine, such Foreign Currency into Dollars, and shall
distribute such Dollars (net of any fees, expenses, taxes or other governmental
charges incurred in the process of such conversion) in accordance with the terms
of the applicable sections of this Deposit Agreement. If the Depositary shall
have distributed warrants or other instruments that entitle the holders thereof
to such Dollars, the Depositary shall distribute such Dollars to the holders of
such warrants and/or instruments upon surrender thereof for cancellation, in
either case without liability for interest thereon. 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.
Holders understand that in converting Foreign Currency, amounts
received on conversion are calculated at a rate which may exceed the number of
decimal places used by the Depositary to report distribution rates (which in any
case will not be less than two decimal places). Any excess amount may be
retained by the Depositary as an additional cost of conversion, irrespective of
any other fees and expenses payable or owing hereunder and shall not be subject
to escheatment.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary may file
such application for approval or license, if any, as it may deem necessary,
practicable and at nominal cost and expense. Nothing herein shall obligate the
Depositary to file or cause to be filed, or to seek effectiveness of any such
application or license.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practical or lawful, or if
any approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied, or not
obtainable at a reasonable cost, within a reasonable period or otherwise sought,
the
19
Depositary shall, in its sole discretion but subject to applicable laws and
regulations, either (i) distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary to the Holders entitled to receive such foreign currency, or (ii)
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the same.
SECTION 4.7 Fixing of Record Date. Whenever necessary in connection
with any distribution (whether in cash, Shares, rights, or other distribution),
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 or solicitation of holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient, the Depositary shall fix a record date (the "ADS Record
Date"), as close as practicable to the record date fixed by the Company with
respect to the Shares, for the determination of the Holders who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, or to give or withhold such consent, or to
receive such notice or solicitation or to otherwise take action, or to exercise
the rights of Holders with respect to such changed number of Shares represented
by each American Depositary Share. Subject to applicable law and the provisions
of Section 4.1 through 4.6 and to the other terms and conditions of this Deposit
Agreement, only the Holders of record at the close of business in New York on
such ADS Record Date shall be entitled to receive such distribution, to give
such voting instructions, to receive such notice or solicitation, or otherwise
take action.
SECTION 4.8 Voting of Deposited Securities. Subject to the next
sentence, as soon as practicable after receipt of notice of any meeting at which
the holders of Shares are entitled to vote, or of solicitation of consents or
proxies from holders of Shares or other Deposited Securities, the Depositary
shall fix the ADS Record Date in respect of such meeting or solicitation of
consent or proxy. The Depositary shall, if requested by the Company in writing
in a timely manner (the Depositary having no obligation to take any further
action if the request shall not have been received by the Depositary at least 21
days prior to the date of such vote or meeting) and at the Company's expense and
provided no U.S. legal prohibitions exist, mail by regular, ordinary mail
delivery or by electronic transmission (if agreed by the Company and the
Depositary), unless otherwise agreed in writing by the Company and the
Depositary, or otherwise distribute to Holders as of the ADS Record Date: (a)
such notice of meeting or solicitation of consent or proxy; (b) a statement that
the Holders at the close of business on the ADS Record Date will be entitled,
subject to any applicable law, the Company's Memorandum and Articles of
Association and the provisions of or governing the Deposited Securities (which
provisions, if any, shall be summarized in pertinent part by the Company), to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Shares or other Deposited Securities represented by such
Holder's American Depositary Shares; and (c) a brief statement as to the manner
in which such instructions may be given. Voting instructions may be given only
in respect of a number of American Depositary Shares representing an integral
number of Shares or other Deposited Securities. Upon the timely receipt of
written instructions of a Holder of American Depositary Shares on the ADS Record
Date of voting instructions in the manner specified by the Depositary, the
Depositary shall endeavor, insofar as practicable and permitted under applicable
law, the provisions of this Deposit Agreement, the Company's Memorandum and
Articles of Association and the provisions of or governing the Deposited
Securities, to vote or cause the Custodian to vote the Shares and/or other
Deposited Securities (in person or by proxy) represented by American Depositary
Shares evidenced by such Receipt in accordance with such voting instructions.
20
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of for purposes of establishing a quorum or otherwise, the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with such written instructions from Holders. Shares or
other Deposited Securities represented by ADSs for which no specific voting
instructions are received by the Depositary from the Holder shall not be voted.
Notwithstanding the above, save for applicable provisions of Jersey
law, and in accordance with the terms of Section 5.3, the Depositary shall not
be liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which such vote is cast or the
effect of any such vote.
SECTION 4.9 Changes Affecting Deposited Securities. Upon any change in
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, scheme of
arrangement, merger or consolidation or sale of assets affecting the Company or
to which it is otherwise a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares representing
the right to receive such additional securities. Alternatively, the Depositary
may, with the Company's approval, and shall, if the Company shall so request,
subject to the terms of this Deposit Agreement and receipt of an opinion of
counsel to the Company furnished at the Company's expense reasonably
satisfactory to the Depositary that such distributions are not in violation of
any applicable laws or regulations, execute and deliver additional Receipts as
in the case of a stock dividend on the Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts, in either case, as well
as in the event of newly deposited Shares, with necessary modifications to the
form of Receipt contained in Exhibits A and B hereto, specifically describing
such new Deposited Securities and/or corporate change. The Company agrees to,
jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new form of Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall, if the Company requests, subject to receipt of an
opinion of the Company's counsel furnished at the Company's expense reasonably
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, sell such securities at public or private sale,
at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or to any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
21
SECTION 4.10 Available Information. The Company is subject to the
periodic reporting requirements of the Exchange Act applicable to foreign
private issuers (as defined in Rule 405 under the Securities Act) and
accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
SECTION 4.11 Reports. The Depositary shall make available during normal
business hour on any Business Day for inspection by Holders at its Principal
Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company. The Company agrees to provide to the Depositary, at
the Company's expense, all documents that it provides to the Custodian. The
Depositary shall, at the expense of the Company and in accordance with Section
5.6, also mail by regular, ordinary mail delivery or by electronic transmission
(if agreed by the Company and the Depositary) and unless otherwise agreed in
writing by the Company and the Depositary, to Holders copies of such reports
when furnished by the Company pursuant to Section 5.6.
SECTION 4.12 List of Holders. Promptly upon written request by the
Company, the Depositary shall, at the expense of the Company, furnish to it a
list, as of a recent date, of the names, addresses and holdings of American
Depositary Shares by all persons in whose names Receipts are registered on the
books of the Depositary.
SECTION 4.13 Taxation; Withholding. The Depositary will, and will
instruct the Custodian to, forward to the Company or its agents such information
from its records as the Company may reasonably request to enable the Company or
its agents to file necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may, but
shall not be obligated to, file such reports as are necessary to reduce or
eliminate applicable taxes on dividends and on other distributions in respect of
Deposited Securities under applicable tax treaties or laws for the Holders and
Beneficial Owners. Holders and Beneficial Owners of American Depositary Shares
may be required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide
any other information or documents, as the Depositary or the Custodian may deem
necessary or proper to fulfill the Depositary's or the Custodian's obligations
under applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
The Company shall remit to the appropriate governmental authority or
agency any amounts required to be withheld by the Company and owing to such
governmental authority or agency. Upon any such withholding, the Company shall
remit to the Depositary information about such taxes or governmental charges
withheld or paid, and, if so requested, the tax receipt (or other proof of
payment to the applicable governmental authority) therefor, in each case, in a
form reasonably satisfactory to the Depositary. The Depositary shall, to the
extent required by
22
U.S. law, report to Holders: (i) any taxes withheld by it; (ii) any taxes
withheld by the Custodian, subject to information being provided to the
Depositary by the Custodian; and (iii) any taxes withheld by the Company,
subject to information being provided to the Depositary by the Company. The
Depositary and the Custodian shall not be required to provide the Holders with
any evidence of the remittance by the Company (or its agents) of any taxes
withheld, or of the payment of taxes by the Company, except to the extent the
evidence is provided by the Company to the Depositary. Neither the Depositary
nor the Custodian nor the Company shall be liable for the failure by any Holder
or Beneficial Owner to obtain the benefits of credits on the basis of non-U.S.
tax paid against such Holder's or Beneficial Owner's income tax liability.
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 shall withhold the amount required to be withheld and 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 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 is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
American Depositary Shares.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Depositary or if a Registrar for the Receipts shall have been appointed, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
and the delivery and withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Depositary or the Registrar, as applicable, shall keep books for
the registration of Receipts and transfers of Receipts which at all reasonable
times shall be open for inspection by the Company and by the Holders of such
Receipts, provided that such inspection shall not be, to the Depositary's or the
Registrar's knowledge, 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 other than a matter related to this Deposit Agreement or the
Receipts.
The Depositary or the Registrar, as applicable, may close the transfer
books with respect to the Receipts, at any time or from time to time, when
deemed necessary or advisable by it in connection with the performance of its
duties hereunder, or at the reasonable written request of the Company subject,
in all cases, to Section 7.10 hereof.
23
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or appoint a Registrar or
one or more co-registrars for registration of Receipts and transfers,
combinations and split-ups, and to countersign such Receipts in accordance with
any requirements of such exchanges or systems. Such Registrar or co-registrars
may be removed and a substitute or substitutes appointed by the Depositary.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more securities exchanges, markets or automated quotation
systems, (i) the Depositary shall be entitled to, and shall, take or refrain
from taking such action(s) as it may deem necessary or appropriate to comply
with the requirements of such securities exchange(s), market(s) or automated
quotation system(s) applicable to it, notwithstanding any other provision of
this Deposit Agreement; and (ii) upon the reasonable request of the Depositary,
the Company shall provide the Depositary such information and assistance as may
be reasonably necessary for the Depositary to comply with such requirements, to
the extent that the Company may lawfully do so.
SECTION 5.2 Exoneration. Neither the Depositary, the Custodian or the
Company shall be obligated to do or perform any act which is inconsistent with
the provisions of this Deposit Agreement or shall incur any liability (i) if the
Depositary, the Custodian or the Company or their respective controlling persons
or agents shall be prevented or forbidden from, or delayed in, doing or
performing any act or thing required by the terms of this Deposit Agreement, by
reason of any provision of any present or future law or regulation of the United
States or any state thereof, Jersey or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or on account
of the possible criminal or civil penalties or restraint, or by reason of any
provision, present or future, of the Company's Memorandum and Articles of
Association or any provision of or governing any Deposited Securities, or by
reason of any act of God or war or other circumstances beyond its control
(including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, terrorism, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement or
in the Company's Memorandum and Articles of Association or provisions of or
governing Deposited Securities, (iii) for any action or inaction of the
Depositary, the Custodian or the Company or their respective controlling persons
or agents in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of American Depositary Shares or (v) for
any special, consequential, indirect or punitive damages for any breach of the
terms of this Deposit Agreement or otherwise.
The Depositary, its controlling persons, its agents, the Custodian and
the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request, opinion or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties.
24
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.3 Standard of Care. The Company and the Depositary and their
respective agents assume no obligation and shall not be subject to any liability
under this Deposit Agreement or any Receipts to any Holder(s) or Beneficial
Owner(s) or other persons, except in accordance with Section 5.8 hereof,
provided that the Company and the Depositary and their respective agents agree
to perform their respective obligations specifically set forth in this Deposit
Agreement or the applicable ADRs without gross negligence or willful misconduct.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, 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 (including fees and disbursements of
counsel) and liabilities be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effects of any vote. The Depositary
shall not incur any liability for any failure to determine that any distribution
or action may be lawful or reasonably practicable, for the content of any
information submitted to it by the Company for distribution to the Holders or
for any inaccuracy of any translation thereof, for any investment risk
associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for the
creditworthiness of any third party, for allowing any rights to lapse upon the
terms of this Deposit Agreement or for the failure or timeliness of any notice
from the Company, or for any action or non-action by it in reliance upon the
opinion, advice of or information from legal counsel, accountants, any person
representing Shares for deposit, any Holder or any other person believed by it
in good faith to be competent to give such advice or information. The Depositary
and its agents 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 gross negligence or willful misconduct while it acted as Depositary.
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 90th day after delivery
thereof to the Company (whereupon the Depositary shall, in the event no
successor depositary has been appointed by the Company, be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) upon the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided, save that any amounts, fees, costs or expenses owed to the
Depositary hereunder or in accordance with any
25
other agreements otherwise agreed in writing between the Company and the
Depositary from time to time shall be paid to the Depositary prior to such
resignation.
The Company shall use reasonable efforts to appoint such successor
depositary, and give notice to the Depositary of such appointment, not more than
90 days after delivery by the Depositary of written notice of resignation as
provided in this paragraph. In the event that notice of the appointment of a
successor depositary is not provided by the Company in accordance with the
preceding sentence, the Depositary shall be entitled to take the actions
contemplated in Section 6.2 hereof.
The Depositary may at any time be removed by the Company by written
notice of such removal, which removal shall be effective on the later of (i) the
90th day after delivery thereof to the Depositary (whereupon the Depositary
shall be entitled to take the actions contemplated in Section 6.2 hereof), or
(ii) upon the appointment by the Company of a successor depositary and its
acceptance of such appointment as hereinafter provided, save that, any amounts,
fees, costs or expenses owed to the Depositary hereunder or in accordance with
any other agreements otherwise agreed in writing between the Company and the
Depositary from time to time shall be paid to the Depositary prior to such
removal.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to 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 (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor. The predecessor depositary,
upon payment of all sums due to it and on the written request of the Company,
shall (i) execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder (other than as contemplated in
Sections 5.8 and 5.9), (ii) duly assign, transfer and deliver all right, title
and interest to the Deposited Securities to such successor, and (iii) deliver to
such successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodian. The Custodian or its successors in acting
hereunder shall be subject at all times and in all respects to the direction of
the Depositary for the Deposited Securities for which the Custodian acts as
custodian and shall be responsible solely to it. If any Custodian resigns or is
discharged from its duties hereunder with respect to any Deposited Securities
and no other Custodian has previously been appointed hereunder, the Depositary
shall promptly appoint a substitute custodian. The Depositary shall require such
resigning or discharged Custodian to deliver the Deposited Securities held by
it, together with all such records maintained by it as Custodian with respect to
such Deposited Securities as the Depositary
26
may request, to the Custodian designated by the Depositary. Whenever the
Depositary determines, in its discretion, that it is appropriate to do so, it
may appoint an additional entity to act as Custodian with respect to any
Deposited Securities, or discharge the Custodian with respect to any Deposited
Securities and appoint a substitute custodian, which shall thereafter be
Custodian hereunder with respect to the Deposited Securities. After any such
change, the Depositary shall give notice thereof in writing to all Holders.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
SECTION 5.6 Notices and Reports. On or before the first date on which
the Company gives notice, by publication or otherwise, of any meeting of holders
of Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in
English but otherwise in the form given or to be given to holders of Shares or
other Deposited Securities. The Company shall also furnish to the Custodian and
the Depositary a summary, in English, of any applicable provisions or proposed
provisions of the Company's Memorandum and Articles of Association that may be
relevant or pertain to such notice of meeting or be the subject of a vote
thereat.
The Company will also transmit to the Depositary (a) English language
versions of the other notices, reports and communications which are made
generally available by the Company to holders of its Shares or other Deposited
Securities and (b) English language versions of the Company's annual and other
reports prepared in accordance with the applicable requirements of the
Commission. The Depositary shall arrange, at the request of the Company and at
the Company's expense, for the mailing of copies thereof to all Holders, or by
any other means as agreed between the Company and the Depositary (at the
Company's expense) or make such notices, reports and other communications
available for inspection by all Holders, provided that the Depositary shall have
received evidence sufficiently satisfactory to it, including in the form of an
opinion of local and/or U.S. counsel or counsel of other applicable
jurisdiction, furnished at the expense of the Company, as the Depositary
reasonably requests, that the distribution of such notices, reports and any such
other communications to Holders from time to time is valid and does not or will
not infringe any local, U.S. or other applicable jurisdiction regulatory
restrictions or requirements if so distributed and made available to Holders.
The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time
to time, in order for the Depositary to effect such mailings. The Company has
delivered to the Depositary and the Custodian a copy of the Company's Memorandum
and Articles of Association along with the provisions of or governing the Shares
and any other Deposited Securities issued by the Company or any Affiliate of the
Company, in connection with the Shares, in each case along with a certified
English
27
translation thereof, and promptly upon any amendment thereto or change therein,
the Company shall deliver to the Depositary and the Custodian a copy of such
amendment thereto or change therein (along with a certified English translation
thereof). The Depositary may rely upon such copy for all purposes of this
Deposit Agreement.
The Depositary will make available a copy of any such notices, reports
or communications issued by the Company and delivered to the Depositary for
inspection by the Holders of the Receipts evidencing the American Depositary
Shares representing such Shares governed by such provisions at the Depositary's
Principal Office, at the office of the Custodian and at any other designated
transfer office.
SECTION 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger or
consolidation or transfer of assets or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, it will obtain U.S. legal advice and take all
steps necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions of
the Securities Act, or any other applicable laws (including, without limitation,
the Investment Company Act of 1940, as amended, the Exchange Act or the
securities laws of the states of the United States). In support of the
foregoing, at the request of the Depositary, the Company will furnish to the
Depositary, at its own expense, (a) a written opinion of U.S. counsel
(reasonably satisfactory to the Depositary) stating whether or not application
of such transaction to Holders and Beneficial Owners (1) requires a registration
statement under the Securities Act to be in effect or (2) is exempt from the
registration requirements of the Securities Act and (b) a written opinion of
Jersey counsel (reasonably satisfactory to the Depositary) stating that (1)
making the transaction available to Holders and Beneficial Owners does not
violate the laws or regulations of Jersey and (2) all requisite regulatory
consents and approvals have been obtained in Jersey. If the filing of a
registration statement is required, the Depositary shall not have any obligation
to proceed with the transaction unless it shall have received evidence
reasonably satisfactory to it that such registration statement has been declared
effective and that such distribution is in accordance with all applicable laws
or regulations. If, being advised by counsel, the Company determines that a
transaction is required to be registered under the Securities Act, the Company
will either (i) register such transaction to the extent necessary, (ii) alter
the terms of the transaction to avoid the registration requirements of the
Securities Act or (iii) direct the Depositary to take specific measures, in each
case as contemplated in this Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor any
of its Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
28
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act or have been registered under the Securities Act (and such registration
statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement,
nothing in this Deposit Agreement shall be deemed to obligate the Company to
file any registration statement in respect of any proposed transaction.
SECTION 5.8 Indemnification. The Company agrees to indemnify the
Depositary, any Custodian and each of their respective directors, officers,
employees, agents and Affiliates against, and hold each of them harmless from,
any losses, liabilities, taxes, costs, claims, judgments, proceedings, actions,
demands and any charges or expenses of any kind whatsoever (including, but not
limited to, reasonable attorney's fees and expenses and, in each case, fees and
expenses of counsel, in each case, irrevocable value added tax and any similar
tax charged or otherwise imposed in respect thereof) (collectively referred to
as "Losses") which the Depositary or any agent thereof may incur or which may be
made against it as a result of or in connection with its appointment or the
exercise of its powers and duties under this Agreement or that may arise (a) out
of or in connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Shares, or other
Deposited Securities, as the case may be, (b) out of or in connection with any
offering documents in respect thereof or (c) out of or in connection with acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with this Deposit Agreement, the Receipts, the American Depositary
Shares, the Shares, or any Deposited Securities, in any such case (i) by the
Depositary, the Custodian or any of their respective directors, officers,
employees, agents and Affiliates, except to the extent any such Losses arises
out of the negligence or bad faith of any of them, or (ii) by the Company or any
of its directors, officers, employees, agents and Affiliates. Notwithstanding
the above, in no event shall the Depositary or any of its directors, officers,
employees, agents and/or Affiliates be liable for any indirect, special,
punitive or consequential damages to the Company, Holders, Beneficial Owners or
any other person. The indemnities contained in this paragraph shall not extend
to any Loss that arises out of information (or omissions from such information)
relating to the Indemnified Persons, furnished in writing to the Company by such
Indemnified Person expressly for use in any registration statement, prospectus
or proxy statement under the Securities Act.
The Depositary agrees to indemnify the Company, its directors,
officers, employees, agents and Affiliates against and hold each of them
harmless from any Losses which may arise out of acts performed or omitted to be
performed by the Depositary or its directors, employees, agents and Affiliates
due to their negligence or bad faith.
Any person seeking indemnification hereunder (an "Indemnified Person")
shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of the commencement of any indemnifiable action or claim
promptly after such Indemnified Person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
Indemnified Person's rights to indemnification except to the extent the
Indemnifying Person is materially prejudiced by such failure) and shall consult
in good faith with the Indemnifying Person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable under the circumstances. No Indemnified Person shall
compromise or settle any action or claim that may give rise to an indemnity
hereunder without the consent of the Indemnifying Person, which consent shall
not be unreasonably withheld.
29
The obligations set forth in this Section shall survive the termination
of this Deposit Agreement and the succession or substitution of any party
hereto.
SECTION 5.9 Fees and Charges of Depositary. The Company, the Holders,
the Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively as provided for under Article 9 of the Form of Receipt
attached hereto as Exhibits A and B; provided, however, that no fees shall be
payable upon distribution of cash dividends so long as the charging of such fee
is prohibited by the exchange, if any, upon which the ADSs are listed. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
The Depositary and the Company may reach separate agreement in relation
to the payment of any additional remuneration to the Depositary in respect of
any exceptional duties which the Depositary finds necessary or desirable and
agreed by both parties in the performance of its obligations hereunder and in
respect of the actual costs and expenses of the Depositary in respect of any
notices required to be given to the Holders in accordance with Article 20 of the
Form of Receipt attached hereto as Exhibits A and B.
In connection with any payment by the Company to the Depositary:
(i) all fees, taxes, duties, charges, costs and expenses which are
payable by the Company shall be paid or be procured to be paid by
the Company (and any such amounts which are paid by the
Depositary shall be reimbursed to the Depositary by the Company
upon demand therefor); and
(ii) such payment shall be subject to all necessary Jersey exchange
control and other consents and approvals having been obtained.
The Company undertakes to use its reasonable endeavors to obtain
all necessary approvals that are required to be obtained by it in
this connection.
The Company agrees to promptly pay to the Depositary such other fees,
charges and expenses and to reimburse the Depositary for such out-of-pocket
expenses as the Depositary and the Company may agree to in writing from time to
time. Responsibility for payment of such charges may at any time and from time
to time be changed by agreement between the Company and the Depositary. Unless
otherwise agreed, the Depositary shall present its statement for such expenses
and fees or charges to the Company once every three months.
All payments by the Company to the Depositary under this Section 5.9
shall be paid without set-off or counterclaim, and free and clear of and without
deduction or withholding for or on account of, any present or future taxes,
levies, imports, duties, fees, assessments or other charges of whatever nature,
imposed by Jersey or by any department, agency or other political subdivision or
taxing authority thereof or therein, and all interest, penalties or similar
liabilities with respect thereto.
30
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
SECTION 5.10 Restricted Securities Owners/Ownership Restrictions. From
time to time or upon the reasonable request of the Depositary, 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
and the Company shall update that list on a regular basis. The Depositary may
rely on such a list or update but shall not be liable for any action or omission
made in reliance thereon. 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 Company shall, in accordance with Article 24 of the Form
of Receipt attached hereto as Exhibits A and B, inform Holders and Beneficial
Owners and the Depositary of any other limitations on ownership of Shares that
the Holders and Beneficial Owners may be subject to by reason of the number of
American Depositary Shares held under the Memorandum and Articles of Association
of the Company or applicable Jersey law, as such restrictions may be in force
from time to time.
SECTION 5.11 Share Register of the Company. Unless otherwise agreed in
writing between the Company and the Depositary, the Company agrees to keep and
maintain its share register in Jersey.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement. Subject to the terms and conditions
of this Section 6.1 and applicable law, the Receipts outstanding at any time,
the provisions of this Deposit Agreement and the form of Receipt attached hereto
and to be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable and not
materially prejudicial to the Holders without the consent of the Holders or
Beneficial Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding Receipts until 30 days after notice of such
amendment or supplement shall have been given to the Holders of outstanding
Receipts. The parties hereto agree that any amendments or supplements which (i)
are reasonably necessary (as agreed by the Company and the Depositary) in order
for (a) the American Depositary Shares to be registered on Form F-6 under the
Securities Act or (b) the American Depositary Shares or the Shares to be traded
solely in electronic book-entry form and (ii) do not in either such case impose
or increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such American
Depositary Share or Shares, to consent and agree to such amendment or supplement
and to be bound by this Deposit Agreement as amended and supplemented thereby.
In no event shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
31
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of this Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement this Deposit Agreement and the Receipt at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to this Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance with such laws, rules or
regulations.
SECTION 6.2 Termination. The Depositary shall, at any time at the
written direction of the Company, terminate this Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 90 days prior to the date fixed in such notice for such termination,
provided that the Depositary shall be reimbursed for any amounts, fees, costs or
expenses owed to it in accordance with the terms of this Deposit Agreement and
in accordance with any other agreements as otherwise agreed in writing between
the Company and the Depositary from time to time, prior to such termination
shall take effect. If 90 days shall have expired after (i) the Depositary shall
have delivered to the Company a written notice of its election to resign, or
(ii) the Company shall have delivered to the Depositary a written notice of the
removal of the Depositary, and in either case a successor depositary shall not
have been appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Section
2.6 and subject to the conditions and restrictions therein set forth, and upon
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Receipt. If any Receipts shall remain outstanding after the
date of termination of this Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of Receipts, and the Depositary 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, shall sell rights or other
property as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, subject to the conditions and restrictions set forth in
Section 2.6, 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 (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of this Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders of
Receipts whose Receipts have not theretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations under this Deposit
Agreement with respect to the Receipts and the Shares, Deposited Securities and
American Depositary Shares, except to account for such net proceeds and other
cash (after deducting, or charging, as the case may be, in each case, the
charges of the
32
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary hereunder.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
SECTION 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties hereto nor establish a fiduciary
or similar relationship among the parties. The parties hereto acknowledge and
agree that (i) the Depositary and its Affiliates may at any time have multiple
banking relationships with the Company and its Affiliates, (ii) the Depositary
and its Affiliates may be engaged at any time in transactions in which parties
adverse to the Company or the Holders or Beneficial Owners may have interests
and (iii) nothing contained in this Agreement shall (a) preclude the Depositary
or any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, or (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or relationships.
SECTION 7.3 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and Beneficial Owners from time to time of American Depositary
Shares shall be parties to this Deposit Agreement and shall be bound by all of
the terms and conditions hereof and of any Receipt by acceptance hereof or any
beneficial interest therein.
SECTION 7.5 Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex, facsimile transmission or electronic transmission,
confirmed by letter, addressed to [Company], [WNS (Holdings) Limited, x/x XXX
Xxxxx Xxxxxxx, Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X. Attention: [___________], telephone: x0 000 000-0000,
33
facsimile: [_____]] or to any other address which the Company may specify in
writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex, facsimile transmission or by electronic transmission (if agreed by
the Company and the Depositary), at the Company's expense, unless otherwise
agreed in writing between the Company and the Depositary, confirmed by letter,
addressed to Deutsche Bank Trust Company Americas, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, U.S.A., Attention: ADR Department, telephone: + 000 000-0000,
facsimile: + 000 000 0000 or to any other address which the Depositary may
specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex,
facsimile transmission or by electronic transmission (if agreed by the Company
and the Depositary), at the Company's expense, unless otherwise agreed in
writing between the Company and the Depositary, addressed to such Holder at the
address of such Holder as it appears on the transfer books for Receipts 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 specified in such request. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex,
facsimile or electronic transmission shall be deemed to be effective at the time
when a duly addressed letter containing the same (or a confirmation thereof in
the case of a cable, telex, facsimile or electronic transmission) is deposited,
postage prepaid, in a post-office letter box or delivered to an air courier
service. The Depositary or the Company may, however, act upon any cable, telex,
facsimile or electronic transmission received by it from the other or from any
Holder, notwithstanding that such cable, telex, facsimile or electronic
transmission shall not subsequently be confirmed by letter as aforesaid, as the
case may be.
SECTION 7.6 Governing Law and Jurisdiction. This Deposit Agreement and
the Receipts shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York without reference to the principles of choice of law
thereof. Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers WNS North America, Inc. (the
"Process Agent") now at 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000, X.X.X. Attention: [___________], telephone: x0 000 000-0000, facsimile:
[_____] as its authorized agent to receive and accept for and on its behalf, and
on behalf of its properties, assets and revenues, service by mail of any and all
legal process, summons, notices and documents that may be served in any suit,
action or proceeding brought against the Company in any federal or state court
as described in the preceding sentence or in the next paragraph of this Section
7.6. If for any reason the Process Agent shall cease to be available
34
to act as such, the Company agrees to designate a new agent in the City of New
York on the terms and for the purposes of this Section 7.6 reasonably
satisfactory to the Depositary. The Company further hereby irrevocably consents
and agrees to the service of any and all legal process, summons, notices and
documents in any suit, action or proceeding against the Company, by service by
mail of a copy thereof upon the Process Agent (whether or not the appointment of
such Process Agent shall for any reason prove to be ineffective or such Process
Agent shall fail to accept or acknowledge such service), with a copy mailed to
the Company by registered or certified air mail, postage prepaid, to its address
provided in Section 7.5 hereof. The Company agrees that the failure of the
Process Agent to give any notice of such service to it shall not impair or
affect in any way the validity of such service or any judgment rendered in any
action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any state or federal court of the United States,
and the Depositary or the Company have any claim, for indemnification or
otherwise, against each other arising out of the subject matter of such suit,
action or proceeding, then the Company and the Depositary may pursue such claim
against each other in the state or federal court in the United States in which
such suit, action, or proceeding is pending, and for such purposes the Company
and the Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Process Agent in the
manner set forth in the preceding paragraph shall be effective service upon it
for any suit, action or proceeding brought against it as described in this
paragraph.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of venue of any actions, suits or proceedings brought in any court as
provided in this Section 7.6, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
The Company and the Depositary agree that, notwithstanding the
foregoing, with regard to any claim or dispute or difference of whatever nature
between the parties hereto arising directly or indirectly from the relationship
created by this Deposit Agreement, the Depositary, in its sole discretion, shall
be entitled to refer such dispute or difference for final settlement by
arbitration ("Arbitration") in accordance with the applicable rules of the
American Arbitration Association (the "Rules") then in force, by a sole
arbitrator appointed in accordance with the Rules. The seat and place of any
reference to Arbitration shall be New York, New York State. The procedural law
of any Arbitration shall be New York law and the language to be used in the
Arbitration shall be English. The fees of the arbitrator and other costs
incurred by the parties in connection with such Arbitration shall be paid by the
party that is unsuccessful in such Arbitration.
The provisions of this Section 7.6 shall survive any termination of
this Deposit Agreement, in whole or in part.
35
SECTION 7.7 Assignment. Subject to the provisions of Section 5.4
hereof, this Deposit Agreement may not be assigned by either the Company or the
Depositary.
SECTION 7.8 Agents. The Depositary shall be entitled, in its sole but
reasonable discretion, to appoint one or more agents (the "Agents") of which it
shall have control for the purpose, inter alia, of making distributions to the
Holders or otherwise carrying out its obligations under this Agreement.
SECTION 7.9 Exclusivity. The Company agrees not to appoint any other
depositary for the issuance or administration of depositary receipts evidencing
any class of stock of the Company so long as Deutsche Bank Trust Company
Americas is acting as Depositary hereunder.
SECTION 7.10 Compliance with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
SECTION 7.11 Titles. All references in this Deposit Agreement to
exhibits, articles, sections, subsections, and other subdivisions refer to the
exhibits, articles, sections, subsections and other subdivisions of this Deposit
Agreement unless expressly provided otherwise. The words "this Deposit
Agreement," "herein," "hereof," "hereby," "hereunder," and words of similar
import refer to the Deposit Agreement as a whole as in effect between the
Company, the Depositary and the Holders and Beneficial Owners of ADSs and not to
any particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
36
IN WITNESS WHEREOF, WNS (HOLDINGS) LIMITED and DEUTSCHE BANK TRUST
COMPANY AMERICAS have duly executed this Deposit Agreement as of the day and
year first above set forth and all Holders and Beneficial Owners shall become
parties hereto upon acceptance by them of American Depositary Shares evidenced
by Receipts issued in accordance with the terms hereof.
WNS (HOLDINGS) LIMITED
By:
-----------------------------------------------
Name:
Title:
By:
-----------------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
-----------------------------------------------
Name:
Title:
By:
-----------------------------------------------
Name:
Title:
37
Number CUSIP
American Depositary Shares (Each
American Depositary Share
representing One Fully Paid
Ordinary Share)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
Of
WNS (HOLDINGS) LIMITED
(Incorporated under the laws of Jersey)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary (herein called the
"Depositary"), hereby certifies that _____________ is the owner of
______________ American Depositary Shares (hereinafter "ADS"), representing
deposited ordinary shares, each of par value of 10 xxxxx including evidence of
rights to receive such ordinary shares (the "Shares") of WNS (Holdings) Limited,
a company incorporated under the laws of Jersey (the "Company"). As of the date
of the Deposit Agreement (hereinafter referred to), each ADS represents one
Share deposited under the Deposit Agreement with the Custodian which at the date
of execution of the Deposit Agreement is [ ]
(the "Custodian"). The ratio of American Depositary Shares to the Shares is
subject to subsequent amendment as provided in Article IV of the Deposit
Agreement. The Depositary's Principal Office is located at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of
an issue of American Depositary Receipts ("Receipts"), all issued and to be
issued upon the terms and conditions set forth in the Deposit Agreement, dated
as of [______________, 2006] (as amended from time to time, the "Deposit
Agreement"), by and among the Company, the Depositary, and all Holders and
Beneficial Owners from time to time of Receipts issued thereunder, each of whom
by accepting a Receipt agrees to become a party thereto and becomes bound by all
the terms and conditions thereof. The Deposit Agreement sets forth the rights
and obligations of Holders and Beneficial Owners of Receipts and the rights and
duties of the Depositary in respect
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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, other securities, property and cash are herein called
"Deposited Securities"). A copy of the Deposit Agreement is on file at the
Principal Office of the Depositary and the Custodian.
Each Holder and each Beneficial Owner, upon acceptance of any ADSs (or
any interest therein) issued in accordance with the terms and conditions of the
Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of the Deposit Agreement and applicable ADR(s), and (b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
the Deposit Agreement and the applicable ADR(s), the taking of such actions to
be the conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Company's
Memorandum and Articles of Association (as in effect on the date of the Deposit
Agreement) and are qualified by and subject to the detailed provisions of the
Deposit Agreement, to which reference is hereby made. All capitalized terms used
herein which are not otherwise defined herein shall have the meanings ascribed
thereto in the Deposit Agreement. The Depositary makes no representation or
warranty as to the validity or worth of the Deposited Securities. The Depositary
has made arrangements for the acceptance of the American Depositary Shares into
DTC. Each Beneficial Owner of American Depositary Shares held through DTC must
rely on the procedures of DTC and the DTC participants to exercise and be
entitled to any rights attributable to such American Depositary Shares. The
Receipt evidencing the American Depositary Shares held through DTC will be
registered in the name of a nominee of DTC. So long as the American Depositary
Shares are held through DTC or unless otherwise required by law, ownership of
beneficial interests in the Receipt registered in the name of DTC (or its
nominee) will be shown on, and transfers of such ownership will be effected only
through, records maintained by (i) DTC (or its nominee), or (ii) DTC
participants (or their nominees).
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) fees and the charges of the Depositary for the
making of withdrawals of Deposited Securities and cancellation of Receipts (as
set forth in Article (9) hereof and in Section 5.9 of the Deposit Agreement) and
(ii) all applicable taxes and governmental charges payable in connection with
such surrender and withdrawal, and, subject to the terms and conditions of the
Deposit Agreement, the Company's Memorandum and Articles of Association, Section
7.10 of the Deposit Agreement, Article (22) hereof and any other provisions of
or governing the Deposited Securities and other applicable laws, the Holder of
the American Depositary Shares evidenced hereby is entitled to delivery, to him
or upon his order, of the Deposited Securities at the time represented by the
ADS so surrendered. ADS may be surrendered for the purpose of withdrawing
Deposited Securities by delivery of a Receipt evidencing such ADS (if held in
certificated form) or by book-entry delivery of such ADS to the Depositary.
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A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
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 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 (without
unreasonable delay) at the designated office of the Custodian or through a
book-entry delivery of the Shares (in either cases, subject to the terms and
conditions of the Deposit Agreement, to the Company's Memorandum and Articles of
Association, and to the provisions of or governing the Deposited Securities and
applicable laws, now or hereafter in effect) to or upon the written order of the
person or persons designated in the order delivered to the Depositary as
provided above, the Deposited Securities represented by such ADSs, together with
any certificate or other proper documents of or relating to title for the
Deposited Securities as may be legally required, as the case may be, to or for
the account of such person.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares representing a number of Shares other than
a whole number of Shares. In the case of surrender of a Receipt evidencing a
number of ADSs representing other than a whole number of Shares, the Depositary
shall cause ownership of the appropriate whole number of Shares to be delivered
in accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt so surrendered and remit the proceeds thereof (net of
(a) applicable fees and charges of, and expenses incurred by, the Depositary and
(b) taxes withheld) to the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering a
Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward (to the extent permitted by law) any cash or other property
(other than securities) held in respect of, and any certificate or certificates
and other proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission. Upon receipt by the
Depositary, the Depositary may make delivery to such person or persons entitled
thereto at the Principal Office of the Depositary of any dividends or cash
distributions with respect to the Deposited Securities represented by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the
terms and conditions of the Deposit Agreement, the Registrar shall register
transfers of Receipts on its books, upon surrender at the Principal Office of
the Depositary of a Receipt by the Holder thereof in person or by duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer (including signature guarantees in accordance with standard industry
practice) and duly stamped as may be required by the laws of the State of New
York and of the United States of America, of Jersey and of any other applicable
law. Subject to the terms and conditions of the Deposit Agreement, including
payment of the applicable fees and charges of the Depositary, the Depositary
shall execute and deliver a new Receipt(s) (and if necessary,
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cause the Registrar to countersign such Receipt(s)) and deliver same to or upon
the order of the person entitled to such Receipts evidencing the same aggregate
number of ADSs as those evidenced by the Receipts surrendered. Upon surrender of
a Receipt or Receipts for the purpose of effecting a split-up or combination of
such Receipt or Receipts and upon payment of the applicable fees and charges of
the Depositary, and subject to the terms and conditions of the Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts
for any authorized number of ADSs requested, evidencing the same aggregate
number of ADSs as the Receipt or Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from the
depositor of Shares or presenter of the Receipt of a sum sufficient to reimburse
it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matters
contemplated in Section 3.1 of the Deposit Agreement and (iii) compliance with
(A) any laws or governmental regulations relating to the execution and delivery
of Receipts or ADSs or to the withdrawal or delivery of Deposited Securities and
(B) such reasonable regulations of the Depositary or the Company consistent with
the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange upon which the
Receipts or Share are listed, or under any provision of the Deposit Agreement or
provisions of, or governing, the Deposited Securities or any meeting of
shareholders of the Company or for any other reason, subject in all cases to
Article (22) hereof. Notwithstanding any provision of the Deposit Agreement or
this Receipt to the contrary, the Holders of Receipts are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities at any time subject only
to (i) temporary delays caused by closing the transfer books of the Depositary
or the Company or the deposit of Shares in connection with voting at a
shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time). Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under the
Deposit Agreement any Shares or other Deposited Securities required to be
registered under the provisions of the U.S. Securities Act, unless a
registration statement is in effect as to such Shares.
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement, this Receipt, the Memorandum and Articles of
Association of the Company and applicable law, each Holder and Beneficial Owner
of the ADSs
A-4
represented hereby agrees to comply with requests from the Company pursuant to
the laws of Jersey, the rules and requirements of The New York Stock Exchange
and any other stock exchange on which the Shares are, or will be registered,
traded or listed, the Company's Memorandum and Articles of Association, which
are made to provide information as to the capacity in which such Holder or
Beneficial Owner owns ADSs and regarding the identity of any other person
interested in such ADSs and the nature of such interest and various other
matters whether or not they are Holders and/or Beneficial Owner at the time of
such request. The Depositary agrees to use reasonable efforts to forward any
such requests to the Holders and to forward to the Company any such responses to
such requests received by the Depositary.
(6) Liability of Holder for Taxes, Duties and Other Charges. If any tax
or other governmental charge shall become payable by the Depositary or the
Custodian with respect to any Receipt or any Deposited Securities or ADSs, such
tax, or other governmental charge shall be payable by the Holders and Beneficial
Owners to the Depositary. The Company, the Custodian and/or the Depositary may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of the Holder and/or Beneficial Owner
any or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, with the Holder and the Beneficial Owner hereof remaining fully
liable for any deficiency. The Custodian may refuse the deposit of Shares, and
the Depositary may refuse to issue ADSs, to deliver Receipts, register the
transfer, split-up or combination of ADRs and (subject to Article (22) hereof)
the withdrawal of Deposited Securities, until payment in full of such tax,
charge, penalty or interest is received. Every Holder and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian and each of their
respective agents, officers, directors, employees and Affiliates for, and hold
each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
Holders understand that in converting Foreign Currency, amounts
received on conversion are calculated at a rate which may exceed the number of
decimal places used by the Depositary to report distribution rates (which in any
case will not be less than two decimal places). Any excess amount may be
retained by the Depositary as an additional cost of conversion, irrespective of
any other fees and expenses payable or owing hereunder and shall not be subject
to escheatment.
(7) Representations and Warranties of Depositors. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares (and the certificates therefor) are
duly authorized, validly issued, fully paid, non-assessable and were legally
obtained by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares, have been validly waived or exercised, (iii) the person
making such deposit is duly authorized so to do, (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim and are not, and the ADSs issuable upon such deposit
will not be, Restricted Securities and (v) the Shares presented for deposit have
not been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares and the issuance,
cancellation and transfer of ADSs. If any such representations or warranties are
false in any way, the Company and Depositary shall be authorized, at the cost
and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
A-5
(8) Proofs, Certificates and Other Information. Any person presenting
Shares for deposit, any Holder and any Beneficial Owner may be required, and
every Holder and Beneficial Owner agrees, from time to time to provide to the
Depositary or the Custodian such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and the terms of the Deposit
Agreement and the provisions of, or governing, the Deposited Securities or other
information as the Depositary deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. Subject to Article (22) hereof and the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable,
may withhold the execution or delivery or registration of transfer of any
Receipt or the distribution or sale of any dividend or distribution of rights or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed, or such certifications are executed, or
such representations and warranties made, or such information and documentation
are provided.
(9) Charges of Depositary. The Depositary shall charge the following
fees for the services performed under the terms of the Deposit Agreement;
provided, however, that no fees shall be payable upon distribution of cash
dividends so long as the charging of such fee is prohibited by the exchange, if
any, upon which the ADSs are listed:
(i) to any person to whom ADSs are issued or to any person to
whom a distribution is made in respect of ADS distributions pursuant
to stock dividends or other free distributions of stock, bonus
distributions, stock splits or other distributions (except where
converted to cash), a fee not in excess of U.S.$5.00 per 100 ADSs (or
fraction thereof) so issued under the terms of the Deposit Agreement
to be determined by the Depositary;
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities including, inter alia, cash
distributions made pursuant to a cancellation or withdrawal, a fee not
in excess of U.S.$5.00 per 100 ADSs (or fraction thereof) so
surrendered;
(iii) to any Holder of ADSs, a fee not in excess of U.S.$2.00 per
100 ADSs held for the distribution of cash proceeds, including cash
dividends or sale of rights and other entitlements, not made pursuant
to a cancellation or withdrawal;
(iv) to any holder of ADSs, a fee not in excess of U.S.$5.00 per
100 ADSs (or portion thereof) issued upon the exercise of rights;
(v) for the operation and maintenance costs in administering the
ADRs an annual fee of U.S.$[ ] or less per ADR: provided, however,
that if the Depositary imposes a fee under this clause (v), then the
total of fees assessed under this clause (v), combined with the total
of fees assessed under clause (iv) above, shall not exceed U.S.$[ ]
per ADR in any calendar year; and
A-6
(vi) in connection with inspections of the relevant share
register maintained by the local registrar, if applicable undertaken
by the Depositary, the Custodian or their respective agents: an annual
fee of U.S.$[ ] or less per ADR (such fee to be assessed against
Holders of record as of the date or dates set by the Depositary as it
sees fit and collected at the sole discretion of the Depositary by
billing such Holders for such fee or by deducting such fee from one or
more cash dividends or other cash distributions.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities with the
Foreign Registrar and applicable to transfers of Shares or other
Deposited Securities to or from the name of the Custodian, the
Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such cable, telex, facsimile and electronic transmission
and delivery expenses as are expressly provided in the Deposit
Agreement to be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and other
regulatory requirements applicable to Shares, Deposited Securities,
ADSs and ADRs;
(vi) the fees and expenses incurred by the Depositary in
connection with the delivery of Deposited Securities, including any
fees of a central depository for securities in the local market, where
applicable; and
(vii) any additional fees, charges, costs or expenses that may be
incurred by the Depositary from time to time.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (20) of this Receipt.
(10) 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 (and to each ADS evidenced hereby) is
transferable by delivery of the Receipt, provided it has been properly endorsed
or accompanied by proper instruments of transfer, such Receipt being a
A-7
certificated security under the laws of the State of New York. Notwithstanding
any notice to the contrary, the Depositary may deem and treat the Holder of this
Receipt (that is, the person in whose name this Receipt is registered on the
books of the Depositary) as the absolute owner hereof for all purposes. The
Depositary shall have no obligation or be subject to any liability under the
Deposit Agreement or this Receipt to any holder of this Receipt or any
Beneficial Owner unless such holder is the Holder of this Receipt registered on
the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(11) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or enforceable for any purpose,
unless this Receipt has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) if a Registrar
for the Receipts shall have been appointed, countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar and (iv)
registered in the books maintained by the Depositary or the Registrar, as
applicable, for the issuance and transfer of Receipts. Receipts bearing the
manual or facsimile signature of a duly-authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly-authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the execution and delivery of such Receipt by the Depositary
or the Registrar or did not hold such office on the date of issuance of such
Receipts.
(12) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
applicable to foreign private issuers (as defined in Rule 405 under the
Securities Act) and accordingly files certain information with the Commission.
These reports and documents can be inspected and copied at the public reference
facilities maintained by the Commission located at 000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000. The Depositary shall make available during normal
business hours on any Business Day for inspection by Holders at its Principal
Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company.
The Depositary or the Registrar, as applicable, shall keep books for
the registration of Receipts and transfers of Receipts which at all reasonable
times shall be open for inspection by the Company and by the Holders of such
Receipts, provided that such inspection shall not be, to the Depositary's or the
Registrar's knowledge, 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 other than a matter related to the Deposit Agreement or the Receipts.
The Depositary or the Registrar, as applicable, may close the transfer
books with respect to the Receipts, at any time or from time to time, when
deemed necessary or advisable by it in good faith in connection with the
performance of its duties hereunder, or at the reasonable written request of the
Company subject, in all cases, to Article (22) hereof.
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Dated: DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Depositary
By:
----------------------------------------
Vice President
The address of the Principal Office of the Depositary is 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a foreign currency can, in the judgment of the
Depositary (upon the terms of the Deposit Agreement), be converted on a
practicable basis, into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars and will distribute promptly the amount thus received (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of ADS representing such Deposited Securities held by such Holders
respectively as of the ADS Record Date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder a
fraction of one cent. Any such fractional amounts shall be rounded to the
nearest whole cent and so distributed to Holders entitled thereto. If the
Company, the Custodian or the Depositary is 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, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Any foreign currency received by the Depositary shall be
converted upon the terms and conditions set forth in the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Company shall or cause such
Shares to be deposited with the Custodian and registered, as the case may be, in
the name of the Depositary, the Custodian or their nominees. Upon receipt of
confirmation of such deposit, the Depositary shall, subject to and in accordance
with the Deposit Agreement, establish the ADS Record Date and either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of ADSs held as of the ADS Record Date, additional ADSs, which represent in
aggregate the number of Shares received as such dividend, or free distribution,
subject to the terms of the Deposit Agreement (including, without limitation,
the applicable fees and charges of, and expenses incurred by, the Depositary,
and taxes), or (ii) if additional ADSs are not so distributed, each ADS issued
and outstanding after the ADS Record Date shall, to the extent permissible by
law, thenceforth also represent rights and interest in the additional Shares
distributed upon the Deposited Securities represented thereby (net of the
applicable fees and charges of, and the expenses incurred by, the Depositary,
and taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the
number of Shares represented by the aggregate of such fractions and distribute
the proceeds upon the terms set forth in the Deposit Agreement.
In the event that (x) the Depositary determines that any distribution
in property (including Shares) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, or, (y) if the Company,
in the fulfillment of its obligations under the Deposit Agreement, has either
(a) furnished an opinion of U.S. counsel determining that Shares must be
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registered under the Securities Act or other laws in order to be distributed to
Holders (and no such registration statement has been declared effective), or (b)
fails to timely deliver the documentation contemplated in the Deposit Agreement,
the Depositary may dispose of all or a portion of such property (including
Shares and rights to subscribe therefor) in such amounts and in such manner,
including by public or private sale, as the Depositary deems necessary and
practicable, and the Depositary shall distribute the net proceeds of any such
sale (after deduction of taxes and fees and charges of, and expenses incurred
by, the Depositary) to Holders entitled thereto upon the terms of the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold balance of
such property in accordance with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Depositary shall, upon provision of all
documentation required under the Deposit Agreement (including, without
limitation, any legal opinions of counsel the Depositary may request under the
Deposit Agreement) determine whether such distribution is lawful and reasonably
practicable. If so, the Depositary shall, subject to the terms and conditions of
the Deposit Agreement, establish an ADS Record Date according to Article (14)
hereof and establish procedures to enable the Holder hereof to elect to receive
the proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the dividend shall be distributed as in the
case of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be distributed as in the
case of a distribution in Shares upon the terms described in the Deposit
Agreement. If such elective distribution is not lawful or reasonably practicable
or if the Depositary did not receive satisfactory documentation set forth in the
Deposit Agreement, the Depositary shall, to the extent permitted by law,
distribute to Holders, on the basis of the same determination as is made in the
local market in respect of the Shares for which no election is made, either (x)
cash or (y) additional ADSs representing such additional Shares, in each case,
upon the terms described in the Deposit Agreement. Nothing herein shall obligate
the Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
Upon receipt by the Depositary of a notice indicating that the Company
wishes rights to subscribe for additional Shares to be made available to Holders
of ADSs, the Company shall determine whether it is lawful and reasonably
practicable to make such rights available to the Holders. The Depositary shall
make such rights available to any Holders only if the Company shall have timely
requested that such rights be made available to Holders, the Depositary shall
have received the documentation required by the Deposit Agreement, and the
Depositary shall have determined that such distribution of rights is lawful and
reasonably practicable. If such conditions are not satisfied, the Depositary
shall sell the rights as described below. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date and
establish procedures (x) to distribute such rights (by means of warrants or
otherwise) and (y) to enable the Holders to exercise the rights (upon payment of
the applicable fees and charges of, and expenses incurred by, the Depositary and
taxes). Nothing herein or in the Deposit Agreement shall obligate the Depositary
to make available to the Holders a method to exercise such rights to subscribe
for Shares (rather than ADSs). If (i) the Company does not timely
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request the Depositary to make the rights available to Holders or if the Company
requests that the rights not be made available to Holders, (ii) the Depositary
fails to receive the documentation required by the Deposit Agreement or
determines it is not lawful or reasonably practicable to make the rights
available to Holders, or (iii) any rights made available are not exercised and
appear to be about to lapse, the Depositary shall determine whether it is lawful
and reasonably practicable to sell such rights, in a riskless principal capacity
or otherwise, at such place and upon such terms (including public and private
sale) as it may deem proper. The Depositary shall, upon such sale, convert and
distribute proceeds of such sale (net of applicable fees and charges of, and
expenses incurred by, the Depositary and taxes) upon the terms hereof and in the
Deposit Agreement. If the Depositary is unable to make any rights available to
Holders or to arrange for the sale of the rights upon the terms described above,
the Depositary shall allow such rights to lapse. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or feasible
to make such rights available to Holders in general or any Holders in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or exercise, or (iii) the content of any materials forwarded to
the Holders on behalf of the Company in connection with the rights distribution.
Notwithstanding anything herein to the contrary, if registration (under
the Securities Act or any other applicable law) of the rights or the securities
to which any rights relate may be required in order for the Company to offer
such rights or such securities to Holders and to sell the securities represented
by such rights, the Depositary will not distribute such rights to the Holders
(i) unless and until a registration statement under the Securities Act covering
such offering is in effect or (ii) unless the Company furnishes to the
Depositary opinion(s) of counsel for the Company in the United States and
counsel to the Company in any other applicable country in which rights would be
distributed, in each case reasonably satisfactory to the Depositary, to the
effect that the offering and sale of such securities to Holders and Beneficial
Owners are exempt from, or do not require registration under, the provisions of
the Securities Act or any other applicable laws. In the event that the Company,
the Depositary or the Custodian shall be required to withhold and does withhold
from any distribution of property (including rights) an amount on account of
taxes or other governmental charges, the amount distributed to the Holders shall
be reduced accordingly. 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 charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein shall obligate the Company to file any registration statement in respect
of any rights or Shares or other securities to be acquired upon the exercise of
such rights.
Upon receipt of a notice regarding property other than cash, Shares or
rights to purchase additional Shares, to be made to Holders of ADSs, the
Depositary shall determine, upon consultation with the Company, whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have
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timely requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received the documentation required by the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution
is lawful and reasonably practicable. Upon satisfaction of such conditions, the
Depositary shall distribute the property so received to the Holders of record as
of the ADS Record Date, in proportion to the number of ADSs held by such Holders
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall
endeavor to sell or cause such property to be sold in a public or private sale,
at such place or places and upon such terms as it may deem proper and shall
distribute the proceeds of such sale received by the Depositary (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) to the Holders upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property in any way it deems reasonably practicable under the circumstances.
(14) Fixing of Record Date. Whenever necessary in connection with any
distribution (whether in cash, Shares, rights or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of holders of Shares or other Deposited Securities, or
whenever the Depositary shall find it necessary or convenient in connection with
the giving of any notice, or any other matter, the Depositary shall fix a record
date ("ADS Record Date") for the determination of the Holders who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, or to give or withhold such consent, or to
receive such notice or solicitation or to otherwise take action, or to exercise
the rights of Holders with respect to such changed number of Shares represented
by each ADS. Subject to applicable law and the terms and conditions of this
Receipt and the Deposit Agreement, only the Holders of record at the close of
business in New York on such ADS Record Date shall be entitled to receive such
distributions, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
(15) Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of such consent or proxy. The Depositary shall, if
requested by the Company in writing in a timely manner (the Depositary having no
obligation to take any further action if the request shall not have been
received by the Depositary at least 21 days prior to the date of such vote or
meeting), at the Company's expense and provided no U.S. legal prohibitions
exist, mail by ordinary, regular mail delivery or by electronic transmission (if
agreed by the Company and the Depositary), unless otherwise agreed in writing by
the Company and the Depositary, to Holders as of the ADS Record Date: (a) such
notice of meeting or solicitation of consent or proxies; (b) a statement that
the Holders as of the ADS
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Record Date will be entitled, subject to any applicable law, the provisions of
the Deposit Agreement, the Company's Memorandum and Articles of Association and
the provisions of or governing the Deposited Securities (which provisions, if
any, shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Shares or other Deposited Securities represented by such Holder's ADSs; and (c)
a brief statement as to the manner in which such instructions may be given. Upon
the timely receipt of written instructions of a Holder of ADSs on the ADS Record
Date, the Depositary shall endeavor, insofar as practicable and permitted under
applicable law and the provisions of the Deposit Agreement, Company's Memorandum
and Articles of Association and the provisions of the Deposited Securities, to
vote or cause the Custodian to vote the Shares and/or other Deposited Securities
represented by ADSs held by such Holder in accordance with such instructions.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise the Shares or other
Deposited Securities represented by ADSs except pursuant to and in accordance
with such written instructions from Holders. Shares or other Deposited
Securities represented by ADSs for which no specific voting instructions are
received by the Depositary from the Holder shall not be voted.
Notwithstanding the above, save for applicable provisions of Jersey
law, and in accordance with Section 5.3 of the Deposit Agreement, the Depositary
shall not be liable for any failure to carry out any instructions to vote any of
the Deposited Securities, or for the manner in which such vote is cast or the
effect of any such vote.
(16) Changes Affecting Deposited Securities. Upon any change in par
value, split-up, cancellation, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it otherwise
is a party, any securities which shall be received by the Depositary or a
Custodian in exchange for, or in conversion of or replacement or otherwise in
respect of, such Deposited Securities shall, to the extent permitted by law, be
treated as new Deposited Securities under the Deposit Agreement, and the
Receipts shall, subject to the provisions of the Deposit Agreement and
applicable law, evidence ADSs representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to this form of Receipt
specifically describing such new Deposited Securities and/or corporate change.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall if the Company requests, subject to receipt of
satisfactory legal documentation contemplated in the Deposit Agreement, sell
such securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of fees and charges of, and expenses incurred by, the Depositary and taxes) for
the account of the Holders otherwise entitled to such securities and distribute
the net proceeds so allocated to the extent
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practicable as in the case of a distribution received in cash pursuant to the
Deposit Agreement. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or feasible to make such securities available
to Holders in general or any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
(17) Exoneration. Neither the Depositary, the Custodian or the Company
shall be obligated to do or perform any act which is inconsistent with the
provisions of the Deposit Agreement or shall incur any liability (i) if the
Depositary, the Custodian or the Company or their respective controlling persons
or agents shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, any other country or Jersey, or of any other governmental
authority or regulatory authority or stock exchange, or on account of the
possible criminal or civil penalties or restraint, or by reason of any
provision, present or future of the Company's Memorandum and Articles of
Association or any provision of or governing any Deposited Securities, or by
reason of any act of God or war or other circumstances beyond its control
(including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, terrorism, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in the Deposit Agreement or
in the Company's Memorandum and Articles of Association or provisions of or
governing Deposited Securities, (iii) for any action or inaction of the
Depositary, the Custodian or the Company or their respective controlling persons
or agents in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for any inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADS or (v) for any special,
consequential, indirect or punitive damages for any breach of the terms of the
Deposit Agreement. The Depositary, its controlling persons, its agents, any
Custodian and the Company, its controlling persons and its agents may rely and
shall be protected in acting upon any written notice, request, opinion or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties. No disclaimer of liability under the Securities Act
is intended by any provision of the Deposit Agreement.
(18) Standard of Care. The Company and the Depositary and their
respective agents assume no obligation and shall not be subject to any liability
under the Deposit Agreement or the Receipts to Holders or Beneficial Owners or
other persons, except in accordance with Section 5.8 of the Deposit Agreement,
provided, that the Company and the Depositary and their respective agents agree
to perform their respective obligations specifically set forth in the Deposit
Agreement without gross negligence or willful misconduct. The Depositary and its
agents shall not be liable for any failure to carry out any instructions to vote
any of the Deposited Securities, or for the manner in which any vote is cast or
the effect of any vote, provided that any such action or omission is in good
faith and in accordance with the terms of the Deposit Agreement. The Depositary
shall not incur any liability for any failure to determine that any distribution
or action may be lawful or reasonably practicable, for the content of any
information submitted to it by the Company for distribution to the Holders or
for any inaccuracy of any
B-6
translation thereof, for any investment risk associated with acquiring an
interest in the Deposited Securities, for the validity or worth of the Deposited
Securities or for any tax consequences that may result from the ownership of
ADSs, Shares or Deposited Securities, for the credit-worthiness of any third
party, for allowing any rights to lapse upon the terms of the Deposit Agreement
or for the failure or timeliness of any notice from the Company. In no event
shall the Depositary or any of its Agents be liable for any indirect, special,
punitive or consequential damage.
(19) Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary under
the Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement, save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such resignation. The
Company shall use reasonable efforts to appoint such successor depositary, and
give notice to the Depositary of such appointment, not more than 90 days after
delivery by the Depositary of written notice of resignation as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal which notice shall be effective on the later of
(i) the 90th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement save that, any amounts, fees, costs or
expenses owed to the Depositary under the Deposit Agreement or in accordance
with any other agreements otherwise agreed in writing between the Company and
the Depositary from time to time shall be paid to the Depositary prior to such
removal. In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation into or
with which the Depositary may be merged or consolidated shall be the successor
of the Depositary without the execution or filing of any document or any further
act.
(20) Amendment/Supplement. Subject to the terms and conditions of this
Article (20), and applicable law, this Receipt and any provisions of the Deposit
Agreement may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the consent of the Holders or
Beneficial Owners. Any amendment or supplement which shall
B-7
impose or increase any fees or charges (other than the charges in connection
with foreign exchange control regulations, and taxes and other governmental
charges, delivery and other such expenses), or which shall otherwise materially
prejudice any substantial existing right of Holders or Beneficial Owners, shall
not, however, become effective as to outstanding Receipts until 30 days after
notice of such amendment or supplement shall have been given to the Holders of
outstanding Receipts. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs or Shares to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such ADS, to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement as amended or
supplemented thereby. In no event shall any amendment or supplement impair the
right of the Holder to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Notwithstanding the foregoing, if any governmental
body should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and the
Receipt at any time in accordance with such changed laws, rules or regulations.
Such amendment or supplement to the Deposit Agreement in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, or rules or regulations.
(21) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 90
days prior to the date fixed in such notice for such termination provided that,
the Depositary shall be reimbursed for any amounts, fees, costs or expenses owed
to it in accordance with the terms of the Deposit Agreement and in accordance
with any other agreements as otherwise agreed in writing between the Company and
the Depositary from time to time, prior to such termination shall take effect.
If 90 days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Article
(2) hereof and in the Deposit Agreement and subject to the conditions and
restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further
B-8
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 as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in the Deposit Agreement, 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 (after deducting, or charging, as the case may be,
in each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders of Receipts whose Receipts have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement with respect to the Receipts
and the Shares, Deposited Securities and ADSs, except to account for such net
proceeds and other cash (after deducting, or charging, as the case may be, in
each case, the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
(22) Compliance with U.S. Securities Laws; Regulatory Compliance.
Notwithstanding any provisions in this Receipt or the Deposit Agreement to the
contrary, the withdrawal or delivery of Deposited Securities will not be
suspended by the Company or the Depositary except as would be permitted by
Instruction I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act.
(23) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (23), the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. The Depositary may
issue ADSs against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares furnished on behalf of the holder
thereof. In its capacity as Depositary, the Depositary shall not lend Shares or
ADSs; provided, however, that the Depositary may (i) issue ADSs prior to the
receipt of Shares pursuant to Section 2.3 of the Deposit Agreement and (ii)
deliver Shares prior to the receipt and cancellation of ADSs pursuant to Section
2.6 of the Deposit Agreement, including ADSs which were issued under (i) above
but for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Shares are to be delivered
(1) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (2) agrees to indicate
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the Depositary as owner of such Shares or ADSs in its records and to hold such
Shares or ADSs in trust for the Depositary until such Shares or ADSs are
delivered to the Depositary or the Custodian, (3) unconditionally guarantees to
deliver to the Depositary or the Custodian, as applicable, such Shares or ADSs
and (4) assigns all beneficial right, title and interest in and to the Shares or
ADSs to the Depositary in its capacity as such, (5) will not take any action
with respect to such Shares or ADSs, as applicable, that is inconsistent with
the beneficial ownership (including disposing of such Shares or ADSs, as
applicable), other than to deliver such Shares or ADSs, as applicable, to the
Depositary in its capacity as such and (6) agrees to any additional restrictions
or requirements that the Depositary deems appropriate; (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate; (c) terminable by the Depositary on not more
than five (5) business days' notice; and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to disregard such limit from time to time
as it deems appropriate. The Depositary may also set limits with respect to the
number of ADSs and Shares involved in Pre-Release Transactions with any one
person on a case by case basis as it deems appropriate. The Depositary may
retain for its own account any compensation received by it in conjunction with
the foregoing. Collateral provided pursuant to (b) above, but not earnings
thereon, shall be held for the benefit of the Holders (other than the
Applicant).
(24) Ownership Restrictions. Holders and Beneficial Owners shall comply
with any limitations on ownership of Shares under the Memorandum and Articles of
Association of the Company or applicable Jersey law as if they held the number
of Shares their American Depositary Shares represent. The Company shall inform
the Holders, Beneficial Owners and the Depositary of any such ownership
restrictions in place from time to time.
B-10
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s)
and transfer(s) unto ____________________ whose taxpayer identification number
is _______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated: Name:
-----------------------------------
By:
Title:
NOTICE: The signature of the Holder to
this assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
If the endorsement be executed by an
attorney, executor, administrator,
trustee or guardian, the person
executing the endorsement must give
his/her full title in such capacity and
proper evidence of authority to act in
such capacity, if not on file with the
Depositary, must be forwarded with this
Receipt.
SIGNATURE GUARANTEED
----------------------------
B-11
