EXHIBIT 2.1
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MARCONI CORPORATION PLC
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of March 31, 2003
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of March 31, 2003, among MARCONI CORPORATION
PLC, incorporated under the laws of England and Wales (herein called the
"Company"), THE BANK OF NEW YORK, a New York banking corporation (herein called
the "Depositary"), and all Owners and Beneficial Owners from time to time of
American Depositary Receipts issued hereunder.
WITNESSETH:
WHEREAS, the Company desires to provide, as hereinafter set
forth in this Deposit Agreement (the "Deposit Agreement"), for the deposit of
Shares (as hereinafter defined) of the Company from time to time with the
Depositary or the Custodian, for the creation of American Depositary Shares
representing the Shares so deposited (subject to the terms and conditions of
this Deposit Agreement) and for the execution and delivery of American
Depositary Receipts evidencing the American Depositary Shares;
WHEREAS, the American Depositary Receipts are to be
substantially in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereby agree as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. American Depositary Shares.
The term "American Depositary Shares" shall mean the
securities created hereby representing interests in the Deposited Securities
evidenced by the Receipts issued hereunder and all rights of ownership
associated therewith. Each American Depositary Share shall represent the number
of Shares specified in Exhibit A annexed thereto, until there shall occur a
distribution upon Deposited Securities covered by Section 4.03 or a change or
other event with respect to Deposited Securities covered by Section 4.08 with
respect to which additional Receipts are not executed and delivered, and
thereafter each American Depositary Share shall represent the type and amount of
Deposited Securities specified in such Sections.
SECTION 1.02. Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from
time to time any beneficial interest in the American Depositary Shares evidenced
by any Receipt.
SECTION 1.03. Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States of America or any successor governmental agency
in the United States of America.
SECTION 1.04. Company.
The term "Company" shall mean Marconi Corporation plc,
incorporated under the laws of England and Wales, and its successors.
SECTION 1.05. Custodian.
The term "Custodian" shall mean the principal London, England
office of The Bank of New York, as agent of the Depositary for the purposes of
this Deposit Agreement, and any other firm or corporation which may hereafter be
appointed by the Depositary pursuant to the terms of Section 5.05 as agent of
the Depositary for the purposes of this Deposit Agreement or as substitute or
additional custodian or custodians hereunder, as the context shall require, and
the term "Custodians" shall mean all of them, collectively.
SECTION 1.06. Deposit Agreement.
The term "Deposit Agreement" shall mean this agreement, as the
same may be amended from time to time in accordance with the provisions hereof.
SECTION 1.07. Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New
York banking corporation, and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which, at the date of this Deposit Agreement, is
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
SECTION 1.08. Deposited Securities.
The term "Deposited Securities" as of any time shall mean the
Shares at such time deposited or deemed to be deposited under this Deposit
Agreement and any and all other securities, property and cash received by the
Depositary or the Custodian in
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respect thereof and at such time held hereunder, subject as to cash to the
provisions of Section 4.05.
SECTION 1.09. Dollars; Pounds.
The term "Dollars" shall mean United States dollars. The terms
"Pounds" or "Xxxxx" shall mean the lawful currency of the United Kingdom.
SECTION 1.10. Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that
presently carries out the duties of registrar for the Shares or any successor as
registrar for the Shares and any other appointed agent of the Issuer for the
transfer and registration of Shares.
SECTION 1.11. Owner.
The term "Owner" shall mean the person or persons in whose
name or names a Receipt is registered on the books of the Depositary maintained
for such purpose.
SECTION 1.12. Receipt.
The term "Receipt" shall mean each American Depositary Receipt
issued hereunder evidencing American Depositary Shares, in substantially the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions as hereinafter provided in this Deposit Agreement.
SECTION 1.13. Registrar.
The term "Registrar" shall mean, subject to any applicable
rules or regulations of any securities exchange upon which the American
Depositary Shares may be listed or traded, any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed as agent of the Depositary for the purposes of this Deposit Agreement,
upon prior request and with the approval of the Company, to register Receipts
and transfers of Receipts as herein provided.
SECTION 1.14. Restricted Securities.
The term "Restricted Securities" shall mean Shares (or
Receipts evidencing such Shares) which are acquired directly or indirectly from
the Company or its affiliates (as defined in Rule 144 under the Securities Act
of 1933) in a transaction or chain of transactions not involving any public
offering (whether or not within the United States) or which are subject to
resale limitations under the Securities Act of 1933 or both, or which are held
by an officer, director (or persons performing similar functions) or other
affiliate of the Company or which would require registration under the
Securities
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Act of 1933 in connection with the public offer and sale thereof in the United
States of America, or which are subject to other restrictions on sale or deposit
under the laws of the United States of America or the United Kingdom, the
Memorandum or Articles of Association of the Company or under any agreement.
SECTION 1.15. Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.16. Shares.
The term "Shares" shall mean the ordinary shares of the
Company, heretofore validly issued and outstanding and fully paid and
non-assessable or hereafter validly issued and outstanding and fully paid and
non-assessable; provided, however, that if there shall occur any change in par
value, split-up, consolidation or other reclassification or, upon the occurrence
of any other event described in Section 4.08, an exchange or conversion in
respect of the Shares, the term "Shares" shall thereafter mean the successor
securities resulting from such change in par value, split-up, consolidation or
other reclassification or such exchange or conversion. References to Shares
shall include evidence of rights to receive Shares, whether or not stated in the
particular instance; provided, however, that in no event shall Shares include
evidence of rights to receive Shares with respect to which the full purchase
price has not been paid.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS.
SECTION 2.01. Form and Transferability of Receipts.
Definitive Receipts shall be engraved or printed or
lithographed and shall be executed by the Depositary by the manual signature of
a duly authorized signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts shall have been
appointed, such Registrar not to be deemed an agent of the Company and such
Receipts are countersigned by the manual signature of a duly authorized officer
of the Registrar. No Receipt shall be entitled to any benefits under this
Deposit Agreement, or be valid or enforceable for any purpose, unless such
Receipt shall have been executed by the Depositary by the manual signature of a
duly authorized signatory of the Depositary or, if a Registrar for the Receipts
shall have been appointed and the Depositary shall have signed by facsimile
signature, countersigned by the manual signature of a duly authorized officer of
the Registrar. The Depositary shall maintain books on which each Receipt so
executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered; provided, however, that if a Registrar has been
appointed then such books shall be maintained by the Registrar. Receipts bearing
the facsimile signature of a duly authorized signatory of the Depositary who was
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at any time a proper signatory of the Depositary shall bind the Depositary,
notwithstanding that such signatory of the Depositary has ceased to hold such
office prior to the execution of such Receipts by the Registrar and their
delivery or did not hold such office at the date of such Receipts.
The Receipts may, with the prior written consent of the
Company, and at the request of the Company shall be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement or with any provision
of the Company's Memorandum or Articles of Association or the laws of the United
Kingdom as may be reasonably required by the Depositary or required to comply
with any applicable law or regulations or with the rules and regulations of any
securities exchange upon which American Depositary Shares may be listed or
traded or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are subject
by reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to the American Depositary Shares
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of the State of New York;
provided, however, that the Depositary, notwithstanding any notice to the
contrary, may treat the Owner thereof as the absolute owner thereof for the
purpose of determining the person entitled to any distribution of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes, and neither the Depositary nor the Company shall have
any obligation or be subject to any liability under this Deposit Agreement to
any holder of a Receipt unless such holder is the Owner thereof.
SECTION 2.02. Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares may be deposited under this Deposit Agreement by delivery thereof to any
Custodian hereunder, accompanied by any appropriate instrument or instruments of
transfer, or endorsement, in form reasonably satisfactory to the Custodian,
together with all such certifications, documents, other information and payments
as may be required by the Depositary or the Custodian in accordance with the
provisions of this Deposit Agreement, and, if the Depositary requires, together
with a written order directing the Depositary to execute and deliver to, or upon
the written order of, the person or persons stated in such order, a Receipt or
Receipts for the number of American Depositary Shares representing such
Deposited Shares. In addition, subject to the terms of Section 5.07, the
Depositary and any Custodian may accept Shares for deposit from or on behalf of
the Company or an affiliate of the Company, in the case of any distribution of
Shares pursuant to Section 4.02, 4.03 or 4.08 of this Deposit Agreement, in each
case when such deposit is made by delivery to such Custodian of certificates
therefor, accompanied by any appropriate
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instrument or instruments of transfer or endorsement, in form satisfactory to
the Custodian, or delivery to such Custodian of evidence satisfactory to the
Custodian that irrevocable instructions have been given to cause such Shares to
be transferred to such account. No Share shall be accepted for deposit unless
accompanied by evidence satisfactory to the Depositary, if any is required by
the Depositary, 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 that any necessary approval has been granted by the governmental
authority or body in the United Kingdom, if any, which is then performing the
function of the regulation of currency exchange or any other function which
requires approval for the deposit of Shares. If required by the Depositary,
Shares presented for deposit at any time, whether or not the transfer books of
the Company or the Foreign Registrar, if applicable, are closed, shall also be
accompanied by an agreement or assignment, or other instrument satisfactory to
the Depositary, which will provide for the prompt transfer to the Custodian of
any dividend, or right to subscribe for additional Shares or to receive other
property which any person in whose name the Shares are or have been recorded may
thereafter receive upon or in respect of such deposited Shares, or in lieu
thereof, such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary, and 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 vote such deposited Shares for any and all purpose until the Shares
are registered in the name of the Depositary or its nominee or the Custodian or
its nominee.
At the request, risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments and
payments herein specified, for the purpose of forwarding such Share certificates
to the Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or
certificates for Shares to be deposited hereunder, together with the other
documents and payments specified above, such Custodian shall, as soon as
transfer and recordation can be accomplished, present such certificate or
certificates to the Company or the appointed agent of the Company for transfer
and registration of Shares, which may but need not be the Foreign Registrar, if
applicable, for transfer and recordation of the Shares being deposited in the
name of the Depositary or its nominee or such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or, with the prior
written consent of the Company, at such other place or places as the Depositary
shall determine.
SECTION 2.03. Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit of Shares
pursuant to Section 2.02, together with the other documents required as
specified herein, such
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Custodian shall promptly notify the Depositary of such deposit and the person or
persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares to
be evidenced thereby. Such notification shall be made by mail or, at the
request, risk and expense of the person making the deposit, by air courier,
cable, telex or facsimile transmission. Upon receiving such notice from such
Custodian, or upon the receipt of Shares by the Depositary, the Depositary,
subject to the terms and conditions of this Deposit Agreement (including, but
not limited to the terms and conditions contained in Section 2.02), shall
execute and deliver at its Corporate Trust Office, to or upon the order of the
person or persons named in the notice delivered to the Depositary or requested
by the person depositing such Shares with the Depositary, a Receipt or Receipts,
registered in such name or names and evidencing any authorized number of
American Depositary Shares requested by such person or persons, but only upon
payment to the Depositary of the fee of the Depositary for the execution and
delivery of such Receipt or Receipts, and of all taxes and governmental charges
and fees payable in connection with such deposit and the transfer of the
deposited Shares.
SECTION 2.04. Transfer of Receipts; Combination and Split-up of
Receipts.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall register transfers on its transfer books from time to
time of any Receipt, upon surrender, by the Owner in person or by a duly
authorized attorney, of such Receipt properly endorsed or accompanied by proper
instruments of transfer, and duly stamped, as may be required by the laws of the
State of New York and of the United States of America. Thereupon, the Depositary
shall execute a new Receipt or Receipts evidencing the same aggregate number of
American Depositary Shares as were evidenced by the Receipt surrendered and
deliver the same to or upon the order of the person entitled thereto, subject to
receipt of all certificates, if any, as the Depositary or the Company may
require in order to comply with any applicable laws.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall, upon surrender of a Receipt or Receipts for the
purpose of effecting a split-up or combination of such Receipt or Receipts,
execute and deliver, subject to receipt of all certificates, if any, as the
Depositary or the Company may require in order to comply with any applicable
laws, a new Receipt or Receipts for any authorized number of American Depositary
Shares requested, evidencing the same aggregate number of American Depositary
Shares as were evidenced by the Receipt or Receipts surrendered.
The Depositary, at its expense, may appoint one or more
co-transfer agents with the approval of the Company (which approval shall not be
unreasonably withheld) for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a
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co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Owners or holders of Receipts or
persons entitled to Receipts and will be entitled to protection and indemnity to
the same extent as the Depositary.
SECTION 2.05. Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary
of a Receipt for the purpose of withdrawal of a whole number of Deposited
Securities represented thereby, and upon payment of the fee of the Depositary
for the cancellation of Receipts and subject to the terms and conditions of this
Deposit Agreement, the Company's Memorandum or Articles of Association and the
Deposited Securities, the Owner of such Receipt shall be entitled to delivery of
the whole number of Shares and the number of any other Deposited Securities
represented by the American Depositary Shares evidenced thereby and so withdrawn
to an account designated by such Owner and to delivery at the Corporate Trust
Office of the Depositary of a new Receipt evidencing any fractional Deposited
Securities represented thereby and the Shares and other Deposited Securities not
withdrawn. Such delivery shall be made, as hereinafter provided, without
unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to an account
designated by such Owner. Thereupon the Depositary shall, in its discretion,
subject to Sections 2.06, 3.01 and 3.02, and to the other terms and conditions
of this Deposit Agreement, effect, or direct one (or more) of the Custodians, to
effect, such delivery, except that the Depositary may make delivery to such
person or persons at the Corporate Trust Office of the Depositary of any
dividends or distributions upon such Deposited Securities, or of any proceeds of
sale of any such dividends or distributions, which may at the time be held by
the Depositary.
At the request, risk and expense of any Owner so surrendering
a Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward proper documents of title (if available) for any such
Deposited Securities to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by mail or, at the
request, risk and expense of such Owner, by air courier, cable, telex or
facsimile transmission.
Neither the Depositary nor the Custodian shall deliver Shares
(other than to the Company or its agent as contemplated by Section 4.08), or
otherwise permit Shares to be withdrawn from the facility created hereby, except
upon the receipt and cancellation of Receipts.
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SECTION 2.06. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of any Receipt, the
delivery of any distribution thereon, or the withdrawal of any Deposited
Securities, the Depositary or the Custodian may require payment from the
presenter of the Receipt or the depositor of the Shares of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer,
registration or conversion fee with respect thereto (including any such tax or
charge and fee with respect to Shares being deposited or Deposited Securities
being withdrawn) and payment of any applicable fees as herein provided, may
require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary may establish consistent with the
provisions of this Deposit Agreement, including, without limitation, Section
7.07.
The delivery of Receipts against deposits of Shares generally
or against deposits of particular Shares may be suspended and the transfer of
Receipts in particular instances may be refused or the registration of transfer
of outstanding Receipts generally may be suspended during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary, after consultation with the Company to
the extent practicable (to the extent it is not practicable for the Depositary
to consult with the Company, the Depositary will notify the Company as promptly
as practicable after taking such action and explain its reasons for doing so),
or the Company at any time or from time to time because of any requirement of
law or of any government or governmental or regulatory body or commission or
following receipt of notification from the Company of the suspension of trading
in the Shares on the London Stock Exchange, or under any provision of this
Deposit Agreement or the Memorandum or Articles of Association of the Company,
or for any other reason, subject to Section 7.07 of this Deposit Agreement. The
surrender of outstanding Receipts and withdrawal of Deposited Securities may not
be suspended 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 and (iii) compliance with any United
States or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities. The Depositary and the Custodian
will comply with reasonable written instructions from the Company requesting
that the Depositary and the Custodian not accept for deposit hereunder any
Shares identified in such instructions in order to facilitate the Company's
compliance with United States federal securities laws, any provision of the
Company's Memorandum or Articles of Association or the laws of the United
Kingdom. Without limitation of the foregoing, neither the Depositary nor the
Custodian shall accept for deposit under this Deposit Agreement any Shares (i)
which, to the actual knowledge of the Depositary, are required
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to be registered under the Securities Act of 1933 prior to public sale in the
United States, unless a registration statement is in effect as to such Shares or
(ii) the deposit of which would, to the actual knowledge of the Depositary,
infringe any provisions of the laws of the United Kingdom.
SECTION 2.07. Lost Receipts, Etc.
In case any Receipt shall be mutilated, destroyed, lost or
stolen, the Depositary shall execute and deliver a new Receipt of like tenor, in
exchange and substitution for such mutilated Receipt upon cancellation thereof,
or in lieu of and in substitution for such destroyed or lost or stolen Receipt,
upon the Owner thereof filing with the Depositary (a) a request for such
execution and delivery before the Depositary has notice that the Receipt has
been acquired by a bona fide purchaser and (b) a sufficient indemnity bond, and
satisfying any other reasonable requirements imposed by the Depositary.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled
by the Depositary. Cancelled Receipts shall not be entitled to any benefits
under this Deposit Agreement or be valid or enforceable for any purpose, and the
Depositary shall destroy Receipts so canceled and inform the Company. The
Depositary shall keep such records of all Receipts outstanding, and of their
payment, cancellation and destruction, as are required under applicable Stock
Transfer Association rules.
SECTION 2.09. Pre-Release of Receipts.
The Depositary may issue Receipts against the delivery by the
Company (or any agent of the Company recording Share ownership) of rights to
receive Shares from the Company (or any such agent). No such issue of Receipts
will be deemed a "Pre-Release" that is subject to the restrictions of the
following paragraph.
Unless requested in writing by the Company to cease doing so,
the Depositary may, notwithstanding Section 2.03 hereof, execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02
("Pre-Release"). The Depositary may, pursuant to Section 2.05, deliver Shares
upon the receipt and cancellation of Receipts which have been Pre-Released,
whether or not such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such Receipt has been Pre-Released. The Depositary
may receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation and
agreement from the person to whom Receipts are to be delivered (the
"Pre-Releasee") that the Pre-Releasee, or its customer, (i) owns the Shares or
Receipts to be remitted, as the case may be, (ii) assigns all beneficial rights,
title and interest in such Shares or Receipts, as the case may be, to the
Depositary in its capacity as such and for
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the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in satisfaction of such Pre-Release, (b) at all times fully collateralized
(such collateral marked to market daily) with cash, U.S. government securities
or such other collateral as the Depositary determines, in good faith, will
provide substantially similar liquidity and security, (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 number of Shares not deposited but represented by American
Depositary Shares outstanding at any time as a result of Pre-Releases will not
normally exceed twenty percent (20%) of the Shares deposited hereunder;
provided, however, that the Depositary reserves the right to disregard such
limit from time to time as it deems reasonably appropriate, and may, with the
prior written consent of the Company, change such limit for purposes of general
application. The Depositary will also set Dollar limits with respect to
Pre-Release transactions to be entered into hereunder with any particular
Pre-Releasee on a case-by-case basis as the Depositary deems appropriate. For
purposes of enabling the Depositary to fulfill its obligations to the Owners
under the Deposit Agreement, the collateral referred to in clause (b) above
shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.01. Providing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner may be
required from time to time to provide such proof of (a) citizenship, residence,
exchange control approval or payment of taxes and other governmental charges and
compliance with all applicable laws and regulations governing Deposited
Securities and the terms of this Deposit Agreement and (b) the identity of any
person legally or beneficially interested in the Receipt and Shares and the
nature of such interest, such information relating to the registration of the
Shares presented for deposit on the books of the Company (or the appointed agent
of the Company for transfer and registration of Shares) or to provide such other
information, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the Company
reasonably may require by written request to the Depositary or any Custodian.
The Depositary may and shall, if reasonably requested by the Company, withhold
the delivery
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or registration of transfer of any Receipt, the distribution of any dividend or
other distribution or sale of rights or of the proceeds thereof, or the delivery
of any Deposited Securities until such proof or other information is provided,
such certificates are executed or such representations and warranties are made
pertaining to such Receipt to the satisfaction of the Company and the
Depositary.
The Depositary shall provide the Company, upon the Company's
request and in a timely manner, with copies of any information or other material
which it receives pursuant to this Section 3.01.
SECTION 3.02. Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable
with respect to any Receipt or any Deposited Securities represented by any
Receipt, such tax or other governmental charge shall be payable by the Owner or
Beneficial Owner of such Receipt to the Depositary. The Depositary may refuse,
or will refuse if so instructed by the Company, to effect registration of
transfer of all or part of such Receipt or any withdrawal of Deposited
Securities represented thereby until such payment is made, and may withhold any
dividends or other distributions or, after attempting by reasonable means to
notify such Owner or Beneficial Owner, may sell for the account of the Owner or
Beneficial Owner thereof any part or all of the Deposited Securities represented
by such Receipt, and may apply such dividends or other distributions or the
proceeds of any such sale to payment of such tax or other governmental charge,
the Owner or Beneficial Owner of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement,
including every person depositing Shares on behalf of an owner of Shares, shall
be deemed thereby to represent and warrant that (i) such Shares are validly
issued, fully paid and non-assessable, (ii) the person making such deposit is
duly authorized so to do, (iii) such Shares are not Restricted Securities, (iv)
such Shares are free and clear of any lien, encumbrance, security interest,
charge, mortgage, pledge or restriction on transfer, (v) such Shares are free of
any pre-emptive rights of the holders of outstanding Shares, and (vi) such
Shares include all rights to receive dividends thereon. Such representations and
warranties shall survive the deposit of such Shares and issuance of Receipts in
respect thereof.
SECTION 3.04. Compliance with Law.
The rights of each Owner will be subject to the Memorandum or
Articles of Association of the Company as if such Owner were a holder of Shares
and to all applicable provisions of the laws of the United Kingdom and the
Memorandum or Articles of Association of the Company with regard to notification
to the Company and
12
any governmental or stock exchange authorities of such Owner's interest in
Shares. Failure by such Owner to provide on a timely basis any such required
notification of such Owner's interest in Shares may result in the withholding of
certain rights in respect of such Owner's American Depositary Shares including,
without limitation, the right to give voting instructions and the right to
receive dividends or other payments in respect of the Shares represented by such
American Depositary Shares.
SECTION 3.05. Disclosure of Beneficial Ownership.
(a) The Company and the Depositary may from time to time
request Owners to provide information as to the capacity in which they hold
Receipts and regarding the identity of any other persons then or previously
interested in such Receipts and various other matters. Each such Owner agrees to
provide any such information reasonably requested by the Company or the
Depositary pursuant to this Section and such agreement shall survive any
disposition of such Owner's interest in Shares or Receipts.
(b) Notwithstanding any other provision of this Deposit
Agreement to the contrary and without limiting Section 3.05(a), each Owner and
Beneficial Owner of a Receipt agrees to provide such information as the Company
may request in a disclosure notice (a "Disclosure Notice") given pursuant to the
United Kingdom Companies Act 1985 (as amended from time to time and including
any statutory modification or re-enactment thereof, the "Companies Act") or the
Company's Memorandum and Articles of Association, as amended from time to time.
Each Owner and Beneficial Owner of a Receipt acknowledges that it understands
that failure to comply with a Disclosure Notice may result in the imposition of
sanctions against the holder of the Shares in respect of which the non-complying
Owner or Beneficial Owner is or was, or appears to be or has been, interested as
provided in the Companies Act and the Company's Memorandum and Articles of
Association, as amended from time to time (including, without limitation, the
withdrawal of voting rights or, in certain circumstances, in relation to the
non-complying Owner, the withholding of any payments, including dividends and
payments of a capital nature, in respect of the Shares represented by such
American Depositary Shares, voiding any transfers of the Shares represented by
such American Depositary Shares, prohibiting the issuance of additional shares
by way of rights or bonus entitlement in respect of the Shares represented by
such American Depositary Shares and the nullification of any agreement to effect
any of the acts subject to the restrictions by virtue of the sanctions).
In addition, each Owner and Beneficial Owner of a Receipt
agrees to comply with the provisions of the Companies Act with regard to the
notification to the Company of interests in Shares, which currently provide,
inter alia, that any holder of Receipts or other person who is or becomes
directly or indirectly interested (within the meaning of the Companies Act) in
three percent (3%) or more of the outstanding Shares, or is aware that another
person for whom it holds such Receipts or owns such interest in American
Depositary Shares is so interested, must within two United Kingdom business days
after
13
becoming so interested or so aware (and thereafter in certain circumstances upon
any change of at least one percent (1%) of the outstanding Shares) notify the
Company as required by the Companies Act. Each Owner and Beneficial Owner of a
Receipt acknowledges that it understands that failure to comply with the
Companies Act in this regard may similarly result in the imposition of the
sanctions described in the first paragraph of this Section 3.05.
In the event that the Company determines that there has been a
failure to comply with a Disclosure Notice with respect to any Deposited
Securities and that sanctions are to be imposed against such Deposited
Securities pursuant to the Companies Act by a court of competent jurisdiction or
the Company's Memorandum and Articles of Association by the Company, the Company
shall so notify the Depositary, giving full details thereof, and shall instruct
the Depositary in writing as to the application of such sanctions to the
Deposited Securities. Except as prohibited by applicable law, the Depositary
agrees to use reasonable efforts to comply with any such instructions requesting
that the Depositary take the reasonable and feasible actions specified therein
to apply such sanctions.
If the Company requests information from the Depositary or the
Custodian, as the registered holders of Shares, pursuant to the Company's
Memorandum and Articles of Association or the Companies Act, the Depositary
agrees to use, and to cause the Custodian to use, reasonable efforts to comply
with any reasonable instructions received from the Company requesting the
Depositary to take the reasonable actions specified therein to obtain such
information.
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.01. Cash Distributions.
Whenever the Depositary or the Custodian shall receive any
cash dividend or other cash distribution on any Deposited Securities, the
Depositary shall, after any necessary conversion of such distribution into
Dollars pursuant to Section 4.05 and after fixing a record date pursuant to
Section 4.06, as promptly as practicable, but in any event within five business
days, distribute the amount thus received to the Owners of Receipts entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively; provided, however, that the Depositary shall make appropriate
adjustments in the amounts so distributed in respect of any amounts withheld or
requested to be withheld by the Company, the Custodian or the Depositary from
any such distribution on account of (i) taxes or other governmental charges
including, but not limited to, withholding taxes referred to in Section 4.11, or
(ii) reasonable expenses of the Depositary in the conversion of foreign currency
into Dollars pursuant to Section 4.05 and any other charges of the Depositary
pursuant to Section 5.09. The Depositary shall distribute only such amount,
however, as can be distributed without distributing to any
14
Owner a fraction of one cent. Any such fractional amounts shall be rounded to
the nearest whole cent and so distributed to Owners entitled thereto.
SECTION 4.02. Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever
the Depositary or the Custodian shall receive any distribution other than cash,
Shares or rights upon any Deposited Securities, the Depositary shall cause the
securities or property received by it to be distributed to the Owners, as of the
record date fixed pursuant to Section 4.06, of Receipts entitled thereto in
proportion to the number of American Depositary Shares held by them as of such
date in any manner that the Depositary may, following consultation with the
Company, reasonably deem equitable and practicable for accomplishing such
distribution; provided, however, that if the Company shall so direct or if, in
the reasonable opinion of the Depositary such distribution cannot be made
proportionately among such Owners, or if for any other reason (including but not
limited to any requirement that the Company or the Depositary withhold an amount
on account of taxes or other governmental charges or that such securities must
be registered under the Securities Act of 1933 in order to be distributed to
Owners or Beneficial Owners) the Depositary, in its reasonable opinion, deems
such distribution not to be feasible, the Depositary may, following consultation
with the Company, adopt such method as it may deem lawful, equitable and
practicable for the purpose of effecting such distribution, including the public
or private sale of the securities or other property thus received, or any part
thereof, and the net proceeds of any such sale shall be as promptly as
practicable distributed by the Depositary to the Owners entitled thereto as in
the case of a distribution received in cash; provided, however, that any unsold
balance of such securities or property shall be distributed by the Depositary to
the Owners entitled thereto, if such distribution is feasible without
withholding for or on account of any taxes or other governmental charges and
without registration under the Securities Act of 1933, in accordance with such
lawful, equitable and practicable method as the Depositary may have adopted;
provided, further, however, that no distribution to Owners shall be unreasonably
delayed by any action of the Depositary or any of its agents. To the extent such
securities or other property, or the net proceeds thereof, is not effectively
distributed to Owners as provided herein, the same shall constitute Deposited
Securities and each American Depositary Share shall thereafter also represent
its proportionate interest in such securities or other property or net proceeds.
SECTION 4.03. Distributions in Shares.
If any distribution upon any Deposited Securities consists of
a dividend in, or distribution without payment of any subscription price of,
Shares, including pursuant to any program under which holders of Deposited
Securities may elect to receive cash or Shares, the Depositary may, and shall if
the Company so requests, execute and deliver additional Receipts evidencing
American Depositary Shares representing the amount of
15
Shares received as such dividend or distribution and distribute to the Owners,
as of the record date fixed pursuant to Section 4.06, of Receipts entitled
thereto in proportion to the number of American Depositary Shares held by them
as of such date, Receipts evidencing additional American Depositary Shares,
subject to the terms and conditions of this Deposit Agreement with respect to
the deposit of Shares and the issuance of Receipts, including the withholding of
any tax or other governmental charge as provided in Section 4.11 and the payment
of fees of the Depositary as provided in Section 5.09. The Depositary may
withhold any such distribution if it has not received adequate assurances from
the Company that such distribution does not require registration under the
Securities Act of 1933. In lieu of delivering Receipts for fractional American
Depositary Shares, the Depositary shall sell the amount of Shares representing
the aggregate of such fractions and distribute the net proceeds, all in the
manner and subject to the conditions set forth in Section 4.01 or take such
other action, with the approval of the Company, as may be appropriate.
Notwithstanding the foregoing, if the Company shall so direct or if in the
reasonable opinion of the Depositary such distribution cannot be made or if for
any reason (including, but not limited to, any requirement that the Company, the
Custodian or the Depositary withhold an amount on account for taxes or other
governmental charges or that such Shares must be registered under the Securities
Act of 1933 in order to be distributed to Owner) the Depositary, in its
reasonable opinion, determines that a distribution in Shares is not feasible or
may not be legally made to some or all Owners, the Depositary may, following
consultation with the Company, adopt such method as it may deem lawful,
equitable and practicable for the purpose of effecting such distribution, all in
the manner and subject to the conditions set forth in Section 4.02, or take such
other action, with the approval of the Company, as may be appropriate. If
additional Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed with respect to the
Deposited Securities represented thereby.
SECTION 4.04. Rights Distributions.
In the event that the Company shall offer or cause to be
offered to the holders of any Deposited Securities any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary shall (after
consultation with the Company as to the procedure to be followed) make such
rights available to any Owners, including the distribution of warrants or other
instruments therefor in such form as it deems appropriate, or dispose of such
rights on behalf of any Owners and distribute the net proceeds in Dollars to
such Owners. If, by the terms of such rights offering or by reason of applicable
law, the Depositary may neither make such rights available to any Owners, nor
dispose of such rights and distribute the net proceeds to such Owners, then the
Depositary shall allow the rights to lapse. If, at the time of the offering of
any rights the Depositary determines, following consultation with the Company,
that it is lawful and feasible to make such rights available to certain Owners
but not to other Owners, (i) the Depositary shall distribute to every Owner with
respect to whom it determines the
16
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Owner, warrants or other instruments therefor in
such form as it deems appropriate and (ii) in respect of Owners to whom the
Depositary determines the distribution not to be lawful or feasible, the
Depositary shall use reasonable efforts to sell the rights, warrants or other
instruments in proportion to the number of American Depositary Shares held by
such Owners and distribute the net proceeds of such sales (net of all taxes and
governmental charges payable in connection with such rights and subject to the
terms and conditions of this Deposit Agreement) to such Owners upon an averaged
or other fair and practicable basis without regard to any distinctions among
such Owners resulting from exchange restrictions, the date of delivery of any
Receipt or otherwise. In the event that rights and the securities to which such
rights relate are not registered under the Securities Act of 1933, the
Depositary shall not be responsible for any failure to determine that it may be
lawful or feasible to make such rights available to Owners in general or to any
Owner in particular.
In circumstances in which rights would not otherwise be
distributed, if an Owner requests the distribution of warrants or other
instruments in order to exercise the rights allocable in respect of American
Depositary Shares of such Owner hereunder, the Depositary will make such rights
available to such Owner upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) the Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
Upon instruction pursuant to such warrants or other instruments to the
Depositary from such Owner to exercise such rights, upon payment by such Owner
to the Depositary for the account of such Owner of an amount equal to the
purchase price of the Shares or other securities to be received upon the
exercise of the rights, and upon payment of the fees of the Depositary as set
forth in such warrants or other instruments, the Depositary shall, on behalf of
such Owner, exercise the rights and purchase such Shares or other securities,
and the Company shall cause the Shares or other securities so purchased to be
delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of this Deposit Agreement, and shall, pursuant to Section 2.03 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this section, such
Receipts shall be legended, if required, in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
Except as otherwise provided in the preceding paragraph, the
Company and the Depositary will not offer rights to Owners unless a registration
statement is in effect with respect both to such rights and any securities to be
received upon exercise of such rights under the Securities Act of 1933 or unless
the offering and sale of such securities to such Owners are exempt from
registration under the Securities Act of 1933. Nothing in this Deposit Agreement
shall create any obligation on the part of the Company
17
to file a registration statement in respect of any rights or securities for any
purpose or to endeavor to have such a registration statement declared effective.
SECTION 4.05. Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive
currency other than Dollars ("foreign currency"), by way of dividends or other
distributions or as the net proceeds from the sale of securities, property or
rights, and if at the time of the receipt thereof the foreign currency so
received can in the reasonable judgment of the Depositary be converted on a
reasonable basis into Dollars and transferred to the United States, the
Depositary shall, subject to any restrictions imposed by applicable law,
regulations or permits, convert or cause to be converted, by sale or in any
other manner that it may determine, such foreign currency into Dollars, and such
Dollars shall be distributed, as promptly as practicable, net of any reasonable
and customary out-of-pocket expenses incurred by the Depositary in connection
with the conversion of currency pursuant to this Section 4.05, to the Owners
entitled thereto as of the record date fixed pursuant to Section 4.06 in
accordance with any applicable provisions of Sections 4.01, 4.02, 4.03 and 4.04.
Such distribution may be made upon an averaged or other fair and practicable
basis without regard to any distinctions among Owners resulting from exchange
restrictions or otherwise. Upon the request of the Company, the Depositary shall
inform the Company of the exchange rate at which foreign currency conversion has
been carried out.
If such conversion or distribution can be effected only with
the approval or license of any government or agency thereof, the Depositary
shall file as promptly as practicable such application for approval or license,
if any, as it may deem desirable; provided, however, that if such application
involves or refers to or is made on behalf of the Company, such application
shall not be filed unless approved by the Company, which approval shall not be
unreasonably withheld or delayed.
If at any time the Depositary shall determine, following
consultation with the Company, that in its reasonable judgment any foreign
currency received by the Depositary or the Custodian is not, pursuant to
applicable law or otherwise, convertible on a reasonable basis into Dollars
transferable to the United States, or if any approval or license of any
government or agency thereof which is required for such conversion is denied or
in the opinion of the Depositary, following consultation with the Company, is
not obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary or the Custodian to, or in its
discretion, following consultation with the Company, may hold such foreign
currency proceeds uninvested for the respective accounts of, the Owners entitled
to receive the same, without liability for interest thereon.
18
If any such conversion of foreign currency, in whole or in
part, cannot be effected for distribution to some Owners entitled thereto, the
Depositary may in its discretion, following consultation with the Company, make
such conversion and distribution in Dollars to the extent permissible to the
Owners entitled thereto for whom such conversion and distribution is practicable
and may distribute the balance of the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary or the Custodian to, or hold such balance uninvested and without
liability for the respective accounts of, the Owners entitled thereto for whom
such conversion and distribution is not practicable.
SECTION 4.06. Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued with respect to the Deposited Securities, or whenever for
any reason there occurs a change in the number or type of Deposited Securities
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of, or solicitation of consents
or proxies from, holders of Shares or other Deposited Securities or whenever the
Company or the Depositary finds it necessary or convenient in respect of any
matter, the Depositary shall fix a record date (which, to the extent
practicable, shall be the same as any corresponding record date set by the
Company with respect to Shares, and after consultation with the Company if such
date is to be different from any such record date established by the Company in
respect of the Shares) for the determination of the Owners who shall be entitled
to receive such dividend, distribution or rights, or the net proceeds of the
sale thereof, or to give instructions for the exercise of voting rights at any
such meeting or in respect of any such solicitation or to receive information as
to any such meeting or solicitation, or for fixing the date on or after which
each American Depositary Share will represent the changed number or type of
Deposited Securities, subject to the terms and conditions of this Deposit
Agreement. If the American Depositary Shares shall be listed on any stock
exchange, then any such record date shall be fixed in accordance with any
applicable rules of such stock exchange. The Depositary as promptly as
practicable shall advise the Company and, if the American Depositary Shares
shall be listed on any stock exchange, such stock exchange of any record date so
fixed by the Depositary.
SECTION 4.07. Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of, or
solicitation of consent or proxies for, Shares or other Deposited Securities,
unless instructed otherwise in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners a notice, in such form as
approved by the Company, which shall contain (a) such information as is
contained in such notice of meeting, or solicitation of consents or proxies,
received by the Depositary from the Company, (b) a statement that the Owners
19
as of the close of business on a specified record date established by the
Depositary pursuant to Section 4.06 will be entitled, subject to any applicable
provisions of United Kingdom law, of the Deposited Securities and this Deposit
Agreement and of the Memorandum and Articles of Association of the Company, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares or other Deposited Securities represented by
their respective American Depositary Shares, and (c) a statement as to the
manner in which such instructions may be given, including, when applicable, an
express indication that instructions may be given (or, if applicable, will be
deemed given in accordance with the second paragraph of this Section 4.07 if no
instruction is received) to the Depositary to give a discretionary proxy to a
person designated by the Company. Upon the written (or deemed) request of an
Owner on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable, to vote or cause to be voted (or to grant a discretionary proxy to
a person designated by the Company to vote) the amount of Shares or other
Deposited Securities the right to receive which is represented by the American
Depositary Shares evidenced by such Owner's Receipt in accordance with any
instructions set forth in such request. The Depositary shall not, and the
Depositary shall ensure that each Custodian or any of its nominees shall not,
vote or attempt to exercise the right to vote that attaches to the Shares or
other Deposited Securities, other than in accordance with such instructions.
If the Depositary does not receive instructions from an Owner
on or before the date established by the Depositary for such purpose, such Owner
shall be deemed, and the Depositary shall deem such Owner, to have instructed
the Depositary to give a discretionary proxy to a person designated by the
Company to vote the underlying Shares, provided that no such discretionary proxy
shall be deemed given with respect to any matter as to which the Company informs
the Depositary in writing at the time notice of any meeting or solicitation of
consents or proxies is received by the Custodian to the effect that the Company
does not wish such proxy given.
SECTION 4.08. Changes Affecting Deposited Securities.
Upon any change in nominal value, split-up, consolidation or
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger, consolidation, sale of assets or similar transaction
(including by means of a scheme of arrangement) affecting the Company or to
which it is a party, any securities which shall be received by the Depositary or
any Custodian in exchange for, conversion of, replacement or otherwise in
respect of Deposited Securities shall, subject to the terms of this Deposit
Agreement and applicable law, including any applicable provisions of the
Securities Act of 1933, be treated as new Deposited Securities under this
Deposit Agreement, and each American Depositary Share shall, subject to the
terms of this Deposit Agreement and applicable law, including any applicable
provisions of the Securities Act of 1933, thenceforth represent an appropriately
adjusted proportional
20
interest in the Deposited Securities so received in exchange or conversion or
replacement or otherwise, unless additional or new Receipts are delivered
pursuant to the following sentence. In any such case the Depositary may, and
shall if the Company shall so request, execute and deliver additional Receipts
as in the case of a stock dividend on the Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities. Upon the occurrence of any change or other event
covered by this Section with respect to the Deposited Securities, the Depositary
shall give notice thereof in writing to all Owners.
SECTION 4.09. Reports.
The Depositary shall make available for inspection by Owners
at its Corporate Trust Office any reports, notices and other communications,
received from the Company which are both (a) received by the Depositary, the
Custodian, or a nominee of either 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, promptly upon receipt from the Company, send
to the Owners copies of reports, notices and communications furnished by the
Company pursuant to Section 5.06. Such materials will be furnished in English or
English language versions or summaries in English will be prepared when so
required pursuant to any regulations of the Commission.
SECTION 4.10. Lists of Owners.
As promptly as practicable upon request by the Company, the
Depositary shall furnish the Company with a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares by all persons in
whose names Receipts are registered on the transfer books of the Depositary and
of all such persons who received such Receipts pursuant to a Pre-Release under
Section 2.09 hereof.
SECTION 4.11. Withholding.
In connection with any dividend or other distribution to
Owners, the Company or its agent will remit to the appropriate governmental
authority or agency all amounts (if any) required under applicable law to be
withheld and remitted by the Company or such agent and owing to such
governmental authority or agency by the Company or such agent; and the
Depositary and the Custodian will remit to the appropriate governmental
authority or agency all amounts (if any) required under applicable law to be
withheld and remitted by the Depositary or the Custodian and owing to such
authority or agency by the Depositary or the Custodian. Either the Company or
the Depositary may file with any governmental agency any reports necessary to
obtain benefits under any applicable tax treaties for the Owners. The Depositary
shall forward to the Company or its agent such information from its records in
relation to withholding from a dividend or other distribution on Deposited
Securities as the Company may reasonably request to enable the Company or its
agent to file necessary reports with
21
governmental authorities or agencies, and the Company and its agent shall
forward to the Depositary such information from its records in relation to
withholding from a dividend or other distribution on Deposited Securities as the
Depositary may reasonably request to enable the Depositary to file necessary
reports with governmental authorities or agencies. In the event that the
Depositary determines that any dividend or other distribution in property other
than cash (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may (after consultation with the Company) by public or private
sale dispose of all or a portion of such property (including Shares and rights
to subscribe therefor) in such amounts and in such manner as the Depositary
deems necessary and practicable to withhold any such taxes or charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto in proportion to the number
of American Depositary Shares held by them respectively, all in accordance with
applicable provisions of this Deposit Agreement.
SECTION 4.12. Dividends in Cash or Shares.
Whenever the Depositary shall receive notice from the Company
of the declaration of a dividend or other distribution without payment of any
subscription price on Deposited Securities payable in Shares or cash at the
election of each holder of Shares or, if no such election is made, payable in
Shares or in cash as provided in the instruments governing such dividend or
other distribution, the Depositary shall mail to the Owners a notice, the form
of which shall be in the reasonable discretion of the Depositary, which shall
contain (a) such information as is contained in the notice received by the
Depositary from the Company and (b) a statement that each of the Owners as of
the close of business on a specified date will be entitled, subject to any
applicable provisions of the laws of the United Kingdom, the Memorandum or
Articles of Association of the Company or the instruments governing such
dividend or distribution, to instruct the Depositary as to the manner in which
such Owner elects to receive such dividend or distribution. Upon the written
request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall use
reasonable efforts to make the election in accordance with the instructions set
forth in such request, and to distribute cash or Shares, as the case may be, in
accordance with the terms of Section 4.01 or Section 4.03, respectively, to the
Owners entitled thereto. If the Depositary does not receive timely instructions
from any Owner as to such Owner's election, the Depositary shall make no
election with respect to the Deposited Securities represented by such Owner's
American Depositary Shares and shall distribute such Shares or cash as it
receives, if any, in respect of such Deposited Securities in accordance with the
preceding sentence.
22
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.
SECTION 5.01. Maintenance of Office and Transfer Books by the
Depositary.
Until termination of this Deposit Agreement in accordance with
its terms, the Depositary shall maintain in the Borough of Manhattan, The City
of New York, facilities for the execution and delivery, registration,
registration of transfers and surrender of Receipts in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep in such New York City facilities
books for the registration of Receipts and transfers of Receipts which at all
reasonable times shall be open for inspection by the Company and the Owners;
provided, however, that such inspection shall not be for the purpose of
communicating with Owners in the interest of a business or object other than the
business of the Company or a matter related to this Deposit Agreement or the
Receipts. The Depositary may close the transfer books at any time or from time
to time when transfer agents located in The City of New York generally close
their transfer books, and at any other time, following consultation with the
Company to the extent practical, or otherwise with prompt notice to the Company
when deemed expedient by the Depositary in connection with the performance of
its duties hereunder or at the request of the Company.
If any Receipts or the American Depositary Shares evidenced
thereby are listed or traded on one or more stock exchanges in the United
States, the Depositary shall act as Registrar or, with the prior written consent
of the Company, which consent shall not unreasonably be withheld, appoint a
Registrar or, one or more co-registrars for registry of such Receipts in
accordance with any requirements of such exchange or exchanges and to keep books
for the registration of Receipts and transfers of Receipts as provided in this
Section 5.01. Such Registrar or co-registrars may be removed and a substitute or
substitutes appointed by the Depositary upon the request or with the approval of
the Company. The Depositary shall cause each Registrar or co-registrar appointed
under this Section 5.01 to give notice in writing to the Depositary and the
Company accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement.
SECTION 5.02. Prevention or Delay in Performance by the Depositary
or the Company.
Neither the Depositary nor the Company nor any of their
respective directors, employees, agents or affiliates shall incur any liability
to any Owner or Beneficial Owner of any Receipt, if by reason of any provision
of any present or future law or regulation of the United States or any other
country, or of any governmental or regulatory authority or stock exchange, or by
reason of any provision, present or future, of the Memorandum or Articles of
Association of the Company, or by reason of any
23
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or the Company shall be
prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the terms
of this Deposit Agreement or Deposited Securities it is provided shall be done
or performed; nor shall the Depositary or the Company or any of their respective
directors, employees, agents or affiliates incur any liability to any Owner or
Beneficial Owner of any Receipt by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement. Where, by the terms of a dividend or other distribution
pursuant to Section 4.01, 4.02, or 4.03 of the Deposit Agreement, or an offering
or distribution pursuant to Section 4.04 of the Deposit Agreement, or for any
other reason, such dividend or other distribution or offering may not be made
available to Owners, and the Depositary may not dispose of such dividend or
other distribution or offering on behalf of such Owners and make the net
proceeds available to such Owners, then the Depositary shall not make such
dividend or other distribution or offering, and shall allow any rights, if
applicable, to lapse.
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company.
Each of the Company and its agents and their respective
officers, directors, employees and affiliates assumes no obligation nor shall it
be subject to any liability under this Deposit Agreement or the Receipts to
Owners or Beneficial Owners of Receipts or any other persons other than the
Depositary and the Custodian (including, without limitation, liability with
respect to the validity or worth of the Deposited Securities), except that it
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence, willful misconduct or bad faith.
Each of the Company and its agents and their respective
officers, directors, employees and affiliates assumes no obligation nor shall it
be subject to any liability under this Deposit Agreement to the Custodian or any
agent of the Depositary or the Custodian, except under Section 5.08 of this
Deposit Agreement.
Each of the Depositary and its agents and their respective
officers, directors, employees and affiliates assumes no obligation nor shall it
be subject to any liability under this Deposit Agreement or the Receipts to any
Owner or Beneficial Owner of a Receipt or any other persons other than the
Depositary and the Custodian (including, without limitation, liability with
respect to the validity or worth of the Deposited Securities), except that it
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence, willful misconduct or bad faith.
24
The Depositary, the Custodian and the Company undertake to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary, the Custodian or the Company or
their respective agents.
Without limiting the foregoing, neither the Depositary or its
agents nor the Company or its agents shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
None of the Depositary or its agents or the Company or its
agents shall be liable for any action or nonaction by it or them in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Owner or holder of a Receipt or any other
person believed by it in good faith to be competent to give such advice or
information.
The Depositary shall not be liable for any acts or omissions
made by a successor depositary whether in connection with a previous act or
omission of the Depositary or in connection with any matter arising wholly after
the removal or resignation of the Depositary, provided that in connection with
the issue out of which such potential liability arises the Depositary performed
its obligations without negligence, willful misconduct or bad faith while it
acted as Depositary.
The Depositary shall not be responsible for the manner in
which any vote of any Deposited Securities is cast or the effect of any such
vote, provided that any such action or nonaction is in good faith and in
accordance with this Deposit Agreement.
Except as otherwise provided in this Deposit Agreement, the
Depositary will not release any information regarding the Company without prior
written approval from the Company; provided, however, that the Depositary may
release, without prior approval from the Company, information made publicly
available by the Company if the form and substance of such information has not
been altered or modified in any way other than by the Company.
The Depositary agrees with the Company not to establish any
unsponsored American Depositary Receipt program representing Shares so long as
the Depositary is acting hereunder.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
25
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary.
The Depositary may at any time resign as Depositary hereunder
by written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
written notice of such removal delivered to the Depositary effective upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, satisfactory in form and substance
to the Company, and thereupon such successor depositary, without any further act
or deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor; however, such predecessor, upon payment of all
sums due to it from the Company and on the written request of the Company, shall
execute and deliver an instrument satisfactory in form and substance to the
Company transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Deposited Securities to such successor, and shall deliver to such
successor all materials necessary and useful to enable the successor depositary
to carry out the responsibilities of the Depositary hereunder, including, but
not limited to, a list of the Owners of all outstanding Receipts. Any such
successor depositary shall promptly mail notice of its appointment to the
Owners. Notwithstanding the foregoing, any resignation or removal and
appointment of a successor Depositary shall not relieve the prior depositary or
the Company from its obligations and liabilities pursuant to Section 5.08.
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, it being understood that
the Company shall be informed in writing of such an event.
SECTION 5.05. The Custodian.
The Custodian or its successors, which shall be an accredited
intermediary acting through a specified office located in the United Kingdom, in
acting hereunder shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. If the
Depositary receives notice of the resignation of the Custodian and, upon the
effectiveness of such resignation there would be no Custodian
26
acting hereunder, the Depositary shall, promptly after receiving such notice,
appoint a substitute custodian or custodians, each of which shall be an
accredited intermediary acting through a specified office located in the United
Kingdom, and each of which shall thereafter be a Custodian hereunder. Except as
provided in the preceding sentence, whenever the Depositary in its discretion
determines, with the prior written consent of the Company, that it is in the
best interest of the Owners to do so it may appoint a substitute or additional
custodian or custodians, which shall be an accredited intermediary acting
through a specified office located in the United Kingdom, each of which shall
thereafter be one of the Custodians hereunder. Any Custodian ceasing to act as
Custodian hereunder shall deliver all Deposited Securities held by it and all
other books and records maintained by it with respect to its function as a
Custodian hereunder to a Custodian continuing to act upon the instruction of the
Depositary. Upon demand of the Depositary, any Custodian shall transfer such of
the Deposited Securities held by it and all other books and records maintained
by it with respect to its function as a Custodian hereunder as are requested of
it to any other Custodian or such substitute or additional custodian. The
Depositary shall cause each substitute or additional custodian, forthwith upon
its appointment, to deliver to the Depositary and the Company an acceptance of
such appointment in form and substance satisfactory to the Depositary. Promptly
upon any such change, the Depositary shall give notice in writing to all Owners
and to each other Custodian of the name, the address and the appointment of any
Custodian not named in Receipts.
Upon the appointment of any successor depositary hereunder,
each Custodian then acting hereunder shall forthwith become, without any further
act or writing, the agent hereunder of such successor depositary and the
appointment of such successor depositary shall in no way impair the authority of
any Custodian hereunder, but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian or as required by the laws
of the Republic of the United Kingdom, execute and deliver to such Custodian,
with a copy to the Company, all such instruments as may be proper to give to
such Custodian full and complete power and authority as agent hereunder of such
successor depositary.
SECTION 5.06. Notices and Reports.
On or before the first date on which the Company gives notice,
by publication or otherwise, of any meeting of holders of Shares or other
Deposited Securities, or of any adjourned meeting of such holders, or of the
taking of any action in respect of any cash or other distributions or the
offering of any rights, the Company agrees to transmit to the Depositary and the
Custodian, as soon as practicable, a copy of the notice thereof in English, but
otherwise in the form given or to be given to holders of Shares or other
Deposited Securities.
27
The Company shall furnish to the Depositary in English annual
reports (including audited consolidated financial statements), semi-annual
reports (including unaudited interim consolidated financial information), and
copies or summaries in English of any other reports and communications that are
made generally available by the Company to holders of Deposited Securities. The
Depositary will arrange for the mailing of copies of such annual and semi-annual
reports and, at the written request of the Company, any other such reports and
copies or summaries to all Owners. The Company will timely provide the
Depositary with such quantity of such reports and summaries as shall be
requested by the Depositary from time to time in order for the Depositary to
effect such mailings.
The Company has delivered to the Depositary and the Custodian
a copy (in English or with an English translation) of the Memorandum and
Articles of Association of the Company. Promptly upon any change in such
Memorandum or Articles of Association, the Company shall deliver to the
Depositary and the Custodian a copy (in English or with an English translation)
of such Memorandum or Articles of Association, as so changed. The Depositary and
its agents may rely on the copy of such Memorandum or Articles of Association as
so delivered for all purposes of this Deposit Agreement.
SECTION 5.07. Issuance or Deposit of Additional Shares, Etc.
The Company agrees that in the event of any issuance or
distribution of (1) additional Shares, (2) rights to subscribe for Shares, (3)
securities convertible into Shares, or (4) rights to subscribe for such
securities (each a "Distribution"), the Company will promptly notify the
Depositary of such distribution and, upon request of the Depositary, will
promptly furnish to the Depositary a written opinion from U.S. counsel for the
Company, which counsel shall be reasonably satisfactory to the Depositary,
stating whether or not the Distribution requires a registration statement under
the Securities Act of 1933 to be in effect prior to making such Distribution
available to Owners entitled thereto. If in the opinion of such counsel a
Registration Statement is required, such counsel shall furnish to the Depositary
a written opinion as to whether or not there is a Registration Statement in
effect which will cover such Distribution.
The Company agrees with the Depositary that neither the
Company nor any company controlled by the Company will at any time deposit any
Shares, either originally issued or previously issued and reacquired by the
Company or any such company, unless either a registration statement is in effect
as to such Shares under the Securities Act of 1933 or, in the view of the
Company, such registration is not required.
Nothing in this Section 5.07 or elsewhere in this Deposit
Agreement shall create any obligation on the part of the Company or the
Depositary to file a registration statement in respect of any such securities or
rights or to endeavor to have such a registration statement declared effective.
To the extent the Company in its discretion
28
deems it necessary or advisable in order to avoid any requirement to register
such additional securities under the Securities Act of 1933, it may prevent
Owners in the United States from purchasing any such additional securities
(whether pursuant to preemptive rights or otherwise) and direct the Depositary
not to accept certain Shares for deposit for such period of time following the
issuance of such additional securities and to adopt such other specific measures
as the Company may reasonably request in writing.
SECTION 5.08. Indemnification.
The Company agrees to indemnify the Depositary and any
Custodian and any agent of the Depositary or the Custodian appointed hereunder
and the respective officers, directors, and employees (the "indemnified
persons") against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted in accordance with the
provisions of this Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by such indemnified
persons except for any liability or expense arising out of the negligence,
willful misconduct or bad faith of any of them, or (ii) by the Company or any of
its agents (other than the indemnified persons), and their respective officers,
directors and employees authorized to act on their behalf.
The indemnities contained in the preceding paragraph shall not
extend to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09) of a Receipt or Receipts or of a Share
or Shares in accordance with Section 2.09 and which would not otherwise have
arisen had such Receipt or Receipts or of a Share or Shares not been the subject
of a Pre-Release pursuant to Section 2.09; provided, however, that the
indemnities provided in the preceding paragraph shall apply to any liability or
expense (i) to the extent that such liability or expense would have arisen had a
Receipt or Receipts or Share or Shares not been the subject of a Pre-Release, or
(ii) which may arise out of any misstatement or alleged misstatement or omission
or alleged omission in any registration statement, proxy statement, prospectus
(or placement memorandum), or preliminary prospectus (or preliminary placement
memorandum) relating to the offer or sale of American Depositary Shares, except
to the extent any such liability or expense arises out of (a) information
relating to the Depositary or any Custodian (other than the Company), as
applicable, furnished in writing and not materially changed or altered by the
Company expressly for use in any of the foregoing documents, or, (b) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates against and hold them harmless from any
liability or expense (including but not limited to the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary or any Registrar or
29
Custodian or their respective directors, employees, agents and affiliates due to
their respective negligence, willful misconduct or bad faith.
If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall as promptly as practicable (and in no event more than twenty (20) days
after receipt of notice of such Proceeding) notify in writing the party
obligated to provide such indemnification (the "Indemnitor") of such Proceeding.
The failure of the Indemnitee to so notify the Indemnitor shall not impair the
Indemnitee's ability to seek indemnification from the Indemnitor (but only for
costs, expenses and liabilities incurred after such notice) unless such failure
adversely effects the Indemnitor's ability to adequately oppose or defend such
Proceeding. Upon receipt of such notice from the Indemnitee, the Indemnitor
shall be entitled to participate in such Proceeding and, to the extent that it
shall so desire and provided no conflict of interest exists as described in
subclause (b) below, or there are no other defenses available to Indemnitee as
specified in subclause (b) below, to assume the defense thereof with counsel
reasonably satisfactory to the Indemnitee (in which case all attorney's fees and
expenses shall be borne by the Indemnitor and the Indemnitor shall in good faith
defend the Indemnitee). The Indemnitee shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be borne by the Indemnitee unless
(a) the Indemnitor agrees in writing to pay such fees and expenses, (b) the
Indemnitee shall have reasonably and in good faith concluded that there is a
conflict of interest between the Indemnitor and the Indemnitee in the conduct of
the defense of such action, including but not limited to that there may be legal
defenses available to the Indemnitee that are different from or in addition to
those available to the Indemnitor, or (c) the Indemnitor fails, within ten (10)
days prior to the date the first response or appearance is required to be made
in such Proceeding, to assume the defense of such Proceeding with counsel
reasonably satisfactory to the Indemnitee. No compromise or settlement of such
Proceeding may be effected by either party without the other party's consent
unless (i) there is no finding or admission of any violation of law and no
material adverse effect on any other claims that may be made against such other
party and (ii) the sole relief provided is monetary damages that are paid in
full by the party seeking the compromise or settlement. Neither party shall have
any liability with respect to any compromise or settlement effected without its
consent, which shall not be unreasonably withheld. The Indemnitor shall have no
obligation to indemnify and hold harmless the Indemnitee from any loss, expense
or liability incurred by the Indemnitee as a result of a default judgment
entered against the Indemnitee unless such judgment was entered after the
Indemnitor agreed, in writing, to assume the defense of such Proceeding.
The obligations set forth in this Section 5.08 shall survive
the termination of this Deposit Agreement and the succession or substitution of
any indemnified person.
30
SECTION 5.09. Charges of Depositary.
The Company will not pay any fees, expenses or other charges
of the Depositary or of any Registrar except in accordance with agreements in
writing entered into between the Depositary and the Company from time to time.
The Depositary shall present its statement for such charges and expenses to the
Company once every three months. The fees, charges and expenses of the Custodian
are for the sole account of the Depositary.
The following charges, to the extent permitted by applicable
law and stock exchange regulations shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03), whichever applicable: (1) taxes and other governmental charges,
(2) such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the Share register of the
Company (or the appointed agent of the Company for transfer and registration of
the Shares) and accordingly applicable to transfers of Shares to the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement to be
at the expense of persons depositing Shares or Owners, (4) such reasonable
out-of-pocket expenses as are incurred by the Depositary in the conversion of
Foreign Currency pursuant to Section 4.05, (5) a fee not in excess of $5.00 or
less per 100 American Depositary Shares (or portion thereof) for the execution
and delivery of Receipts pursuant to Section 2.03, the execution and delivery of
Receipts pursuant to Section 4.03, and the surrender of Receipts pursuant to
Section 2.05, and (6) a fee not in excess of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement including, but not limited to Sections 4.01 through 4.04
hereof, except for distributions of cash dividends.
The Depositary, subject to compliance with all applicable
laws, rules and regulations and subject to Section 2.09 hereof, may own and deal
in any class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10. Retention of Depositary Documents.
The Depositary is authorized to destroy those documents,
records, bills and other data compiled during the term of this Deposit Agreement
at the times permitted by the laws or regulations governing the Depositary
unless the Company requests that such papers be turned over to the Company or to
a successor depositary.
31
SECTION 5.11. Exclusivity.
Subject to the provisions of Section 5.04, the Company agrees
not to appoint any other depositary for issuance of depositary receipts so long
as The Bank of New York is acting as Depositary hereunder.
ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.01. Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement in
writing between the Company and the Depositary in any respect which they may
deem necessary or desirable. Any amendment which shall impose or increase any
fees or charges (other than taxes and other governmental charges, registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or which shall otherwise prejudice any substantial existing right of
Owners, shall, however, not become effective as to outstanding Receipts until
the expiration of 30 days after written notice of such amendment shall have been
mailed to the Owners of outstanding Receipts. Every Owner at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Owner of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except to comply with mandatory
provisions of applicable law.
SECTION 6.02. Termination.
The Depositary shall at any time at the direction of the
Company terminate this Deposit Agreement by mailing notices of such termination
to the Owners of all Receipts then outstanding at least 30 days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate this Deposit Agreement (upon 30 days' prior written notice of such
termination to the Company and the Owners of all Receipts then outstanding) if
at any time 90 days after the Depositary shall have delivered to the Company a
written notice of its resignation sent by registered mail, return receipt
requested, a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04. The Depositary shall mail notice of
such termination to the Owners of all Receipts then outstanding at least 30 days
prior to the date fixed in such notice for such termination. On and after the
date of termination, each Owner shall, upon (i) surrender of each of its
Receipts at the Depositary's Corporate Trust Office, (ii) payment of the fees of
the Depositary for the surrender of Receipts provided herein and (iii) payment
of any applicable taxes and governmental charges, be entitled to delivery, to
him or upon his order, of the whole number of Deposited Securities represented
by the American Depositary Shares evidenced by such Receipts and to the net
proceeds of the sale of any fractional Deposited Securities represented thereby.
If any
32
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof shall not accept
deposits of Shares (and shall instruct each Custodian to act accordingly), 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
property and rights and convert Deposited Securities into cash as provided in
this Deposit Agreement, and shall continue to deliver Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of this Deposit Agreement, and any applicable taxes or governmental charges).
At any time after the expiration of one year from the date of
termination, 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, unsegregated and without
liability for interest, for the pro rata benefit of the Owners which have not
theretofore surrendered their Receipts, such Owners thereupon becoming general
creditors of the Depositary with respect to such net proceeds. After making such
sale, the Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net proceeds and other cash (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges) and except for its obligations under Section 5.08
hereof. 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 5.08 and 5.09 hereof.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.01. Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodian and shall
be open to inspection by any Owner during business hours.
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SECTION 7.02. No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the
parties hereto and shall not be deemed to give any legal or equitable right,
remedy or claim whatsoever to any other person.
SECTION 7.03. Severability.
In case any one or more of the provisions contained in this
Deposit Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04. Owners and Beneficial Owners as Parties; Binding
Effect.
The Owners and Beneficial Owners of Receipts from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.05. 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 air courier or facsimile transmission
confirmed by letter addressed to Marconi Corporation plc, 0xx Xxxxx, Xxxxxxx
Xxxxx, 000 Xxxxxx Xxxx, Xxxxxx XX0 0XX, Xxxxxx Xxxxxxx, Attention: Group
Secretary, or any other place of which the Company has notified 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 air courier or
facsimile transmission confirmed by letter, addressed to The Bank of New York at
its Corporate Trust Office located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: ADR Department, 22 West, or any other place to which the
Depositary has moved its Corporate Trust Office. The Depositary will give notice
to the Company and the Owners of any change in the location of its Corporate
Trust Office.
Any and all notices to be given to any Owner shall be deemed
to have been duly given if personally delivered or sent by mail or by cable,
telex or facsimile transmission confirmed by letter, addressed to such Owner at
the address of such Owner as it appears on the transfer books for Receipts of
the Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail (other than registered mail)
or by cable, telex or facsimile transmission shall be deemed to be effected at
the time when a duly
34
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. Notices sent by registered mail or personally delivered will
be deemed to have been duly given on the date on which signed for on behalf of
the addressee. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it from the other or from any Owner,
notwithstanding that such cable, telex or facsimile transmission shall not
subsequently be confirmed by letter as aforesaid.
SECTION 7.06. Governing Law.
This Deposit Agreement and the Receipts shall be interpreted
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by the laws of the State of New York without regard to the
principles of conflicts of laws thereof. It is understood that, notwithstanding
any present or future provision of the laws of the State of New York, the rights
of holders of Shares and other Deposited Securities and the obligations and
duties of the Company in respect of such holders, as such, shall be governed by
the laws of the United Kingdom (or, if applicable, such other law as may govern
Deposited Securities).
SECTION 7.07. Compliance With U.S. Securities Law.
Notwithstanding anything in this Deposit Agreement to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under this Deposit Agreement to prevent the withdrawal or
delivery of Deposited Securities in a manner which would violate United States
securities laws, including but not limited to Section I A(1) of the General
Instructions to the Registration Statement on Form F-6, as amended from time to
time, under the Securities Act of 1933.
35
IN WITNESS WHEREOF, MARCONI CORPORATION PLC and THE BANK OF
NEW YORK have duly executed this agreement as of the day and year first set
forth above and all Owners and Beneficial Owners of Receipts shall become
parties hereto upon acceptance by them of Receipts issued in accordance with the
terms hereof.
MARCONI CORPORATION PLC
By: /s/ X. Xxxxxx
------------------------------
Name: X. Xxxxxx
Title: CEO
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
36
Exhibit A to Deposit Agreement
NO. _____________________________________
AMERICAN DEPOSITARY SHARES
(EACH AMERICAN DEPOSITARY SHARE
REPRESENTS TEN (10) DEPOSITED SHARES)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES, PAR VALUE OF 5P EACH,
OF
MARCONI CORPORATION PLC
(INCORPORATED UNDER THE LAWS OF
ENGLAND AND WALES)
The Bank of New York, as depositary (hereinafter called the
"Depositary"), hereby certifies that ______________________________________, or
registered assigns, IS THE OWNER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares, par value of 5p each (herein called
"Shares"), of Marconi Corporation plc, a company organized under the laws of the
England and Wales (herein called the "Company"). At the date hereof, each
American Depositary Share represents ten (10) Shares which are either deposited
or subject to deposit under the Deposit Agreement (as such term is hereinafter
defined) at the London, England offices of The Bank of New York (herein called
the "Custodian"). The Depositary's Corporate Trust Office is located at a
different address than its principal executive office. Its Corporate Trust
Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal
executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (the "Receipts"),
all issued and to be issued upon the terms and conditions set forth in the
deposit agreement, dated as of March 31, 2003 (herein called the "Deposit
Agreement"), by and among the Company, the Depositary, and all holders from time
to time in whose name a Receipt is registered on the books of the Depositary
("Owners and Beneficial Owners"), each of whom by accepting a Receipt agrees to
become a party thereto and becomes bound by all the terms and provisions thereof
and hereof. The Deposit Agreement sets forth the rights and obligations of
Owners and Beneficial Owners of Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect thereof and
held under the Deposit Agreement (such Shares, securities, property and cash are
herein called the "Deposited Securities"). Copies of the Deposit Agreement are
on file at the Corporate Trust Office of the Depositary in The City of New York
and the office of the Custodian and at any other designated transfer offices.
The statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are qualified by and subject to
the detailed provisions thereof, to which reference is hereby made. Capitalized
terms not defined herein shall have the meanings set forth in the Deposit
Agreement.
The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt for the purpose of withdrawal of a whole number of Deposited Securities
represented hereby, and upon payment of the fee of the Depositary for the
cancellation of Receipts provided for in Article (9) of this Receipt, and
subject to the terms and conditions of the Deposit Agreement, the Company's
Memorandum or Articles of Association and the Deposited Securities, the Owner
hereof is entitled to the delivery of the whole number of Shares and the number
of any other Deposited Securities represented by the American Depositary Shares
evidenced hereby and so withdrawn to an account designated by such Owner and to
delivery at the Corporate Trust Office of the Depositary of a new Receipt
evidencing any fractional Deposited Securities represented hereby and the Shares
and other Deposited Securities not withdrawn. Such delivery will be made without
unreasonable delay. A Receipt surrendered for such purposes may be required by
the Depositary to be properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary requires, the Owner
thereof shall execute and deliver to the Depositary a written order directing
the Depositary to cause the Deposited Securities being withdrawn to be delivered
to an account designated by such Owner.
-2-
3. TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS.
Subject to the terms and conditions of the Deposit Agreement, the
transfer of this Receipt is registrable on the books of the Depositary upon
surrender by the Owner hereof, in person or by duly authorized attorney, at any
designated transfer office, of this Receipt properly endorsed or accompanied by
proper instruments of transfer and duly stamped as may be required by the laws
of the State of New York and of the United States of America. Subject to the
terms and conditions of the Deposit Agreement, this Receipt may be split into
other Receipts or may be combined with other Receipts into one Receipt
evidencing the same aggregate number of American Depositary Shares as were
evidenced by the Receipt surrendered and deliver the same to or upon the order
of the person entitled thereto, subject to receipt of all certificates, if any,
as the Depositary or the Company may require in order to comply with any
applicable laws.
The Depositary, subject to the terms and conditions of the Deposit
Agreement, shall, upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver, subject to receipt of all certificates, if any, as the Depositary or
the Company may require in order to comply with any applicable laws a new
Receipt or Receipts for any authorized number of American Depositary Shares
requested, evidencing the same aggregate number of American Depositary Shares as
were evidenced by the Receipt or Receipts surrendered.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require payment from the presenter of the
Receipt or the depositor of the Shares of a sum sufficient to reimburse it for
any tax or other governmental charges and any stock transfer, registration or
conversion fee with respect thereto (including any such tax or charges and fee
with respect to Shares being deposited or Deposited Securities being withdrawn)
and payment of any applicable fee as provided in Article (9) of this Receipt,
may require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary may establish consistent with the
provisions of the Deposit Agreement or this Receipt.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended and the transfer of
Receipts in particular instances may be refused or the registration of transfer
of outstanding Receipts generally may be suspended during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary, after consultation with the Company to
the extent practicable (to the extent it is not practicable for the Depositary
to consult with the Company, the Depositary will notify the Company as
-3-
promptly as practicable after taking such action and explain its reasons for
doing so), or the Company at any time or from time to time because of any
requirement of law or of any government or governmental or regulatory body or
commission, or following receipt of notification from the Company of the
suspension of trading in the Shares on the London Stock Exchange, or under any
provision of the Deposit Agreement, the Memorandum or Articles of Association,
or for any reason subject to Article (24) hereof. The surrender of outstanding
Receipts and withdrawal of Deposited Securities may not be suspended 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 and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. The Depositary and the Custodian will comply with
reasonable written instructions from the Company requesting that the Depositary
and the Custodian not accept for deposit under the Deposit Agreement any Shares
identified in such instructions in order to facilitate the Company's compliance
with United States federal securities laws, any provision of the Company's
Memorandum or Articles of Association or the laws of the United Kingdom.
Without limitation of the foregoing, neither the Depositary nor the
Custodian shall accept for deposit under the Deposit Agreement any Shares (i)
which, to the actual knowledge of the Depositary, are required to be registered
under the Securities Act of 1933 prior to public sale in the United States,
unless a registration statement is in effect as to such Shares or (ii) the
deposit of which would, to the actual knowledge of the Depositary, infringe any
provisions of the laws of the United Kingdom.
4. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner may be required
from time to time to provide such proof of (a) citizenship, residence, exchange
control approval or payment of taxes and other governmental charges and
compliance with all applicable laws and regulations governing Deposited
Securities and the terms of the Deposit Agreement and (b) the identity of any
person legally or beneficially interested in the Receipt and Shares and the
nature of such interest, such information relating to the registration of the
Shares presented for deposit on the books of the Company (or the appointed agent
of the Company for transfer and registration of Shares) or to provide such other
information, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the Company
reasonably may require by written request to the Depositary or any Custodian.
The Depositary may and shall, if reasonably requested by the Company, withhold
the delivery or registration of transfer of any Receipt, the distribution of any
dividend or other distribution or sale of rights or of the proceeds thereof, or
the delivery of any Deposited Securities until such proof or other information
is provided, such certificates are executed or such representations and
warranties are made pertaining to such Receipt to the
-4-
satisfaction of the Company and the Depositary. No Share shall be accepted for
deposit unless accompanied by evidence satisfactory to the Depositary, if any is
required by the Depositary, that all conditions to such deposit have been
satisfied by the person depositing such Shares under United Kingdom laws and
regulations, and that any necessary approval has been granted by the
governmental authority or body in the United Kingdom, if any, which is then
performing the function of the regulation of currency exchange or any other
function which requires approval for the deposit of Shares.
5. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with
respect to this Receipt or any Deposited Securities represented by this Receipt,
such tax or other governmental charge shall be payable by the Owner or
Beneficial Owner hereof to the Depositary. The Depositary may refuse, or will
refuse if so instructed by the Company, to effect registration of transfer of
all or part of this Receipt or any withdrawal of Deposited Securities
represented by this Receipt until such payment is made, and may withhold any
dividends or other distributions or, after attempting by reasonable means to
notify such Owner or Beneficial Owner, may sell for the account of the Owner or
Beneficial Owner hereof any part or all of the Deposited Securities evidenced by
this Receipt, and may apply such dividends or other distributions or the
proceeds of any such sale to payment of such tax or other governmental charge,
the Owner or Beneficial Owner hereof remaining liable for any deficiency.
6. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement, including
every person depositing Shares on behalf of an owner of Shares, shall be deemed
thereby to represent and warrant that (i) such Shares are validly issued, fully
paid and non-assessable, (ii) the person making such deposit is duly authorized
so to do, (iii) such Shares are not Restricted Securities, (iv) such Shares are
free and clear of any lien, encumbrance, security interest, charge, mortgage,
pledge or restriction on transfer, (v) such Shares are free of any pre-emptive
rights of the holders of outstanding Shares, and (vi) such Shares include all
rights to receive dividends thereon. Such representations and warranties shall
survive the deposit of such Shares and issuance of Receipts in respect thereof.
7. COMPLIANCE WITH LAW.
The rights of each Owner will be subject to the Memorandum or Articles
of Association of the Company as if such Owner were a holder of Shares and to
all applicable provisions of the laws of the United Kingdom and the Memorandum
or Articles of Association of the Company with regard to notification to the
Company and any governmental or stock exchange authorities of such Owner's
interest in Shares. Failure by such Owner to provide on a timely basis any such
required notification of such
-5-
Owner's interest in Shares may result in the withholding of certain rights in
respect of such Owner's American Depositary Shares including, without
limitation, the right to give voting instructions and the right to receive
dividends or other payments in respect of the Shares represented by such
American Depositary Shares.
8. DISCLOSURE OF BENEFICIAL OWNERSHIP.
(a) The Company and the Depositary may from time to time
request Owners to provide information as to the capacity in which they hold
Receipts and regarding the identity of any other persons then or previously
interested in such Receipts and various other matters. Each such Owner agrees to
provide any such information reasonably requested by the Company or the
Depositary pursuant to this Article and such agreement shall survive any
disposition of such Owner's interest in Shares or Receipts.
(b) Notwithstanding any other provision of the Deposit
Agreement to the contrary and without limiting Section 3.05(a) of the Deposit
Agreement, each Owner and Beneficial Owner of a Receipt agrees to provide such
information as the Company may request in a disclosure notice (a "Disclosure
Notice") given pursuant to the United Kingdom Companies Act 1985 (as amended
from time to time and including any statutory modification or re-enactment
thereof, the "Companies Act") or the Company's Memorandum and Articles of
Association, as amended from time to time. Each Owner and Beneficial Owner of a
Receipt acknowledges that it understands that failure to comply with a
Disclosure Notice may result in the imposition of sanctions against the holder
of the Shares in respect of which the non-complying Owner or Beneficial Owner is
or was, or appears to be or has been, interested as provided in the Companies
Act and the Company's Memorandum and Articles of Association, as amended from
time to time (including, without limitation, the withdrawal of voting rights or,
in certain circumstances, in relation to the non-complying Owner, the
withholding of any payments, including dividends and payments of a capital
nature, in respect of the Shares represented by such American Depositary Shares,
voiding any transfers of the Shares represented by such American Depositary
Shares, prohibiting the issuance of additional shares by way of rights or bonus
entitlement in respect of the Shares represented by such American Depositary
Shares and the nullification of any agreement to effect any of the acts subject
to the restrictions by virtue of the sanctions).
In addition, each Owner and Beneficial Owner of a Receipt
agrees to comply with the provisions of the Companies Act with regard to the
notification to the Company of interests in Shares, which currently provide,
inter alia, that any holder of Receipts or other person who is or becomes
directly or indirectly interested (within the meaning of the Companies Act) in
three percent (3%) or more of the outstanding Shares, or is aware that another
person for whom it holds such Receipts or owns such interest in American
Depositary Shares is so interested, must within two United Kingdom business days
after becoming so interested or so aware (and thereafter in certain
circumstances upon any change of at least one percent (1%) of the outstanding
Shares) notify the Company as
-6-
required by the Companies Act. Each Owner and Beneficial Owner of a Receipt
acknowledges that it understands that failure to comply with the Companies Act
in this regard may similarly result in the imposition of the sanctions described
in the first paragraph of Section 3.05 of the Deposit Agreement.
In the event that the Company determines that there has been a
failure to comply with a Disclosure Notice with respect to any Deposited
Securities and that sanctions are to be imposed against such Deposited
Securities pursuant to the Companies Act by a court of competent jurisdiction or
the Company's Memorandum and Articles of Association by the Company, the Company
shall so notify the Depositary, giving full details thereof, and shall instruct
the Depositary in writing as to the application of such sanctions to the
Deposited Securities. Except as prohibited by applicable law, the Depositary
agrees to use reasonable efforts to comply with any such instructions requesting
that the Depositary take the reasonable and feasible actions specified therein
to apply such sanctions.
If the Company requests information from the Depositary or the
Custodian, as the registered holders of Shares, pursuant to the Company's
Memorandum and Articles of Association or the Companies Act, the Depositary
agrees to use, and to cause the Custodian to use, reasonable efforts to comply
with any reasonable instructions received from the Company requesting the
Depositary to take the reasonable actions specified therein to obtain such
information.
9. CHARGES OF DEPOSITARY.
The Company will not pay any fees, expenses or other charges of the
Depositary or of any Registrar except in accordance with agreements in writing
entered into between the Depositary and the Company from time to time. The
Depositary shall present its statement for such charges and expenses to the
Company once every three months. The fees, charges and expenses of the Custodian
are for the sole account of the Depositary.
The following charges, to the extent permitted by applicable law and
stock exchange regulations shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 of the Deposit Agreement), whichever applicable: (1) taxes and
other governmental charges, (2) such registration fees as may from time to time
be in effect for the registration of transfers of Shares generally on the Share
register of the Company (or the appointed agent of the Company for transfer and
registration of the Shares) and accordingly applicable to transfers of Shares to
the name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals under the Deposit Agreement, (3) such cable,
telex and facsimile transmission expenses as are expressly provided in the
Deposit Agreement to be at the expense of persons
-7-
depositing Shares or Owners, (4) such reasonable out-of-pocket expenses as are
incurred by the Depositary in the conversion of Foreign Currency pursuant to
Section 4.05 of the Deposit Agreement, (5) a fee not in excess of $5.00 or less
per 100 American Depositary Shares (or portion thereof) for the execution and
delivery of Receipts pursuant to Section 2.03 of the Deposit Agreement, the
execution and delivery of Receipts pursuant to Section 4.03 of the Deposit
Agreement, and the surrender of Receipts pursuant to Section 2.05 of the Deposit
Agreement, and (6) a fee not in excess of $.02 or less per American Depositary
Share (or portion thereof) for any cash distribution made pursuant to the
Deposit Agreement including, but not limited to Sections 4.01 through 4.04
thereof, except for distributions of cash dividends.
The Depositary, subject to compliance with all applicable laws, rules
and regulations and subject to Section 2.09 of the Deposit Agreement, may own
and deal in any class of securities of the Company and its affiliates and in
Receipts.
10. PRE-RELEASE OF RECEIPTS.
The Depositary may issue Receipts against the delivery by the
Company (or any agent of the Company recording Share ownership) of rights to
receive Shares from the Company (or any such agent). No such issue of Receipts
will be deemed a "Pre-Release" that is subject to the restrictions of the
following paragraph.
Unless requested in writing by the Company to cease doing so,
the Depositary may, notwithstanding Section 2.03 of the Deposit Agreement,
execute and deliver Receipts prior to the receipt of Shares pursuant to Section
2.02 of the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to
Section 2.05 of the Deposit Agreement, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation and agreement
from the person to whom Receipts are to be delivered (the "Pre-Releasee") that
the Pre-Releasee, or its customer, (i) owns the shares or Receipts to be
remitted, as the case may be, (ii) assigns all beneficial rights, title and
interest in such Shares or Receipts, as the case may be, to the Depositary in
its capacity as such and for the benefit of the Owners, and (iii) will not take
any action with respect to such Shares or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts, as the case may
be), other than in satisfaction of such Pre-Release, (b) at all times fully
collateralized such collateral marked to market daily with cash, U.S. government
securities or such other collateral as the Depositary determines, in good faith,
will provide substantially similar liquidity and security, (c) terminable by the
Depositary on not more than five (5) business days notice, and (d) subject to
such further indemnities and credit
-8-
regulations as the Depositary deems appropriate. The number of Shares not
deposited but represented by American Depositary Shares outstanding at any time
as a result of Pre-Releases will not normally exceed twenty percent (20%) of the
Shares deposited under the Deposit Agreement; provided, however, that the
Depositary reserves the right to disregard such limit from time to time as it
deems reasonably appropriate, and may, with the prior written consent of the
Company, change such limit for purposes of general application. The Depositary
will also set Dollar limits with respect to Pre-Release transactions to be
entered into under the Deposit Agreement with any particular Pre-Releasee on a
case-by-case basis as the Depositary deems appropriate. For purposes of enabling
the Depositary to fulfill its obligations to the Owners under the Deposit
Agreement, the collateral referred to in clause (b) above shall be held by the
Depositary as security for the performance of the Pre-Releasee's obligations to
the Depositary in connection with a Pre-Release transaction, including the
Pre-Releasee's obligation to deliver Shares or Receipts upon termination of a
Pre-Release transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities under the Deposit Agreement).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
11. TITLE TO RECEIPTS.
It is a condition of this Receipt, and every successive Owner hereof by
accepting or holding the same consents and agrees, that title to this Receipt
(and to the American Depositary Shares evidenced hereby), when properly endorsed
or accompanied by proper instruments of transfer, is transferable by delivery
with the same effect as in the case of a negotiable instrument under the laws of
the State of New York; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the Owner of this Receipt as the absolute
owner hereof for the purpose of determining the person entitled to distribution
of dividends or other distributions or to any notice provided for in the Deposit
Agreement and for all other purposes, and neither the Depositary nor the Company
shall have any obligation or be subject to any liability under the Deposit
Agreement to any holder of this Receipt unless such holder is the Owner hereof.
12. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose, unless this Receipt has
been executed by the Depositary by the manual signature of a duly authorized
signatory of the Depositary or, if a Registrar for the Receipts shall have been
appointed and the Depositary shall have signed by facsimile signature,
countersigned by the manual signature of a duly authorized officer of the
Registrar.
-9-
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
13. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary or Custodian shall receive any cash dividend or
other cash distribution on any Deposited Securities, the Depositary will, after
any necessary conversion of such distribution into Dollars pursuant to Section
4.05 of the Deposit Agreement and after fixing a record date pursuant to Section
4.06 of the Deposit Agreement, as promptly as practicable, but in any event
within five business days, distribute the amount thus received to the Owners of
Receipts entitled thereto in proportion to the number of American Depositary
Shares held by them respectively; provided, however, that the Depositary shall
make appropriate adjustments in the amounts so distributed in respect of any
amounts withheld or requested to be withheld by the Company, the Custodian or
the Depositary from any such distribution on account of (i) taxes or other
governmental charges including, but not limited to, withholding taxes referred
to in Section 4.11 of the Deposit Agreement, or (ii) reasonable expenses of the
Depositary in the conversion of foreign currency into Dollars pursuant to
Section 4.05 of the Deposit Agreement and any other charges of the Depositary
pursuant to Section 5.09 of the Deposit Agreement.
Subject to the provisions of Sections 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary or the Custodian shall receive any
distribution other than cash, Shares or rights upon any Deposited Securities,
the Depositary shall cause the securities or property received by it to be
distributed to the Owners, as of the record date fixed pursuant to Section 4.06
of the Deposit Agreement, of Receipts entitled thereto in proportion to the
number of American Depositary Shares held by them as of such date in any manner
that the Depositary may following consultation with the Company, reasonably deem
equitable and, in its reasonable opinion, practicable for accomplishing such
distribution; provided, however, that if the Company shall so direct or if, in
the reasonable opinion of the Depositary such distribution cannot be made
proportionally among such Owners, or if for any other reason (including but not
limited to any requirement that the Company or the Depositary withhold an amount
on account of taxes or other governmental charges or that such securities must
be registered under the Securities Act of 1933 in order to be distributed to
Owners or Beneficial Owners) the Depositary, it its reasonable opinion, deems
such distribution not to be feasible, the Depositary may, following consultation
with the Company, adopt such method as it may deem lawful, equitable and
practicable for the purpose of effecting such distribution, including the public
or private sale of the securities or other property thus received, or any part
thereof, and the net proceeds of any such sale shall as promptly as practicable
be distributed by the Depositary to the Owners entitled thereto as in the case
of a distribution received in cash; provided, however, that any unsold balance
of such securities or
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property shall be distributed by the Depositary to the Owners entitled thereto,
if such distribution is feasible without withholding for or on account of any
taxes or other governmental charges and without registration under the
Securities Act of 1933, in accordance with such lawful, equitable and
practicable method as the Depositary may have adopted; provided, further,
however, that no distribution to Owners shall be unreasonably delayed by any
action of the Depositary or any of its agents. To the extent such securities or
other property, or the net proceeds thereof, is not effectively distributed to
Owners as provided herein, the same shall constitute Deposited Securities and
each American Depositary Share shall thereafter also represent its proportionate
interest in such securities or other property or net proceeds.
If any distribution upon any Deposited Securities consists of a
dividend in, or distribution without payment of any subscription price of,
Shares, including pursuant to any program under which holders of Deposited
Securities may elect to receive cash or Shares, the Depositary may, and shall if
the Company so requests, execute and deliver additional Receipts evidencing
American Depositary Shares representing the amount of Shares received as such
dividend or distribution and distribute to the Owners, as of the record date
fixed pursuant to Section 4.06 of the Deposit Agreement, of Receipts entitled
thereto in proportion to the number of American Depositary Shares held by them
as of such date, Receipts evidencing additional American Depositary Shares,
subject to the terms and conditions of the Deposit Agreement with respect to the
deposit of Shares and the issuance of Receipts, including the withholding of any
tax or other governmental charge as provided in Section 4.11 of the Deposit
Agreement and the payment of fees of the Depositary as provided in Section 5.09
of the Deposit Agreement. The Depositary may withhold any such distribution if
it has not received adequate assurances from the Company that such distribution
does not require registration under the Securities Act of 1933. In lieu of
delivering Receipts for fractional American Depositary Shares, the Depositary
shall sell the amount of Shares representing the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions set
forth in Section 4.01 of the Deposit Agreement or take such other action, with
the approval of the Company, as may be appropriate.
Notwithstanding the foregoing, if the Company shall so direct or if in
the reasonable opinion of the Depositary such distribution cannot be made or if
for any reason (including, but not limited to, any requirement that the Company,
the Custodian or the Depositary withhold an amount on account for taxes or other
governmental charges or that such Shares must be registered under the Securities
Act of 1933 in order to be distributed to Owner) the Depositary, in its
reasonable opinion, determines that a distribution in Shares is not feasible or
may not be legally made to some or all Owners, the Depositary may, following
consultation with the Company, adopt such method as it may deem lawful,
equitable and practicable for the purpose of effecting such distribution, all in
the manner and subject to the conditions set forth in Section 4.02 of the
Deposit Agreement, or take such other action, with the approval of the Company,
as may be
-11-
appropriate. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed with respect to the Deposited Securities represented thereby.
If any distribution upon any Deposited Securities consists of a
dividend in, or distribution without payment of any subscription price of,
Shares, including pursuant to any program under which holders of Deposited
Securities may elect to receive cash or Shares, the Depositary may and shall if
the Company so requests, execute and deliver additional Receipts evidencing
American Depositary Shares representing the amount of Shares received as such
dividend or distribution and distribute to the Owners, as of the record date
fixed pursuant to Section 4.06 of the Deposit Agreement, of Receipts entitled
thereto in proportion to the number of American Depositary Shares held by them
as of such date, Receipts evidencing additional American Depositary Shares,
subject to the terms and conditions of the Deposit Agreement with respect to the
deposit of Shares and the issuance of Receipts, including the withholding of any
tax or other governmental charge as provided in Section 4.11 of the Deposit
Agreement and the payment of fees of the Depositary as provided in Section 5.09
of the Deposit Agreement. The Depositary may withhold any such distribution if
it has not received adequate assurances from the Company that such distribution
does not require registration under the Securities Act of 1933. In lieu of
delivering Receipts for fractional American Depositary Shares, the Depositary
shall sell the amount of Shares representing the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.01 of the Deposit Agreement or take such other action
with the approval of the Company as may be appropriate.
In connection with any dividend or other distribution to Owners, the
Company or its agent will remit to the appropriate governmental authority or
agency all amounts (if any) required under applicable law to be withheld and
remitted by the Company or such agent and owing to such governmental authority
or agency by the Company or such agent; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required under applicable law to be withheld and remitted by the Depositary
or the Custodian and owing to such authority or agency by the Depositary or the
Custodian. Either the Company or the Depositary may file with any governmental
agency any reports necessary to obtain benefits under any applicable tax
treaties for the Owners. The Depositary shall forward to the Company or its
agent such information from its records in relation to withholding from a
dividend or other distribution on Deposited Securities as the Company may
reasonably request to enable the Company or its agent to file necessary reports
with governmental authorities or agencies, and the Company and its agent shall
forward to the Depositary such information from its records in relation to
withholding from a dividend or other distribution on Deposited Securities as the
Depositary may reasonably request to enable the Depositary to file necessary
reports with governmental authorities or agencies. In the event that the
Depositary determines that any dividend or other distribution in property other
than cash
-12-
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charge which the Depositary is obligated to withhold, the
Depositary may (after consultation with the Company) by public or private sale
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner as the Depositary deems
necessary and practicable to withhold any such taxes or charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto.
Whenever the Depositary shall receive notice from the Company of the
declaration of a dividend or other distribution without payment of any
subscription price on Deposited Securities payable in Shares or cash at the
election of each holder of Shares or, if no such election is made, payable in
Shares or in cash as provided in the instruments governing such dividend or
other distribution, the Depositary shall mail to the Owners a notice, the form
of which shall be in the reasonable discretion of the Depositary, which shall
contain (a) such information as is contained in the notice received by the
Depositary from the Company and (b) a statement that each of the Owners as of
the close of business on a specified date will be entitled, subject to any
applicable provisions of the laws of the United Kingdom, the Articles of
Association or By-laws of the Company or the instruments governing such dividend
or distribution, to instruct the Depositary as to the manner in which such Owner
elects to receive such dividend or distribution. Upon the written request of an
Owner on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall use reasonable efforts to make
the election in accordance with the instructions set forth in such request, and
to distribute cash or Shares, as the case may be, in accordance with the terms
of Section 4.01 or Section 4.03 of the Deposit Agreement, respectively, to the
Owners entitled thereto. If the Depositary does not receive timely instructions
from any Owner as to such Owner's election, the Depositary shall make no
election with respect to the Deposited Securities represented by such Owner's
American Depositary Shares and shall distribute such Shares or cash as it
receives, if any, in respect of such Deposited Securities in accordance with the
preceding sentence.
14. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall (after
consultation with the Company as to the procedure to be followed) make such
rights available to any Owners, including the distribution of warrants or other
instruments therefor in such form as it deems appropriate, or dispose of such
rights on behalf of any Owners and distribute the net proceeds in Dollars to
such Owners. If, by the terms of such rights offering or by reason of applicable
law, the Depositary may not either make such rights available to any Owners or
dispose of such rights and distribute the net proceeds to such Owners, then the
Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the
-13-
Depositary determines, following consultation with the Company, that it is
lawful and feasible to make such rights available to certain Owners but not to
other Owners, (i) the Depositary shall distribute to every Owner with respect to
whom it determines the distribution to be lawful and feasible, in proportion to
the number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate and (ii) in respect of
Owners to whom the Depositary determines the distribution not to be lawful or
feasible, the Depositary shall use reasonable efforts to sell the rights,
warrants or other instruments in proportion to the number of American Depositary
Shares held by such Owners and distribute the net proceeds of such sales (net of
the fees of the Depositary as provided in Section 5.09 of the Deposit Agreement
and all taxes and governmental charges payable in connection with such rights
and subject to the terms and conditions of the Deposit Agreement) to such Owners
upon an averaged or other fair and practicable basis without regard to any
distinctions among such Owners resulting from exchange restrictions, the date of
delivery of any Receipt or otherwise. In the event that rights and the
securities to which such rights relate are not registered under the Securities
Act of 1933, the Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or to any Owner in particular.
In circumstances in which rights would not otherwise be distributed, if
an Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable in respect of American Depositary Shares of such
Owner under the Deposit Agreement, the Depositary will make such rights
available to such Owner upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) the Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
Upon instruction pursuant to such warrants or other instruments to the
Depositary from such Owner to exercise such rights, upon payment by such Owner
to the Depositary for the account of such Owner of an amount equal to the
purchase price of the Shares or other securities to be received upon the
exercise of the rights, and upon payment of the fees of the Depositary as set
forth in such warrants or other instruments, the Depositary shall, on behalf of
such Owner, exercise the rights and purchase such Shares or other securities and
the Company shall cause the Shares or other securities so purchased to be
delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of
the Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this Article (14), such
Receipts shall be legended, if required, in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
Except as otherwise provided in the preceding paragraph, the Company
and the Depositary will not offer rights to Owners unless a registration
statement is in effect with
-14-
respect both to such rights and any securities to be received upon exercise of
such rights under the Securities Act of 1933 or unless the offering and sale of
such securities to such Owners are exempt from registration under the Securities
Act of 1933. Nothing in the Deposit Agreement shall create any obligation on the
part of the Company to file a registration statement in respect of any rights or
securities for any purpose or to endeavor to have such a registration statement
declared effective.
15. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive Currency other
than dollars ("foreign currency"), by way of dividends or other distributions or
as the net proceeds from the sale of securities, property or rights, and if at
the time of the receipt thereof the foreign currency so received can in the
reasonable judgment of the Depositary be converted on a reasonable basis into
Dollars and transferred to the United States, the Depositary shall, subject to
any restrictions imposed by applicable law, regulations or permits, convert or
cause to be converted, by sale or in any other manner that it may determine,
such foreign currency into Dollars, and such Dollars shall be distributed, as
promptly as practicable, net of any reasonable and customary out-of-pocket
expenses incurred by the Depositary in connection with the conversion of
currency pursuant to Section 4.05 of the Deposit Agreement, to the Owners
entitled thereto as of the record date fixed pursuant to Section 4.06 of the
Deposit Agreement in accordance with any applicable provisions of Sections 4.01,
4.02, 4.03 and 4.04 of the Deposit Agreement. Such distribution may be made upon
an averaged or other fair and practicable basis without regard to any
distinctions among Owners resulting from exchange restrictions or otherwise.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file as promptly as practicable such application for approval or license, if
any, as it may deem desirable; provided, however, that if such application
involves or refers to or is made on behalf of the Company, such application
shall not be filed unless approved by the Company, which approval shall not be
unreasonably withheld or delayed.
If at any time the Depositary shall determine, following consultation
with the Company, that in its reasonable judgment any foreign currency received
by the Depositary or the Custodian is not, pursuant to applicable law or
otherwise, convertible on a reasonable basis into Dollars transferable to the
United States, or if any approval or license of any government or agency thereof
which is required for such conversion is denied or in the opinion of the
Depositary, following consultation with the Company, is not obtainable, or if
any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary or the Custodian to, or in its discretion,
following
-15-
consultation with the Company, may hold such foreign currency proceeds
uninvested for the respective accounts of, the Owners entitled to receive the
same, without liability for interest thereon.
If any such conversion of foreign currency, in whole or in part, cannot
be effected for distribution to some Owners entitled thereto, the Depositary may
in its discretion, following consultation with the Company, make such conversion
and distribution in Dollars to the extent permissible to the Owners entitled
thereto for whom such conversion and distribution is practicable and may
distribute the balance of the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary or the Custodian to, or hold, such balance uninvested and without
liability for the respective accounts of, the Owners entitled thereto for whom
such conversion and distribution is not practicable.
16. FIXING OF RECORD DATE.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason there occurs a change in the number or type of Deposited Securities that
are represented by each American Depositary Share, or whenever the Depositary
shall receive notice of any meeting of, or solicitation of consents or proxies
from, holders of Shares or other Deposited Securities or whenever the Company or
the Depositary finds it necessary or convenient in respect of any matter, the
Depositary shall fix a record date (which, to the extent practicable, shall be
the same as any corresponding record date set by the Company with respect to
Shares, and after consultation with the Company if such date is to be different
from any such record date established by the Company in respect of the Shares)
for the determination of the Owners who shall be entitled to receive such
dividend, distribution or rights, or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting or in
respect of any such solicitation or to receive information as to any such
meeting or solicitation, or for fixing the date on or after which each American
Depositary Share will represent the changed number or type of Deposited
Securities, subject to the terms and conditions of the Deposit Agreement. If the
American Depositary Shares shall be listed on any stock exchange, then any such
record date shall be fixed in accordance with any applicable rules of such stock
exchange.
17. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of, or solicitation of
consent or proxies for, Shares or other Deposited Securities, unless instructed
otherwise in writing by the Company, the Depositary shall, as soon as
practicable thereafter, mail to the Owners a notice, in such form as approved by
the Company, which shall contain (a) such information as is contained in such
notice of meeting, or solicitation of consents or
-16-
proxies, received by the Depositary from the Company, (b) a statement that the
Owners as of the close of business on a specified record date established by the
Depositary pursuant to Section 4.06 of the Deposit Agreement will be entitled,
subject to any applicable provisions of United Kingdom law, of the Deposited
Securities and the Deposit Agreement and of the Memorandum and Articles of
Association of the Company, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares, and (c) a
statement as to the manner in which such instructions may be given, including,
when applicable, an express indication that instructions may be given (or, if
applicable, will be deemed given in accordance with the second paragraph of
Section 4.07 of the Deposit Agreement if no instruction is received) to the
Depositary to give a discretionary proxy to a person designated by the Company.
Upon the written (or deemed) request of an Owner on such record date, received
on or before the date established by the Depositary for such purpose, the
Depositary shall endeavor, insofar as practicable, to vote or cause to be voted
(or to grant a discretionary proxy to a person designated by the Company to
vote) the amount of Shares or other Deposited Securities the right to receive
which is represented by the American Depositary Shares evidenced by such Owner's
Receipt in accordance with any instructions set forth in such request. The
Depositary shall not, and the Depositary shall ensure that each Custodian or any
of its nominees shall not, vote or attempt to exercise the right to vote that
attaches to the Shares or other Deposited Securities, other than in accordance
with such instructions.
If the Depositary does not receive instructions from an Owner on or
before the date established by the Depositary for such purpose, such Owner shall
be deemed, and the Depositary shall deem such Owner, to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company
to vote the underlying Shares, provided that no such discretionary proxy shall
be deemed given with respect to any matter as to which the Company informs the
Depositary in writing at the time notice of any meeting or solicitation of
consents or proxies is received by the Custodian to the effect that the Company
does not wish such proxy given.
18. CHANGES AFFECTING DEPOSITED SECURITIES.
Upon any change in nominal value, split-up, consolidation or other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger, consolidation, sale of assets or similar transaction
(including by means of a scheme of arrangement) affecting the Company or to
which it is a party, any securities which shall be received by the Depositary or
any Custodian in exchange for, conversion of, replacement or otherwise in
respect of Deposited Securities shall, subject to the terms of the Deposit
Agreement and applicable law, including any applicable provisions of the
Securities Act of 1933, be treated as new Deposited Securities under the Deposit
Agreement, and each American Depositary Share shall, subject to the terms of the
Deposit Agreement and applicable law, including any applicable provisions of the
-17-
Securities Act of 1933, thenceforth represent an appropriately adjusted
proportional interest in the Deposited Securities so received in exchange or
conversion or replacement or otherwise, unless additional or new Receipts are
delivered pursuant to the following sentence. In any such case the Depositary
may, and shall if the Company shall so request, execute and deliver additional
Receipts as in the case of a stock dividend on the Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities. Upon the occurrence of any change or
other event covered by this Article with respect to the Deposited Securities,
the Depositary shall give notice thereof in writing to all Owners.
19. REPORTS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Securities and Exchange Commission (hereinafter called the "Commission"). Such
reports and communications will be available for inspection and copying at the
public reference facilities maintained by the Commission located at 000 Xxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts
at its Corporate Trust Office any reports and communications, received from the
Company which are both (a) received by the Depositary 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, upon written
request, send to the Owners of Receipts copies of such reports furnished by the
Company pursuant to the Deposit Agreement.
The Depositary will keep in such New York City facilities books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts. The Depositary may
close the transfer books at any time or from time to time when transfer agents
located in The City of New York generally close their transfer books, and at any
other time, following consultation with the Company to the extent practical, or
otherwise with prompt notice to the Company when deemed expedient by the
Depositary in connection with the performance of its duties under the Deposit
Agreement or at the request of the Company
20. LIABILITY OF THE COMPANY AND THE DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, if by reason of any provision of any
present or future law or regulation of
-18-
the United States or any other country, or of any governmental or regulatory
authority or stock exchange, or by reason of any provision, present or future,
of the Memorandum or Articles of Association of the Company, or by reason of any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or the Company shall be
prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the terms
of the Deposit Agreement or Deposited Securities it is provided shall be done or
performed; nor shall the Depositary or the Company or any of their respective
directors, employees, agents or affiliates incur any liability to any Owner or
Beneficial Owner of any Receipt by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement. Where, by the terms of a dividend or other distribution
pursuant to Section 4.01, 4.02, or 4.03 of the Deposit Agreement, or an offering
or distribution pursuant to Section 4.04 of the Deposit Agreement, or for any
other reason, such dividend or other distribution or offering may not be made
available to Owners, and the Depositary may not dispose of such dividend or
other distribution or offering on behalf of such Owners and make the net
proceeds available to such Owners, then the Depositary shall not make such
dividend or other distribution or offering, and shall allow any rights, if
applicable, to lapse.
Each of the Company and its agents and their respective officers,
directors, employees and affiliates assumes no obligation nor shall it be
subject to any liability under the Deposit Agreement or the Receipts to Owners
or Beneficial Owners of Receipts or any other persons other than the Depositary
and the Custodian (including, without limitation, liability with respect to the
validity or worth of the Deposited Securities), except that it agrees to perform
its obligations specifically set forth in the Deposit Agreement without
negligence, willful misconduct or bad faith. Each of the Company and its agents
and their respective officers, directors, employees and affiliates assumes no
obligation nor shall it be subject to any liability under the Deposit Agreement
to the Custodian or any agent of the Depositary or the Custodian, except under
Section 5.08 of the Deposit Agreement.
Each of the Depositary and its agents and their respective officers,
directors, employees and affiliates assumes no obligation nor shall it be
subject to any liability under the Deposit Agreement to the Custodian or any
agent of the Depositary or the Custodian, except under Section 5.08 of the
Deposit Agreement. The Depositary, the Custodian and the Company undertake to
perform such duties and only such duties as are specifically set forth in the
Deposit Agreement, and no implied covenants or obligations shall be read into
the Deposit Agreement against the Depositary, the Custodian or the Company or
their respective agents. Without limiting the foregoing, neither the Depositary
or its agents nor the Company or its agents shall be under any obligation to
-19-
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
None of the Depositary or its agents or the Company or its agents shall
be liable for any action or nonaction by it or them in reliance upon the advice
of or information from legal counsel, accountants, any person presenting Shares
for deposit, any Owner or holder of a Receipt or any other person believed by it
in good faith to be competent to give such advice or information.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence, willful misconduct or bad faith while it acted
as Depositary.
The Depositary shall not be responsible for the manner in which any
vote of any Deposited Securities is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith and in accordance
with the Deposit Agreement. Except as otherwise provided in the Deposit
Agreement, the Depositary will not release any information regarding the Company
without prior written approval from the Company; provided, however, that the
Depositary may release, without prior approval from the Company, information
made publicly available by the Company if the form and substance of such
information has not been altered or modified in any way other than by the
Company. The Depositary agrees with the Company not to establish any unsponsored
American depositary receipt program representing Shares so long as the
Depositary is acting under the Deposit Agreement.
The Company agrees to indemnify the Depositary and any Custodian and
any agent of the Depositary or the Custodian appointed under the Deposit
Agreement and the respective officers, directors, and employees (the
"indemnified persons") against, and hold each of them harmless from, any
liability or expense (including, but not limited to, the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted in
accordance with the provisions of the Deposit Agreement and of the Receipts, as
the same may be amended, modified or supplemented from time to time, (i) by such
indemnified persons except for any liability or expense arising out of the
negligence, willful misconduct or bad faith of any of them, or (ii) by the
Company or any of its agents (other than the indemnified persons), and their
respective officers, directors and employees authorized to act on their behalf.
-20-
The indemnities contained in the preceding paragraph shall not extend
to any liability or expense which may arise out of any Pre-Release (as defined
in Section 2.09 of the Deposit Agreement) except to the extent any such
liability or expense would have arisen even if the Receipts or Shares involved
would not have been subject to a Pre-Release. However, for the avoidance of
doubt, the indemnities provided in the preceding paragraph shall apply to any
such liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer of sale of American
Depositary Shares, except to the extent any such liability or expense arises out
of (a) information relating to the Depositary or any Custodian (other than the
Company), as applicable, furnished to the Company in writing, and not materially
changed or altered by the Company, expressly for use in any of the foregoing
documents, or, (b) if such information is provided to the Company, the failure
to state a material fact necessary to make the information provided not
misleading.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates against and hold them harmless from any
liability or expense (including but not limited to the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary or any Registrar or Custodian or their respective directors,
employees, agents and affiliates due to their respective negligence, willful
misconduct or bad faith.
If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall as promptly as practicable (and in no event more than twenty (20) days
after receipt of notice of such Proceeding) notify in writing the party
obligated to provide such indemnification (the "Indemnitor") of such Proceeding.
The failure of the Indemnitee to so notify the Indemnitor shall not impair the
Indemnitee's ability to seek indemnification from the Indemnitor (but only for
costs, expenses and liabilities incurred after such notice) unless such failure
adversely effects the Indemnitor's ability to adequately oppose or defend such
Proceeding. Upon receipt of such notice from the Indemnitee, the Indemnitor
shall be entitled to participate in such Proceeding and, to the extent that it
shall so desire and, (i) provided no conflict of interest exists as specified in
subclause (b) below, and (ii) there are no other defenses available to
Indemnitee, as specified in subclause (b) below, to assume the defense thereof
with counsel reasonably satisfactory to the Indemnitee (in which case all
attorney's fees and expenses shall be borne by the Indemnitor and the Indemnitor
shall in good faith defend the Indemnitee). The Indemnitee shall have the right
to employ separate counsel in any such Proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be borne by the
Indemnitee unless (a) the Indemnitor agrees in writing to pay such fees and
expenses, (b) the Indemnitee shall have reasonably and in good faith
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concluded that there is a conflict of interest between the Indemnitor and the
Indemnitee in the conduct of the defense of such action, including but not
limited to that there may be legal defenses available to the Indemnitee that are
different from or in addition to those available to the Indemnitor, or (c) the
Indemnitor fails, within ten (10) days prior to the date the first response or
appearance is required to be made in such Proceeding, to assume the defense of
such Proceeding with counsel reasonable satisfactory to the Indemnitee. No
compromise or settlement of such Proceeding may be effected by either party
without the other party's consent unless (i) there is no finding or admission of
any violation of law and no material adverse effect on any other claims that may
be made against such other party and (ii) the sole relief provided is monetary
damages that are paid in full by the party seeking the compromise or settlement.
Neither party shall have any liability with respect to any compromise or
settlement effected without its consent, which shall not be unreasonably
withheld. The Indemnitor shall have no obligation to indemnify and hold harmless
the Indemnitee from any loss, expense or liability incurred by the Indemnitee as
a result of a default judgment entered against the Indemnitee unless such
judgment was entered after the Indemnitor agreed, in writing, to assume the
defense of such Proceeding.
The obligations set forth in Section 5.08 of the Deposit Agreement
shall survive the termination of the Deposit Agreement and the succession or
substitution of any indemnified person.
No disclaimer of liability under the Securities Act of 1933 is intended
by any provision of the Deposit Agreement.
21. RESIGNATION AND REMOVAL OF THE DEPOSITARY; SUBSTITUTION AND ADDITION OF
CUSTODIAN.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal delivered to the Depositary effective upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. Except as provided in the preceding sentence, whenever the
Depositary in its discretion determines, with the prior written consent of the
Company, that it is in the best interest of the Owners to do so, it may appoint
a substitute or additional custodian or custodians approved by the Company,
which shall be an accredited intermediary acting through a specified office
located in the United Kingdom, and the term "Custodian" shall also refer to each
such substitute or additional Custodian.
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22. AMENDMENT OF THE DEPOSIT AGREEMENT AND RECEIPTS.
The form of the Receipts and the Deposit Agreement may at any time and
from time to time be amended by agreement in writing between the Company and the
Depositary in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission charges, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners, shall, however,
not become effective as to outstanding Receipts until the expiration of 30 days
after written notice of such amendment shall have been mailed to the Owners of
outstanding Receipts. Every Owner at the time any such amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Owner hereof to
surrender this Receipt and receive therefor the Deposited Securities represented
hereby, except to comply with mandatory provisions of applicable law.
23. TERMINATION OF THE DEPOSIT AGREEMENT.
The Depositary will at any time at the direction of the Company
terminate the Deposit Agreement by mailing notices of such termination to the
Owners of all Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement (upon 30 days' prior written notice of such termination to the
Company and the Owners of all Receipts then outstanding) if at any time 90 days
after the Depositary shall have delivered to the Company a written notice of its
resignation sent by registered mail, return receipt requested, a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.04 of the Deposit Agreement. The Depositary shall mail
notice of such termination to the Owners of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. On
and after the date of termination, each Owner shall, upon (i) surrender of each
of its Receipts at the Depositary's Corporate Trust Office, (ii) payment of the
fees of the Depositary for the surrender of Receipts as provided in Article (9)
of this Receipt and (iii) payment of any applicable taxes and governmental
charges, be entitled to delivery, to him or upon his order, of the whole number
of Deposited Securities represented by the American Depositary Shares evidenced
by such Receipts and to the net proceeds of the sale of any fractional Deposited
Securities represented thereby. If any Receipts shall remain outstanding after
the date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, shall not accept deposits of Shares (and shall
instruct each Custodian to act accordingly) 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 property and rights and
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convert Deposited Securities as provided in the Deposit Agreement and shall
continue to deliver Deposited Securities together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). At any time after the expiration of
one year from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it under the Deposit Agreement, unsegregated and without liability for
interest, for the pro rata benefit of the Owners which have not theretofore
surrendered their Receipts, such Owners thereupon becoming general creditors of
the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash (after deducting, in each
case, the fee of the Depositary for the surrender of a Receipt, any expenses for
the account of the Owner of such Receipt in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or governmental
charges) and except for its obligations under Section 5.08 of the Deposit
Agreement.
24. COMPLIANCE WITH U.S. SECURITIES LAW.
Notwithstanding anything in the Deposit Agreement to the contrary, the
Company and the Depositary each agrees that it will not exercise any rights it
has under the Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate U.S. securities laws,
including but not limited to Section I.A(1) of the General Instructions to the
Registration Statement of Form F-6, as amended from time to time, under the
Securities Act of 1933.
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