DEPOSIT AGREEMENT
by and
among
BURBERRY
GROUP plc
AND
DEUTSCHE
BANK TRUST COMPANY AMERICAS
as
Depositary,
AND
THE
HOLDERS AND BENEFICIAL OWNERS
OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN
DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated as
of [date],
2009
DEPOSIT AGREEMENT, dated as
of ,
2009, by and among (i) Burberry Group plc, a company incorporated under the laws
of England and Wales, and its successors (the "Company"), (ii) Deutsche Bank
Trust Company Americas, an indirect wholly owned subsidiary of Deutsche Bank
A.G., acting in its capacity as depositary, and any successor depositary
hereunder (the "Depositary"), and (iii) all Holders and Beneficial Owners of
American Depositary Shares evidenced by American Depositary Receipts issued
hereunder (all such capitalized terms as hereinafter defined).
WHEREAS, the Company desires
to establish an ADR facility with the Depositary to provide for the deposit of
the Shares and the creation of American Depositary Shares representing the
Shares so deposited;
WHEREAS, the Depositary is
willing to act as the Depositary for such ADR facility upon the terms set forth
in this Deposit Agreement;
WHEREAS, the American
Depositary Receipts evidencing the American Depositary Shares issued pursuant to
the terms of this Deposit Agreement are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement; and
WHEREAS, the Board of
Directors of the Company (or an authorized committee thereof) has duly approved
the establishment of an ADR facility upon the terms set forth in this Deposit
Agreement, the execution and delivery of this Deposit Agreement on behalf of the
Company, and the actions of the Company and the transactions contemplated
herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
All
capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth below, unless otherwise clearly indicated:
SECTION
1.2 "Agent" shall mean
such entity or entities as the Depositary may appoint under Section 7.10,
including the Custodian or any successor or addition thereto.
2
SECTION
1.3 "American Depositary
Share(s)" and "ADS(s)" American Depositary Share(s) shall mean the
securities represented by the rights and interests in the Deposited Securities
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of this Deposit Agreement and evidenced by the American Depositary
Receipts issued hereunder. Each American Depositary Share shall
represent the right to receive two Shares, until there shall occur a
distribution upon Deposited Securities referred to in Section 4.2 or a change in
Deposited Securities referred to in Section 4.9 with respect to which additional
American Depositary Receipts are not executed and delivered, and thereafter each
American Depositary Share shall represent the Shares or Deposited Securities
specified in such Sections.
SECTION
1.4 "ADS Record
Date" shall have the meaning given to such term in Section
4.7.
SECTION
1.5 "Beneficial Owner"
shall mean as to any ADS, any person or entity having a beneficial interest in
any ADSs. A Beneficial Owner need not be the Holder of the ADR
evidencing such ADSs. A Beneficial Owner may exercise any rights or
receive any benefits hereunder solely through the Holder of the ADR(s)
evidencing the ADSs in which such Beneficial Owner has an interest.
SECTION
1.6 "Business Day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not (a) a day
on which banking institutions in the Borough of Manhattan, The City of New York
are authorized or obligated by law or executive order to close and (b) a day on
which the market(s) in which Receipts are traded are closed.
SECTION
1.8 "Company" shall mean
Burberry Group plc, a company incorporated and existing under the laws of
England and Wales, and its successors. References herein to the laws
of England and/or the United Kingdom shall include references to the laws, rules
and regulations of the United Kingdom and any and all communities, provinces and
states thereof.
SECTION 1.9 "Custodian" shall
mean, as of the date hereof, State Street Bank & Trust Company, having its
principal office at 000 Xxxxx Xxxx, Xxxxx Toll, Xxxxxxxxx, XX0
0XX Xxxxxxxx, as the custodian for the purposes of this Deposit
Agreement, and any other firm or corporation which may hereinafter be appointed
by the Depositary pursuant to the terms of Section 5.5 as a successor or an
additional custodian or custodians hereunder, as the context shall
require. The term "Custodian" shall mean all custodians,
collectively.
SECTION
1.10 "Deliver"
and "Delivery" shall mean, when used in respect of American Depositary
Shares, Receipts, Deposited Securities and Shares, the physical delivery of the
certificate representing such security, or the electronic delivery of such
security by means of book-entry transfer, as appropriate, including, without
limitation, through DRS/Profile. With respect to DRS/Profile ADRs,
the terms "execute", "issue", "register", "surrender", "transfer" or "cancel" refer to
applicable entries or movements to or within DRS/Profile.
3
SECTION
1.11 "Deposit
Agreement" shall mean this Deposit Agreement and all exhibits hereto, as
the same may from time to time be amended and supplemented in accordance with
the terms hereof.
SECTION
1.15 "DRS/Profile" means
the system for the uncertificated registration of ownership of securities
pursuant to which ownership of ADSs is maintained on the books of the Depositary
without the issuance of a physical certificate and transfer instructions may be
given to allow for the automated transfer of ownership between the books of DTC
and the Depositary. Ownership of ADSs held in DRS/Profile are
evidenced by periodic statements issued by the Depositary to the Holders
entitled thereto.
SECTION
1.18 "Foreign Currency"
shall mean any currency other than Dollars.
SECTION
1.19 "Foreign Registrar"
shall mean the entity, if any, that carries out the duties of registrar for the
Shares or any successor as registrar for the Shares and any other appointed
agent of the Company for the transfer and registration of Shares.
4
SECTION
1.25 "Registrar" shall mean
the Depositary or any bank or trust company having an office in the Borough of
Manhattan, The City of New York, which shall be appointed
by the
Depositary to register ownership of Receipts and transfer of Receipts as herein
provided, shall include any co-registrar appointed by the Depositary for such
purposes. Registrars (other than the Depositary) may be removed and substitutes
appointed by the Depositary.
SECTION
1.28 "Shares" shall mean
ordinary shares in registered form of the Company, heretofore validly
issued and outstanding and fully paid or hereafter validly issued and
outstanding and fully paid. References to Shares shall include
evidence of rights to receive Shares, whether or not stated in the particular
instance; provided, however, that in no
event shall Shares include evidence of rights to receive Shares with respect to
which the full purchase price has not been paid or Shares as to which
pre-emptive rights have theretofore not been validly waived or exercised; provided further, however, that, if
there shall occur any change in par value, split-up, consolidation,
reclassification, conversion or any other event described in Section 4.9, in
respect of the Shares of the Company, the term "Shares" shall thereafter, to the
extent permitted by law, represent the successor securities resulting from such
change in par value, split-up, consolidation, exchange, conversion,
reclassification or event.
5
DEPOSIT
OF SHARES; EXECUTION
AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Appointment of
Depositary. The Company hereby appoints the Depositary as exclusive
depositary for the Deposited Securities and hereby authorizes and directs the
Depositary to act in accordance with the terms set forth in this Deposit
Agreement. Each Holder and each Beneficial Owner, upon acceptance of
any ADSs (or any interest therein) issued in accordance with the
terms of this Deposit Agreement, shall be deemed for all purposes to (a) be a
party to and bound by the terms of this Deposit Agreement and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in this Deposit Agreement,
to adopt any and all procedures necessary to comply with applicable law and to
take such action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement (the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof).
(a) Definitive
Receipts shall be substantially in the form set forth in Exhibit A annexed
to this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Receipts may be issued in
denominations of any number of American Depositary Shares. No
definitive Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose, unless such Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary. The Depositary shall
maintain books on which each Receipt so executed and delivered, in the case of
definitive Receipts, and each Receipt issued through the DRS/Profile, in either
case as hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts in certificated form bearing the manual or
facsimile signature of a duly authorized signatory of the Depositary who was at
any time a proper signatory of the Depositary shall bind the Depositary,
notwithstanding that such signatory has ceased to hold such office prior to the
execution and delivery of such Receipts by the Registrar or did not hold such
office on the date of issuance of such Receipts.
6
In
addition to the foregoing, the Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications not
inconsistent with the provisions of this Deposit Agreement as may be reasonably
required by the Depositary in order to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which American Depositary Shares may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the underlying Deposited Securities or otherwise.
Notwithstanding
anything in this Deposit Agreement or in the Receipt to
the
contrary, to the extent available by the Depositary, American Depositary Shares
shall be evidenced by Receipts issued through DRS/Profile unless
certificated Receipts are specifically requested by the
Holder. Holders and Beneficial Owners shall be bound by the terms and
conditions of this Deposit Agreement and of the form of Receipt, regardless of
whether their Receipts are certificated or issued through
DRS/Profile.
(b) Subject
to the limitations contained herein and in the form of Receipt, title to a
Receipt (and to the American Depositary Shares evidenced thereby), when properly
endorsed (in the case of certificated Receipts) or upon delivery to the
Depositary of proper instruments of transfer, shall be transferable by delivery
with the same effect as in the case of a negotiable instrument under the laws of
the State of New York; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the Holder thereof as the absolute owner
thereof for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes and neither the Depositary nor the Company
will have any obligation or be subject to any liability under this Deposit
Agreement to any Holder or holder of a Receipt, unless such holder is the Holder
thereof.
7
(b) As soon as practicable after receipt of any
permitted deposit hereunder and compliance with the provisions of this Deposit
Agreement, the Custodian shall present the Shares so deposited, together with
the appropriate instrument or instruments of transfer or endorsement, duly
stamped, to the Foreign Registrar for transfer and registration of the Shares
(as soon as transfer and registration can be accomplished and at the expense of
the person for whom the deposit is made) in the name of the Depositary, the
Custodian or a nominee of either. Deposited Securities shall be held
by the Depositary or by a Custodian for the account and to the order of the
Depositary or a nominee, in each case for the account of the Holders and
Beneficial Owners, at such place or places as the Depositary or the Custodian
shall determine.
(c) In
the event any Shares are deposited which entitle the holders thereof to receive
a per-share distribution or other entitlement in an amount different from the
Shares then on deposit, the Depositary is authorized to take any and all actions
as may be necessary (including, without limitation, making the necessary
notations on Receipts) to give effect to the issuance of such ADSs and to ensure
that such ADSs are not fungible with other ADSs issued hereunder until such time
as the entitlement of the Shares represented by such non-fungible ADSs equals
that of the Shares represented by ADSs prior to the original such deposit. The
Company agrees to give timely written notice to the Depositary if any Shares
issued or to be issued contain rights different from those of any other Shares
theretofore issued and shall assist the Depositary with the establishment of
procedures enabling the identification of such non-fungible Shares upon Delivery
to the Custodian.
8
(a) Transfer. The
Depositary, or, if a Registrar (other than the Depositary) for the Receipts
shall have been appointed, the Registrar, subject to the terms and conditions of
this Deposit Agreement, shall register transfers of Receipts on its books, upon
surrender at the Principal Office of the Depositary of a Receipt by the Holder
thereof in person or by duly authorized attorney, properly endorsed in the case
of a certificated Receipt or accompanied by, or in the case of DRS/Profile
Receipts receipt by the Depositary of, proper instruments of transfer (including
signature guarantees in accordance with standard industry practice) and duly
stamped as may be required by the laws of the State of New York and of the
United States and any other applicable law. Subject to the terms and
conditions of this Deposit Agreement, including payment of the applicable fees
and charges of the Depositary set forth in Section 5.9 hereof and Article (9) of
the Receipt, the Depositary shall execute a new Receipt or Receipts and deliver
the same to or upon the order of the person entitled thereto evidencing the same
aggregate number of American Depositary Shares as those evidenced by the
Receipts surrendered.
9
(d) At
the request of a Holder, the Depositary shall, for the purpose of substituting a
certificated Receipt with a Receipt issued through DRS/Profile, or vice versa,
execute and deliver a certificated Receipt or DRS/Profile statement, as the case
may be, for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the certificated Receipt or DRS/Profile statement, as the case may
be, substituted.
A Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer in
blank, and if the Depositary so requires, the Holder thereof shall execute and
deliver to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be Delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) at the
designated office of the Custodian or through a book entry delivery of the
Shares (in either case, subject to Sections 2.7, 3.1, 3.2, 5.9, and to the other
terms and conditions of this Deposit Agreement, to the Companyβs Articles of
Association, to the provisions of or governing the Deposited Securities and to
applicable laws, now or hereafter in effect) to or upon the written order of the
person or persons designated in the order delivered to the Depositary as
provided above, the Deposited Securities represented by such American Depositary
Shares, together with any certificate or other proper documents of or relating
to title of the Deposited Securities as may be legally required, as the case may
be, to or for the account of such person.
10
The
Depositary may, in its discretion, refuse to accept for surrender a number of
American Depositary Shares representing a number other than a whole number of
Shares. In the case of surrender of a Receipt evidencing a number of
American Depositary Shares representing other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares to be
Delivered in accordance with the terms hereof, and shall, at the discretion of
the Depositary, either (i) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing American Depositary Shares representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the Receipt surrendered and remit the proceeds of such
sale (net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and governmental charges) 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
facsimile transmission. Upon receipt by the Depositary, the Depositary may make
delivery to such person or persons entitled thereto at the Principal Office of
the Depositary of any dividends or cash distributions with respect to the
Deposited Securities represented by such American Depositary Shares, or of any
proceeds of sale of any dividends, distributions or rights, which may at the
time be held by the Depositary.
11
SECTION
2.8 Lost
Receipts, etc. In case any
Receipt shall be mutilated, destroyed, lost or stolen, unless the Depositary has
notice that such ADR has been acquired by a bona fide purchaser, subject to
Section 5.9 hereof, the Depositary shall execute and deliver a new Receipt
(which, in the discretion of the Depositary may be issued through DRS/Profile
unless specifically requested otherwise) in exchange and substitution for such
mutilated Receipt upon cancellation thereof, or in lieu of and in substitution
for such destroyed, lost or stolen Receipt. Before the Depositary
shall execute and deliver a new Receipt in substitution for a destroyed, lost or
stolen Receipt, the Holder thereof shall have (a) filed with the Depositary
(i) a request for such execution and delivery before the Depositary has
notice that the Receipt has been acquired by a bona fide purchaser and
(ii) a sufficient indemnity bond in form and amount acceptable to the
Depositary and (b) satisfied any other reasonable requirements imposed by
the Depositary.
12
The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not the earnings thereon, shall be held for the benefit of the Holders (other
than the Applicant).
SECTION 3.1 Proofs, Certificates and
Other Information. Any person presenting Shares for deposit,
any Holder and any Beneficial Owner may be required, and every Holder and
Beneficial Owner agrees, from time to time to provide to the Depositary or the
Custodian such proof of citizenship or residence, taxpayer status, payment of
all applicable taxes or other governmental charges, exchange control approval,
legal or beneficial ownership of ADSs and Deposited Securities, compliance with
applicable laws and the terms of this Deposit Agreement and the provisions of,
or governing, the Deposited Securities or other information; to execute such
certifications and to make such representations and warranties, and to provide
such other information and documentation, in all cases as the Depositary may
deem necessary or proper or as the Company may reasonably require by written
request to the Depositary consistent with its obligations hereunder. The
Depositary and the Registrar, as applicable, may withhold the execution or
delivery or registration of transfer of any Receipt or the distribution or sale
of any dividend or distribution of rights or of the proceeds thereof, or to the
extent not limited by the terms of Section 7.8 hereof, the delivery of any
Deposited Securities, until such proof or other information is filed or such
certifications are executed, or such representations and warranties are made, or
such other documentation or information provided, in each case to the
Depositary's and the Company's satisfaction. The Depositary shall from time to
time on the written request advise the Company of the availability of any such
proofs, certificates or other information and shall, at the Company's sole
expense, provide or otherwise make available copies thereof to the Company upon
written request thereof by the Company, unless such disclosure is prohibited by
law. Each Holder and Beneficial Owner agrees to provide any
information requested by the Company or the Depositary pursuant to this
paragraph. Nothing herein shall obligate the Depositary to (i) obtain
any information for the Company if not provided by the Holders or Beneficial
Owners or (ii) verify or vouch for the accuracy of the information so provided
by the Holders or Beneficial Owners.
13
14
Notwithstanding
any provision of this Deposit Agreement or of the ADRs and without limiting the
foregoing, by being a Holder, each such Holder agrees to provide such
information as the Company may request in a disclosure notice (a "Disclosure
Notice") given pursuant to the Companies Xxx 0000 (as amended from time to time
and including any statutory modification or re-enactment thereof, the "Companies
Act") or the Articles of Association of the Company. By accepting or
holding an ADR, each Holder 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 person is
or was, or appears to be or has been, interested as provided in the Companies
Act and the Articles of Association which currently include, the withdrawal of
the voting rights of such Shares and the imposition of restrictions on the
rights to receive dividends on and to transfer such Shares. In addition, by
accepting or holding an ADR each Holder 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 (or may be amended), inter alia, that any Holder
who is or becomes directly or indirectly interested (within the meaning of the
Companies Act) in 3% or more of the outstanding Shares, or is aware that another
person for whom it holds such ADRs is so interested, must within two business
days after becoming so interested or so aware (and thereafter in certain
circumstances upon any change to the particulars previously notified) notify the
Company as required by the Companies Act. After the relevant
threshold is exceeded, similar notifications must be made in whole respect of
whole percentage figure increases or decreases, rounded down to the nearest
whole number.
ARTICLE
IV
SECTION 4.1 Cash
Distributions. Whenever the Depositary receives confirmation
from the Custodian of receipt of any cash dividend or other cash distribution on
any Deposited Securities, or receives proceeds from the sale of any Shares,
rights, securities or other entitlements under the terms hereof, the Depositary
will, if at the time of receipt thereof any amounts received in a Foreign
Currency can in the judgment of the Depositary (pursuant to Section 4.6 hereof)
be converted on a practicable basis into Dollars transferable to the United
States, promptly convert or cause to be converted such cash dividend,
distribution or proceeds into Dollars (on the terms described in Section 4.6)
and will distribute promptly the amount thus received (net of (a) the applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes and
governmental charges) to the Holders of record as of the ADS Record Date in
proportion to the number of American Depositary Shares held by such Holders
respectively as of the ADS Record Date. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Holder a fraction of one cent. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto. Holders and Beneficial Owners understand that in
converting Foreign Currency, amounts received on conversion are calculated at a
rate which exceeds three or four decimal places (the number of decimal places
used by the Depositary to report distribution rates). The excess
amount may be retained by the Depositary as an additional cost of conversion,
irrespective of any other fees and expenses payable or owing hereunder and shall
not be subject to escheatment. If the Company, the
Custodian or the Depositary is required to withhold and does withhold from any
cash dividend or other cash distribution in respect of any Deposited Securities
an amount on account of taxes, duties or other governmental charges, the amount
distributed to Holders on the American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company
shall be forwarded by the Company to the Depositary upon request. The
Depositary will forward to the Company or its agent such information from its
records as the Company may reasonably request to enable the Company or its agent
to file necessary reports with governmental agencies, such reports necessary to
obtain benefits under the applicable tax treaties for the Holders and Beneficial
Owners of Receipts.
15
SECTION
4.2 Distribution
in Shares. If any distribution upon any Deposited Securities
consists of a dividend in, or free distribution of, Shares, the Company shall
cause such Shares to be deposited with the Custodian and registered, as the case
may be, in the name of the Depositary, the Custodian or any of their
nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.7 and shall, subject to Section 5.9 hereof, either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and/or governmental charges), or (ii) if additional American Depositary
Shares are not so distributed, each American Depositary Share issued and
outstanding after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and governmental charges). In lieu of delivering fractional
American Depositary Shares, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds upon
the terms described in Section 4.1. The Depositary may withhold any such
distribution of Receipts if it has not received satisfactory assurances from the
Company (including an opinion of counsel to the Company furnished at the expense
of the Company) that such distribution does not require registration under the
Securities Act or is exempt from registration under the provisions of the
Securities Act. To the extent such
distribution may be withheld, the Depositary may dispose of all or a portion of
such distribution in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of applicable (a) taxes and/or governmental charges and (b) fees and charges of,
and expenses incurred by, the Depositary) to Holders entitled thereto upon the
terms described in Section 4.1.
16
17
The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or practicable to make such rights available to Holders in general or
any Holders in particular, (ii) any foreign exchange exposure or loss incurred
in connection with such sale, or exercise, or (iii) the content of any materials
forwarded to the Holders on behalf of the Company in connection with the rights
distribution.
18
Notwithstanding
anything to the contrary in this Section 4.4, if registration (under the
Securities Act and/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 (and/or
such other applicable law) covering such offering is in effect or (ii) unless
the Company furnishes to the Depositary at the Companyβs own expense opinion(s)
of counsel to 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
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable
laws. In the event that the Company, the Depositary or the Custodian
shall be required to withhold and does withhold from any distribution of
property (including rights) an amount on account of taxes or other governmental
charges, the amount distributed to the Holders shall be reduced
accordingly. In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes and charges.
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as the
holders of Shares or be able to exercise such rights. Nothing herein
shall obligate the Company to file any registration statement in respect of any
rights or Shares or other securities to be acquired upon the exercise of such
rights.
(a) Whenever
the Company intends to distribute to the holders of Deposited Securities
property other than cash, Shares or rights to purchase additional Shares, the
Company shall give notice thereof to the Depositary at least 30 days prior to
the proposed distribution and shall indicate whether or not it wishes such
distribution to be made to Holders. Upon receipt of a notice
indicating that the Company wishes such distribution be made to Holders, the
Depositary shall determine whether such distribution to Holders is lawful and
practicable. The Depositary shall not make such distribution unless
(i) the Company shall have timely requested the Depositary to make such
distribution to Holders, (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7, and (iii) the Depositary shall
have determined that such distribution is reasonably practicable.
(b) Upon
receipt of satisfactory documentation and the request of the Company to
distribute property to Holders and after making the requisite determinations set
forth in (a) above, the Depositary may distribute the property so received to
the Holders of record as of the ADS Record Date, in proportion to the number of
ADSs held by such Holders respectively and in such manner as the Depositary may
deem practicable for accomplishing such distribution (i) upon receipt of payment
or net of the applicable fees and charges of, and expenses incurred by, the
Depositary, and (ii) net of any taxes and other governmental charges
withheld. The Depositary may dispose of all or a portion of the
property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
19
(c) If
(i) the Company does not request the Depositary to make such distribution to
Holders or requests not to make such distribution to Holders, (ii) the
Depositary does not receive satisfactory documentation within the terms of
Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable or feasible, the Depositary shall
endeavor to sell or cause such property to be sold in a public or private sale,
at such place or places and upon such terms as it may deem proper and shall
distribute the net proceeds, if any, of such sale received by the Depositary
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and governmental charges) to the Holders as of the ADS
Record Date upon the terms of Section 4.1. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances for nominal or no
consideration and Holders and Beneficial Owners shall have no rights thereto or
arising therefrom.
SECTION 4.6 Conversion of Foreign
Currency. Whenever the Depositary or the Custodian shall
receive Foreign Currency, by way of dividends or other distributions or the net
proceeds from the sale of securities, property or rights, and in the judgment of
the Depositary such Foreign Currency can at such time be converted on a
practicable basis (by sale or in any other manner that it may determine in
accordance with applicable law) into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall convert
or cause to be converted, by sale or in any other manner that it may determine,
such Foreign Currency into Dollars, and shall distribute such Dollars (net of
any fees, expenses, taxes and other governmental charges incurred in the process
of such conversion) in accordance with the terms of the applicable sections of
this Deposit Agreement. If the Depositary shall have distributed
warrants or other instruments that entitle the holders thereof to such Dollars,
the Depositary shall distribute such Dollars to the holders of such warrants
and/or instruments upon surrender thereof for cancellation, in either case
without liability for interest thereon. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Holders on account of exchange restrictions, the date of delivery of any Receipt
or otherwise.
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used by
the Depositary to report distribution rates (which in any case will not be less
than two decimal places). Any excess amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any other fees
and expenses payable or owing hereunder and shall not be subject to
escheatment.
If such
conversion or distribution can be effected only with the approval or license of
any government or agency thereof, the Depositary may file such application for
approval or license, if any, as it may deem necessary, practicable and at
nominal cost and expense. Nothing herein shall obligate the
Depositary to file or cause to be filed, or to seek effectiveness of any such
application or license.
20
If at any
time the Depositary shall determine that in its judgment the conversion of any
Foreign Currency and the transfer and distribution of proceeds of such
conversion received by the Depositary is not practical or lawful, or if any
approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied, or not
obtainable at a reasonable cost, within a reasonable period or otherwise sought,
the Depositary shall, in its sole discretion but subject to applicable laws and
regulations, either (i) distribute the Foreign Currency (or an appropriate
document evidencing the right to receive such Foreign Currency) received by the
Depositary to the Holders entitled to receive such Foreign Currency, or (ii)
hold such Foreign Currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the
same.
SECTION
4.7 Fixing of
Record Date. Whenever necessary in connection with any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of or solicitation of holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient, the Depositary shall fix a record date (the "ADS Record
Date"), as close as practicable to the record date fixed by the Company with
respect to the Shares (if applicable), for the determination of the Holders who
shall be entitled to receive such distribution, to give instructions for the
exercise of voting rights at any such meeting, or to give or withhold such
consent, or to receive such notice or solicitation or to otherwise take action,
or to exercise the rights of Holders with respect to such changed number of
Shares represented by each American Depositary Share, or for any other
reason. Subject to applicable law and the provisions of Section 4.1
through 4.6 and to the other terms and conditions of this Deposit Agreement,
only the Holders of record at the close of business in New York on such ADS
Record Date shall be entitled to receive such distribution, to give such voting
instructions, to receive such notice or solicitation, or otherwise take
action.
21
Neither
the Depositary nor the Custodian shall, under any circumstances exercise any
discretion as to voting, and neither the Depositary nor the Custodian shall
vote, attempt to exercise the right to vote, or in any way make use of for
purposes of establishing a quorum or otherwise, the Shares or other Deposited
Securities represented by American Depositary Shares except pursuant to and in
accordance with such written instructions from Holders. Shares or
other Deposited Securities represented by ADSs for which no specific voting
instructions are received by the Depositary from the Holder shall not be
voted.
Notwithstanding
the above, save for applicable provisions of United Kingdom law, and in
accordance with the terms of Section 5.3, the Depositary shall not be liable for
any failure to carry out any instructions to vote any of the Deposited
Securities or the manner in which
such vote is cast or the effect of any such vote.
There can
be no assurance that Holders or Beneficial Owners generally or any Holder or
Beneficial Owner in particular will receive the notice described above with
sufficient time to enable the Holder to return voting instructions to the
Depositary in a timely manner.
22
The
Company represents that as of the date of this Deposit Agreement, the statements
in this Section 4.10 and in Article (12) of the Receipts with respect to the
exemption from registration under Rule 12g3-2(b) under the Exchange
Act are true and correct. The Company agrees to promptly notify
the Depositary and all Holders in the event of any change in the truth of any
such statements.
SECTION 4.11 Reports. The
Depositary shall make available during normal business hour on any Business Day
for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the
Company. The Company agrees to provide to the Depositary, at the
Companyβs expense, all documents that it provides to the
Custodian. The Depositary shall, at the expense of the Company and in
accordance with Section 5.6, also mail by regular, ordinary mail delivery or by
electronic transmission (if agreed by the Company and the Depositary) and unless
otherwise agreed in writing by the Company and the Depositary, to Holders copies
of such reports when furnished by the Company pursuant to Section
5.6.
23
SECTION 4.12 List of
Holders. Promptly upon written request by the Company, the
Depositary shall, at the expense of the Company, furnish to it a list, as of a
recent date, of the names, addresses and holdings of American Depositary Shares
by all persons in whose names Receipts are registered on the books of the
Depositary.
The
Company shall remit to the appropriate governmental authority or agency any
amounts required to be withheld by the Company and owing to such governmental
authority or agency. Upon any such withholding, the Company shall
remit to the Depositary information about such taxes and/or governmental charges
withheld or paid, and, if so requested, the tax receipt (or other proof of
payment to the applicable governmental authority) therefor, in each case, in a
form satisfactory to the Depositary. The Depositary shall, to the
extent required by U.S. law, report to Holders: (i) any taxes withheld by it;
(ii) any taxes withheld by the Custodian, subject to information being provided
to the Depositary by the Custodian; and (iii) any taxes withheld by the Company,
subject to information being provided to the Depositary by the Company. The
Depositary and the Custodian shall not be required to provide the Holders with
any evidence of the remittance by the Company (or its agents) of any taxes
withheld, or of the payment of taxes by the Company, except to the extent the
evidence is provided by the Company to the Depositary. Neither the
Depositary nor the Custodian shall be liable for the failure by any Holder or
Beneficial Owner to obtain the benefits of credits on the basis of non-U.S. tax
paid against such Holder's or Beneficial Owner's income tax
liability.
In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charge which the Depositary is obligated to withhold, the
Depositary shall withhold the amount required to be withheld and may by public
or private sale dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes and charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes and charges to the Holders entitled thereto in proportion to the
number of American Depositary Shares held by them respectively.
24
The
Depositary is under no obligation to provide the Holders and Beneficial Owners
with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
American Depositary Shares.
SECTION 5.1 Maintenance of Office and
Transfer Books by the Registrar. Until termination of this
Deposit Agreement in accordance with its terms, the Depositary or if a Registrar
for the Receipts shall have been appointed, the Registrar shall maintain in the
Borough of Manhattan, the City of New York, an office and facilities for the
execution and delivery, registration, registration of transfers, combination and
split-up of Receipts, the surrender of Receipts and the delivery and withdrawal
of Deposited Securities in accordance with the provisions of this Deposit
Agreement.
The
Depositary or the Registrar as applicable, shall keep books for the registration
of Receipts and transfers of Receipts which at all reasonable times shall be
open for inspection by the Company and by the Holders of such Receipts, provided
that such inspection shall not be, to the Depositaryβs or the Registrar's
knowledge, for the purpose of communicating with Holders of such Receipts in the
interest of a business or object other than the business of the Company or other
than a matter related to this Deposit Agreement or the Receipts.
The
Depositary or the Registrar, as applicable, may close the transfer books with
respect to the Receipts, at any time or from time to time, when deemed necessary
or advisable by it in connection with the performance of its duties
hereunder.
If any
Receipts or the American Depositary Shares evidenced thereby are listed on one
or more stock exchanges or automated quotation systems in the United States, the
Depositary shall act as Registrar or appoint a Registrar or one or more
co-registrars for registration of Receipts and transfers, combinations and
split-ups, and to countersign such Receipts in accordance with any requirements
of such exchanges or systems. Such Registrar or co-registrars may be removed and
a substitute or substitutes appointed by the Depositary.
If any
Receipts or the American Depositary Shares evidenced thereby are listed on one
or more securities exchanges, markets or automated quotation systems, (i) the
Depositary shall be entitled to, and shall, take or refrain from taking such
action(s) as it may deem necessary or appropriate to comply with the
requirements of such securities exchange(s), market(s) or automated quotation
system(s) applicable to it, notwithstanding any other provision of this Deposit
Agreement; and (ii) upon the reasonable request of the Depositary, the Company
shall provide the Depositary such information and assistance as may be
reasonably necessary for the Depositary to comply with such requirements, to the
extent that the Company may lawfully do so.
25
The
Depositary, its controlling persons, its agents, the Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request, opinion or other document believed by it to be
genuine and to have been signed or presented by the proper party or
parties.
No
disclaimer of liability under the Securities Act is intended by any provision of
this Deposit Agreement.
26
Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, or agents, shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expenses (including fees and disbursements of counsel) and
liabilities be furnished as often as may be required (and no Custodian shall be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary).
In no
event shall the Depositary or any of its directors, officers, employees, agents
(including, without limitation, its Agents) and/or Affiliates, or any of them,
be liable for any indirect, special, punitive or consequential damages to the
Company, Holders, Beneficial Owners or any other person.
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 (provided that any such action or omission is in good faith and
in accordance with the terms of this Deposit Agreement) or the effects of any
vote. The Depositary shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company, or for any action or non action by
it in reliance upon the opinion, advice of or information from legal counsel,
accountants, any person representing Shares for deposit, any Holder or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary and its agents shall not be liable for
any acts or omissions made by a successor depositary whether in connection with
a previous act or omission of the Depositary or in connection with any matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises the
Depositary performed its obligations without gross negligence or willful
misconduct while it acted as Depositary.
27
The
Depositary may at any time be removed by the Company by written notice of such
removal, which removal shall be effective on the later of (i) the 90th day after
delivery thereof to the Depositary (whereupon the Depositary shall be entitled
to take the actions contemplated in Section 6.2 hereof), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided, save that, any amounts, fees, costs or
expenses owed to the Depositary hereunder or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such
removal.
In case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
the City of New York. The Company shall give notice to the Depositary of the
appointment of a successor depositary not more than 90 days after delivery by
the Depositary of written notice of resignation or by the Company of removal,
each as provided in this section. In the event that a successor
depositary is not appointed or notice of the appointment of a successor
depositary is not provided by the Company in accordance with the preceding
sentence, the Depositary shall be entitled to take the actions contemplated in
Section 6.2 hereof. Every successor depositary shall be required by the Company
to execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed (except as required by applicable
law), shall become fully vested with all the rights, powers, duties and
obligations of its predecessor. The predecessor depositary, upon
payment of all sums due to it and on the written request of the Company, shall
(i) execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder (other than as contemplated in Sections
5.8 and 5.9), (ii) duly assign, transfer and deliver all right, title and
interest to the Deposited Securities to such successor, and (iii) deliver to
such successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail
notice of its appointment to such Holders.
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
28
Upon the
appointment of any successor depositary, any Custodian then acting hereunder
shall, unless otherwise instructed by the Depositary, continue to be the
Custodian of the Deposited Securities without any further act or writing and
shall be subject to the direction of the successor depositary. The successor
depositary so appointed shall, nevertheless, on the written request of any
Custodian, execute and deliver to such Custodian all such instruments as may be
proper to give to such Custodian full and complete power and authority to act on
the direction of such successor depositary.
The
Company will also transmit to the Depositary (a) English language versions of
the other notices, reports and communications which are made generally available
by the Company to holders of its Shares or other Deposited Securities and (b)
English language versions of the Company's annual and other reports prepared in
accordance with the applicable requirements of the Commission under Rule
12g3-2(b), unless such materials are available on the Companyβs Internet Web
site. The Depositary shall arrange, at the request of the Company and
at the Company's expense, for the mailing of copies thereof to all Holders, or
by any other means as agreed between the Company and the Depositary (at the
Companyβs expense) or make such notices, reports and other communications
available for inspection by all Holders, provided, that, the Depositary shall
have received evidence sufficiently satisfactory to it, including in the form of
an opinion of local and/or U.S. counsel or counsel of other applicable
jurisdiction, furnished at the expense of the Company, as the Depositary in its
discretion so requests, that the distribution of such notices, reports and any
such other communications to Holders from time to time is valid and does not or
will not infringe any local, U.S. or other applicable jurisdiction regulatory
restrictions or requirements if so distributed and made available to
Holders. The Company will timely provide the Depositary with the
quantity of such notices, reports, and communications, as requested by the
Depositary from time to time, in order for the Depositary to effect such
mailings. The Company has delivered to the Depositary and the Custodian a copy
of the Companyβs Articles of Association along with the provisions of or
governing the Shares and any other Deposited Securities issued by the Company or
any Affiliate of the Company, in connection with the Shares, in each case if the
original is not in English along with a certified English translation thereof,
and promptly upon any amendment thereto or change therein, the Company shall
deliver to the Depositary and the Custodian a copy of such amendment thereto or
change therein (along with a certified English translation thereof). The
Depositary may rely upon such copy for all purposes of this Deposit
Agreement.
29
The
Depositary will, at the expense of the Company, make available a copy of any
such notices, reports or communications issued by the Company and delivered to
the Depositary for inspection by the Holders of the Receipts evidencing the
American Depositary Shares representing such Shares governed by such provisions
at the Depositary's Principal Office, at the office of the Custodian and at any
other designated transfer office.
30
The
Company agrees with the Depositary that neither the Company nor any of its
control Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act or have been registered under the Securities Act (and such registration
statement has been declared effective).
Notwithstanding
anything else contained in this Deposit Agreement, nothing in this Deposit
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
Any
person seeking indemnification hereunder (an "Indemnified Person") shall notify
the person from whom it is seeking indemnification (the "Indemnifying Person")
of the commencement of any indemnifiable action or claim promptly after such
Indemnified Person becomes aware of such commencement (provided that the failure
to make such notification shall not affect such Indemnified Person's rights to
indemnification except to the extent the Indemnifying Person is materially
prejudiced by such failure) and shall consult in good faith with the
Indemnifying Person as to the conduct of the defense of such action or claim
that may give rise to an indemnity hereunder, which defense shall be reasonable
under the circumstances. No Indemnified Person shall compromise or settle any
action or claim that may give rise to an indemnity hereunder without the consent
of the Indemnifying Person, which consent shall not be unreasonably
withheld.
31
The
obligations set forth in this Section shall survive the termination of this
Deposit Agreement and the succession or substitution of any party
hereto.
The
Depositary and the Company may reach separate agreement in relation to the
payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
by both parties in the performance of its obligations hereunder and in respect
of the actual costs and expenses of the Depositary in respect of any notices
required to be given to the Holders in accordance with Section 6.1
hereof.
In
connection with any payment by the Company to the Depositary:
|
(i)
|
all
fees, taxes, duties, charges, costs and expenses which are payable by the
Company shall be paid or be procured to be paid by the Company (and any
such amounts which are paid by the Depositary shall be reimbursed to the
Depositary by the Company upon demand therefor);
and
|
|
(ii)
|
such
payment shall be subject to all necessary United Kingdom exchange control
and other consents and approvals having been obtained. The Company
undertakes to use its reasonable endeavours to obtain all necessary
approvals that are required to be obtained by it in this
connection.
|
|
(iii)
|
the
Depositary may request, in its sole but reasonable discretion after
reasonable consultation with the Company, an opinion of counsel regarding
U.S. federal or state law, the laws of the United Kingdom, or the laws of
any other relevant jurisdiction, to be furnished at the expense of the
Company, if at any time it deems it necessary to seek such an opinion of
counsel regarding the validity of any action to be taken or instructed to
be taken under this Agreement.
|
The
Company agrees to promptly pay to the Depositary such other expenses, fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to from time to
time. Responsibility for payment of such charges may at any time and
from time to time be changed by agreement between the Company and the
Depositary. In the discretion of the Depositary, the Depositary
shall present its statement for such expenses and fees or charges to the Company
upon receipt or payment of any relevant invoice by the Depositary, once every
three months, semiannually or annually.
32
All
payments by the Company to the Depositary under this Section 5.9 shall be paid
without set-off or counterclaim, and free and clear of and without deduction or
withholding for or on account of, any present or future taxes, levies, imports,
duties, fees, assessments or other charges of whatever nature, imposed by law,
rule, regulation, court, tribunal or by any department, agency or other
political subdivision or taxing authority thereof or therein, and all interest,
penalties or similar liabilities with respect thereto.
The right
of the Depositary to receive payment of fees, charges and expenses as provided
above shall survive the termination of this Deposit Agreement. As to
any Depositary, upon the resignation or removal of such Depositary as described
in Section 5.4 hereof, such right shall extend for those fees, charges and
expenses incurred prior to the effectiveness of such resignation or
removal.
SECTION 5.10 Restricted Securities
Owners. The Company agrees to advise in writing each of the
persons or entities who, to the knowledge of the Company, holds Restricted
Securities that such Restricted Securities are ineligible for deposit hereunder
and, to the extent practicable, shall require each of such persons to represent
in writing that such person will not deposit Restricted Securities
hereunder. The Company shall inform Holders and Beneficial Owners and
the Depositary of any other limitations on ownership of Shares that the Holders
and Beneficial Owners may be subject to by reason of the number of American
Depositary Shares held under the Articles of Incorporation of the Company or
applicable United Kingdom law, as such restrictions may be in force from time to
time.
ARTICLE
VI
SECTION
6.1 Amendment/Supplement. Subject
to the terms and conditions of this Section 6.1 and applicable law, the Receipts
outstanding at any time, the provisions of this Deposit Agreement and the form
of Receipt attached hereto and to be issued under the terms hereof may at any
time and from time to time be amended or supplemented by written agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable without the consent of the Holders or Beneficial Owners.
Any amendment or supplement which shall impose or increase any fees or charges
(other than charges in connection with foreign exchange control regulations, and
taxes and other governmental charges, delivery and other such expenses), or
which shall otherwise materially prejudice any substantial existing right of
Holders or Beneficial Owners, shall not, however, become effective as to
outstanding Receipts until 30 days after notice of such amendment or supplement
shall have been given to the Holders of outstanding Receipts. The parties hereto
agree that any amendments or supplements which (i) are reasonably necessary (as
agreed by the Company and the Depositary) in order for (a) the American
Depositary Shares to be registered on Form F-6 under the Securities Act or (b)
the American Depositary Shares or the Shares to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such American Depositary Share or Shares,
to consent and agree to such amendment or supplement and to be bound by this
Deposit Agreement as amended and supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of this Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement
this Deposit Agreement and the Receipt at any time in accordance with such
changed laws, rules or regulations. Such amendment or supplement to
this Deposit Agreement in such circumstances may become effective before a
notice of such amendment or supplement is given to Holders or within any other
period of time as required for compliance with such laws, rules or
regulations.
33
34
35
Any and
all notices to be given to the Depositary shall be deemed to have been duly
given if personally delivered or sent by mail, air courier or facsimile
transmission or by electronic transmission (if agreed by the Company and the
Depositary), at the Companyβs expense, unless otherwise agreed in writing
between the Company and the Depositary, confirmed by letter, addressed to
Deutsche Bank Trust Company Americas, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
XXX Attention: ADR Department,
telephone: (000) 000 000-0000,
facsimile: (000) 000 000 0000 or to any other address
which the Depositary may specify in writing to the Company.
Any and
all notices to be given to any Holder shall be deemed to have been duly given if
personally delivered or sent by mail or facsimile transmission or by electronic
transmission (if agreed by the Company and the Depositary), at the Companyβs
expense, unless otherwise agreed in writing between the Company and the
Depositary, addressed to such Holder at the address of such Holder as it appears
on the transfer books for Receipts of the Depositary, or, if such Holder shall
have filed with the Depositary a written request that notices intended for such
Holder be mailed to some other address, at the address specified in such
request. Notice to Holders shall be deemed to be notice to Beneficial Owners for
all purposes of this Deposit Agreement.
Delivery
of a notice sent by mail, air courier or facsimile or electronic transmission
shall be deemed to be effective at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a facsimile or
electronic transmission) is deposited, postage prepaid, in a post-office letter
box or delivered to an air courier service. The Depositary or the Company may,
however, act upon any facsimile or electronic transmission received by it from
the other or from any Holder, notwithstanding that such facsimile or electronic
transmission shall not subsequently be confirmed by letter as aforesaid, as the
case may be.
SECTION
7.6 Governing Law
and Jurisdiction. This Deposit Agreement and the Receipts
shall be interpreted in accordance with, and all rights hereunder and thereunder
and provisions hereof and thereof shall be governed by, the laws of the State of
New York without reference to the principles of choice of law thereof. Except as
set forth in the following paragraph of this Section 7.6, the Company and the
Depositary agree that the federal or state courts in the City of New York shall
have jurisdiction to hear and determine any suit, action or proceeding and to
settle any dispute between them that may arise out of or in connection with this
Deposit Agreement and, for such purposes, each irrevocably submits to the
non-exclusive jurisdiction of such courts. The Company hereby irrevocably
designates, appoints and empowers its subsidiary Burberry Limited (the "Agent")
now at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 0000, as its authorized agent
to receive and accept for and on its behalf, and on behalf of its properties,
assets and revenues, service by mail of any and all legal process, summons,
notices and documents that may be served in any suit, action or proceeding
brought against the Company in any federal or state court as described in the
preceding sentence or in the next paragraph of this Section 7.6. If for any
reason the Agent shall cease to be available to act as such, the Company agrees
to designate a new agent in the City of New York on the terms and for the
purposes of this Section 7.6 reasonably satisfactory to the Depositary. The
Company further hereby irrevocably consents and agrees to the service of any and
all legal process, summons, notices and documents in any suit, action or
proceeding against the Company, by service by mail of a copy thereof upon the
Agent (whether or not the appointment of such Agent shall for any reason prove
to be ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air mail,
postage prepaid, to its address provided in Section 7.5 hereof. The Company
agrees that the failure of the Agent to give any notice of such service to it
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon.
36
Notwithstanding
the foregoing, the Depositary and the Company unconditionally agree that in the
event that a Holder or Beneficial Owner brings a suit, action or proceeding
against (a) the Company, (b) the Depositary in its capacity as Depositary under
this Deposit Agreement or (c) against both the Company and the Depositary, in
any state or federal court of the United States, and the Depositary or the
Company have any claim, for indemnification or otherwise, against each other
arising out of the subject matter of such suit, action or proceeding, then the
Company and the Depositary may pursue such claim against each other in the state
or federal court in the United States in which such suit, action, or proceeding
is pending, and for such purposes, the Company and the Depositary irrevocably
submit to the non-exclusive jurisdiction of such courts. The Company agrees that
service of process upon the Agent in the manner set forth in the preceding
paragraph shall be effective service upon it for any suit, action or proceeding
brought against it as described in this paragraph.
The
Company irrevocably and unconditionally waives, to the fullest extent permitted
by law, any objection that it may now or hereafter have to the laying of venue
of any actions, suits or proceedings brought in any court as provided in this
Section 7.6, and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
The
Company and the Depositary agree that, notwithstanding the foregoing, with
regard to any claim or dispute or difference of whatever nature between the
parties hereto arising directly or indirectly from the relationship created by
this Deposit Agreement, the Depositary, in its sole discretion, shall be
entitled to refer such dispute or difference for final settlement by arbitration
(βArbitrationβ) in accordance with the applicable rules of the American
Arbitration Association (the βRulesβ) then in force, by a sole arbitrator
appointed in accordance with the Rules. The seat and place of any
reference to Arbitration shall be New York, New York State. The
procedural law of any Arbitration shall be New York law and the language to be
used in the Arbitration shall be English. The fees of the arbitrator and other
costs incurred by the parties in connection with such Arbitration shall be paid
by the party that is unsuccessful in such Arbitration.
37
EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE
OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS)
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING
AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs,
THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE
BREACH HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY
OTHER THEORY).
The
provisions of this Section 7.6 shall survive any termination of this Deposit
Agreement, in whole or in part.
SECTION
7.9 Titles. All
references in this Deposit Agreement to exhibits, articles, sections,
subsections, and other subdivisions refer to the exhibits, articles, sections,
subsections and other subdivisions of this Deposit Agreement unless expressly
provided otherwise. The words "this Deposit Agreement", "herein",
"hereof", "hereby", "hereunder", and words of similar import refer to this
Deposit Agreement as a whole as in effect between the Company, the Depositary
and the Holders and Beneficial Owners of ADSs and not to any particular
subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of
this Deposit Agreement are included for convenience only and shall be
disregarded in construing the language contained in this Deposit
Agreement.
38
39
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BURBERRY
GROUP plc
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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DEUTSCHE
BANK TRUST COMPANY AMERICAS
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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40
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Number
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CUSIP
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American Depositary Shares (Each
American Depositary Share representing Two Fully Paid Ordinary
Shares)
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EXHIBIT
A
[FORM
OF FACE OF RECEIPT]
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
Of
BURBERRY
GROUP plc
(Incorporated
under the laws of England and Wales)
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,
including evidence of rights to receive such ordinary shares, (the "Shares") of
Burberry Group plc (the βCompanyβ), a company incorporated under the
laws of England and Wales (the "Company"). As of the date of the Deposit
Agreement (hereinafter referred to), each ADS represents two Shares deposited
under the Deposit Agreement with the Custodian which at the date of execution of
the Deposit Agreement is State Street Bank & Trust Company (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 Depositaryβs Principal Office is located at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-1
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
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 Companyβs Articles of Association
(as in effect on the date of the Deposit Agreement) and are qualified by and
subject to the detailed provisions of the Deposit Agreement, to which reference
is hereby made. All capitalized terms used herein which are not otherwise
defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made
arrangements for the acceptance of the American Depositary Shares into
DTC. Each Beneficial Owner of American Depositary Shares held through
DTC must rely on the procedures of DTC and the DTC Participants to exercise and
be entitled to any rights attributable to such American Depositary
Shares. The Receipt evidencing the American Depositary Shares held
through DTC will be registered in the name of a nominee of DTC. So
long as the American Depositary Shares are held through DTC or unless otherwise
required by law, ownership of beneficial interests in the Receipt registered in
the name of DTC (or its nominee) will be shown on, and transfers of such
ownership will be effected only through, records maintained by (i) DTC (or its
nominee), or (ii) DTC Participants (or their nominees).
A-2
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 Companyβs Articles of Association, and to the
provisions of or governing the Deposited Securities and applicable laws, now or
hereafter in effect) or through a book entry Delivery of the Shares, 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, 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 and governmental charges) 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 facsimile transmission. Upon
receipt by the Depositary, 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.
A-3
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 Shares
are listed, or under any provision of the Deposit Agreement or provisions of, or
governing, the Deposited Securities or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (22) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, the Holders of Receipts are entitled to surrender outstanding ADSs to
withdraw the Deposited Securities at any time subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders' meeting or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities, and
(iv) other circumstances specifically contemplated by Section I.A.(l) of the
General Instructions to Form F-6 (as such General Instructions may be amended
from time to time). Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the U.S.
Securities Act, unless a registration statement is in effect as to such
Shares.
A-4
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.
A-5
(i) to
any person to whom ADSs are issued or to any person to whom a distribution is
made in respect of ADS distributions pursuant to stock dividends or other free
distributions of stock, bonus distributions, stock splits or other distributions
(except where converted to cash), a fee not in excess of U.S. $ 5.00 per 100
ADSs (or fraction thereof) so issued under the terms of the Deposit Agreement to
be determined by the Depositary;
(ii) to
any person surrendering ADSs for cancellation and withdrawal of Deposited
Securities including, inter
alia, cash distributions made pursuant to a cancellation or withdrawal, a
fee not in excess of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so
surrendered;
A-6
(iii) to
any holder of ADSs (including, without limitation, Holders), a fee not in excess
of U.S. $ 2.00 per 100 ADS held for the distribution of cash
proceeds, including cash dividends or sale of rights and other entitlements, not
made pursuant to a cancellation or withdrawal;
(iv) to
any holder of ADSs (including, without limitation, Holders), a fee not in excess
of U.S. $ 5.00 per 100 ADSs (or portion thereof) issued upon the exercise of
rights; and
(v) for
the operation and maintenance costs in administering the ADSs an annual fee of
U.S. $ 2.00 per 100 ADS.
In
addition, Holders, Beneficial Owners, person depositing Shares for deposit and
person 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
facsimile and electronic transmission and delivery expenses as are expressly
provided in the Deposit Agreement to be at the expense of the person depositing
or withdrawing Shares or Holders and Beneficial Owners of ADSs;
(iv) the
expenses and charges incurred by the Depositary in the conversion of Foreign
Currency;
(v) such
fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory requirements
applicable to Shares, Deposited Securities, ADSs and ADRs;
(vi) the
fees and expenses incurred by the Depositary in connection with the delivery of
Deposited Securities, including any fees of a central depository for securities
in the local market, where applicable; and
(vii) any
additional fees, charges, costs or expenses that may be incurred by the
Depositary from time to time.
Any other
charges and expenses of the Depositary under the Deposit Agreement will be paid
by the Company upon agreement between the Depositary and the
Company. All fees and charges may, at any time and from time to time,
be changed by agreement between the Depositary and Company but, in the case of
fees and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (20) of this Receipt.
A-7
The
Depositary shall make available during normal business hours on any Business Day
for inspection by Holders at its Principal Office any reports and
communications, including any shareholder circulars, 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 Depositaryβs 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.
A-8
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.
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Depositary | |||
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Dated:
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By:
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Vice
President
|
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The
address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
A-9
[FORM
OF REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF 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 interests 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 and governmental charges). 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.
A-10
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 the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), or (b) fails to timely
deliver the documentation contemplated in the Deposit Agreement, the Depositary
may dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of taxes and/or governmental charges 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 reasonably request, to be furnished at the expense
of the Company) determine whether such distribution is lawful and reasonably
practicable. If so, the Depositary shall, subject to the terms and
conditions of the Deposit Agreement, establish an ADS Record Date according to
Article (14) hereof and establish procedures to enable the Holder hereof to
elect to receive the proposed distribution in cash or in additional
ADSs. If a Holder elects to receive the distribution in cash, the
dividend shall be distributed as in the case of a distribution in
cash. If the Holder hereof elects to receive the distribution in
additional ADSs, the distribution shall be distributed as in the case of a
distribution in Shares upon the terms described in the Deposit
Agreement. If such elective distribution is not lawful or reasonably
practicable or if the Depositary did not receive satisfactory documentation set
forth in the Deposit Agreement, the Depositary shall, to the extent permitted by
law, distribute to Holders, on the basis of the same determination as is made in
the United Kingdom in respect of the Shares for which no election is made,
either (x) cash or (y) additional ADSs representing such additional Shares, in
each case, upon the terms described in the Deposit Agreement. Nothing
herein 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.
A-11
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, the Company
shall determine whether it is lawful and reasonably practicable to make such
rights available to the Holders. The Depositary shall make such rights available
to any Holders only if the Company shall have timely requested that such rights
be made available to Holders, the Depositary shall have received the
documentation required by the Deposit Agreement, and the Depositary shall have
determined that such distribution of rights is lawful and reasonably
practicable. If such conditions are not satisfied, the Depositary
shall sell the rights as described below. In the event all conditions
set forth above are satisfied, the Depositary shall establish an ADS Record Date
and establish procedures (x) to distribute such rights (by means of warrants or
otherwise) and (y) to enable the Holders to exercise the rights (upon payment of
the applicable fees and charges of, and expenses incurred by, the Depositary and
taxes and other governmental charges). 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 or 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 and governmental charges) 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 practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding
anything herein to the contrary, if registration (under the Securities Act
and/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 (and/or such other
applicable law) 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 and charges.
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as the
holders of Shares or to exercise such rights. Nothing herein shall
obligate the Company to file any registration statement in respect of any rights
or Shares or other securities to be acquired upon the exercise of such
rights.
A-12
Upon
receipt of a notice regarding property other than cash, Shares or rights to
purchase additional Shares, to be made to Holders, the Depositary shall
determine, upon consultation with the Company, whether such distribution to
Holders is lawful and 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 and governmental charges withheld. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
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 and governmental charges) 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.
A-13
Neither
the Depositary nor the Custodian shall, under any circumstances exercise any
discretion as to voting, and neither the Depositary nor the Custodian shall
vote, attempt to exercise the right to vote, or in any way make use of, for
purposes of establishing a quorum or otherwise the Shares or other Deposited
Securities represented by ADSs except pursuant to and in accordance with such
written instructions from Holders. Shares or other Deposited Securities
represented by ADSs for which no specific voting instructions are received by
the Depositary from the Holder shall not be voted.
There can
be no assurance that Holders or Beneficial Owners generally or any Holder or
Beneficial Owner in particular will receive the notice described above with
sufficient time to enable the Holder to return voting instructions to the
Depositary in a timely manner.
Notwithstanding
the above, and in accordance with Section 5.3 of the Deposit Agreement, the
Depositary shall not be liable for any failure to carry out any instructions to
vote any of the Deposited Securities, or for the manner in which such vote is
cast or the effect of any such vote.
A-14
A-15
A-16
A-17
A-18
A-19
Notwithstanding
any provision of the Deposit Agreement or of this ADR and without limiting the
foregoing, by being a Holder of an ADR, each such Holder agrees to provide such
information as the Company may request in a disclosure notice (a "Disclosure
Notice") given pursuant to the Great Britain Companies Act 1985 (as amended from
time to time and including any statutory modification or re-enactment thereof,
the "Companies Act") or the Articles of Association of the
Company. By accepting or holding this ADR, each Holder 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 person is or was, or appears to be or has been,
interested as provided in the Companies Act and the Articles of Association,
which currently include the withdrawal of the voting rights of such Shares and
the imposition of restrictions on the rights to receive dividends on and to
transfer such Shares. In addition, by accepting or holding this ADR each Holder
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 (or
may be amended), inter alia, that any Holder
who is or becomes directly or indirectly interested (within the meaning of the
Companies Act) in 3% or more of the outstanding Shares, or is aware that another
person for whom it holds such ADRs is so interested, must within two business
days after becoming so interested or so aware (and thereafter in certain
circumstances upon any change to the particulars previously notified) notify the
Company as required by the Companies Act. After the relevant
threshold is exceeded, similar notifications must be made in whole respect of
whole percentage figure increases or decreases, rounded down to the nearest
whole number.
A-20
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
____________________________
A-21
| TABLE OF CONTENTS | |||
|
Page
|
|||
| ARTICLE I DEFINITIONS |
3
|
||
|
SECTION
1.1
|
"Affiliate"
|
3
|
|
|
SECTION
1.2
|
"Agent"
|
3
|
|
|
SECTION
1.3
|
"American
Depositary Share(s)" and "ADS(s)"
|
3
|
|
|
SECTION
1.4
|
"ADS
Record Date"
|
3
|
|
|
SECTION
1.5
|
"Beneficial
Owner"
|
4
|
|
|
SECTION
1.6
|
"Business
Xxx"
|
0
|
|
|
SECTION
1.7
|
"Commission"
|
4
|
|
|
SECTION
1.8
|
"Company"
|
4
|
|
|
SECTION
1.9
|
"Custodian"
|
4
|
|
|
SECTION
1.10
|
"Deliver"
and "Delivery"
|
4
|
|
|
SECTION
1.11
|
"Deposit
Agreement"
|
5
|
|
|
SECTION
1.12
|
"Depositary"
|
5
|
|
|
SECTION
1.13
|
"Deposited
Securities"
|
5
|
|
|
SECTION
1.14
|
"Dollars"
and "$"
|
5
|
|
|
SECTION
1.15
|
"DRS/Profile"
|
5
|
|
|
SECTION
1.16
|
"DTC"
|
5
|
|
|
SECTION
1.17
|
"Exchange
Act"
|
5
|
|
|
SECTION
1.18
|
"Foreign
Currency"
|
5
|
|
|
SECTION
1.19
|
"Foreign
Xxxxxxxxx"
|
0
|
|
|
SECTION
1.20
|
"Holder"
|
6
|
|
|
SECTION
1.21
|
βIndemnified
Personβ and βIndemnifying Personβ
|
6
|
|
|
SECTION
1.22
|
βPre-Releaseβ
|
6
|
|
|
SECTION
1.23
|
"Principal
Office"
|
6
|
|
|
SECTION
1.24
|
"Receipt(s)";
"American Depositary Receipt(s)" and "ADR(s)"
|
6
|
|
|
SECTION
1.25
|
"Registrar"
|
7
|
|
|
SECTION
1.26
|
"Restricted
Securities"
|
7
|
|
|
SECTION
1.27
|
"Securities
Act"
|
8
|
|
|
SECTION
1.28
|
"Shares"
|
8
|
|
|
SECTION
1.29
|
"United
States" or "U.S."
|
8
|
|
|
ARTICLE
II APPOINTMENT
OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
|
8
|
||
|
SECTION
2.1
|
Appointment
of Depositary
|
8
|
|
|
SECTION
2.2
|
Form
and Transferability of Receipts
|
9
|
|
|
SECTION
2.3
|
Deposits
|
11
|
|
|
SECTION
2.4
|
Execution
and Delivery of Receipts
|
13
|
|
(i)
| Page | |||
|
SECTION
2.5
|
Transfer
of Receipts; Combination and Split-up of Receipts
|
15
|
|
|
SECTION
2.6
|
Surrender
of Receipts and Withdrawal of Deposited Securities
|
16
|
|
|
SECTION
2.7
|
Limitations
on Execution and Delivery, Transfer, etc. of Receipts; Suspension of
Delivery, Transfer, etc.
|
19
|
|
|
SECTION
2.8
|
Lost
Receipts, etc.
|
20
|
|
|
SECTION
2.9
|
Cancellation
and Destruction of Surrendered Receipts; Maintenance of
Records
|
21
|
|
|
SECTION
2.10
|
Pre-Release
|
21
|
|
|
ARTICLE
III CERTAIN
OBLIGATIONS OF HOLDERS AND
BENEFICIAL OWNERS OF RECEIPTS
|
22
|
||
|
SECTION
3.1
|
Proofs,
Certificates and Other Information
|
22
|
|
|
SECTION
3.2
|
Liability
for Taxes and Other Charges
|
23
|
|
|
SECTION
3.3
|
Representations
and Warranties on Deposit of Shares
|
24
|
|
|
SECTION
3.4
|
Compliance
with Information Requests
|
25
|
|
| ARTICLE IV THE DEPOSITED SECURITIES |
25
|
||
|
SECTION
4.1
|
Cash
Distributions
|
25
|
|
|
SECTION
4.2
|
Distribution
in Shares
|
26
|
|
|
SECTION
4.3
|
Elective
Distributions in Cash or Shares
|
28
|
|
|
SECTION
4.4
|
Distribution
of Rights to Purchase Shares
|
29
|
|
|
SECTION
4.5
|
Distributions
Other Than Cash, Shares or Rights to Purchase Shares
|
32
|
|
|
SECTION
4.6
|
Conversion
of Foreign Currency
|
34
|
|
|
SECTION
4.7
|
Fixing
of Record Date
|
36
|
|
|
SECTION
4.8
|
Voting
of Deposited Securities
|
37
|
|
|
SECTION
4.9
|
Changes
Affecting Deposited Securities
|
38
|
|
|
SECTION
4.10
|
Available
Information
|
40
|
|
|
SECTION
4.11
|
Reports
|
40
|
|
|
SECTION
4.12
|
List
of Holders
|
40
|
|
|
SECTION
4.13
|
Taxation/Withholding
|
40
|
|
| ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY |
42
|
||
|
SECTION
5.1
|
Maintenance
of Office and Transfer Books by the Xxxxxxxxx
|
00
|
|
|
SECTION
5.2
|
Exoneration
|
43
|
|
|
SECTION
5.3
|
Standard
of Care
|
45
|
|
|
SECTION
5.4
|
Resignation
and Removal of the Depositary; Appointment of Successor
Depositary
|
46
|
|
|
SECTION
5.5
|
The
Custodian
|
48
|
|
|
SECTION
5.6
|
Notices
and Reports
|
49
|
|
|
SECTION
5.7
|
Issuance
of Additional Shares, ADSs etc.
|
50
|
|
|
SECTION
5.8
|
Indemnification
|
52
|
|
|
SECTION
5.9
|
Fees
and Charges of Depositary
|
53
|
|
|
SECTION
5.10
|
Restricted
Securities Owners
|
55
|
|
(ii)
| Page | |||
| ARTICLE VI AMENDMENT AND TERMINATION |
56
|
||
|
SECTION
6.1
|
Amendment/Supplement
|
56
|
|
|
SECTION
6.2
|
Termination
|
57
|
|
| ARTICLE VII MISCELLANEOUS |
59
|
||
|
SECTION
7.1
|
Counterparts
|
59
|
|
|
SECTION
7.2
|
No
Third-Party Beneficiaries
|
59
|
|
|
SECTION
7.3
|
Severability
|
60
|
|
|
SECTION
7.4
|
Holders
and Beneficial Owners as Parties; Binding Effect
|
60
|
|
|
SECTION
7.5
|
Notices
|
60
|
|
|
SECTION
7.6
|
Governing
Law and Jurisdiction
|
62
|
|
|
SECTION
7.7
|
Assignment
|
64
|
|
|
SECTION
7.8
|
Agents
|
64
|
|
|
SECTION
7.9
|
Exclusivity
|
64
|
|
|
SECTION
7.10
|
Compliance
with U.S. Securities Laws
|
64
|
|
|
SECTION
7.11
|
Titles
|
64
|
|
| EXHIBIT A Form of Receipt |
A-1
|
||
(iii)