EXHIBIT 2
_____________, 2004
Xxxxxx Group Limited
Xxxxxxxxxx Xxxxx,
0xx Xxxxx, 0 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx XX 00
Re: Deposit Agreement dated as of September _____________,
2004, (the "Deposit Agreement") by and among Xxxxxx
Group Limited, The Bank of New York, as Depositary, and
the Owners and holders of American Depositary Receipts
Ladies and Gentlemen:
We refer to the Deposit Agreement. Capitalized terms defined in the
Deposit Agreement and not otherwise defined herein are used herein as defined in
the Deposit Agreement.
We hereby agree that, without the prior consent of the Company, (i)
we will not (a) Pre-Release Receipts or (b) permit any Pre-Release to remain
outstanding at any time, in each case except pursuant to a pre-release agreement
containing agreements, representations and warranties substantially to the
effect of Sections 3(a), 3(e), 4, 7(a) and 14 of the form of ADR Pre-Release
Agreement attached hereto (or, if the Pre-Release Agreement does not contain an
agreement substantially to the effect of the provisions of Section 14 of such
form, we will
1
indemnify the Company to the same extent that the counterparty to a Pre-Release
would be required by said Section 14 to indemnify the Company) and (ii) we will
undertake a Pre-Release only pursuant to written agreements that meet the
requirements of Section 1058(b) of the United States Internal Revenue Code of
1986 as amended.
We confirm that we currently do not, and do not intend to, make any
Pre-Release to any person until such person has undergone the Depositary's
standard credit review process.
If, after the date hereof, the Depositary's ADR Department is
advised by counsel that there has occurred a material change in the U.S. federal
income tax law (including judicial and administrative interpretations thereof)
regarding the treatment of Pre-Release, we agree to notify the Company promptly
of such change and to advise the Company as to the changes, if any, that we
intend to make, or have made, to the Pre-Release procedures then being followed
by us as a result of such change in the tax law. We will in good faith consult
with the Company and consider all suggestions, without any obligation on our
part to change our Pre-Release procedures.
We will indemnify and hold harmless the Company and each Owner from
time to time of a Receipt against all losses, claims, damages, liabilities and
expense (including reasonable attorneys' fees) based upon a breach by the
Depositary of any agreement of the Depositary set forth in this letter.
If any action or claim shall be brought against the Company in
respect of which indemnity may be sought pursuant to
2
the preceding paragraph or the second paragraph of this letter, the Company
shall notify the Depositary in writing of such action or claim giving reasonable
details thereof. The Depositary shall have the option of assuming the defense
thereof, with counsel satisfactory to the Company (who shall not, except with
the consent of the Company, be counsel to the Depositary in connection with such
action or claim), and, after notice from the Depositary to the Company of its
election so to assume the defense thereof, the Depositary shall not be liable to
the Company or any other indemnified party for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by the Company
or any other indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No compromise or settlement of such
action or proceeding may be effected by either party without the other party's
consent (which shall not be unreasonably withheld) unless (i) there is no
finding or admission of any violation of law and no 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 such compromise or
settlement.
3
Very truly yours,
THE BANK OF NEW YORK
as Depositary
By: _____________________________________
Name:
Title:
4
