--------------------------------------------------------------------------------
AMENDED AND RESTATED DEPOSIT AGREEMENT
--------------------------------------------------------------------------------
by and among
UNILEVER PLC
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES ISSUED HEREUNDER
--------------------------------------------------------------------------------
Dated as of [Month] [date], 2006
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS....................................................................3
Section 1.1 "ADS Record Date".............................................3
Section 1.2 "Affiliate"...................................................3
Section 1.3 "Agent" ......................................................3
Section 1.4 "American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)"...3
Section 1.5 "American Depositary Share(s)" and "ADS(s)"...................3
Section 1.6 "Applicant"...................................................4
Section 1.7 "Beneficial Owner"............................................4
Section 1.8 "Certificated ADS(s)".........................................4
Section 1.9 "Commission"..................................................4
Section 1.10 "Company".....................................................4
Section 1.11 "CREST".......................................................4
Section 1.12 "Custodian"...................................................4
Section 1.13 "Deliver" and "Delivery"......................................4
Section 1.14 "Deposit Agreement"...........................................4
Section 1.15 "Depositary"..................................................5
Section 1.16 "Deposited Securities"........................................5
Section 1.17 "Dollars" and "$".............................................5
Section 1.18 "DTC".........................................................5
Section 1.19 "DTC Participant".............................................5
Section 1.20 "Exchange Act"................................................5
Section 1.21 "Foreign Currency"............................................5
Section 1.22 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)" ..................................5
Section 1.23 "Holder(s)"...................................................5
Section 1.24 "indemnified person" and "indemnifying person"
Section 1.25 "Original Deposit Agreement"..................................5
Section 1.26 "Original Depositary".........................................6
Section 1.27 "Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)" ...........................6
Section 1.28 "Pre-Release Transaction".....................................6
Section 1.29 "Principal Office"............................................6
Section 1.30 "Registrar"...................................................6
Section 1.31 "Restricted Securities".......................................6
Section 1.32 "Restricted ADR(s)", "Restricted ADS(s)" and
"Restricted Shares" ..........................................6
Section 1.33 "Securities Act"..............................................6
Section 1.34 "Share Registrar".............................................7
Section 1.35 "Shares"......................................................7
Section 1.36 "Uncertificated ADS(s)".......................................7
Section 1.37 "United States" and "U.S."....................................7
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS ..................................7
Section 2.1 Appointment of Depositary.....................................7
Section 2.2 Form and Transferability of ADSs and ADRs.....................7
Section 2.3 Deposit with Custodian........................................9
Section 2.4 Registration and Safekeeping of Deposited Securities.........11
Section 2.5 Issuance of ADSs.............................................11
Section 2.6 Transfer, Combination and Split-up of ADRs...................11
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities.....12
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of
ADSs; Suspension of Delivery, Transfer, etc. ................14
Section 2.9 Lost ADRs, etc...............................................14
Section 2.10 Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records ....................................................15
Section 2.11 Partial Entitlement ADSs.....................................15
Section 2.12 Certificated/Uncertificated ADSs.............................16
Section 2.13 Restricted ADSs..............................................17
Section 2.14 Escheatment .................................................18
Section 2.15 Change in ADS to Share Ratio ................................18
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs..................19
Section 3.1 Proofs, Certificates and Other Information...................19
Section 3.2 Liability for Taxes and Other Charges........................19
Section 3.3 Representations and Warranties on Deposit of Shares..........20
Section 3.4 Compliance with Information Requests.........................20
Section 3.5 Ownership Restrictions.......................................21
ARTICLE IV
THE DEPOSITED SECURITIES......................................................21
Section 4.1 Cash Distributions...........................................21
Section 4.2 Distribution in Shares.......................................21
Section 4.3 Elective Distributions in Cash or Shares.....................22
Section 4.4 Distribution of Rights to Purchase Additional ADSs...........23
Section 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares .............................................24
Section 4.6 Distributions with Respect to Deposited Securities in
Bearer Form..................................................25
Section 4.7 Redemption...................................................25
Section 4.8 Conversion of Foreign Currency...............................26
Section 4.9 Fixing of ADS Record Date....................................27
Section 4.10 Voting of Deposited Securities...............................27
Section 4.11 Changes Affecting Deposited Securities.......................28
Section 4.12 Available Information........................................29
Section 4.13 Reports......................................................29
Section 4.14 List of Holders..............................................29
Section 4.15 Taxation.....................................................30
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.................................31
Section 5.1 Maintenance of Office and Transfer Books by the Registrar....31
Section 5.2 Exoneration..................................................32
Section 5.3 Standard of Care.............................................32
Section 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary......................................33
Section 5.5 The Custodian................................................34
Section 5.6 Notices and Reports..........................................34
Section 5.7 Issuance of Additional Shares................................35
Section 5.8 Indemnification..............................................36
Section 5.9 Fees and Charges of Depositary...............................37
Section 5.10 Pre-Release Transactions.....................................38
Section 5.11 Restricted Securities Owners.................................38
ARTICLE VI
AMENDMENT AND TERMINATION.....................................................39
Section 6.1 Amendment/Supplement.........................................39
Section 6.2 Termination..................................................39
ARTICLE VII
MISCELLANEOUS.................................................................40
Section 7.1 Counterparts.................................................40
Section 7.2 No Third-Party Beneficiaries.................................40
Section 7.3 Severability.................................................41
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect.....41
Section 7.5 Notices......................................................41
Section 7.6 Governing Law and Jurisdiction...............................42
Section 7.7 Assignment...................................................43
Section 7.8 Compliance with U.S. Securities Laws.........................43
Section 7.9 References to the Laws of the United Kingdom.................44
Section 7.10 Titles and References........................................44
Section 7.11 Amendment and Restatement....................................45
EXHIBITS
Form of ADR.................................................A-1
Fee Schedule................................................B-1
AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of [Month][Date], 2006,
by and among (i) UNILEVER PLC, a company incorporated under the laws of England
and its successors (the "Company"), (ii) CITIBANK, N.A., a national banking
association organized under the laws of the United States of America acting in
its capacity as depositary, and any successor depositary hereunder (the
"Depositary"), and (iii) all Holders and Beneficial Owners of American
Depositary Shares issued hereunder (all such capitalized terms as hereinafter
defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company and Xxxxxx Guaranty Trust Company of New York (the
"Original Depositary") previously entered into a Deposit Agreement, dated as of
October 12, 1989 which was amended as of May 10, 1999 (as so amended, the
"Original Deposit Agreement"); and
WHEREAS, the Company desires to amend and restate the Original Deposit
Agreement and establish with the Depositary an ADR facility to provide inter
alia for the deposit of the Shares (as hereinafter defined) and the creation of
American Depositary Shares representing the Shares so deposited and for the
execution and delivery of American Depositary Receipts (as hereinafter defined)
evidencing certain American Depositary Shares; and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in this Deposit Agreement (as hereinafter
defined); and
WHEREAS, any American Depositary Receipts issued pursuant to the terms of
this Deposit Agreement are to be substantially in the form of Exhibit A attached
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement; and
WHEREAS, the Shares are listed on the London Stock Exchange and the
American Depositary Shares to be issued pursuant to the terms of this Deposit
Agreement are listed for trading 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.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
2
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 "ADS Record Date" shall have the meaning given to such term in
Section 4.9.
Section 1.2 "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined), or under any successor regulation
thereto.
Section 1.3 "Agent" shall have the meaning given to such term in Section
7.6.
Section 1.4 "American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)"
shall mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of this Deposit Agreement in the form
of Certificated ADS(s) (as hereinafter defined), as such ADRs may be amended
from time to time in accordance with the provisions of this Deposit Agreement.
An ADR may evidence any number of ADSs and may, in the case of ADSs held through
a central depository such as DTC (as hereinafter defined), be in the form of a
"Balance Certificate." The American depositary receipts issued and outstanding
under the terms of the Original Deposit Agreement shall, notwithstanding
anything else contained therein or herein, from and after the date hereof, be
treated as ADRs issued hereunder and shall, from and after the date hereof, be
subject to the terms hereof in all respects.
Section 1.5 "American Depositary Share(s)" and "ADS(s)" shall mean the
rights and interests in the Deposited Securities (as hereinafter defined)
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of this Deposit Agreement and, if issued as Certificated ADS(s), the
ADR(s) issued to evidence such ADSs. ADS(s) may be issued under the terms of
this Deposit Agreement in the form of (a) Certificated ADS(s), in which case the
ADS(s) are evidenced by ADR(s), or (b) Uncertificated ADS(s) (as hereinafter
defined), in which case the ADS(s) are not evidenced by ADR(s) but are reflected
on the direct registration system maintained by the Depositary for such purposes
under the terms of Section 2.12. Unless otherwise specified in this Deposit
Agreement or in any ADR, or unless the context otherwise requires, any reference
to the terms ADS(s) or American Depositary Shares shall include Certificated
ADS(s) and Uncertificated ADS(s), individually or collectively, as the context
may require. Each ADS shall represent four (4) Shares until (i) there shall
occur a distribution upon Deposited Securities referred to in Section 4.2 or a
change in Deposited Securities referred to in Section 4.11 with respect to which
additional ADSs are not issued or (ii) there shall occur a change in the
ADS-to-Share ratio in accordance with the terms of Section 2.15, and thereafter
each ADS shall represent the Deposited Securities determined in accordance with
the terms of such Sections. American depositary shares outstanding under the
Original Deposit Agreement as of the date hereof shall, from and after the date
hereof, for all purposes be treated as American Depositary Shares issued and
outstanding hereunder and shall, from and after the date hereof, be subject to
the terms and conditions of this Deposit Agreement in all respects, except that
any amendment of the Original Deposit Agreement effected by the terms of this
Deposit Agreement which prejudices any substantial existing right of "Holders"
(as defined in the Original Deposit Agreement) shall not become effective as to
"Holders" of American depositary shares issued under the Original Deposit
Agreement until the expiration of three (3) months after notice of the
amendments effected by this Deposit Agreement shall have been given to the
"Holders" of American depositary shares outstanding under the Original Deposit
Agreement as of the date hereof.
3
Section 1.6 "Applicant" shall have the meaning given to such term in
Section 5.10.
Section 1.7 "Beneficial Owner" shall mean, as to any ADS, any person or
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner of ADSs may or may not be the Holder of such ADSs. A Beneficial
Owner shall be able to exercise any right or receive any benefit hereunder
solely through the person who is the Holder of the ADSs owned by such Beneficial
Owner. Unless otherwise identified to the Depositary, a Holder shall be deemed
to be the Beneficial Owner of all the ADSs registered in his/her/its name.
Persons who own beneficial interests in the American depositary shares issued
under the terms of the Original Deposit Agreement and outstanding as of the date
hereof shall, from and after the date hereof, be treated as Beneficial Owners of
ADS(s) under the terms hereof.
Section 1.8 "Certificated ADS(s)" shall have the meaning set forth in
Section 2.12.
Section 1.9 "Commission" shall mean the Securities and Exchange Commission
of the United States or any successor governmental agency thereto in the United
States.
Section 1.10 "Company" shall mean Unilever PLC, a company incorporated
under the laws of England, and its successors.
Section 1.11 "CREST" shall mean Crest Co., a company which provides the
book-entry settlement system for equity securities in the United Kingdom, and
any successor entity thereto.
Section 1.12 "Custodian" shall mean, as of the date hereof, Citibank,
N.A., London Branch, having its principal office at 00 Xxxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxx XX000XX, Xxxxxx Xxxxxxx, as the custodian for the purposes of
this Deposit Agreement, and any other entity that may be appointed by the
Depositary pursuant to the terms of Section 5.5 as successor, substitute or
additional custodian hereunder. The term "Custodian" shall mean any Custodian
individually or all Custodians collectively, as the context requires.
Section 1.13 "Deliver" and "Delivery" shall mean, when used in respect of
ADSs, Deposited Securities and Shares, either (i) the physical delivery of the
certificate(s) representing such securities, or (ii) the electronic delivery of
such securities by means of book-entry transfer, as applicable.
Section 1.14 "Deposit Agreement" shall mean this Amended and Restated
Deposit Agreement and all exhibits hereto, as the same may from time to time be
amended and supplemented from time to time in accordance with its terms.
4
Section 1.15 "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States, in its capacity as
depositary under the terms of this Deposit Agreement, and any successor
depositary hereunder.
Section 1.16 "Deposited Securities" shall mean Shares at any time
deposited under this Deposit Agreement and any and all other securities,
property and cash held by the Depositary or the Custodian in respect thereof,
subject, in the case of cash, to the provisions of Section 4.8. Notwithstanding
anything else contained herein, the securities, property and cash delivered to
the Custodian in respect of American depositary shares outstanding as of the
date hereof under the Original Deposit Agreement and defined as "Deposited
Securities" thereunder shall, for all purposes from and after the date hereof,
be considered to be, and treated as, Deposited Securities hereunder in all
respects. The collateral delivered in connection with Pre-Release Transactions
described in Section 5.10 shall not constitute Deposited Securities.
Section 1.17 "Dollars" and "$" shall refer to the lawful currency of the
United States.
Section 1.18 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
Section 1.19 "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering securities and cash held in DTC.
Section 1.20 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended from time to time.
Section 1.21 "Foreign Currency" shall mean any currency other than
Dollars.
Section 1.22 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)" shall have the respective meanings set forth in
Section 2.11.
Section 1.23 "Holder(s)" shall mean the person(s) in whose name ADSs are
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. If a Holder is
not the Beneficial Owner of the ADSs registered in its name, such person shall
be deemed, for all purposes hereunder, to have all requisite authority to act on
behalf of the Beneficial Owners of the ADSs registered in its name. The
"Holders" (as defined in the Original Deposit Agreement) of American depositary
shares issued under the terms of the Original Deposit Agreement and outstanding
as of the date hereof shall from and after the date hereof, become Holders under
the terms of this Deposit Agreement.
Section 1.24 "indemnified person" and "indemnifying person" shall have the
respective meanings set forth in Section 5.8.
Section 1.25 "Original Deposit Agreement" shall mean the deposit
agreement, dated as of October 12, 1989, among the Company, Xxxxxx Guaranty
Trust Company of New York, as Depositary, and all Holders as defined therein of
American depositary shares evidenced by American depositary receipts issued
thereunder as amended by Amendment No. 1 to deposit agreement dated as of May
10, 1999.
5
Section 1.26 "Original Depositary" shall have the meaning given to such
term in the preambles to this Deposit Agreement.
Section 1.27 "Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)" shall have the respective meanings set forth
in Section 2.11.
Section 1.28 "Pre-Release Transaction" shall have the meaning set forth in
Section 5.10.
Section 1.29 "Principal Office" shall mean, when used with respect to the
Depositary, 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 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, X.X.X.
Section 1.30 "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 issuances, transfers and
cancellations of ADSs 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.
Registrars and co-registrars may be appointed or removed from appointment by the
Depositary only in accordance with the terms of Section 5.1. Each Registrar
(other than the Depositary) appointed pursuant to this Deposit Agreement shall
be required to give notice in writing to the Depositary accepting such
appointment and agreeing to be bound by the applicable terms of this Deposit
Agreement.
Section 1.31 "Restricted Securities" shall mean Shares, Deposited
Securities or ADSs 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 are 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, the United Kingdom, or under a shareholder agreement
or the Memorandum and Articles of Association of the Company or under the
regulations of an applicable securities exchange unless, in each case, such
Shares, Deposited Securities or ADSs are being transferred or sold to persons
other than an Affiliate of the Company in a transaction (a) covered by an
effective resale registration statement, or (b) exempt from the registration
requirements of the Securities Act, and the Shares, Deposited Securities or ADSs
are not, when held by such person(s), Restricted Securities.
Section 1.32 "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted
Shares" shall have the respective meanings set forth in Section 2.13.
Section 1.33 "Securities Act" shall mean the United States Securities Act
of 1933, as amended from time to time.
6
Section 1.34 "Share Registrar" shall mean Computershare Investor Services
PLC or any other institution organized under the laws of the United Kingdom and
appointed by the Company to carry out the duties of registrar for the Shares,
and any successor thereto.
Section 1.35 "Shares" shall mean the Company's ordinary shares, nominal
value 1.4 xxxxx per share, validly issued and outstanding and fully paid and
may, if the Depositary so agrees after consultation with the Company, include
evidence of the right to receive Shares; provided that in no event shall Shares
include evidence of the right to receive Shares with respect to which the full
purchase price has not been paid or Shares as to which preemptive rights, if
applicable, have theretofore not been validly waived or exercised; provided
further, however, that, if there shall occur any change in nominal value,
split-up, consolidation, reclassification, exchange, conversion or any other
event described in Section 4.11 in respect of the Shares of the Company, the
term "Shares" shall thereafter, to the maximum extent permitted by law,
represent the successor securities resulting from such event.
Section 1.36 "Uncertificated ADS(s)" shall have the meaning set forth in
Section 2.12.
Section 1.37 "United States" and "U.S." shall have the meaning assigned to
it in Regulation S as promulgated by the Commission under the Securities Act.
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 depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms and conditions set
forth in this Deposit Agreement and the applicable ADRs. Each Holder and each
Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued
in accordance with the terms and conditions of this Deposit Agreement or by
continuing to hold, from and after the date hereof any American depositary
shares issued and outstanding under the Original Deposit Agreement, shall be
deemed for all purposes to (a) be a party to and bound by the terms of this
Deposit Agreement and the applicable ADRs, 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 and the applicable
ADRs, 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 and
the applicable ADRs, the taking of such actions to be the conclusive determinant
of the necessity and appropriateness thereof.
Section 2.2 Form and Transferability of ADSs and ADRs.
(a) Form. Certificated ADSs shall be evidenced by definitive ADRs which
shall be engraved, printed, lithographed or produced in such other manner as may
be agreed upon by the Company and the Depositary. ADRs may be issued under this
Deposit Agreement in denominations of any whole number of ADSs. The ADRs shall
be substantially in the form set forth in Exhibit A to this Deposit Agreement,
7
with any appropriate insertions, modifications and omissions, in each case as
otherwise contemplated by this Deposit Agreement or required by law. ADRs shall
be (i) dated, (ii) signed by the manual or facsimile signature of a duly
authorized signatory of the Depositary, (iii) countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of ADSs. No ADR and no Certificated ADS evidenced
thereby shall be entitled to any benefits under this Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless such ADR shall have been so dated, signed, countersigned and registered
(other than an American depositary receipt issued and outstanding as of the date
hereof under the terms of the Original Deposit Agreement which has become
subject to the terms of this Deposit Agreement in all respects). ADRs bearing
the 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 delivery of such ADR by the Depositary. The ADRs shall bear a CUSIP
number that is different from any CUSIP number that was, is or may be assigned
to any depositary receipts previously or subsequently issued pursuant to any
other arrangement between the Depositary (or any other depositary) and the
Company and which are not ADRs outstanding hereunder.
(b) Legends. The ADRs may, upon the written request of the Company or with
the prior written consent of the Company, be endorsed with, or have incorporated
in the text thereof, such legends or recitals not inconsistent with the
provisions of this Deposit Agreement as (i) may be necessary to enable the
Depositary or the Company to perform their respective obligations hereunder,
(ii) may be required to comply with any applicable laws or regulations, or with
the rules and regulations of any securities exchange or market upon which ADSs
may be traded, listed or quoted, or to conform with any usage with respect
thereto, (iii) may be necessary to indicate any special limitations or
restrictions to which any particular ADRs or ADSs are subject by reason of the
date of issuance of the Deposited Securities or otherwise, or (iv) may be
required by any book-entry system in which the ADSs are held. Holders and
Beneficial Owners shall be deemed, for all purposes, to have notice of, and to
be bound by, the terms and conditions of the legends set forth, in the case of
Holders, on the ADR registered in the name of the applicable Holders or, in the
case of Beneficial Owners, on the ADR representing the ADSs owned by such
Beneficial Owners.
(c) Title. Subject to the limitations contained herein and in the ADR,
title to an ADR (and to each Certificated ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that, in the case of Certificated ADSs, such ADR
has been properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary and the Company may
deem and treat the Holder of an ADS (that is, the person in whose name an ADS is
registered on the books of the Depositary) as the absolute owner thereof for all
purposes. Neither the Depositary nor the Company shall have any obligation nor
be subject to any liability under this Deposit Agreement or any ADR to any
holder or any beneficial owner of an ADR or ADS unless such holder is the Holder
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.
8
(d) Book-Entry Systems. The Depositary shall make arrangements for the
acceptance of the ADSs into DTC. A single ADR in the form of a "Balance
Certificate" will evidence all ADSs held through DTC and will be registered in
the name of the nominee for DTC (currently "Cede & Co.") and will provide that
it represents the aggregate number of ADSs from time to time indicated in the
records of the Depositary as being issued hereunder and that the aggregate
number of ADSs represented thereby may from time to time be increased or
decreased by making adjustments on such records of the Depositary and of DTC or
its nominee as hereinafter provided. As such, the nominee for DTC will be the
only "Holder" of the ADR evidencing all ADSs held through DTC. Citibank, N.A.
(or such other entity as is appointed by DTC or its nominee) may hold such
"Balance Certificate" as custodian for DTC. Each Beneficial Owner of ADSs held
through DTC must rely upon the procedures of DTC and the DTC Participants to
exercise or be entitled to any rights attributable to such ADSs. The DTC
Participants shall for all purposes be deemed to have all requisite power and
authority to act on behalf of the Beneficial Owners of the ADSs held in the DTC
Participants' respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given to it
by DTC Participants on behalf of Beneficial Owners of ADSs. So long as ADSs are
held through DTC or unless otherwise required by law, ownership of beneficial
interests in the ADR registered in the name of the nominee for DTC will be shown
on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC or its nominee (with respect to the interests of DTC
Participants), or (ii) DTC Participants or their nominees (with respect to the
interests of clients of DTC Participants).
Section 2.3 Deposit with Custodian. Subject to the terms and conditions of
this Deposit Agreement and applicable law, 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) at any time, whether or not the
transfer books of the Company or the Share Registrar, if any, are closed, by
Delivery of such Shares to the Custodian. Every deposit of Shares shall be
accompanied by the following: (A) (i) in the case of Shares represented by
certificates issued in registered form, appropriate instruments of transfer or
endorsement, in a form satisfactory to the Custodian, (ii) in the case of Shares
represented by certificates in bearer form, the requisite coupons and talons
pertaining thereto, 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 and applicable law,
(C) if the Depositary so requires, a written order directing the Depositary to
issue and deliver to, or upon the written order of, the person(s) stated in such
order the number of ADSs representing the Shares so deposited, (D) evidence
satisfactory to the Depositary (which may be an opinion of counsel) that all
necessary approvals have been granted by, or there has been compliance with the
rules and regulations of, any applicable governmental agency in the United
Kingdom, 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 the person in whose name the Shares are or have been
9
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of such deposited
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 such Shares for any and all purposes until such Shares so deposited
are registered in the name of the Depositary, the Custodian or any nominee.
Without limiting any other provision of this Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities (except as
contemplated by Section 2.13), (b) any fractional Shares or fractional Deposited
Securities or (c) a number of Shares or Deposited Securities which upon
application of the ADS to Shares ratio would give rise to fractional ADSs. No
Shares shall be accepted for deposit unless accompanied by 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 the United
Kingdom and any necessary approval has been granted by any applicable
governmental body in the United Kingdom, if any. 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 by the Company or any such 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 (A) any Shares or other
securities required to be registered under the provisions of the Securities Act,
unless in compliance with the terms of Section 2.13 or unless a registration
statement is in effect as to such Shares or other Deposited Securities, or (B)
any Shares or other securities the deposit of which would violate any provisions
of the Memorandum and Articles of Association of the Company. For purposes of
the foregoing sentence, the Depositary shall be entitled to rely upon
representations and warranties made or deemed made pursuant to this Deposit
Agreement and shall not be required to make any further investigation. The
Depositary will comply with written instructions of the Company (timely received
by the Depositary) not to accept for deposit hereunder any Shares identified in
such instructions at such times and under such circumstances as may reasonably
be specified in such instructions in order to facilitate the Company's
compliance with the securities laws of the United States.
10
Section 2.4 Registration and Safekeeping of Deposited Securities. The
Depositary shall instruct the Custodian upon each Delivery of (i) certificates
representing registered Shares or (ii) certificates representing other
securities being deposited hereunder with the Custodian as Deposited Securities,
together with the other documents above specified, to, if applicable, present
such certificate(s), together with the appropriate instrument(s) of transfer or
endorsement, duly stamped, to the Share Registrar, or other applicable
registrar, if any, for transfer and registration of the Shares or other
securities (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 on behalf of the Holders and Beneficial
Owners, at such place or places as the Depositary or the Custodian shall
determine.
Section 2.5 Issuance of ADSs. The Depositary has made arrangements with
the Custodian for the Custodian to confirm to the Depositary upon a deposit of
Shares (i) that a deposit of Shares has been made pursuant to Section 2.3, (ii)
that such Deposited Securities have been recorded in the name of the Depositary,
the Custodian or a nominee of either on the shareholders' register maintained by
or on behalf of the Company by the Share Registrar if registered Shares have
been deposited or, if deposit is made by book-entry transfer, confirmation of
such transfer in the books of CREST, (iii) that all required documents have been
received, and (iv) the person(s) to whom or upon whose order ADSs are
deliverable in respect thereof and the number of ADSs to be so delivered. Such
notification may be made by letter, cable, telex, SWIFT message or, at the risk
and expense of the person making the deposit, by facsimile or other means of
electronic transmission. Upon receiving such notice from the Custodian, the
Depositary, subject to the terms and conditions of this Deposit Agreement and
applicable law, shall issue the ADSs representing the Shares so deposited to or
upon the order of the person(s) named in the notice delivered to the Depositary
and, if applicable, shall execute and deliver at its Principal Office Receipt(s)
registered in the name(s) requested by such person(s) and evidencing the
aggregate number of ADSs to which such person(s) are entitled, but, in each
case, only upon payment to the Depositary of the charges of the Depositary for
accepting such deposit, issuing such ADSs (as set forth in Section 5.9 and
Exhibit B hereto) and all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of such Shares and the issuance of
such ADSs. The Depositary shall only issue ADSs in whole numbers and deliver, if
applicable, ADR(s) evidencing whole numbers of ADSs. Nothing in this Section 2.5
shall prohibit any Pre-Release Transaction upon the terms set forth in this
Deposit Agreement.
Section 2.6 Transfer, Combination and Split-up of ADRs.
(a) Transfer. In connection with any requested transfer of ADRs, the
Registrar shall register the transfer of such ADRs (and of the ADSs represented
thereby) on the books maintained for such purpose and the Depositary shall (x)
cancel such ADRs and execute new ADRs in the name of the transferee evidencing
the same aggregate number of ADSs as those evidenced by the ADRs canceled by the
Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver
such new ADRs to or upon the order of the transferee entitled thereto, if each
11
of the following conditions has been satisfied: (i) the ADRs submitted for
transfer have been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a transfer thereof, (ii) the surrendered ADRs have been
properly endorsed or are accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) the surrendered ADRs have been duly stamped (if required by the
laws of the State of New York or of the United States), and (iv) all applicable
fees and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B
hereto) have been paid, subject, however, in each case, to the terms and
conditions of the applicable ADRs, of this Deposit Agreement and of applicable
law, in each case as in effect at the time thereof.
(b) Combination & Split Up. In connection with any requested combination
or split-up of ADRs, the Registrar shall register the split-up or combination of
such ADRs (and of the ADSs represented thereby) on the books maintained for such
purpose and the Depositary shall (x) cancel such ADRs and execute new ADRs for
the number of ADSs requested, but in the aggregate not exceeding the number of
ADSs evidenced by the ADRs cancelled by the Depositary, (y) cause the Registrar
to countersign such new ADRs and (z) Deliver such new ADRs to or upon the order
of the Holder thereof, if each of the following conditions has been satisfied:
(i) the ADRs submitted for combination or split-up have been duly Delivered by
the Holder (or by a duly authorized attorney of the Holder) to the Depositary at
its Principal Office for the purpose of effecting a split-up or combination
thereof, and (ii) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in
each case, to the terms and conditions of the applicable ADRs, of this Deposit
Agreement and of applicable law, in each case as in effect at the time thereof.
(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
ADRs 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 ADRs and will be entitled to protection and indemnity 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 2.6 (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. Co-transfer agents may be appointed or removed
from appointment by the Depositary upon consultation with the Company.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities. The
Holder of ADSs shall be entitled to Delivery (at the Custodian's designated
office) of the Deposited Securities at the time represented by the ADSs upon
satisfaction of each of the following conditions: (i) the Holder (or a
duly-authorized attorney of the Holder) has duly Delivered ADSs to the
Depositary at its Principal Office (and if applicable, the ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the Depositary, the ADRs
12
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered 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 the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B)
have been paid, subject, however, in each case, to the terms and conditions of
the ADRs evidencing the surrendered ADSs, of this Deposit Agreement, of the
Company's Memorandum and Articles of Association and of any applicable laws and
the rules of CREST, and to any provisions of or governing the Deposited
Securities, in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADRs evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (as applicable), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of this Deposit Agreement, of the ADRs evidencing the ADSs so
cancelled, of the Memorandum and Articles of Association of the Company, of any
applicable laws and of the rules of CREST, and to the terms and conditions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of the Delivery to it of ADSs representing a number 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) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so 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 ADSs.
Notwithstanding anything else contained in any ADR or this Deposit
Agreement, the Depositary may make delivery to Holders surrendering ADSs for
withdrawal of Deposited Securities at the Principal Office of the Depositary of
(i) any cash dividends or cash distributions, or (ii) any proceeds from the sale
of any distributions of shares or rights, which are at the time held by the
13
Depositary in respect of the Deposited Securities represented by the ADSs
surrendered for cancellation and withdrawal. At the request, risk and expense of
any Holder so surrendering ADSs, 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 by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of ADSs;
Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and
delivery, registration of issuance, transfer, split-up, combination or
surrender, of any ADS, the delivery of any distribution thereon, or the
withdrawal of any Deposited Securities, the Depositary, the Company or the
Custodian may require (i) payment from the depositor of Shares or the presenter
of ADSs or ADRs 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 B, (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, and (iii) compliance with (A) any
laws or governmental regulations relating to the execution and delivery of ADRs
or ADSs or to the withdrawal of Deposited Securities, (B) the provisions of the
Company's Memorandum and Articles of Association as in effect from time to time
and applicable resolutions or regulations adopted by the Company's board of
directors, and (C) such reasonable regulations as the Depositary and the Company
may establish consistent with the provisions of the representative ADR, if
applicable, 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 deposit of particular Shares may be refused, or the registration of transfer
of ADSs in particular instances may be refused, or the registration of transfers
of ADSs generally may be suspended, during any period when the transfer books of
the Company, the Depositary, a Registrar or the Share Registrar 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 or regulation, any government or governmental body or
commission or any securities exchange on which the ADSs or Shares are listed, or
under any provision of this Deposit Agreement or the representative ADR(s), if
applicable, or under any provision of, or governing, the Deposited Securities,
or because of a meeting of shareholders of the Company or for any other reason,
subject, in all cases, to Section 7.8.
(c) Regulatory Restrictions. Notwithstanding any provision of this Deposit
Agreement or any ADR(s) to the contrary, Holders are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities associated therewith 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 ADRs or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 under the Securities Act (as such General Instructions may be amended
from time to time).
Section 2.9 Lost ADRs, etc. In case any ADR shall be mutilated, destroyed,
lost, or stolen, the Depositary shall execute and deliver a new ADR of like
tenor at the expense of the Holder (a) in the case of a mutilated ADR, in
14
exchange of and substitution for such mutilated ADR and upon cancellation
thereof, or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and
in substitution for such destroyed, lost, or stolen ADR, after the Holder
thereof (i) has submitted to the Depositary a written request for such exchange
and substitution before the Depositary has notice that the ADR has been acquired
by a bona fide purchaser, (ii) has provided such security or indemnity
(including an indemnity bond) as may be required by the Depositary to save it
and any of its agents harmless, and (iii) has satisfied any other reasonable
requirements imposed by the Depositary, including, without limitation, evidence
satisfactory to the Depositary of such destruction, loss or theft of such ADR,
the authenticity thereof and the Holder's ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance
of Records. All ADRs surrendered to the Depositary shall be canceled by the
Depositary. Canceled ADRs shall not be entitled to any benefits under this
Deposit Agreement or be valid or enforceable against the Depositary or Company
for any purpose. The Depositary is authorized to destroy ADRs so canceled,
provided the Depositary maintains a record of all destroyed ADRs. Any ADSs held
in book-entry form (i.e., through accounts at DTC) shall be deemed canceled when
the Depositary causes the number of ADSs evidenced by the Balance Certificate to
be reduced by the number of ADSs surrendered (without the need to physically
destroy the Balance Certificate).
Section 2.11 Partial Entitlement ADSs. In the event any Shares are
deposited which (i) entitle the holders thereof to receive a per-share
distribution or other entitlement in an amount different from the Shares then on
deposit or (ii) are not fully fungible (including, without limitation, as to
settlement or trading) with the Shares then on deposit (the Shares then on
deposit collectively, "Full Entitlement Shares" and the Shares with different
entitlement, "Partial Entitlement Shares"), the Depositary shall (i) cause the
Custodian to hold Partial Entitlement Shares separate and distinct from Full
Entitlement Shares, and (ii) subject to the terms of this Deposit Agreement,
issue ADSs representing Partial Entitlement Shares which are separate and
distinct from the ADSs representing Full Entitlement Shares, by means of
separate CUSIP numbering and legending (if necessary) and, if applicable, by
issuing ADRs evidencing such ADSs with applicable notations thereon ("Partial
Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs", respectively). If and
when Partial Entitlement Shares become Full Entitlement Shares, the Depositary
shall (a) give notice thereof to Holders of Partial Entitlement ADSs and give
Holders of Partial Entitlement ADRs the opportunity to exchange such Partial
Entitlement ADRs for Full Entitlement ADRs, (b) cause the Custodian to transfer
15
the Partial Entitlement Shares into the account of the Full Entitlement Shares,
and (c) take such actions as are necessary to remove the distinctions between
(i) the Partial Entitlement ADRs and ADSs, on the one hand, and (ii) the Full
Entitlement ADRs and ADSs on the other. Holders and Beneficial Owners of Partial
Entitlement ADSs shall only be entitled to the entitlements of Partial
Entitlement Shares. Holders and Beneficial Owners of Full Entitlement ADSs shall
be entitled only to the entitlements of Full Entitlement Shares. All provisions
and conditions of this Deposit Agreement shall apply to Partial Entitlement ADRs
and ADSs to the same extent as Full Entitlement ADRs and ADSs, except as
contemplated by this Section 2.11. The Depositary is authorized to take any and
all other actions as may be necessary (including, without limitation, making the
necessary notations on ADRs) to give effect to the terms of this Section 2.11.
Prior to the issuance of any Shares that are Partial Entitlement Shares, the
Company agrees to give timely written notice to the Depositary in advance of
such issuance and agrees to assist the Depositary with the establishment of
procedures enabling the identification of Partial Entitlement Shares upon
Delivery to the Custodian.
Section 2.12 Certificated/Uncertificated ADSs. Notwithstanding any other
provision of this Deposit Agreement, the Depositary may, at any time and from
time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
"Uncertificated ADS(s)" and the ADS(s) evidenced by ADR(s), the "Certificated
ADS(s)"). When issuing and maintaining Uncertificated ADS(s) under this Deposit
Agreement, the Depositary shall at all times be subject to (i) the standards
applicable to registrars and transfer agents maintaining direct registration
systems for equity securities in New York and issuing uncertificated securities
under New York law, and (ii) the terms of New York law applicable to
uncertificated equity securities. Uncertificated ADSs shall not be represented
by any instruments but shall be evidenced by registration in the books of the
Depositary maintained for such purpose. Holders of Uncertificated ADSs, that are
not subject to any registered pledges, liens, restrictions or adverse claims of
which the Depositary has notice at such time, shall at all times have the right
to exchange the Uncertificated ADS(s) for Certificated ADS(s) of the same type
and class, subject in each case to applicable laws and any rules and regulations
the Depositary may have established in respect of the Uncertificated ADSs.
Holders of Certificated ADSs shall, if the Depositary maintains a direct
registration system for the ADSs, have the right to exchange the Certificated
ADSs for Uncertificated ADSs upon (i) the due surrender of the Certificated
ADS(s) to the Depositary for such purpose and (ii) the presentation of a written
request to that effect to the Depositary, subject in each case to (a) all liens
and restrictions noted on the ADR evidencing the Certificated ADS(s) and all
adverse claims of which the Depositary then has notice, (b) the terms of this
Deposit Agreement and the rules and regulations that the Depositary may
establish for such purposes hereunder, (c) applicable law, and (d) payment of
the Depositary fees and expenses applicable to such exchange of Certificated
ADS(s) for Uncertificated ADS(s). Uncertificated ADSs shall in all respects be
identical to Certificated ADS(s) of the same type and class, except that (i) no
ADR(s) shall be, or shall need to be, issued to evidence Uncertificated ADS(s),
(ii) Uncertificated ADS(s) shall, subject to the terms of this Deposit
Agreement, be transferable upon the same terms and conditions as uncertificated
securities under New York law, (iii) the ownership of Uncertificated ADS(s)
shall be recorded on the books of the Depositary maintained for such purpose and
evidence of such ownership shall be reflected in periodic statements provided by
the Depositary to the Holder(s) in accordance with applicable New York law, (iv)
the Depositary may from time to time, upon notice to the Holders of
Uncertificated ADSs affected thereby, establish rules and regulations, and amend
or supplement existing rules and regulations, as may be deemed reasonably
necessary to maintain Uncertificated ADS(s) on behalf of Holders, provided that
16
(a) such rules and regulations do not conflict with the terms of this Deposit
Agreement and applicable law, and (b) the terms of such rules and regulations
are readily available to Holders upon request, (v) the Uncertificated ADS(s)
shall not be entitled to any benefits under this Deposit Agreement or be valid
or enforceable for any purpose against the Depositary or the Company unless such
Uncertificated ADS(s) is/are registered on the books of the Depositary
maintained for such purpose, (vi) the Depositary may, in connection with any
deposit of Shares resulting in the issuance of Uncertificated ADSs and with any
transfer, pledge, release and cancellation of Uncertificated ADSs, require the
prior receipt of such documentation as the Depositary may deem reasonably
appropriate, and (vii) upon termination of this Deposit Agreement, the
Depositary shall not require Holders of Uncertificated ADSs to affirmatively
instruct the Depositary before remitting proceeds from the sale of the Deposited
Securities represented by such Holders' Uncertificated ADSs under the terms of
Section 6.2 of this Deposit Agreement. When issuing ADSs under the terms of this
Deposit Agreement, including, without limitation, issuances pursuant to Sections
2.5, 4.2, 4.3, 4.4, 4.5 and 4.11, the Depositary may in its discretion determine
to issue Uncertificated ADSs rather than Certificated ADSs, unless otherwise
specifically instructed by the applicable Holder to issue Certificated ADSs. All
provisions and conditions of this Deposit Agreement shall apply to
Uncertificated ADSs to the same extent as to Certificated ADSs, except as
contemplated by this Section 2.12. The Depositary is authorized and directed to
take any and all actions and establish any and all procedures deemed reasonably
necessary to give effect to the terms of this Section 2.12. Any references in
this Deposit Agreement or any ADR(s) to the terms "American Depositary Share(s)"
or "ADS(s)" shall, unless the context otherwise requires, include Certificated
ADS(s) and Uncertificated ADS(s). Except as set forth in this Section 2.12 and
except as required by applicable law, the Uncertificated ADSs shall be treated
as ADSs issued and outstanding under the terms of this Deposit Agreement. In the
event that, in determining the rights and obligations of parties hereto with
respect to any Uncertificated ADSs, any conflict arises between (a) the terms of
this Deposit Agreement (other than this Section 2.12) and (b) the terms of this
Section 2.12, the terms and conditions set forth in this Section 2.12 shall be
controlling and shall govern the rights and obligations of the parties to this
Deposit Agreement pertaining to the Uncertificated ADSs.
Section 2.13 Restricted ADSs. The Depositary shall, at the request and
expense of the Company, establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Restricted Shares in the form of
ADSs issued under the terms hereof (such Shares, "Restricted Shares"). Upon
receipt of a written request from the Company to accept Restricted Shares for
deposit hereunder, the Depositary agrees to establish procedures permitting the
deposit of such Restricted Shares and the issuance of ADSs representing such
deposited Restricted Shares (such ADSs, the "Restricted ADSs," and the ADRs
evidencing such Restricted ADSs, the "Restricted ADRs"). The Company shall
assist the Depositary in the establishment of such procedures and agrees that it
shall take all steps necessary and satisfactory to the Depositary to ensure that
the establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such Restricted
Shares and the holders of the Restricted ADSs may be required prior to the
deposit of such Restricted Shares, the transfer of the Restricted ADRs and the
Restricted ADSs evidenced thereby or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory to
the Depositary and (ii) contain the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit
of Restricted Shares shall be separately identified on the books of the
Depositary and the Restricted Shares so deposited shall be held separate and
distinct from the other Deposited Securities held hereunder. The Restricted
17
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions. The Restricted ADSs shall not be eligible for inclusion in any
book-entry settlement system, including, without limitation, DTC, and shall not
in any way be fungible with the ADSs issued under the terms hereof that are not
Restricted ADSs. The Restricted ADRs and the Restricted ADSs evidenced thereby
shall be transferable only by the Holder thereof upon delivery to the Depositary
of (i) all documentation otherwise contemplated by this Deposit Agreement and
(ii) an opinion of counsel satisfactory to the Depositary setting forth, inter
alia, the conditions upon which the Restricted ADR presented is, and the
Restricted ADSs evidenced thereby are, transferable by the Holder thereof under
applicable securities laws and the transfer restrictions contained in the legend
set forth on the Restricted ADR presented for transfer. Except as set forth in
this Section 2.13 and except as required by applicable law, the Restricted ADRs
and the Restricted ADSs evidenced thereby shall be treated as ADRs and ADSs
issued and outstanding under the terms of this Deposit Agreement. In the event
that, in determining the rights and obligations of parties hereto with respect
to any Restricted ADSs, any conflict arises between (a) the terms of this
Deposit Agreement (other than this Section 2.13) and (b) the terms of (i) this
Section 2.13 or (ii) the applicable Restricted ADR, the terms and conditions set
forth in this Section 2.13 and of the Restricted ADR shall be controlling and
shall govern the rights and obligations of the parties to this Deposit Agreement
pertaining to the deposited Restricted Shares, the Restricted ADSs and
Restricted ADRs.
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares
cease to be Restricted Securities, the Depositary, upon receipt of (x) an
opinion of counsel satisfactory to the Depositary setting forth, inter alia,
that the Restricted ADRs, the Restricted ADSs and the Restricted Shares are not
as of such time Restricted Securities, and (y) instructions from the Company to
remove the restrictions applicable to the Restricted ADRs, the Restricted ADSs
and the Restricted Shares, shall (i) eliminate the distinctions and separations
between the applicable Restricted Shares held on deposit under this Section 2.13
and the other Shares held on deposit under the terms of this Deposit Agreement
that are not Restricted Shares, (ii) treat the newly unrestricted ADRs and ADSs
on the same terms as, and fully fungible with, the other ADRs and ADSs issued
and outstanding under the terms of this Deposit Agreement that are not
Restricted ADRs or Restricted ADSs, (iii) take all actions necessary to remove
any distinctions, limitations and restrictions previously existing under this
Section 2.13 between the applicable Restricted ADRs and Restricted ADSs,
respectively, on the one hand, and the other ADRs and ADSs that are not
Restricted ADRs or Restricted ADSs, respectively, on the other hand, including,
without limitation, by making the newly-unrestricted ADSs eligible for
Pre-Release Transactions and for inclusion in the applicable book-entry
settlement systems.
Section 2.14 Escheatment. In the event any unclaimed property relating to
the ADSs, for any reason, is in the possession of Depositary and has not been
claimed by the Holder thereof or cannot be delivered to the Holder thereof
through usual channels, the Depositary shall, upon expiration of any applicable
statutory period relating to abandoned property laws, escheat such unclaimed
property to the relevant authorities in accordance with the laws of each of the
relevant States of the United States.
Section 2.15 Change in ADS to Share Ratio. The Company may, at any time
and from time to time, change the number of Shares which each ADS represents
from the initial ratio of four (4) Shares per ADSs to any other ratio. In
effectuation of any such a change of ratio, the Company shall provide timely
notice to the Depositary in advance of such change and the Depositary shall,
subject to the terms of this Deposit Agreement and with the Company's reasonable
assistance, (i) amend this Deposit Agreement and the form of ADR contained in
Exhibit A hereto, (ii) amend the Registration Statement on Form F-6 as filed
with the Commission in connection with this Deposit Agreement, (iii) call for
the surrender of outstanding ADRs to be exchanged for new ADRs, (iv) issue such
new ADRs in exchange for outstanding ADRs called for surrender and (v) take such
other actions as reasonably requested by the Company.
18
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
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 (A)
provide to the Depositary and the Custodian such proof of (i) citizenship or
residence, (ii) taxpayer status, (iii) payment of all applicable taxes or other
governmental charges, (iv) exchange control approval, (v) legal or beneficial
ownership of ADSs and Deposited Securities, and (vi) compliance with applicable
laws, the terms of this Deposit Agreement or the ADR(s) evidencing the ADSs and
the provisions of, or the provision governing, the Deposited Securities, and (B)
to execute such certifications and to make such representations and warranties,
and to provide such other information and documentation (or, in the case of
Shares in registered form presented for deposit, such information relating to
the registration on the books of the Company or of the Share Registrar) as the
Depositary or the Custodian may deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations under this Deposit Agreement and the applicable ADR(s). The
Depositary and the Registrar, as applicable, may withhold the execution or
delivery or registration of transfer of any ADR or ADS 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 7.8, the delivery of any
Deposited Securities until such proof or other information is filed or such
certifications are executed, or such representations are made, or such other
documentation or information provided, in each case to the Depositary's, the
Registrar's and the Company's satisfaction. The Depositary shall provide the
Company, in a timely manner, with copies or originals if necessary and
appropriate of (i) any such proofs of citizenship or residence, taxpayer status,
or exchange control approval which it receives from Holders and Beneficial
Owners, and (ii) any other information or documents which the Company may
reasonably request and which the Depositary shall request and receive from any
Holder or Beneficial Owner or any person presenting Shares for deposit or ADSs
for cancellation, transfer or withdrawal. 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. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs 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 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, and the Holder and the Beneficial Owner shall remain
liable for any deficiency. The Custodian may refuse the deposit of Shares and
19
the Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer
of ADSs, register the split-up or combination of ADRs and (subject to Section
7.8) 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 any of their
agents, officers, 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.
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 and outstanding, fully paid, non-assessable and
legally obtained and held 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, (v) the
Shares presented for deposit are not, and the ADSs issuable upon such deposit
will not be, Restricted Securities (except as contemplated in Section 2.13), and
(vi) 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 ADSs in respect thereof
and the transfer of such ADSs. 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 or any ADR(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable law (including, without limitation, the provisions of Section 212 of
Part VI of the Companies Xxx 0000 of England, as amended or reenacted from time
to time), the rules and requirements of the London Stock Exchange or the New
York Stock Exchange, and any other stock exchange on which the Shares or ADSs
are, or will be, registered, traded or listed or the Memorandum and Articles of
Association of the Company or resolutions and regulations of the Company's board
of directors, which are made to provide or obtain (i) information, inter alia,
as to the capacity in which such Holder or Beneficial Owner owns ADSs (and
Shares as the case may be) and regarding the identity of any other person(s)
interested in such ADSs and the nature of such interest and various other
matters, whether or not they are Holders and/or Beneficial Owners at the time of
such request and (ii) information for purposes of blocking transfer, voting, the
exercising of other rights, to enforce disclosure requirements, or to limit any
ownership or enforce compliance with such request. 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. Holders and Beneficial Owners agree to comply with all such
disclosure requirements and ownership limitations, to respond to any such
disclosure requests and to cooperate with the Depositary with respect to
enforcement of the foregoing.
20
Section 3.5 Ownership Restrictions. Notwithstanding any other provision in
this Deposit Agreement or any ADR, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
imposed by applicable law or the Memorandum and Articles of Association of the
Company. The Company may also restrict, in such manner as it deems appropriate,
transfers of the ADSs where such transfer may result in the total number of
Shares represented by the ADSs owned by a single Holder or Beneficial Owner to
exceed any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including, but not limited to, the imposition
of restrictions on the transfer of ADSs, the removal or limitation of voting
rights or mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the ADSs held by such Holder or Beneficial
Owner in excess of such limitations, if and to the extent such disposition is
permitted by applicable law and the Memorandum and Articles of Association of
the Company.
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Deposited Securities or any other entitlements held in respect of
Deposited Securities under the terms hereof, the Depositary will (i) if at the
time of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary (pursuant to Section 4.8) 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 4.8), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9, and (iii)
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 entitled thereto as of the ADS Record Date in proportion to the
number of ADSs held 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, and any balance not so distributed shall be held
by the Depositary (without liability for interest thereon) and shall be added to
and become part of the next sum received by the Depositary for distribution to
Holders of ADSs outstanding at the time of the next distribution. 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. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
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
their respective nominees. Upon receipt of confirmation of such deposit from the
21
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and either (i) the Depositary shall, subject to Section
5.9, 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 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 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
interests in the additional integral number of 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 ADSs, the Depositary shall sell the number of Shares or
ADSs, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms described in Section 4.1. In the
event that 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, if the Company in the fulfillment of
its obligation under Section 5.7, has furnished an opinion of U.S. counsel
determining that Shares must be registered under the Securities Act or other
laws in order to be distributed to Holders (and no such registration statement
has been declared effective), 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 (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. The Depositary shall hold
and/or distribute any unsold balance of such property in accordance with the
provisions of this Deposit Agreement.
Section 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to make a distribution payable at the election of the holders of Shares
in cash or in additional Shares, the Company shall give timely notice thereof to
the Depositary prior to the proposed distribution stating whether or not it
wishes such elective distribution to be made available to Holders of ADSs. Upon
timely 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 be
made available to Holders, (ii) the Depositary shall have determined that such
distribution is reasonably practicable and (iii) the Depositary shall have
received reasonably 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 United Kingdom 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
22
shall establish an ADS Record Date (on the terms described in Section 4.9) and
establish procedures to enable Holders to elect the receipt of the proposed
distribution in cash or in additional ADSs. The Company shall provide reasonable
assistance to the Depositary in establishing such procedures to the extent
necessary. If a Holder elects to receive the proposed distribution (x) in cash,
the distribution shall be made upon the terms described in Section 4.1, or (y)
in ADSs, the distribution shall be made 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 distribution 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.
Section 4.4 Distribution of Rights to Purchase Additional ADSs.
(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 timely notice thereof to the
Depositary prior to the proposed distribution stating whether or not it wishes
such rights to be made available to Holders of ADSs. Upon timely 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 assist the Depositary in its determination, 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 reasonably satisfactory
documentation within the terms of Section 5.7, and (iii) the Depositary shall
have determined that such distribution of rights is reasonably practicable. In
the event any of the conditions set forth above are not satisfied or if the
Company requests that the rights not be made available to Holders of ADSs, the
Depositary shall proceed with the sale of the rights as contemplated in Section
4.4(b) below. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
Section 4.9) and establish procedures to (x) distribute rights to purchase
additional ADSs (by means of warrants or otherwise), (y) to enable the Holders
to exercise such rights (upon payment of the subscription price and of the
applicable (a) fees and charges of, and expenses incurred by, the Depositary and
(b) taxes), and (z) to deliver ADSs upon the valid exercise of such rights. The
Company shall provide reasonable assistance to the Depositary to the extent
necessary in establishing such procedures. Nothing herein shall obligate the
Depositary to make available to the Holders a method to exercise 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
reasonably satisfactory documentation within the terms of Section 5.7 or
determines it is not 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, at
such place and upon such terms (including public or private sale) as it may deem
practicable. The Company shall provide reasonable assistance to 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.
23
(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.
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 to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes 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.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make any rights available to Holders in
general or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with the sale or exercise of any rights, or (iii) the
content of any materials forwarded to the Holders on behalf of the Company in
connection with any rights distribution.
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 of ADSs representing such Deposited
Securities 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 receive or 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 timely notice thereof in advance of such
distribution to the Depositary 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 consult with the Company, and the Company shall provide
reasonable assistance to the Depositary, to determine whether such distribution
to Holders is lawful and reasonably practicable. The Depositary shall not make
24
such distribution unless (i) the Company shall have requested the Depositary to
make such distribution to Holders, (ii) the Depositary shall have received
reasonably 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 reasonably 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 shall distribute
the property so received to the Holders of record, as of the ADS Record Date
established for such distribution pursuant to Section 4.9, in proportion to the
number of ADSs held by them 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.
(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 reasonably 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, the Depositary
shall 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 practicable and shall
(i) cause the proceeds of such sale, if in a Foreign Currency, to be converted
into Dollars and (ii) distribute the proceeds of such sale and conversion
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 for the account of
the Holders in any way it deems reasonably practicable under the circumstances.
Section 4.6 Distributions with Respect to Deposited Securities in Bearer
Form. Subject to the terms of this Article IV, distributions of cash, Shares,
rights or of any other type in respect of Deposited Securities that are held by
the Depositary in bearer form shall be made to the Depositary for the account of
the respective Holders of ADS(s) with respect to which any such distribution is
made upon due presentation by the Depositary or the Custodian to the Company of
any relevant coupons, talons, or certificates. The Depositary or the Custodian
shall promptly present such coupons, talons, or certificates, as the case may
be, in connection with any such distribution.
Section 4.7 Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
timely notice thereof to the Depositary prior to the intended date of redemption
which notice shall set forth the particulars of the proposed redemption. Upon
timely receipt of (i) such notice and (ii) reasonably satisfactory documentation
given by the Company to the Depositary within the terms of Section 5.7, and only
if the Depositary shall have determined that such proposed redemption is
practicable, the Depositary shall provide to each Holder a notice setting forth
the intended exercise by the Company of the redemption rights and any other
particulars set forth in the Company's notice to the Depositary. The Depositary
shall instruct the Custodian to present to the Company the Deposited Securities
in respect of which redemption rights are being exercised against payment of the
applicable redemption price. Upon receipt of
25
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer, and distribute the proceeds (net of applicable (a) fees and
charges of, and the expenses incurred by, the Depositary, and (b) taxes) and
retire ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by
Holders thereof and the terms set forth in Sections 4.1 and 6.2. If less than
all outstanding Deposited Securities are redeemed, the ADSs to be retired will
be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the dollar equivalent of the
per share amount received by the Depositary (adjusted to reflect the
ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited Securities
represented by ADSs (subject to the terms of Section 4.8 and the applicable fees
and charges of, and expenses incurred by, the Depositary, and taxes) multiplied
by the number of Shares represented by each ADS redeemed.
Section 4.8 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, which in the judgment of the Depositary 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 applicable fees, any reasonable and customary expenses incurred in such
conversion and any expenses incurred on behalf of the Holders in complying with
currency exchange control or other governmental requirements) 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 any application of
exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
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 practicable 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, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary shall notify the Holders to that effect and
may, in its discretion, (i) make such conversion and distribution in Dollars to
the Holders for whom such conversion, transfer and distribution is lawful and
26
practicable, (ii) distribute the Foreign Currency (or an appropriate document
evidencing the right to receive such Foreign Currency) to Holders for whom this
is lawful and practicable or (iii) hold (or cause the Custodian to hold) such
Foreign Currency (without liability for interest thereon) for the respective
accounts of the Holders entitled to receive the same.
Section 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive 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, or solicitation of consents or proxies 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,
solicitation of any consent or any other matter, the Depositary shall fix a
record date (the "ADS Record Date") for the determination of the Holders of
ADS(s) who shall be entitled to receive such distribution, to give instructions
for the exercise of voting rights at any such meeting, to give or withhold such
consent, 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. If the ADSs shall be listed on any securities exchange,
then such record date shall be fixed in compliance with any applicable rules of
such securities exchange. The Depositary shall make reasonable efforts to
establish the ADS Record Date as closely as possible to the applicable record
date for the Deposited Securities (if any) set by the Company in England.
Subject to applicable law and the provisions of Section 4.1 through 4.8 and to
the other terms and conditions of this Deposit Agreement, only the Holders of
ADSs 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 4.10 Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting at which the holders of Deposited Securities
are entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy in accordance with Section 4.9.
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 thirty (30) days prior
to the date of such vote or meeting), at the Company's expense and provided no
U.S. legal prohibitions exist, 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 provisions of this Deposit
Agreement, the Memorandum and Articles of Association of the Company and the
provisions of or the provisions 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 Deposited Securities represented by such Holder's ADSs, and
(c) a brief statement as to the manner in which such voting instructions may be
given, (including an express indication that instructions may be deemed to have
been given in accordance with the last sentence of the paragraph below if no
instructions are received by the Depositary prior to the deadline set for such
27
purposes) to the Depositary to give a discretionary proxy to a person designated
by the Company to vote the Shares or other Deposited Securities represented by
such Holder's ADSs in his or her discretion. Voting instructions may be given
only in respect of a number of ADSs representing an integral number of Deposited
Securities. Upon the timely receipt from a Holder of ADSs as of 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 Memorandum and Articles of
Association of the Company and the provisions of the Deposited Securities, to
vote, or cause the Custodian to vote, the Deposited Securities (in person or by
proxy) represented by such Holder's ADSs in accordance with such voting
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 the Deposited Securities represented by ADSs, except pursuant to and in
accordance with the voting instructions timely received from Holders as of the
ADS Record Date or as otherwise contemplated therein. If the Depositary does not
receive instructions from a Holder as of the ADS Record Date on or before the
date established by the Depositary for such purpose, such Holder shall be
deemed, and the Depositary shall deem such Holder, to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company
to vote the Deposited Securities held by such Holder, and the Depositary shall
give such discretionary proxy to such person; provided, however, that no such
discretionary proxy shall be given by the Depositary with respect to any matter
to be voted upon as to which the Company informs the Depositary that (i) the
Company does not wish such proxy to be given, (ii) substantial opposition
exists, or (iii) the rights of holders of Deposited Securities may be adversely
affected. Notwithstanding anything else contained herein, the Depositary shall,
if so requested in writing by the Company, represent, or cause the Custodian to
represent all Deposited Securities (whether or not voting instructions have been
received in respect of such Deposited Securities from Holders as of the ADS
Record Date) for the sole purpose of establishing quorum at a meeting of
shareholders. On the business day following the date fixed by the Depositary as
the last date for delivery of voting instructions, the Depositary shall give
notice to the Company of the voting instructions received the Depositary from
the Holders as of the close of business as of such fixed date.
Notwithstanding anything contained in this Deposit Agreement or any ADR to
the contrary, the Depositary shall not have any obligation to take any action
with respect to any meeting, or solicitation of consents or proxies, of holders
of Deposited Securities if the taking of such action would violate U.S. laws.
The Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Deposited Securities and to deliver to the Depositary, if reasonably requested
by the Depositary an opinion of U.S. counsel addressing any actions requested to
be taken to enable such vote.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
Section 4.11 Changes Affecting Deposited Securities. Upon any change in
nominal or 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 is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
28
of 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 ADRs shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. In effectuation of any such change, split up,
cancellation, consolidation or other reclassification of Deposited Securities,
recapitalization, reorganization, merger or consolidation or sale of assets, 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 reasonably satisfactory to the Depositary that
such actions are not in violation of any applicable laws or regulations, (i)
execute and deliver additional ADRs in the case of a stock dividend on the
Shares, (ii) amend this Deposit Agreement and the form of ADR contained in
Exhibit A hereto, (iii) amend the Registration Statement on Form F-6 as filed
with the Commission in connection with this Deposit Agreement, (iv) call for the
surrender of outstanding ADRs to be exchanged for new ADRs, (v) issue such new
ADRs in exchange for outstanding ADRs called for surrender and (vi) take such
other actions as reasonably requested by the Company. 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 Company's counsel 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.
Section 4.12 Available Information.The Company is subject to the periodic
reporting requirements of the Exchange Act and accordingly files certain
information with the Commission. These reports and documents can be retrieved
from the Commission's website (xxx.xxx.xxx) and can be inspected and copied at
the public reference facilities maintained by the Commission located as of the
date of this Deposit Agreement at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
Section 4.13 Reports. The Depositary shall make available 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 shall also
provide to Holders copies of such reports when furnished by the Company pursuant
to Section 5.6.
Section 4.14 List of Holders. The Depositary is authorized to, and shall
at the Company's request, from time to time provide to the Company, the Shares
29
Registrar and any other agent of the Company designated by the Company in
writing (irrespective of their nationality, residency, or regulatory regime) in
electronic or print format the information contained in the register of ADSs.
Every Holder and Beneficial Owner of ADSs upon acceptance of any ADSs (or any
interest therein) shall be deemed to have consented to the Depositary providing
such information to such persons.
Section 4.15 Taxation. 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 the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may 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. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of ADSs 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.
If the Company (or any of its agents) withholds from any distribution any
amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e., stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
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
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld 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 or the
Custodian, as applicable. Neither the Depositary nor the Custodian 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.
30
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
ADSs, including without limitation, tax consequences resulting from the Company
(or any of its subsidiaries) being treated as a "Foreign Personal Holding
Company," or as a "Passive Foreign Investment Company" (in each case as defined
in the U.S. Internal Revenue Code and the regulations issued thereunder) or
otherwise.
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
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the issuance and delivery of ADSs, the acceptance for
surrender of ADS(s) for the purpose of withdrawal of Deposited Securities, the
registration of issuances, cancellations, transfers, combinations and split-ups
of ADS(s) and, if applicable, to countersign ADRs evidencing the ADSs so issued,
transferred, combined or split-up, in each case in accordance with the
provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of ADSs which at all
reasonable times shall be open for inspection by the Company and by the Holders
of such ADSs, provided that such inspection shall not be, to the Registrar's
knowledge, for the purpose of communicating with Holders of such ADSs in the
interest of a business or object other than the business of the Company or a
matter related to this Deposit Agreement or the ADSs.
At the expense of the Company, the Company shall have the right to inspect
transfer and registration records of the Depositary or its agent, take copies
thereof and require the Depositary or its agent, the Registrar and any
co-transfer agents or co-registrars to supply copies of such portions of such
records as the Company may request. The Depositary may perform its obligations
under this Section through any agent appointed by it, provided that the
Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed.
The Registrar may close the transfer books with respect to the ADSs, 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 Section 7.8.
If any ADSs 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 issuances,
cancellations, transfers, combinations and split-ups of ADSs and, if applicable,
to countersign ADRs evidencing the ADSs so issued, transferred, combined or
split-up, 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. Registrars and co-registrars may be appointed or
removed from appointment by the Depositary upon consultation with the Company.
31
Section 5.2 Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
this Deposit Agreement or incur any liability (i) if the Depositary or the
Company 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,
the United Kingdom 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 Memorandum and Articles of Association of the Company or any
provision of or provision 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, acts of 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
Memorandum and Articles of Association of the Company or provisions of or
provisions governing Deposited Securities, (iii) for any action or inaction 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 ADSs, or (v) for any consequential or punitive damages for any
breach of the terms of this Deposit Agreement.
The Depositary, its controlling persons and its agents, any Custodian and
the Company, its Affiliates, its controlling persons and its agents may rely and
shall be protected in acting upon any written notice, request 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 this Deposit Agreement.
Section 5.3 Standard of Care. The Company and the Depositary assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or any ADRs to any Holder(s) or Beneficial Owner(s), except that the
Company and the Depositary agree to perform their respective obligations
specifically set forth in this Deposit Agreement or the applicable ADRs without
negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective Affiliates, 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
ADSs, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense (including fees and
disbursements of counsel) and liability be furnished as often as may be required
(and no Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
32
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 this
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 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 this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary under
this 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 (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2), or (ii) the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company as Depositary
under this Deposit Agreement by written notice of such removal, which removal
shall be effective on the later of (i) the 30th day after delivery thereof to
the Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2), or (ii) upon the appointment by the Company of a
successor depositary and its acceptance of such appointment as hereinafter
provided.
In connection with any removal of the Depositary by the Company, the
Company and its Affiliates shall not have any liability to the Depositary or its
Affiliates, except in the case of the Company, to the extent of the Company's
obligations under Sections 5.8, 5.9 and 7.6, and the Depositary agrees that it
will not charge the Company or its Affiliates, any Holder or any Beneficial
Owner any fees, charges or additional expenses in connection with its removal as
Depositary, provided that the Depositary shall still be entitled to collect fees
to which it is entitled pursuant to Section 5.9 hereof.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its reasonable 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 (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due
33
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 ADSs and such other information relating to ADSs and
Holders thereof as the successor may reasonably request. Any such successor
depositary shall promptly provide 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 Depositary has initially appointed
Citibank, N.A., London Branch as Custodian for the purpose of this Deposit
Agreement. 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
Shares 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 that is organized under the laws of the United Kingdom. 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 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 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. Immediately upon any such change, the Depositary shall
give notice thereof in writing to all Holders of ADSs, each other Custodian and
the Company.
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 the
English language 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 Memorandum and Articles of Association of the
Company that may be relevant or pertain to such notice of meeting or be the
subject of a vote thereat.
34
The Company will also transmit to the Depositary (a) an English language
version 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) the English-language versions of the Company's annual and
semi-annual 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, to provide copies thereof to all Holders or make such
notices, reports and other communications available to all Holders on a basis
similar to that for holders of Shares or other Deposited Securities or on such
other basis as the Company may advise the Depositary or as may be required by
any applicable law, regulation or stock exchange requirement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company to holders
of its Shares or other Deposited Securities and delivered to the Depositary for
inspection by the Holders of the ADSs 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. 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 from holders of
Deposited Securities, 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
reasonable steps necessary to ensure that the proposed transaction 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 and the securities laws of the states of the
U.S.). In support of the foregoing and in connection with any such transactions,
the Company will furnish to the Depositary if applicable and if reasonably
requested by the Depositary (a) a written opinion of U.S. counsel (reasonably
satisfactory to the Depositary) stating whether such transaction (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) an opinion of
English 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 the United Kingdom and (2) all requisite
regulatory consents and approvals have been obtained in the United Kingdom. If
the filing of a registration statement under the Securities Act 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 or has otherwise become
effective. 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
35
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 subscribe for such securities, unless such transaction and
the securities issuable in such transaction do 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 and the securities laws of the states of the U.S.).
Notwithstanding anything else contained in this Deposit Agreement, nothing
in the Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
The Company represents to the Depositary that the Company has obtained an
agreement from Unilever N.V., all the provisions of which are still in effect,
to the effect that neither Unilever N.V. nor any company controlled by Unilever
N.V., will at any time deposit or cause to be deposited any Shares, either upon
original issuance or upon a sale of Shares previously issued and acquired by
such person, unless a registration statement is in effect as to such Shares
under the Securities Act or unless registration of such issuance or sale of such
Shares shall not be required under such Securities Act.
The Company reserves full discretion as to whether in the future it may or
may not register under the Securities Act for purposes of offering and selling
in the U.S. any Shares or any other securities, including any Shares or other
securities which may be the subject of subscription or purchase rights
pertaining to Deposited Securities at the time deposited under this Deposit
Agreement.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its Affiliates and their respective directors, officers, employees,
and agents against, and hold each of them harmless from, any direct loss,
liability, tax, charge or expense of any kind whatsoever (including, but not
limited to, the reasonable fees and expenses of counsel) which may arise out of
(i) acts performed or omitted by the Depositary, the Custodian, any Registrar,
co-transfer agent, co-registrar and any of their respective directors, officers
and employees under the terms hereof due to the negligence or bad faith of the
Depositary, the Custodian, any Registrar, co-transfer agent, co-registrar and
any of their respective directors, officers and employees, (ii) the breach of
the terms of this Deposit Agreement by the Depositary, the Custodian, any
Registrar, co-transfer agent, co-registrar and any of their respective
directors, officers and employees, or (iii) the negligence or bad faith of the
Depositary in the appointment of any agent hereunder.
The Company agrees to indemnify the Depositary, the Custodian, any
Registrar, co-transfer agent, co-registrar and any of their respective
directors, officers and employees against, and hold each of them harmless from,
any direct loss, liability, tax, charge or expense of any kind whatsoever
(including, but not limited to, the reasonable fees and expenses of counsel)
that may arise (a) out of or in connection with any offer, issuance, sale,
resale, transfer, deposit or withdrawal of ADRs, ADSs, the Shares, or other
Deposited Securities, as the case may be, (b) out of or as a result of any
offering documents in respect thereof, (c) out of acts performed or omitted,
36
including, but not limited to, any delivery by the Depositary on behalf of the
Company of information prepared or approved by the Company, in compliance with
the terms of this Deposit Agreement, the ADRs, the ADSs, the Shares, or any
Deposited Securities, in any such case by the Depositary, the Custodian, any
Registrar, co-transfer agent, co-registrar and any of their respective
directors, officers and employees, or (d) out of the breach by the Company or
any of its Affiliates or any of their respective directors, officers, employees
and agents of the terms of this Deposit Agreement, except, in any such case of
(a) through (d) above, to the extent that such direct loss, liability, tax,
charge or expense was in any way caused by (i) the negligence or bad faith of
the Depositary, the Custodian, any Registrar, co-transfer agent, co-registrar
and any of their respective directors, officers and employees, (ii) a breach of
the terms of this Deposit Agreement by the Depositary, the Custodian, any
Registrar, co-transfer agent, co-registrar and any of their respective
directors, officers and employees, or (iii) any delivery by the Depositary, the
Custodian, any Registrar, co-transfer agent, co-registrar and any of their
respective directors, officers and employees of information not prepared or
approved by the Company.
The obligations set forth in this Section shall survive the termination of
the Deposit Agreement and the succession or substitution of any party hereto.
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 seek 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 in 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.
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 in the Fee Schedule attached hereto as Exhibit B. 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 Company agrees to promptly pay to the Depositary such other fees and
charges 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. The charges and expenses of the
Custodian are for the sole account of the Depositary.
37
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, such right shall extend for those fees,
charges and expenses incurred prior to the effectiveness of such resignation or
removal.
Section 5.10 Pre-Release Transactions. Subject to the further terms and
provisions of this Section 5.10, 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 pursuant to Section 2.3 and
(ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7, 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
(w) 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, (x) 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, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs, and (z) 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
change or 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 the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
Section 5.11 Restricted Securities Owners. The Company agrees to advise in
writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder (except under the circumstances contemplated in Section 2.13)
and, to the extent practicable, shall require each of such persons to represent
in writing that such person will not deposit Restricted Securities hereunder
(except under the circumstances contemplated in Section 2.13).
38
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 ADRs outstanding at any time, the
provisions of this Deposit Agreement and the form of ADR 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 without the
prior written 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 ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. 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 to be
settled 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
ADSs, to consent and agree to such amendment or supplement and to be bound by
this Deposit Agreement and the ADR, if applicable, as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such ADS 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 an amendment of, or
supplement to, this Deposit Agreement to ensure compliance therewith, the
Company and the Depositary may amend or supplement this Deposit Agreement and
any ADRs at any time in accordance with such changed laws, rules or regulations.
Such amendment or supplement to this Deposit Agreement and any ADRs 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 providing notice
of such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign, or if thirty (30) days shall
have expired after 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
providing notice of such termination to the Holders of all ADSs then outstanding
at least thirty (30) days prior to the date fixed for such termination. On and
after the date of termination of this Deposit Agreement, each Holder of ADS(s)
will, upon surrender of such ADS(s) at the Principal Office of the Depositary,
upon the payment of the charges of the Depositary for the surrender of ADSs
referred to in Section 2.7 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 ADSs. If any ADSs shall remain
outstanding after the date of termination of this Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of ADSs,
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 as provided in this Deposit Agreement, and shall continue to
39
deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.7, 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 ADSs 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 an ADS, 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 (6) months from the date of the 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
whose ADSs 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 ADSs and the Deposited Securities, 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 ADSs, 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 under Sections 5.8, 5.9 and 7.6 and
the Depositary agrees that it will not charge the Company or its Affiliates any
fees, charges or additional expenses in connection with such termination,
provided that the Depositary shall still be entitled to collect (i) fees to
which it is entitled pursuant to Section 5.9 hereof and (ii) fees to which it is
entitled as agreed between the Company and the Depositary from time to time. The
obligations of the Depositary under Sections 5.8 and 7.6 shall survive the
termination of this Deposit Agreement.
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 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 Deposit 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.
40
Section 7.3 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the ADRs 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 ADSs shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of any ADR by acceptance thereof 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 or facsimile transmission, confirmed by letter
personally delivered or sent by mail or air courier, addressed to Unilever PLC,
Xxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, Attention: Company
Secretary (fax number: 00-000-000-0000) 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 or facsimile transmission, confirmed by letter personally delivered or
sent by mail or air courier, addressed to Citibank, N.A., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, U.S.A., Attention: Depositary Receipts Department (fax
number: 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 (a) personally delivered or sent by mail or cable, telex or
facsimile transmission (provided such cable, telex or facsimile transmission is
confirmed by letter), addressed to such Holder at the address of such Holder as
it appears on the books of the Depositary or, if such Holder shall have filed
with the Depositary a request that notices intended for such Holder be mailed to
some other address, at the address specified in such request, or (b) if a Holder
shall have designated such means of notification as an acceptable means of
notification under the terms of this Deposit Agreement, by means of electronic
messaging addressed for delivery to the e-mail address designated by the Holder
for such purpose. Notice to Holders shall be deemed to be notice to Beneficial
Owners for all purposes of this Deposit Agreement. Failure to notify a Holder or
any defect in the notification to a Holder shall not affect the sufficiency of
notification to other Holders or to the Beneficial Owners of ADSs held by such
other Holders.
41
Delivery of a notice to (i) the Company or the Depositary sent by mail,
air courier or cable, telex or facsimile transmission shall be deemed to be
effective at the time when a duly addressed letter containing the same is
received, and (ii) the Holder sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian, the Depositary, or
the Company, notwithstanding that such cable, telex or facsimile transmission
shall not be subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to
be effective at the time of the initiation of the transmission by the sender (as
shown on the sender's records), notwithstanding that the intended recipient
retrieves the message at a later date, fails to retrieve such message, or fails
to receive such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address or for any
other reason.
Section 7.6 Governing Law and Jurisdiction. This Deposit Agreement and the
ADRs 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 its principles of choice of law.
Notwithstanding anything contained in this Deposit Agreement, any ADR or any
present or future provisions of the laws of the State of New York, the rights of
holders of Shares and of any other Deposited Securities and the obligations and
duties of the Company in respect of the holders of Shares and other Deposited
Securities, as such, shall be governed by the laws of the United Kingdom (or, if
applicable, such other laws as may govern the Deposited Securities).
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 Xxxxxx X. Xxxxxxx, Esq. (the
42
"Agent") now at Unilever United States, Inc., 000 Xxxxxx Xxxxxx, Xxxxxxxxx
Xxxxxx, XX 00000 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 Agent shall cease to be available to act
as such, the Company agrees to designate a new agent in 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 Agent (whether or not the appointment of such Agent shall for
any reason prove to be ineffective or such 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. The
Company agrees that the failure of the 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 such case, 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
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 irrevocably and unconditionally waives, to the fullest extent
permitted by law, and agrees not to plead or claim, any right of immunity from
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with this Deposit Agreement, any ADR or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in part.
Section 7.7 Assignment. Subject to the provisions of Section 5.4, this
Deposit Agreement may not be assigned by either the Company or the Depositary.
Section 7.8 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, as amended from time to time, under the Securities Act.
43
Section 7.9 References to the Laws of the United Kingdom. Any summary of
the laws and regulations of the United Kingdom (including laws of England) and
of the terms of the Company's Memorandum and Articles of Association set forth
in this Deposit Agreement have been provided by the Company solely for the
convenience of Holders, Beneficial Owners and the Depositary. While such
summaries are believed by the Company to be accurate as of the date of this
Deposit Agreement, (i) they are summaries and as such may not include all
aspects of the materials summarized applicable to a Holder or Beneficial Owner,
and (ii) these laws and regulations and the Company's Memorandum and Articles of
Association may change after the date of this Deposit Agreement. Neither the
Depositary nor the Company has any obligation under the terms of this Deposit
Agreement to update any such summaries.
Section 7.10 Titles and References.
(a) Deposit Agreement. 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 "Deposit Agreement",
"herein", "hereof", "hereby", "hereunder", and words of similar import refer to
this Deposit Agreement as a whole, as amended and supplemented, as in effect at
the relevant time 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. References to "applicable laws and regulations" shall refer to laws
and regulations applicable to ADRs, ADSs or Deposited Securities as in effect at
the relevant time of determination, unless otherwise required by law or
regulation.
(b) ADRs. All references in any ADR(s) to paragraphs, exhibits, articles,
sections, subsections, and other subdivisions refer to the paragraphs, exhibits,
articles, sections, subsections and other subdivisions of the ADR(s) in question
unless expressly provided otherwise. The words "the Receipt", "the ADR",
"herein", "hereof", "hereby", "hereunder", and words of similar import used in
any ADR refer to the ADR as a whole and as in effect at the relevant time, and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender in any ADR 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
paragraphs of any ADR are included for convenience only and shall be disregarded
in construing the language contained in the ADR. References to "applicable laws
and regulations" shall refer to laws and regulations applicable to ADRs, ADSs or
Deposited Securities as in effect at the relevant time of determination, unless
otherwise required by law or regulation.
44
Section 7.11 Amendment and Restatement. The Depositary shall arrange to
have new ADRs printed that reflect the form of ADR attached to this Deposit
Agreement as promptly as reasonably practicable following effectiveness of this
Deposit Agreement. All ADRs issued hereunder after the date hereof, whether upon
the deposit of Shares or other Deposited Securities or upon the transfer,
combination or split-up of existing ADRs, shall be substantially in the form of
the specimen ADR attached as Exhibit A hereto. However, American depositary
receipts issued prior to the date hereof under the terms of the Original Deposit
Agreement and outstanding as of the date hereof, which do not reflect the form
of ADR attached hereto as Exhibit A, do not need to be called in for exchange
and may remain outstanding until such time as the Holders thereof choose to
surrender them for any reason under this Deposit Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
The Company hereby instructs the Depositary to (i) promptly send notice of
the execution of this Deposit Agreement to all holders of American depositary
shares outstanding under the Original Deposit Agreement as of the date hereof
and (ii) inform holders of American depositary shares issued as "certificated
American depositary shares" and outstanding under the Original Deposit Agreement
as of the date hereof that they have the opportunity, but are not required, to
exchange their American depositary receipts for one or more ADR(s) issued
pursuant to this Deposit Agreement.
Holders and Beneficial Owners of American depositary shares issued
pursuant to the Original Deposit Agreement and outstanding as of the date
hereof, shall, from and after the date hereof, be deemed Holders and Beneficial
Owners of ADSs issued pursuant and be subject to all of the terms and conditions
of this Deposit Agreement in all respects, irrespective of whether such Holders
exchange their American depositary receipts issued under the Original Deposit
Agreement for one or more ADR(s) issued pursuant to this Deposit Agreement;
provided, however, that any term of this Deposit Agreement that prejudices any
substantial existing right of holders or beneficial owners of American
depositary shares issued under the Original Deposit Agreement shall not become
effective as to Holders and Beneficial Owners until three (3) months after
notice of the amendments effectuated by this Deposit Agreement shall have been
given to holders of ADSs outstanding as of the date hereof.
45
IN WITNESS WHEREOF, Unilever PLC and Citibank, N.A. 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 ADSs issued in accordance with the terms hereof, or upon acquisition of
any beneficial interest therein.
UNILEVER PLC
By:_______________________________
Name:
Title:
CITIBANK, N.A.
By:_______________________________
Name:
Title:
46
EXHIBIT A
[FORM OF ADR]
Number CUSIP NUMBER: _______
_____________
American Depositary Shares
(each American Depositary
Share representing four (4)
fully paid ordinary shares,
each nominal value of 1.4
xxxxx per share, of Unilever
PLC.
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
UNILEVER PLC
(Incorporated under the laws of England)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, each of nominal value of 1.4 xxxxx per share (including evidence of
rights to receive such ordinary shares, the "Shares"), of Unilever PLC, a
corporation incorporated under the laws of England (the "Company"). As of the
date of the Deposit Agreement (as hereinafter defined), each ADS represents four
(4) Shares deposited under the Deposit Agreement with the Custodian, which at
the date of execution of the Deposit Agreement is Citibank, N.A., London Branch
(the "Custodian"). The ADS(s)-to-Share(s) ratio is subject to amendment as
provided in Articles II, IV and VI of the Deposit Agreement. The Depositary's
Principal Office is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
A-1
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("ADRs"), all issued and to be issued upon
the terms and conditions set forth in the Amended and Restated Deposit
Agreement, dated as of [Month][date], 2006 (as amended and supplemented 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 ADSs. The
Deposit Agreement sets forth the rights and obligations of Holders and
Beneficial Owners of ADSs and the rights and duties of the Depositary in respect
of the Shares deposited thereunder and any and all other securities, property
and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Principal Office of the Depositary and with 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 ADR are summaries of
certain provisions of the Deposit Agreement and the Memorandum and Articles of
Association of the Company (as in effect on the date of the signing of the
Deposit Agreement) and are qualified by and subject to the detailed provisions
of the Deposit Agreement and Memorandum and Articles of Association, 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 ADSs into DTC. Each Beneficial Owner of ADSs 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 ADSs.
(2) Withdrawal of Deposited Securities. The Holder of this ADR (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the following conditions: (i)
the Holder (or a duly authorized attorney of the Holder) has duly Delivered to
the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if applicable and so required by the Depositary, this
ADR has been properly endorsed in blank or is accompanied by proper instruments
of transfer in blank (including signature guarantees in accordance with standard
securities industry practice), (iii) if so required by the Depositary, the
Holder of the ADSs has executed and delivered 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 the person(s) designated in such
order, and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been
paid, subject, however, in each case, to the terms and conditions of this ADR,
of the Deposit Agreement, of the Company's Memorandum and Articles of
Association, of any applicable laws and the rules of CREST, and to any
provisions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
A-2
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADR(s) evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (as applicable), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this ADR, of the Memorandum and Articles
of Association of the Company, of any applicable laws and the rules of CREST,
and to the terms and conditions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of Delivery to it of ADSs representing a number 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) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so 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 ADSs. Notwithstanding
anything else contained in this ADR or the Deposit Agreement, the Depositary may
make delivery to Holders surrendering ADSs for withdrawal of Deposited
Securities at the Principal Office of the Depositary of (i) any cash dividends
or cash distributions, or (ii) any proceeds from the sale of any distributions
of shares or rights, which are at the time held by the Depositary in respect of
the Deposited Securities represented by the ADSs surrendered for cancellation
and withdrawal. At the request, risk and expense of any Holder so surrendering
ADSs represented by this ADR, 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 by the Custodian in respect of
the Deposited Securities represented by such ADSs to the Depositary for delivery
at the Principal Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.
(3) Transfer, Combination and Split-Up of ADRs. In connection with the
requested transfer of this ADR, the Registrar shall register the transfer of
this ADR (and of the ADSs represented hereby) on the books maintained for such
purpose and the Depositary shall (x) cancel this ADR and execute new ADRs in the
name of the transferee evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled, (y) cause the Registrar to countersign such
new ADRs, and (z) Deliver such new ADRs to or upon the order of the transferee
entitled thereto, if each of the following conditions has been satisfied: (i)
this ADR submitted for transfer has been duly Delivered by the Holder (or by a
duly authorized attorney of the Holder) to the Depositary at its Principal
Office for the purpose of effecting a transfer thereof, (ii) this ADR has been
properly endorsed or is accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice),
A-3
(iii) this ADR has been duly stamped (if required by the laws of the State of
New York or of the United States), and (iv) all applicable fees and charges of,
and expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each case, to the terms
and conditions of this ADR, of the Deposit Agreement and of applicable law, in
each case as in effect at the time thereof.
In connection with the requested combination or split-up of this ADR, the
Registrar shall register the split-up or combination of this ADR (and of the
ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR (when canceled), (y) cause the Registrar to countersign such new ADRs,
and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if
each of the following conditions has been satisfied: (i) this ADR submitted for
combination or split-up has been duly Delivered by the Holder (or by a duly
authorized attorney of the Holder) to the Depositary at its Principal Office for
the purpose of effecting a split-up or combination hereof, and (ii) all
applicable fees and charges of, and expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 of,
and Exhibit B to, the Deposit Agreement) have been paid, subject, however, in
each case, to the terms and conditions of this ADR, of the Deposit Agreement and
of applicable law, in each case as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, the registration of issuance, transfer,
split-up, combination or surrender, of any ADR, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary, the
Company or the Custodian may require (i) payment from the depositor of Shares or
the presenter of ADSs or ADRs 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 ADR, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matters contemplated by Section 3.1 of the Deposit
Agreement, and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of ADRs or ADSs or to the withdrawal of
Deposited Securities, (B) the provisions of the Company's Memorandum and
Articles of Association as in effect from time to time and applicable
resolutions or regulations adopted by the Company's board of directors, and (C)
such reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of this ADR and 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 deposit of particular
Shares may be refused, or the registration of transfers of ADSs in particular
instances may be refused, or the registration of transfer of ADSs generally may
be suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar 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 or
A-4
regulation, any government or governmental body or commission or any securities
exchange on which the ADSs or Shares are listed, or under any provision of the
Deposit Agreement or this ADR, or under any provision of, or governing, the
Deposited Securities, or because of a meeting of shareholders of the Company or
for any other reason, subject in all cases to paragraph (24). Notwithstanding
any provision of the Deposit Agreement or this ADR to the contrary, Holders are
entitled to surrender outstanding ADSs to withdraw the Deposited Securities
associated therewith 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 ADRs
or ADSs to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Instruction I.A.(l) of the General
Instructions to Form F-6 under the Securities Act (as such General Instructions
may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company
pursuant to applicable law (including, without limitation, the provisions of
Section 212 of Part VI of the Companies Xxx 0000 of England, as amended or
reenacted from time to time), the rules and requirements of the London Stock
Exchange or the New York Stock Exchange, and of any other stock exchange on
which Shares or ADSs are, or will be, registered, traded or listed, or the
Memorandum and Articles of Association of the Company or resolutions and
regulations of the Company's board of directors, which are made to provide or
obtain (i) information, inter alia, as to the capacity in which such Holder or
Beneficial Owner owns ADSs (and Shares as the case may be) and regarding the
identity of any other person(s) interested in such ADSs and the nature of such
interest and various other matters, whether or not they are Holders and/or
Beneficial Owners at the time of such request and (ii) information for purposes
of blocking transfer, voting, the exercising of other rights, to enforce
disclosure requirements, or to limit any ownership or enforce compliance with
such request.
(6) Ownership Restrictions. Notwithstanding any other provision of this
ADR or of the Deposit Agreement, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
imposed by applicable law or the Memorandum and Articles of Association of the
Company. The Company may also restrict, in such manner as it deems appropriate,
transfers of ADSs where such transfer may result in the total number of Shares
represented by the ADSs owned by a single Holder or Beneficial Owner to exceed
any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including, but not limited to, the imposition
of restrictions on the transfer of ADSs, the removal or limitation of voting
rights or a mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the ADSs held by such Holder or Beneficial
Owner in excess of such limitations, if and to the extent such disposition is
permitted by applicable law and the Memorandum and Articles of Association of
the Company.
A-5
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs 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 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, and the Holder and the Beneficial Owner hereof shall
remain liable for any deficiency. The Custodian may refuse the deposit of Shares
and the Depositary may refuse to issue ADSs, to deliver ADRs, register the
transfer of ADSs, register the split-up or combination of ADRs and (subject to
paragraph (24) 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 any of their agents, officers, 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.
(8) 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 and outstanding, fully paid, non-assessable and legally obtained
and held 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, (v) the Shares presented for deposit are not, and the
ADSs issuable upon such deposit will not be, Restricted Securities (except as
contemplated in Section 2.13 of the Deposit Agreement), and (vi) 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 ADSs in respect thereof and the
transfer of such ADSs. 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.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to (A)
provide to the Depositary and the Custodian such proof of (i) citizenship or
residence, (ii) taxpayer status, (iii) payment of all applicable taxes or other
governmental charges, (iv) exchange control approval, (v) legal or beneficial
ownership of ADSs and Deposited Securities, and (vi) compliance with applicable
laws, the terms of the Deposit Agreement or this ADR and the provisions of, or
provisions governing, the Deposited Securities, and (B) to execute such
certifications and to make such representations and warranties, and to provide
such other information and documentation (or, in the case of Shares in
registered form presented for deposit, such information relating to the
registration on the books of the Company or of the Share Registrar) as the
Depositary or the Custodian may deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
A-6
obligations under the Deposit Agreement and this ADR. The Depositary and the
Registrar, as applicable, may withhold the execution or delivery or registration
of transfer of any ADR or ADS or the distribution or sale of any dividend or
other distribution of rights or of the proceeds thereof or, to the extent not
limited by paragraph (24), the delivery of any Deposited Securities until such
proof or other information is filed or such certifications are executed, or such
representations are made or such information and documentation are provided, in
each case to the Depositary's, the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
fees:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares, a fee not in excess of
U.S. $5.00 per 100 ADSs (or portion thereof) so issued under
the terms of the Deposit Agreement; and
(ii) Cancellation Fee: to any person surrendering ADSs for
cancellation and withdrawal of Deposited Securities, a fee not
in excess of U.S. $5.00 per 100 ADSs (or portion thereof) so
surrendered.
In addition, Holders, Beneficial Owners, persons depositing Shares 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
on the share register 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 and facsimile 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; and
A-7
(vi) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities.
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 paragraph (22) of this ADR and as contemplated in the Deposit
Agreement. The Depositary will provide, without charge, a copy of its latest fee
schedule to anyone upon request. The charges and expenses of the Custodian are
for the sole account of the Depositary.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each Certificated ADS evidenced hereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that, this ADR has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of this
ADR (that is, the person in whose name this ADR is registered on the books of
the Depositary) as the absolute owner thereof for all purposes. Neither the
Depositary nor the Company shall have any obligation nor be subject to any
liability under the Deposit Agreement or this ADR to any holder of this ADR or
any Beneficial Owner unless such holder is the Holder of this ADR 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.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement, nor
shall this ADR be valid or enforceable for any purpose against the Depositary or
the Company, unless this ADR has been (i) dated, (ii) signed by the manual or
facsimile signature of a duly-authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly-authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of ADSs. An ADR
bearing the 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 delivery of such ADR by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be retrieved from the Commission's website (xxx.xxx.xxx) and 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 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.
A-8
The Registrar shall keep books for the registration of ADSs which at all
reasonable times shall be open for inspection by the Company and by the Holders
of such ADSs, provided that such inspection shall not be, to the Registrar's
knowledge, for the purpose of communicating with Holders of such ADSs 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 ADSs.
The Depositary is authorized to, and shall at the Company's request,
from time to time provide to the Company, the Share Registrar and any other
agent of the Company designated by the Company in writing (irrespective of their
nationality, residency, or regulatory regime) in electronic or print format the
information contained in the register of ADSs. Every Holder and Beneficial Owner
of ADSs upon acceptance of any ADSs (or any interest therein) shall be deemed to
have consented to the Depositary providing such information to such persons.
The Registrar may close the transfer books with respect to the ADSs, 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 paragraph
(24).
Dated:
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: By:
------------------------------- --------------------------------
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-9
[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of the receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or any other entitlements
held in respect of Deposited Securities under the terms of the Deposit
Agreement, the Depositary will (i) 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 cash dividend, distribution or proceeds into Dollars (upon the
terms of the Deposit Agreement), (ii) if applicable, establish the ADS Record
Date upon the terms described in Section 4.9 of the Deposit Agreement, and (iii)
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 entitled thereto as of the ADS Record Date in proportion to the
number of ADSs held 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, and any balance not so distributed shall be held
by the Depositary (without liability for interest thereon) and shall be added to
and become part of the next sum received by the Depositary for distribution to
Holders of ADSs outstanding at the time of the next distribution. 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. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
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 their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
and either (i) the Depositary shall 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 the aggregate the number of Shares received
as such dividend, or free distribution, subject to the terms of the 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 ADSs are not so distributed, each ADS issued and outstanding after
A-10
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interests in the additional integral number of 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 ADSs, the Depositary shall sell the
number of Shares or ADSs, as the case may be, represented by the aggregate of
such fractions and distribute the net proceeds upon the terms set forth in the
Deposit Agreement.
In the event that 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, if the Company in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), 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 (a) taxes
and (b) 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 of ADSs upon the terms
described in the Deposit Agreement, the Company and the Depositary shall
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 paragraph (16) 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 distribution shall be made as in the case
of a distribution in cash upon the terms described in the Deposit Agreement. If
the Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be made as in the case of a distribution in Shares upon the
terms described in the Deposit Agreement. If such elective distribution is not
reasonably practicable or if the Depositary did not receive reasonably
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 United Kingdom 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 or in the Deposit Agreement 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 timely 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 Depositary upon consultation with 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 (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
A-11
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 (upon the terms
described in the Deposit Agreement) and establish procedures (x) to distribute
rights to purchase additional ADSs (by means of warrants or otherwise), (y) to
enable the Holders to exercise the rights (upon payment of the subscription
price and of the applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise
of such rights. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs). If (i) the Company does not timely
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 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, at
such place and upon such terms (including public or private sale) as it may deem
practicable. 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 hereof and of 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
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 herein or in the Deposit Agreement 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 (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes 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 of ADSs
representing such Deposited Securities 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.
A-12
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein or in the Deposit Agreement 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 indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary and the Company 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 requested the
Depositary to make such distribution to Holders, (ii) the Depositary shall have
received reasonably satisfactory documentation contemplated in the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution
is reasonably practicable. Upon satisfaction of the conditions set forth in the
Deposit Agreement, the Depositary shall distribute the property so received to
the Holders of record, as of the ADS Record Date established for such
distribution pursuant to Section 4.9 of the Deposit Agreement, in proportion to
the number of ADSs held by them 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 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 practicable and shall (i) cause the
proceeds of such sale (if in a Foreign Currency) to be converted into Dollars
and (ii) distribute the proceeds of such sale and conversion 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 hereof and of the Deposit Agreement. If the Depositary is unable to sell
such property, the Depositary may dispose of such property for the account of
the Holders in any way it deems reasonably practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and upon determining that such proposed redemption is practicable
and upon receipt of reasonably satisfactory documentation required by the
Deposit Agreement, the Depositary shall provide to each Holder a notice setting
forth the Company's intention to exercise the redemption rights and any other
particulars set forth in the Company's notice to the Depositary. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer and distribute the proceeds (net of applicable (a) fees and
charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire
ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by Holders
thereof upon the terms of the Deposit Agreement. If less than all outstanding
Deposited Securities are redeemed, the ADSs to be retired will be selected by
A-13
lot or on a pro rata basis, as may be determined by the Depositary. The
redemption price per ADS shall be the dollar equivalent of the per share amount
received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio)
upon the redemption of the Deposited Securities represented by ADSs (subject to
the terms of the Deposit Agreement and the applicable fees and charges of, and
expenses incurred by, the Depositary, and taxes) multiplied by the number of
Shares represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive 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, or
solicitation of consents or proxies 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, solicitation of any consent or any
other matter, the Depositary shall fix a record date (the "ADS Record Date") for
the determination of the Holders of ADSs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, 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. If the
ADSs shall be listed on any securities exchange, then such record date shall be
fixed in compliance with any applicable rules of such securities exchange. The
Depositary shall make reasonable efforts to establish the ADS Record Date as
closely as possible to the applicable record date for the Deposited Securities
(if any) set by the Company in England. Subject to applicable law and the terms
and conditions of this ADR and the Deposit Agreement, only the Holders of ADSs
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.
(17) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy in accordance with Section 4.9
of the Deposit Agreement. 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 thirty (30) days prior to the date of such vote or meeting), at the
Company's expense and provided no U.S. legal prohibitions exist, 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
provisions of the Deposit Agreement, the Memorandum and Articles of Association
of the Company and the provisions of or the provisions 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 Deposited Securities represented by such
Holder's ADSs, and (c) a brief statement as to the manner in which such voting
instructions may be given, (including an express indication that instructions
may be deemed to have been given in accordance with the last sentence of the
paragraph below if no instructions are received by the Depositary prior to the
A-14
deadline set for such purposes) to the Depositary to give a discretionary proxy
to a person designated by the Company to vote the Shares or other Deposited
Securities represented by such Holder's ADSs in his or her discretion. Voting
instructions may be given only in respect of a number of ADSs representing an
integral number of Deposited Securities. Upon the timely receipt from a Holder
of ADSs as of 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 the Deposit Agreement, the
Memorandum and Articles of Association of the Company and the provisions of the
Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities (in person or by proxy) represented by such Holder's ADSs in
accordance with such voting 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 the Deposited Securities represented by ADSs, except pursuant to and in
accordance with the voting instructions timely received from Holders as of the
ADS Record Date or as otherwise contemplated therein. If the Depositary does not
receive instructions from a Holder as of the ADS Record Date on or before the
date established by the Depositary for such purpose, such Holder shall be
deemed, and the Depositary shall deem such Holder, to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company
to vote the Deposited Securities held by such Holder, and the Depositary shall
give such discretionary proxy to such person; provided, however, that no such
discretionary proxy shall be given by the Depositary with respect to any matter
to be voted upon as to which the Company informs the Depositary that (i) the
Company does not wish such proxy to be given, (ii) substantial opposition
exists, or (iii) the rights of holders of Deposited Securities may be adversely
affected. Notwithstanding anything else contained in the Deposit Agreement or in
this ADR, the Depositary shall, if so requested in writing by the Company,
represent, or cause the Custodian to represent all Deposited Securities (whether
or not voting instructions have been received in respect of such Deposited
Securities from Holders as of the ADS Record Date) for the sole purpose of
establishing quorum at a meeting of shareholders. On the business day following
the date fixed by the Depositary as the last date for delivery of voting
instructions, the Depositary shall give notice to the Company of the voting
instructions received the Depositary from the Holders as of the close of
business as of such fixed date.
Notwithstanding anything contained in the Deposit Agreement or any ADR to
the contrary, the Depositary shall not have any obligation to take any action
with respect to any meeting, or solicitation of consents or proxies, of holders
of Deposited Securities if the taking of such action would violate U.S. laws.
The Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Deposited Securities and to deliver to the Depositary, if reasonably requested
by the Depositary, an opinion of U.S. counsel addressing any actions requested
to be taken to enable such vote.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
A-15
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
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 is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement of 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 ADRs shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. In
effectuation of any such change, split up, cancellation, consolidation or other
reclassification of Deposited Securities, recapitalization, reorganization,
merger or consolidation or sale of assets, 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 an opinion of counsel to the
Company reasonably satisfactory to the Depositary that such actions are not in
violation of any applicable laws or regulations, (i) execute and deliver
additional ADRs in the case of a stock dividend on the Shares, (ii) amend the
Deposit Agreement and the form of ADR contained in Exhibit A thereto, (iii)
amend the Registration Statement on Form F-6 as filed with the Commission in
connection with the Deposit Agreement, (iv) call for the surrender of
outstanding ADRs to be exchanged for new ADRs, (v) issue such new ADRs in
exchange for outstanding ADRs called for surrender and (vi) take such other
actions as reasonably requested by the Company. 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 reasonably 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 (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 and distribute the
net proceeds so allocated to the extent 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 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.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this ADR, by
reason of any provision of any present or future law or regulation of the United
States, the United Kingdom 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 Memorandum and Articles of Association of
the Company or any provision of or provision 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, acts of 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 Memorandum and Articles of Association of the Company or
provisions of or provisions governing Deposited Securities, (iii) for any action
or inaction 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,
A-16
(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 the Deposit
Agreement, made available to Holders of ADSs, or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
Depositary, its controlling persons and its agents, any Custodian and the
Company, its Affiliates, its controlling persons and its agents may rely and
shall be protected in acting upon any written notice, request 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 or this ADR.
(20) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
ADR to any Holder(s) or Beneficial Owner(s), except that the Company and the
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without negligence or bad faith. Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective Affiliates, 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 ADSs,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (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 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 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.
(21) 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. The Depositary may at any time be removed by the Company as
Depositary under the Deposit Agreement by written notice of such removal, which
removal shall be effective on the later of (i) the 30th 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. In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its reasonable best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
A-17
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 (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 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 ADSs and such other
information relating to ADSs and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly provide 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.
(22) Amendment/Supplement. Subject to the terms and conditions of this
paragraph 22, the Deposit Agreement and applicable law, this ADR 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
prior written 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 ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. 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 to be
settled 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(s), to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and this ADR as amended or supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such ADS 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 an amendment of, or supplement to, the
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and this ADR at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement and this ADR 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.
A-18
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign, or if thirty (30) days shall
have expired after 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 providing notice of such termination to the Holders of all
ADSs then outstanding at least thirty (30) days prior to the date fixed for such
termination. On and after the date of termination of the Deposit Agreement, the
Holder of ADS(s) will, upon surrender of such ADS(s) at the Principal Office of
the Depositary, upon the payment of the charges of the Depositary for the
surrender of ADSs referred to in paragraph (2) 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
ADS. If any ADSs shall remain outstanding after the date of termination of the
Deposit Agreement, the Registrar thereafter shall discontinue the registration
of transfers of ADSs, 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 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 ADSs 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 an ADS, 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 (6) 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
whose ADSs 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 ADSs and the Deposited Securities, 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 ADSs, 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.
A-19
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR 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, as amended from time to time, under the Securities Act.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (25), 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. 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 of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 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 (w) 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, (x) 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, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs, and (z) 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 change or 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 the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
A-20
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sells, assigns and transfers
unto ______________________________ whose taxpayer identification number is
_______________________ and whose address including postal zip code is
________________, the within ADS and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADS 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 ADR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of
ADRs must be guaranteed by a member
of a Medallion Signature Program
approved by the Securities Transfer
Association, Inc.
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences ADSs
representing 'partial entitlement' [type of shares] of [Company] and as such do
not entitle the holders thereof to the same per-share entitlement as other [type
of shares] Shares (which are 'full entitlement' [type of shares] Shares) issued
and outstanding at such time. The ADSs represented by this ADR shall entitle
holders to distributions and entitlements identical to other ADSs when the [type
of shares] Shares represented by such ADSs become 'full entitlement' [type of
shares] Shares."]
A-21
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons depositing
Shares or surrendering ADSs for cancellation agree to pay the following fees of
the Depositary:
-------------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
-------------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to U.S. $5.00 per 100 ADSs (or Person depositing Shares or person
of Shares. fraction thereof) issued. receiving ADSs.
-------------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to U.S. $5.00 per 100 ADSs (or Person surrendering ADSs for
Securities against surrender fraction thereof) surrendered. purpose of withdrawal of Deposited
of ADSs. Securities or person to whom
Deposited Securities are delivered.
-------------------------------------------------------------------------------------------------------------------
II. Charges
Holders, Beneficial Owners, persons depositing Shares for deposit and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Securities shall be responsible for 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 on the share register
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 and facsimile 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;
B-1
(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;
and
(vi) the fees and expenses incurred by the Depositary, the Custodian or any
nominee in connection with the servicing or delivery of Deposited
Securities.
B-2
