AMENDMENT NO. 1 TO DEPOSIT AGREEMENT AMENDMENT NO. 1, dated as of
February 2, 2004 (the "Amendment"), to the DEPOSIT AGREEMENT, dated as of
December 18, 2002, by and among (i) Impala Platinum Holdings Limited, a company
incorporated under the laws of the Republic of South Africa, and its successors
(the "Company"), (ii) DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York
corporation, acting in its capacity as depositary, and any successor depositary
hereunder (the "Depositary"), and (iii) all Holders and Beneficial Owners of
American Depositary Shares evidenced by American Depositary Receipts issued
thereunder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Depositary executed the Deposit Agreement
for the purposes set forth therein; and
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the
Company and the Depositary desire to amend the terms of the Deposit Agreement
and Receipts.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment,
all capitalized terms used, but not otherwise defined, herein shall have the
meaning given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Deposit
Agreement to the term "Deposit Agreement" shall, as of the Effective Date (as
herein defined), refer to the Deposit
Agreement, dated as of December 18, 2002 as amended by this Amendment.
SECTION 2.02. Section 1.2 of the Deposit Agreement is amended by
replacing "one-half of one" with "one-quarter of one".
SECTION 2.03. The telephone number of the Depositary set forth in
Section 7.5 of the Deposit Agreement is amended to read "(000) 000-0000.
ARTICLE III
AMENDMENTS TO THE FORM OF RECEIPT
SECTION 3.01. The face of the form of Receipt is amended by replacing
"one half of one" with "one-quarter of one share".
SECTION 3.02. The first paragraph of the form of Receipt is amended by
replacing "one-half of one" with "one-quarter of one".
SECTION 3.03. The form of Receipt shall be in the form set forth as
Exhibit A hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents
and warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, and
the Deposit Agreement and all other documentation executed and
delivered by the Company in connection therewith, will be and have
been, respectively, duly and validly authorized, executed and
delivered by the Company, and constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement
as amended hereby, and any other document furnished hereunder or
thereunder in the Republic of South Africa, neither of such agreements
need to be filed or recorded with any court or other authority in the
Republic of South Africa, nor does any stamp or similar tax or
governmental charge need to be paid in the Republic of South Africa on
or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company
in connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date
set forth above and shall be effective as of February 9, 2004 (the "Effective
Date").
SECTION 5.02. Outstanding Receipts. Receipts issued prior or
subsequent to the date hereof, which do not reflect the changes to the form of
Receipt effected hereby, do not need to be called in for exchange and may remain
outstanding until such time as the Holders thereof choose to surrender them for
any reason under the Deposit Agreement. The Depositary is authorized and
directed to take any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. Indemnification. The parties hereto shall be entitled to
the benefits of the indemnification provisions of Section 5.8 of the Deposit
Agreement in connection with any and all liability it or they may incur as a
result of the terms of this Amendment and the transactions contemplated herein.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
IMPALA PLATINUM HOLDINGS LIMITED
By:
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Name:
Title:
By:
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Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
------------------------------
Name:
Title:
By:
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Name:
Title:
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Number CUSIP
American Depositary Shares (Each
American Depositary Share
representing one-quarter of one Fully
Paid Ordinary Shares)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
Of
IMPALA PLATINUM HOLDINGS LIMITED
(Incorporated under the laws of the Republic of South Africa)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary (herein called the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, par value 20 South African cents each, including evidence of rights to
receive such ordinary shares (the "Shares") of Impala Platinum Holdings Limited
(the "Company"), a company incorporated under the laws of the Republic of South
Africa (the "Company"). As of the date of the Deposit Agreement (hereinafter
referred to), each ADS represents one-quarter of one Share deposited under the
Deposit Agreement with the Custodian which at the date of execution of the
Deposit Agreement is Standard Bank of South Africa (the "Custodian"). The ratio
of Depositary Shares to shares of stock is subject to subsequent amendment as
provided in Article IV of the Deposit Agreement. The Depositary's Principal
Office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("Receipts"), all issued and to be issued
upon the terms and conditions set forth in the Deposit Agreement, dated as of
December 18, 2002 (as amended from time to time, the "Deposit Agreement"), by
and among the Company, the Depositary, and all Holders and Beneficial Owners
from time to time of Receipts issued thereunder, each of whom by accepting
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a Receipt agrees to become a party thereto and becomes bound by all the terms
and conditions thereof. The Deposit Agreement sets forth the rights and
obligations of Holders and Beneficial Owners of Receipts and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and any
and all other securities, property and cash from time to time, received in
respect of such Shares and held thereunder (such Shares, other securities,
property and cash, are herein called "Deposited Securities"). Where the context
requires, the term "Deposited Securities" shall also include the class of
securities of which the Deposited Securities are a part. Copies of the Deposit
Agreement are on file at the Principal Office of the Depositary and the
Custodian.
Each owner and each Beneficial Owner, upon acceptance of any ADSs (or any
interest therein) issued in accordance with the terms and conditions of the
Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of the Deposit Agreement and applicable ADR(s), and (b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
the Deposit Agreement and the applicable ADR(s), the taking of such actions to
be the conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Company's Articles of
Association (as in effect on the date of the Deposit Agreement) and are
qualified by and subject to the detailed provisions of the Deposit Agreement, to
which reference is hereby made. All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements for
the acceptance of the American Depositary Shares into DTCC. Each Beneficial
Owner of American Depositary Shares held through DTCC must rely on the
procedures of DTCC and the DTCC Participants to exercise and be entitled to any
rights attributable to such American Depositary Shares. The Receipt evidencing
the American Depositary Shares held through DTCC will be registered in the name
of a nominee of DTCC. So long as the American Depositary Shares are held through
DTCC or unless otherwise required by law, ownership of beneficial interests in
the Receipt registered in the name of DTCC (or its nominee) will be shown on,
and transfers of such ownership will be effected only through, records
maintained by (i) DTCC (or its nominee), or (ii) DTCC Participants (or their
nominees).
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Article (9) hereof and
in Section 5.9 and Exhibit B of the Deposit Agreement) and (ii) all fees, taxes
and governmental charges payable in connection with such surrender and
withdrawal, and, subject to the terms and conditions of the Deposit Agreement,
the Company's Articles of Association (which, as used herein, includes the
Company's By-laws), Section 7.8 of the Deposit Agreement, Article (22) of this
Receipt and the provisions of or governing the Deposited Securities and other
applicable laws, the Holder of the American Depositary Shares evidenced hereby
is entitled to delivery, to him or
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upon his order, of the Deposited Securities represented by the ADSs so
surrendered. Subject to the last sentence of this paragraph, such Deposited
Securities may be delivered in certificated form or by electronic delivery. ADSs
may be surrendered for the purpose of withdrawing Deposited Securities by
delivery of a Receipt evidencing such ADSs (if held in registered form) or by
book-entry delivery of such ADSs to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) at the designated office of the Custodian (subject to the
terms and conditions of the Deposit Agreement, to the Company's Articles of
Association, and to the provisions of or governing the Deposited Securities and
applicable laws, now or hereafter in effect), to or upon the written order of
the person or persons designated in the order delivered to the Depositary as
provided above, the Deposited Securities represented by such ADSs, together with
any certificate or other proper documents of or relating to title for the
Deposited Securities or evidence of the electronic transfer thereof (if
available) as the case may be to or for the account of such person. The
Depositary may make delivery to such person or persons at the Principal Office
of the Depositary of any dividends or distributions with respect to the
Deposited Securities represented by such Receipt, or of any proceeds of sale of
any dividends, distributions or rights, which may at the time be held by the
Depositary.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares representing a number of Shares other than
a whole number of Shares. In the case of surrender of a Receipt evidencing a
number of ADSs representing other than a whole number of Shares, the Depositary
shall cause ownership of the appropriate whole number of Shares to be delivered
in accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt so surrendered and remit the proceeds thereof (net of
(a) applicable fees and charges of, and expenses incurred by, the Depositary and
(b) taxes withheld) to the person surrendering the Receipt. At the request, risk
and expense of any Holder so surrendering a Receipt, and for the account of such
Holder, the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any cash or other property (other than securities) held in
respect of, and any certificate or certificates and other proper documents of or
relating to title to, the Deposited Securities represented by such Receipt to
the Depositary for delivery at the Principal Office of the Depositary, and for
further delivery to such Holder. Such direction shall be given by letter or, at
the request, risk and expense of such Holder, by cable, telex or facsimile
transmission
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the terms
and conditions of the Deposit Agreement, the Registrar shall register transfers
of Receipts on its books, upon surrender at the Principal Office of the
Depositary of a Receipt by the Holder thereof in person or by duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard industry practice)
and duly stamped as
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may be required by the laws of the State of New York and of the United States of
America, of the Republic of South Africa and of any other applicable
jurisdicition. Subject to the terms and conditions of the Deposit Agreement,
including payment of the applicable fees and charges of the Depositary, the
Depositary shall execute and deliver a new Receipt(s) (and if necessary, cause
the Registrar to countersign such Receipt(s)) and deliver same to or upon the
order of the person entitled to such Receipts evidencing the same aggregate
number of ADSs as those evidenced by the Receipts surrendered. Upon surrender of
a Receipt or Receipts for the purpose of effecting a split-up or combination of
such Receipt or Receipts upon payment of the applicable fees and charges of the
Depositary, and subject to the terms and conditions of the Deposit Agreement,
the Depositary shall execute and deliver a new Receipt or Receipts for any
authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as the Receipt or Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition precedent
to the execution and delivery, registration of transfer, split-up, combination
or surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of Shares
or presenter of the Receipt of a sum sufficient to reimburse it for any tax or
other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges of
the Depositary as provided in the Deposit Agreement and in this Receipt, (ii)
the production of proof satisfactory to it as to the identity and genuineness of
any signature or any other matters and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts and
ADSs or to the withdrawal of Deposited Securities and (B) such reasonable
regulations of the Depositary or the Company consistent with the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange upon which the
Receipts or Share are listed, or under any provision of the Deposit Agreement or
provisions of, or governing, the Deposited Securities or any meeting of
shareholders of the Company or for any other reason, subject in all cases to
Article (22) hereof. The Depositary shall promptly notify the Company of any
closure of the transfer books that is not in the ordinary course of business.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, the Holders of Receipts are entitled to surrender outstanding ADSs to
withdraw the Deposited Securities at any time subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders' meeting or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities, and
(iv) other circumstances specifically contemplated by Section I.A.(l) of the
General Instructions to Form F-6 (as such General Instructions may be amended
from time to time). Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the
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Deposit Agreement any Shares or other Deposited Securities required to be
registered under the provisions of the U.S. Securities Act of 1933, as amended,
unless a registration statement is in effect as to such Shares.
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to the laws of the Republic of South Africa, the rules and
requirements of any stock exchange on which the Shares are, or will be
registered, traded or listed, the Company's Articles of Association, which are
made to provide information as to the capacity in which such Holder or
Beneficial Owner owns ADSs and regarding the identity of any other person
interested in such ADSs and the nature of such interest and various other
matters whether or not they are Holders and/or Beneficial Owner at the time of
such request. The Depositary agrees to use reasonable efforts to forward any
such requests to the Holders and to forward to the Company any such responses to
such requests received by the Depositary.
(6) Liability of Holder for Taxes, Duties and Other Charges. If any tax or
other governmental charge shall become payable by the Depositary or the
Custodian with respect to any Receipt or any Deposited Securities or ADSs, such
tax, or other governmental charge shall be payable by the Holders and Beneficial
Owners to the Depositary. The Company, the Custodian and/or the Depositary may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of the Holder and/or Beneficial Owner
any or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, with the Holder and the Beneficial Owner hereof remaining fully
liable for any deficiency. The Custodian may refuse the deposit of Shares, and
the Depositary may refuse to issue ADSs, to deliver Receipts, register the
transfer, split-up or combination of ADRs and (subject to Article (22) hereof)
the withdrawal of Deposited Securities, until payment in full of such tax,
charge, penalty or interest is received. Every Holder and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian and each of their
respective agents, directors, employees and Affiliates for, and hold each of
them harmless from, any claims with respect to taxes (including applicable
interest and penalties thereon) arising from any tax benefit obtained for such
Holder and/or Beneficial Owner.
Holders understand that in converting Foreign Currency, amounts received on
conversion are calculated at a rate which may exceed the number of decimal
places used by the Depositary to report distribution rates (which in any case
will not be less than two decimal places). Any excess amount may be retained by
the Depositary as an additional cost of conversion, irrespective of any other
fees and expenses payable or owing hereunder and shall not be subject to
escheatment.
(7) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares (and the certificates therefor) are duly
authorized, validly issued, fully paid, non-assessable and were legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares, have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest,
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charge, mortgage or adverse claim and are not, and the ADSs issuable upon such
deposit will not be, Restricted Securities and (v) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares and the issuance, cancellation and transfer of ADSs. If any such
representations or warranties are false in any way, the Company and Depositary
shall be authorized, at the cost and expense of the person depositing Shares, to
take any and all actions necessary to correct the consequences thereof.
(8) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and the terms of the Deposit
Agreement and the provisions of, or governing, the Deposited Securities or such
other information relating to a Holder or Beneficial Owner that may be required
by applicable law or as the Depositary deems necessary or proper or as the
Company may reasonably require by written request to the Depositary consistent
with its obligations under the Deposit Agreement. Subject to Article (22) hereof
and the terms of the Deposit Agreement, the Depositary and the Registrar, as
applicable, may withhold the delivery or registration of transfer of any Receipt
or the distribution or sale of any dividend or other distribution of rights or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed, or such certifications are executed, or
such representations and warranties made, or such information and documentation
are provided.
(9) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of Shares
or to any person to whom a distribution is made in respect of ADS
distributions pursuant to stock dividends or other free distributions of
stock, bonus distributions, stock splits or other distributions (except
where converted to cash), a fee not in excess of U.S. $ 5.00 per 100 ADSs
(or fraction thereof) so issued under the terms of the Deposit Agreement to
be determined by the Depositary;
(ii) to any person surrendering ADSs for cancellation and withdrawal
of Deposited Securities including, inter alia, cash distributions made
pursuant to a cancellation or withdrawal, a fee not in excess of U.S. $
5.00 per 100 ADSs (or fraction thereof) so surrendered;
(i) to any Holder of ADSs, a fee not in excess of U.S. $ 2.00 per 100
ADSs held for the distribution of cash proceeds, including cash dividends
or sale of rights and other entitlements, not made pursuant to a
cancellation or withdrawal;
(ii) to any Holder of ADSs, a fee not in the excess of U.S. $ 5.00 per
100 ADSs (or portion thereof) issued upon the exercise of rights.
In addition, Holders, Beneficial Owners, person depositing Shares for
deposit and person
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surrendering ADSs for cancellation and withdrawal of Deposited Securities will
be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for
the registration of Shares or other Deposited Securities with the Foreign
Registrar and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
(iii) such cable, telex , facsimile and electronic transmission and
delivery expenses as are expressly provided in the Deposit Agreement to be
at the expense of the person depositing or withdrawing Shares or Holders
and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and other
regulatory requirements applicable to Shares, Deposited Securities, ADSs
and ADRs;
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities, including any fees of a central
depository for securities in the local market, if applicable; and
(vii) any additional fees, charges, costs or expenses that may be
incurred by the Depositary from time to time.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (20) of this Receipt.
(10) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) is
transferable by delivery of the Receipt, provided it has been properly endorsed
or accompanied by proper instruments of transfer, such Receipt being a
certificated security under the laws of the State of New York. Notwithstanding
any notice to the contrary, the Depositary may deem and treat the Holder of this
Receipt (that is, the person in whose name this Receipt is registered on the
books of the Depositary) as the absolute owner hereof for all purposes. The
Depositary shall have no obligation or be subject to any liability under the
Deposit Agreement or this Receipt to any holder of this Receipt or any
Beneficial Owner unless such holder is the Holder of this Receipt registered on
the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
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(11) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or enforceable for any purpose,
unless this Receipt has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) if a Registrar
for the Receipts shall have been appointed, countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar and (iv)
registered in the books maintained by the Depositary or the Registrar, as
applicable, for the issuance and transfer of Receipts. Receipts bearing the
facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly-authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the execution and delivery of such Receipt by the Depositary or did not
hold such office on the date of issuance of such Receipts.
(12) Available Information; Reports; Inspection of Transfer Books. The
Company furnishes the Commission with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and documents may be inspected and copied at
the public reference facilities maintained by the Commission located at the date
of the Deposit Agreement at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000.
The Depositary shall make available during normal business hours on any
Business Day for inspection by Holders at its Principal Office any public
reports and documents, including any proxy soliciting materials, received from
the Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary or the Registrar, as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary's or the
Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the Receipts.
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The Depositary or the Registrar, as applicable, may close the transfer
books with respect to the Receipts, at any time or from time to time, when
deemed necessary or advisable by it in good faith in connection with the
performance of its duties hereunder, or at the reasonable written request of the
Company subject, in all cases, to Article (22) hereof.
Dated: DEUTSCHE BANK TRUST
COMPANY AMERICAS, as Depositary
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
The address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a foreign currency can, in the judgment of the
Depositary (upon the terms of the Deposit Agreement), be converted on a
practicable basis, into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars and will distribute promptly the amount thus received (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of ADSs representing such Deposited Securities held by such Holders
respectively as of the ADS Record Date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder a
fraction of one cent. Any such fractional amounts shall be rounded to the
nearest whole cent and so distributed to Holders entitled thereto. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Any foreign currency received by the Depositary shall be
converted upon the terms and conditions set forth in the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall or cause such Shares to
be deposited with the Custodian and registered, as the case may be, in the name
of the Depositary, the Custodian or their nominees. Upon receipt of confirmation
of such deposit, the Depositary shall, subject to and in accordance with the
Deposit Agreement, establish the ADS Record Date and either (i) distribute to
the Holders as of the ADS Record Date in proportion to the number of ADSs held
as of the ADS Record Date, additional ADSs, which represent in aggregate the
number of Shares received as such dividend, or free distribution, subject to the
terms of the Deposit Agreement (including, without limitation, the applicable
fees and charges of, and expenses incurred by, the Depositary, and taxes), or
(ii) if additional ADSs are not so distributed, each ADS issued and outstanding
after the ADS Record Date shall, to the extent permissible by law, thenceforth
also represent rights and interest in the additional Shares distributed upon the
Deposited Securities represented thereby (net of the applicable fees and charges
of, and the expenses incurred by, the Depositary, and taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds upon
the terms set forth in the Deposit Agreement.
In the event that (x) the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, (y) if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has either (a)
furnished an opinion of U.S. counsel determining that Shares must be registered
under
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the Securities Act or other laws in order to be distributed to Holders (and no
such registration statement has been filed or, if filed, declared effective), or
(b) fails to timely deliver the documentation contemplated in the Deposit
Agreement, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable, and the Depositary shall distribute the net proceeds of any
such sale (after deduction of taxes and fees and charges of, and expenses
incurred by, the Depositary) to Holders entitled thereto upon the terms of the
Deposit Agreement. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Depositary shall, upon provision of all
documentation required under the Deposit Agreement (including, without
limitation, any legal opinions the Depositary may request of the Company and its
counsel), determine whether such distribution is lawful and reasonably
practicable. If so, the Depositary shall, subject to the terms and conditions of
the Deposit Agreement, establish an ADS Record Date according to Article (14)
hereof and establish procedures to enable the Holder hereof to elect to receive
the proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the dividend shall be distributed as in the
case of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be distributed as in the
case of a distribution in Shares upon the terms described in the Deposit
Agreement. If such elective distribution is not lawful or reasonably practicable
or if the Depositary did not receive satisfactory documentation required by the
Deposit Agreement, the Depositary shall, to the extent permitted by law,
distribute to Holders, on the basis of the same determination as is made in the
Republic of South Africa in respect of the Shares for which no election is made,
either (x) cash or (y) additional ADSs representing such additional Shares, in
each case, upon the terms described in the Deposit Agreement. Nothing herein
shall obligate the Depositary to make available to the Holder hereof a method to
receive the elective distribution in Shares (rather than ADSs). There can be no
assurance that the Holder hereof will be given the opportunity to receive
elective distributions on the same terms and conditions as the holders of
Shares. Neither the Company nor the Depositary shall have any liability for any
failure to determine that it may be lawful or feasible to make rights available
to Holders in general or to any Holder in particular. Neither the Company nor
the Depositary shall have any liability to Holders by reason of any exercise of,
or failure to exercise any discretion provided for in this or any other Section
of the Deposit Agreement or the Receipts. Nothing in the Deposit Agreement or
this Section or any other Article of the Receipts shall obligate the Company, in
respect of any rights or Shares (including securities convertible into or
exchangeable for Shares, a dividend in Shares) or other securities that may be
acquired upon the exercise of such rights, to (i) file any registration
statement, (ii) if it files a registration statement, to have the registration
statement declared effective, or (iii) to secure exemption from the registration
requirements of the Securities Act for the distribution of such rights, Shares,
or other securities.
Upon receipt by the Depositary of a notice indicating that the Company
wishes rights to subscribe for additional Shares to be made available to Holders
of ADSs, the Company shall determine whether it is lawful and reasonably
practicable to make such rights available to the
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Holders. The Depositary shall make such rights available to any Holders only if
the Company shall have timely requested that such rights be made available to
Holders, the Depositary shall have received the documentation required by the
Deposit Agreement, and the Depositary shall have determined that such
distribution of rights is lawful and reasonably practicable. If such conditions
are not satisfied, the Depositary shall sell the rights as described below. In
the event all conditions set forth above are satisfied, the Depositary shall
establish an ADS Record Date and establish procedures (x) to distribute such
rights (by means of warrants or otherwise) and (y) to enable the Holders to
exercise the rights (upon payment of the applicable fees and charges of, and
expenses incurred by, the Depositary and taxes). Nothing herein or in the
Deposit Agreement shall obligate the Depositary to make available to the Holders
a method to exercise such rights to subscribe for Shares (rather than ADSs). If
(i) the Company does not timely request the Depositary to make the rights
available to Holders or if the Company requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive the documentation
required by the Deposit Agreement or determines it is not lawful or reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall determine whether it is lawful and reasonably practicable to sell such
rights, in a riskless principal capacity or otherwise, at such place and upon
such terms (including public and private sale) as it may deem proper. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of applicable fees and charges of, and expenses incurred by, the Depositary
and taxes) upon the terms hereof and in the Deposit Agreement. If the Depositary
is unable to make any rights available to Holders or to arrange for the sale of
the rights upon the terms described above, the Depositary shall allow such
rights to lapse. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding anything herein to the contrary, if registration (under the
Securities Act or any other applicable law) of the rights or the securities to
which any rights relate may be required in order for the Company to offer such
rights or such securities to Holders and to sell the securities represented by
such rights, the Depositary will not distribute such rights to the Holders (i)
unless and until a registration statement under the Securities Act covering such
offering is in effect or (ii) unless the Company furnishes to the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case satisfactorily to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders shall be reduced
accordingly. In the event that the Depositary determines that any distribution
in property (including Shares and rights to subscribe therefor) is subject to
any tax or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable to pay any such taxes or charges.
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There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein shall obligate the Company to file any registration statement in respect
of any rights or Shares or other securities to be acquired upon the exercise of
such rights.
Upon receipt of a notice regarding property other than cash, Shares or
rights to purchase additional Shares, to be made to Holders of ADSs, the
Depositary shall determine, upon consultation with the Company, whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have timely
requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received the documentation required by the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution
is lawful and reasonably practicable. Upon satisfaction of such conditions, the
Depositary shall distribute the property so received to the Holders of record as
of the ADS Record Date, in proportion to the number of ADSs held by such Holders
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem proper and shall distribute the
proceeds of such sale received by the Depositary (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) to the
Holders upon the terms hereof and of the Deposit Agreement. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances.
(14) Fixing of Record Date. Whenever necessary in connection with any
distribution (whether in cash, shares, rights or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of holders of Shares or other Deposited Securities, or
whenever the Depositary shall find it necessary or convenient in connection with
the giving of any notice, or any other matter, the Depositary shall fix a record
date ("ADS Record Date") for the determination of the Holders who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, or to give or withhold such consent, or to
receive such notice or solicitation or to otherwise take action, or to exercise
the rights of Holders with respect to such changed number of Shares represented
by each ADS. Subject to applicable law and the terms and conditions of this
Receipt and the Deposit Agreement, only the Holders of record at the close of
business in New York on such ADS Record Date shall be entitled to receive such
distributions, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
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(15) Voting of Deposited Securities. Upon receipt of notice of any meeting
at which the holders of Shares are entitled to vote, or of solicitation of
consents or proxies from holders of Shares or other Deposited Securities, the
Depositary shall fix the ADS Record Date in respect of such meeting or
solicitation of consent or proxy, and, if requested by the Company in writing at
least 21 days prior to the date of such vote or meeting and, at the Company's
expense, and provided no U.S. legal prohibitions exist, the Depositary shall, or
shall procure that its agent shall, mail by regular, ordinary mail delivery,
electronic mail delivery or otherwise (as agreed between the Company and the
Depositary) or otherwise distribute to Holders as of the ADS Record Date: (a)
such notice of meeting or solicitation of consent or proxy; (b) a statement that
the Holders at the close of business on the ADS Record Date will he entitled,
subject to any applicable law, the Company's Articles of Association and the
provisions of or governing the Deposited Securities (which provisions, if any,
shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Shares or other Deposited Securities represented by such Holder's American
Depositary Shares; and (c) a brief statement as to the manner in which such
instructions may be given, including an express indication that such
instructions may be given or deemed given in accordance with the last paragraph
of this Article (15) if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated by the Company. Upon the timely
receipt of written instructions of a Holder of ADSs on the ADS Record Date, the
Depositary shall endeavor, insofar as practicable and permitted under applicable
law and the provisions of the Company's Articles of Association and the
provisions of the Deposited Securities, to vote or cause the Custodian to vote
the Shares and/or other Deposited Securities represented by ADSs held by such
Holder in accordance with such instructions.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise the Shares or other
Deposited Securities represented by ADSs except pursuant to and in accordance
with such written instructions from Holders.
Notwithstanding the prior paragraph, if voting instructions are sought and
no such instructions are received by the Depositary from any Holder with respect
to any of the Deposited Securities represented by the American Depositary Shares
evidenced by such Holders of Receipts on or before the date established by the
Depositary for such purpose, the Depositary shall deem such Holder to have
instructed the Depositary to give a discretionary proxy to a person designated
by the Company to vote such Deposited Securities, provided, however, that no
such instructions shall be given with respect to any matter as to which the
Company informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing) that (x) the Company does not
wish such proxy given, (y) substantial opposition exists or (z) such matter
materially and adversely affects the rights of holders of Shares.
Notwithstanding anything to the contrary contained herein, the Depositary shall
not be obligated to give any such deemed instruction unless and until the
Depositary has been provided with an opinion of counsel to the Company, in form
and substance satisfactory to the Depositary, to the effect that (i) such deemed
instruction does not subject the Depositary to any reporting obligations in the
Republic of South Africa, (ii) such deemed instruction will not result in a
violation of South African law, rule, regulation or permit, (iii) the voting
arrangement and proxy
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as contemplated herein will be given effect under South African law, and (iv)
the Depositary will not be deemed to be authorized to exercise, or in fact
exercising, any discretion when voting in accordance with the terms of this
Article (15) under South African law and, the Depositary will not be subject to
any liability under South African law for losses arising from the exercise of
the voting arrangements set forth in this Article (15). If after the date such
opinion is delivered to the Depositary the Company is advised by counsel that
there has occurred a change in South African law such that the foregoing opinion
could no longer be rendered favorably in whole or in part, the Company shall
promptly notify the Depositary of such change and the Holders shall thereafter
not be deemed to have given any such instruction. The Company agrees to direct
its counsel to inform it of any such changes in South African law.
(16) Changes Affecting Deposited Securities. Upon any change in par value,
split-up, cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it otherwise
is a party, any securities which shall be received by the Depositary or a
Custodian in exchange for, or in conversion of or replacement or otherwise in
respect of, such Deposited Securities shall, to the extent permitted by law, be
treated as new Deposited Securities under the Deposit Agreement, and the
Receipts shall, subject to the provisions of the Deposit Agreement and
applicable law, evidence ADSs representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to this form of Receipt
specifically describing such new Deposited Securities and/or corporate change.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall if the Company requests, subject to receipt of
satisfactory legal documentation contemplated in the Deposit Agreement, sell
such securities at public or private sale, at such place or places and upon such
terms as it may deem proper and, to the extent practicable, allocate the net
proceeds of such sales (net of fees and charges of, and expenses incurred by,
the Depositary and taxes) for the account of the Holders otherwise entitled to
such securities and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to the
Deposit Agreement. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or feasible to make such securities available
to Holders in general or any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
(17) Exoneration. Neither the Depositary, nor the Custodian nor the Company
shall be obligated to do or perform any act which is inconsistent with the
provisions of the Deposit Agreement or shall incur any liability (i) if the
Depositary, the Custodian or the Company or their respective controlling persons
or agents shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of
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any present or future law or regulation of the United States, the Republic of
South Africa, or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or by reason of any provision, present
or future of the Company's Articles of Association or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control, (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement or in the Company's Articles of Association or
provisions of or governing Deposited Securities, (iii) for any action or
inaction of the Depositary, the Custodian or the Company or their respective
controlling persons or agents in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, or (iv) for any inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of the
Deposit Agreement, made available to Holders of ADSs. In no event shall the
Company or the Depositary or any of their agents be liable to Holders or third
parties for any indirect, special, punitive or consequential damages. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request, opinion or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement.
(18) Standard of Care. The Company and the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons (except for the Company's and Depositary's obligations specifically set
forth in Section 5.8 of the Deposit Agreement), provided, that the Company and
the Depositary and their respective agents agree to perform their respective
obligations specifically set forth in the Deposit Agreement without gross
negligence or willful misconduct. The Depositary and its agents shall not be
liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of the Deposit Agreement. The Depositary shall not
incur any liability for any failure to determine that any distribution or action
may be lawful or reasonably practicable, for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated with
acquiring an interest in the Deposited Securities, for the validity or worth of
the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness of
any third party, for allowing any rights to lapse upon the terms of the Deposit
Agreement or for the failure or timeliness of any notice from the Company. In no
event shall the Depositary or any of its agents be liable for any indirect,
special, punitive or consequential damages.
(19) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 90th
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day after delivery thereof to the Company, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement, save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such resignation. The
Company shall use reasonable efforts to appoint such successor depositary, and
give notice to the Depositary of such appointment, not more than 90 days after
delivery by the Depositary of written notice of resignation as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal which notice shall be effective on the later of
(i) the 90th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement save that, any amounts, fees, costs or
expenses owed to the Depositary under the Deposit Agreement or in accordance
with any other agreements otherwise agreed in writing between the Company and
the Depositary from time to time shall be paid to the Depositary prior to such
removal. In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation into or
with which the Depositary may be merged or consolidated shall be the successor
of the Depositary without the execution or filing of any document or any further
act.
(20) Amendment/Supplement. Subject to the terms and conditions of this
Article (20), and applicable law, this Receipt and any provisions of the Deposit
Agreement may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the consent of the Holders or
Beneficial Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than the charges of the Depositary in connection with
foreign exchange control regulations, and taxes and other governmental charges,
delivery and other such expenses), or which shall otherwise materially prejudice
any substantial existing right of Holders or Beneficial Owners, shall not,
however, become effective as to outstanding Receipts until 30 days after notice
of such amendment or supplement shall have been given to the Holders of
outstanding Receipts. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs or Shares to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and
17
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such ADS, to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement as amended or
supplemented thereby. In no event shall any amendment or supplement impair the
right of the Holder to surrender a Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Notwithstanding the foregoing, if any governmental
body should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and the
Receipt at any time in accordance with such changed laws, rules or regulations.
Such amendment or supplement to the Deposit Agreement in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, or rules or regulations.
(21) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 90
days prior to the date fixed in such notice for such termination provided that,
the Depositary shall be reimbursed for any amounts, fees, costs or expenses owed
to it in accordance with the terms of the Deposit Agreement and in accordance
with any other agreements as otherwise agreed in writing between the Company and
the Depositary from time to time, prior to such termination shall take effect.
If 90 days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. On and after
the date of termination of the Deposit Agreement, the Holder will, upon
surrender of such Holder's Receipt at the Principal Office of the Depositary,
upon the payment of the charges of the Depositary for the surrender of Receipts
referred to in Article (2) hereof and in the Deposit Agreement and subject to
the conditions and restrictions therein set forth, and upon payment of any
applicable taxes or governmental charges, be entitled to delivery, to him or
upon his order, of the amount of Deposited Securities represented by such
Receipt. If any Receipts shall remain outstanding after the date of termination
of the Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of Receipts, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in the Deposit Agreement, together with
any dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of one year from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and
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may thereafter hold uninvested the net proceeds of any such sale, together with
any other cash then held by it hereunder, in an unsegregated account, without
liability for interest for the pro rata benefit of the Holders of Receipts whose
Receipts have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
with respect to the Receipts and the Shares, Deposited Securities and ADSs,
except to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case the charges of the Depositary for the
surrender of a Receipt, any expenses for the account of the Holder in accordance
with the terms and conditions of the Deposit Agreement and any applicable taxes
or governmental charges or assessments). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except as set forth in the Deposit Agreement.
(22) Compliance with U.S. Securities Laws; Regulatory Compliance.
Notwithstanding any provisions in this Receipt or the Deposit Agreement to the
contrary, the withdrawal or delivery of Deposited Securities will not be
suspended by the Company or the Depositary except as would be permitted by
Section I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
(23) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this Article (23), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
of the Company and its affiliates and in ADSs. The Depositary may issue ADSs
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares furnished on behalf of the holder thereof. In its
capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided,
however, that the Depositary may (i) issue ADSs prior to the receipt of Shares
pursuant to Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior
to the receipt and cancellation of ADSs pursuant to Section 2.6 of the Deposit
Agreement, including ADSs which were issued under (i) above but for which Shares
may not have been received (each such transaction a "Pre-Release Transaction").
The Depositary may receive ADSs in lieu of Shares under (i) above and receive
Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will
be (a) accompanied by or subject to a written agreement whereby the person or
entity (the "Applicant") to whom ADSs or Shares are to be delivered (1)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or ADSs that are to be delivered by the Applicant under
such Pre-Release Transaction, (2) agrees to indicate the Depositary as owner of
such Shares or ADSs in its records and to hold such Shares or ADSs in trust for
the Depositary until such Shares or ADSs are delivered to the Depositary or the
Custodian, (3) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or ADSs and (4) agrees to any additional
restrictions or requirements that the Depositary deems appropriate; (b) at all
times fully collateralized with cash, U.S. government securities or such other
collateral as the Depositary deems appropriate; (c) terminable by the Depositary
on not more than five (5) business days' notice; and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding
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under (i) above), provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate. The
Depositary may also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions with any one person on a case by case basis
as it deems appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the foregoing. Collateral
provided pursuant to (b) above, but not earnings thereon, shall be held for the
benefit of the Holders (other than the Applicant).
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(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated: Name:
------------------------------
By:
Title:
NOTICE: The signature of the Holder
to this assignment must correspond
with the name as written upon the
face of the within instrument in
every particular, without
alteration or enlargement or any
change whatsoever.
If the endorsement be executed by
an attorney, executor,
administrator, trustee or guardian,
the person executing the
endorsement must give his/her full
title in such capacity and proper
evidence of authority to act in
such capacity, if not on file with
the Depositary, must be forwarded
with this Receipt.
SIGNATURE GUARANTEED
----------------------------
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