Exhibit (a)(ii)
Execution Copy
AMENDED AND RESTATED DEPOSIT AGREEMENT
by and among
IMPERIAL TOBACCO GROUP PLC
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED
BY AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated as of November 2, 1998
Table of Contents
Page
ARTICLE I DEFINITIONS
SECTION 1.01. Affiliate......................................................1
SECTION 1.02. American Depositary Shares ADSs................................1
SECTION 1.03. Beneficial Owner...............................................2
SECTION 1.04. Commission.....................................................2
SECTION 1.05. Company........................................................2
SECTION 1.06. Custodian; Custodians..........................................2
SECTION 1.07. Deliver; Delivery..............................................2
SECTION 1.08. Deposit Agreement..............................................2
SECTION 1.09. Depositary.....................................................2
SECTION 1.10. Depository Trust Company; DTC..................................2
SECTION 1.11. "DTC Participant"..............................................3
SECTION 1.12. Deposited Securities...........................................3
SECTION 1.13. Dollars; $; Pounds; (pound)....................................3
SECTION 1.14. England........................................................3
SECTION 1.15. Exchange Act...................................................3
SECTION 1.16. Holder 3
SECTION 1.17. Original Deposit Agreement.....................................3
SECTION 1.18. Principal Office...............................................3
SECTION 1.19. Receipts; ADRs.................................................3
SECTION 1.20. Registrar......................................................3
SECTION 1.21. Restricted Securities..........................................4
SECTION 1.22. Securities Act.................................................4
SECTION 1.23. Share Registrar................................................4
SECTION 1.24. Shares 4
SECTION 1.25. United States..................................................4
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION
AND DELIVERY TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts...........................4
SECTION 2.02. Deposit of Shares..............................................6
SECTION 2.03. Execution and Delivery of Receipts.............................7
SECTION 2.04. Transfer of Receipts; Combination and Split-up of Receipts.....8
SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited Securities...8
SECTION 2.06. Limitations on Execution and Delivery, Transfer, etc.
of Receipts; Suspension of Delivery, Transfer, etc......9
SECTION 2.07. Lost Receipts. etc............................................10
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records.................................11
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ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information.............11
SECTION 3.02. Liability of Holder for Taxes and Other Charges...............11
SECTION 3.03. Representations and Warranties on Deposit of Shares...........12
SECTION 3.04. Compliance with Information Requests..........................12
SECTION 3.05. Ownership Restrictions........................................12
ARTICLE IV THE DEPOSITED SECURITIES
SECTION 4.01. Power of Attorney.............................................12
SECTION 4.02. Cash Distributions............................................13
SECTION 4.03. Distribution in Shares........................................13
SECTION 4.04. Rights 14
SECTION 4.05. Distributions Other Than Cash; Shares or Rights...............15
SECTION 4.06. Distributions with Respect to Deposited Securities
in Bearer Form.........................................16
SECTION 4.07. Redemption....................................................16
SECTION 4.08. Conversion of Foreign Currency................................16
SECTION 4.09. Fixing of Record Date.........................................17
SECTION 4.10. Voting of Deposited Securities................................17
SECTION 4.11. Changes Affecting Deposited Securities........................18
SECTION 4.12. Available Information.........................................19
SECTION 4.13. Reports.......................................................19
SECTION 4.14. List of Holders...............................................19
SECTION 4.15. Taxation......................................................19
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the Registrar.....20
SECTION 5.02. Prevention or Delay in Performance............................21
SECTION 5.03. Obligations of the Depositary, the Custodian and the Company..21
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary................................22
SECTION 5.05. The Custodian.................................................23
SECTION 5.06. Notices and Reports...........................................23
SECTION 5.07. Issuance of Additional Shares, etc............................24
SECTION 5.08. Indemnification...............................................25
SECTION 5.09. Charges of Depositary.........................................26
SECTION 5.10. Certain Rights of the Depositary; Limitations.................26
SECTION 5.11. List of Restricted Securities Owners..........................27
ARTICLE VI AMENDMENT AND TERMINATION
SECTION 6.01. Amendment, Supplement.........................................28
SECTION 6.02. Termination...................................................28
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ARTICLE VII MISCELLANEOUS
SECTION 7.01. Counterparts..................................................29
SECTION 7.02. No Third-Party Beneficiaries..................................29
SECTION 7.03. Severability..................................................30
SECTION 7.04. Holders and Beneficial Owners as Parties; Binding Effect......30
SECTION 7.05. Notices.......................................................30
SECTION 7.06. Governing Law and Jurisdiction................................31
SECTION 7.07. Assignment....................................................32
SECTION 7.08. Compliance with U.S. Securities Laws..........................32
SECTION 7.09. Amendment and Reinstatement of Prior Agreements...............32
EXHIBIT A [FORM OF FACE OF RECEIPT]
(1) The Deposit Agreement........................................A-1
(2) Surrender of Receipts and Withdrawal of Deposited
Securities.................................................A-2
(3) Transfers, Split-Ups and Combinations of Receipts............A-3
(4) Pre-Conditions to Registration, Transfer, Etc................A-3
[FORM OF REVERSE OF RECEIPT] SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(5) Compliance With Information Requests.........................A-5
(6) Ownership Restrictions.......................................A-5
(7) Liability of Holder for Taxes, Duties and Other Charges......A-5
(8) Representations and Warranties of Depository.................A-5
(9) Filing Proofs, Certificates and Other Information............A-6
(10) Charges of Depositary........................................A-6
(11) Title to Receipts............................................A-7
(12) Validity of Receipt..........................................A-7
(13) Reports; Inspection of Transfer Books........................A-7
(14) Dividends and Distributions in Cash, Shares, etc.............A-8
(15) Fixing of Record Date.......................................A-11
(16) Voting of Deposited Securities..............................A-11
(17) Changes Affecting Deposited Securities......................A-12
(18) Indemnification.............................................A-13
(19) Liability of the Company and the Depositary.................A-14
(20) Resignation and Removal of the Depositary; Appointment of
Successor Depositary........................................A-14
(21) Amendment, Supplement.......................................A-15
(22) Termination.................................................A-16
(23) Compliance with U.S. Securities Laws........................A-17
(24) Certain Rights of the Depositary; Limitations...............A-17
EXHIBIT B CHARGES OF THE DEPOSITARY....................................B-1
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AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT; dated as of November 2, 1998,
among IMPERIAL TOBACCO GROUP PLC., a public limited company incorporated in
England, and its successors (the "Company"), CITIBANK, N.A., a national banking
association organized under the laws of the United States of America (the
"Depositary"), and all Holders and Beneficial Owners from time to time of
American Depositary Shares evidenced by American Depositary Receipts issued
hereunder (all such terms as hereinafter defined).
WITNESSETH THAT:
WHEREAS, the Company and the Depositary have previously entered into that
certain Deposit Agreement, dated as of September 25, 1996 (such deposit
agreement, as amended prior to the date hereof, the "Original Deposit
Agreement"), pursuant to which a facility was established to provide for the
deposit of Shares (as defined therein) and the creation of American Depositary
Shares (as defined therein) representing the Shares so deposited and for the
execution and delivery of American Depositary Receipts (as defined therein)
evidencing such American Depositary Shares; and
WHEREAS, the Company desires to amend and restate the Original Deposit
Agreement in connection with the listing of the American Depositary Shares for
trading on The New York Stock Exchange, Inc.
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement; and the entering into this
Amended and Restated Deposit Agreement has been approved by the Company's Board
of Directors.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Amended and Restated
Deposit Agreement:
SECTION 1.01. Affiliate. The term "Affiliate" shall have the meaning
assigned to it Regulation C of the Securities Act as hereinafter defined.
SECTION 1.02. American Depositary Shares; ADSs. The terms "American
Depositary Shares" and "ADSs" shall mean, with respect to any Receipt, the
rights evidenced by the Receipts issued hereunder, including the interests in
the Deposited Securities granted to the Holders and Beneficial Owners of
Receipts pursuant to the terms and conditions of this Deposit Agreement and the
Receipts issued hereunder. The depositary shares issued and outstanding under
the Original Deposit Agreement shall, from and after the date hereof; for all
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purposes be treated as American Depositary Shares issued and outstanding
hereunder and shall, from and after the date hereof, be subject to the terms
hereof. Each American Depositary Share shall represent two (2) Shares, until
there shall occur a distribution upon Deposited Securities referred to in
Section 4.04 or a change in Deposited Securities referred to in Section 4.11
with respect to which additional Receipts are not executed and delivered, and
thereafter each American Depositary Share shall represent the Shares or
Deposited Securities specified in such Sections.
SECTION 1.03. Beneficial Owner. The term "Beneficial Owner" shall mean, as
to American Depositary Shares, any person or entity having a beneficial interest
deriving from the ownership of an American Depositary Share. A Beneficial Owner
may or may not be a Holder of the Receipt evidencing such American Depositary
Share. A Beneficial Owner shall be able to exercise any right and receive any
benefit hereunder solely through the person who is the Holder of the Receipt(s)
evidencing American Depositary Shares owned by such Beneficial Owner.
SECTION 1.04. Commission. The term "Commission" shall mean the Securities
and Exchange Commission of the United States or any successor governmental
agency in the United States.
SECTION 1.05. Company. The term "Company" shall mean Imperial Tobacco
Group PLC, a public limited company incorporated in England, having its
registered office at P.O. Box 244, Upton Road, Bristol, BS99 7UJ, England, and
its successors.
SECTION 1.06. Custodian; Custodians. The term "Custodian" shall mean, as
of the date hereof, Citibank, N.A., London Branch, having its principal office
at 336 Strand, London WC2R 1HB, England, as Custodian and agent of the
Depositary for the purposes of this Deposit Agreement, and any other firm or
corporation which may be appointed by the Depositary pursuant to the terms of
Section 5.05 as a successor or an additional custodian or custodians hereunder
and the term "Custodians" shall mean all of them, collectively.
SECTION 1.07. Deliver; Delivery. The terms "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, if available.
SECTION 1.08. Deposit Agreement. The term "Deposit Agreement" shall mean
this Amended and Restated Deposit Agreement, as the same may be amended from
time to time in accordance with the terms hereof. The Deposit Agreement amended
restates the Original Deposit Agreement (as hereinafter defined).
SECTION 1.09. Depositary. The term "Depositary" shall mean Citibank, N.A.,
a national banking association organized under the laws of the United States of
America, and any successor as depositary hereunder.
SECTION 1.10. Depository Trust Company; DTC. The terms "Depositary Trust
Company" and "DTC" shall mean a national clearing house and central book-entry
system for securities traded in the United States and, as such, the custodian
for the securities of DTC Participants (as hereafter defined) maintained in DTC,
and any successor thereto.
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SECTION 1.11. "DTC Participant". The term "DTC Participant" shall mean any
financial institution (or any nominee of such institution) having one or more
participant accounts with DTC for receiving, holding and delivering the
securities and cash held in DTC.
SECTION 1.12. Deposited Securities. The term "Deposited Securities" as of
any time shall mean Shares at such time deposited under this Deposit Agreement
and any and all other securities, property and cash received by the Depositary
or the Custodian in respect thereof and at such time held hereunder, subject in
the case of cash to the provisions of Section 4.08. Securities, cash and other
property delivered to the Custodian in respect of ADSs issued under the Original
Deposit Agreement and defined to be deposited securities thereunder, shall for
all purposes be Deposited Securities hereunder.
SECTION 1.13. Dollars; $; Pounds; (pound). The term "dollars" or
"Dollars", "Cent" and the symbol "$" shall refer to the lawful currency of the
United States. The term "pounds" or "Pounds", "Pence" and the symbols "(pound)"
or "p" shall refer to the lawful currency of England.
SECTION 1.14. England. The term "England" shall mean England and Wales.
SECTION 1.15. Exchange Act. The term "Exchange Act" shall mean the United
States Securities Exchange Act of 1934, as from time to time amended.
SECTION 1.16. Holder. The term "Holder" shall mean the person in whose
name a Receipt is registered on the books of the Depositary or the Registrar, if
any, maintained for such purpose.
SECTION 1.17. Original Deposit Agreement. The term "Original Deposit
Agreement" shall mean the Deposit Agreement, dated as of September 25, 1996, as
amended prior to the date hereof, by and among the Company, the Depositary and
all Holders and Beneficial Owners of Receipts issued thereunder.
SECTION 1.18. Principal Office. The term "Principal Office", when used
with respect to the Depositary, shall mean the principal office of the
Depositary at which at any particular time its depositary receipt business shall
be administered, which, at the date of this Deposit Agreement, is located at 111
Wall Street, New York, New York 10043, U.S.A.
SECTION 1.19. Receipts; ADRs. The term "Receipts" shall mean the American
Depositary Receipts ("ADRs") evidencing American Depositary Shares issued
hereunder, as such American Depositary Receipts may be amended from time to time
in accordance with the provisions of this Deposit Agreement. The depositary
receipts issued and outstanding under the terms of the Original Deposit
Agreement shall, from and after the date hereof and for all purposes, be treated
as Receipts issued hereunder and shall, from and after the date hereof, be
subject to the terms hereof in all respects. A Receipt may evidence any number
of American Depositary Shares.
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SECTION 1.20. Registrar. The term "Registrar" shall mean the Depositary or
with the approval of the Company, 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 Receipts and transfers of Receipts as herein provided,
and shall include any co-registrar appointed by the Depositary, with the
approval of the Company, for such purposes. Registrars (other than the
Depositary) may be removed and substitutes appointed by the Depositary with the
approval of the Company. Each Registrar (other than the Depositary) appointed
pursuant to this Deposit Agreement shall give notice in writing to the Company
and the Depositary accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement.
SECTION 1.21. Restricted Securities. The term "Restricted Securities"
shall mean Shares, or Receipts representing such Shares, which are either (i)
acquired directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering, (ii)
subject to resale limitations under the Securities Act, as defined below, or the
rules issued thereunder, (iii) held by any person or entity which is an
Affiliate of the Company, or (iv) subject to any restrictions on sale or deposit
under the laws of the United States, or England, or under a shareholder
agreement or the Memorandum and Articles of Association of the Company or under
the regulations of an applicable securities exchange.
SECTION 1.22. Securities Act. The term "Securities Act" shall mean the
United States Securities Act of 1933, as from time to time amended.
SECTION 1.23. Share Registrar. The term "Share Registrar" shall mean
Lloyds Bank Registrars, a depository institution organized under the laws of
England, which carries out the duties of registrar for the Shares or any
successor as Share Registrar for such Shares appointed by the Company.
SECTION 1.24. Shares. The term "Shares" shall mean the Company's Ordinary
Shares, par value of 10p each, validly issued and outstanding and may, if the
Depositary so agrees after consultation with the Company, include evidence of
the right to receive Shares; provided that in no event shall Shares include
evidence of the right to receive Shares with respect to which the full purchase
price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised; provided further, however, that, if there
shall occur any change in par value, split-up or consolidation or any other
reclassification or, upon the occurrence of an event described in Section 4.11,
an exchange or conversion in respect of the Shares of the Company, the term
"Shares" shall thereafter represent the successor securities resulting from such
change in par value, split-up or consolidation or such other reclassification or
such exchange or conversion.
SECTION 1.25. United States. The term "United States" shall have the
meaning assigned to it under Regulation S under the Securities Act.
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ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts.
(a) Form. American Depositary Shares shall be evidenced by
definitive Receipts which shall be steel engraved or shall be in such other form
as may be agreed upon by the Company and the Depositary, and in any event 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 shall be executed and dated by the Depositary by
the manual signature of a duly authorized officer of the Depositary; provided,
however, that such signature may be a facsimile if such Receipts are
countersigned by the manual signature of a duly authorized employee of the
Registrar and dated by such employee the signatures of both the Depositary and
the Registrar may be facsimiles. No American Depositary Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or enforceable
for any purpose, unless such Receipt shall have been executed by the manual
signature of a duly authorized officer of the Depositary or the Registrar, and
such execution of any Receipt by manual signature shall be conclusive evidence,
and the only evidence, that such Receipt has been duly executed and delivered
hereunder. The Registrar shall maintain separate books in which each Receipt
evidencing such American Depositary Shares so executed and delivered as
hereinafter provided and the transfer of each American Depositary Share shall be
registered. Receipts bearing the facsimile signature of a duly-authorized
officer of the Depositary, who was at the time of signature a proper officer of
the Depositary, shall bind the Depositary, notwithstanding the fact that such
officer has ceased to hold such office prior to the execution of such Receipts
by the Registrar and their delivery or such officer did not hold such office at
the date of such Receipts.
The Receipts shall bear a CUSIP number that is different from any CUSIP
number that was, is or may be assigned to any depositary receipts previously or
subsequently issued pursuant to any other arrangement between the Depositary (or
any other depositary) and the Company which are not Receipts issued hereunder
(the receipts issued under the terms of the Original Deposit Agreement
outstanding as of the date hereof being "Receipts" issued hereunder).
(b) Legends. The Receipts may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Deposit Agreement as (i) may be necessary to enable the
Depositary to perform its obligations hereunder, (ii) may be required to comply
with any applicable law or regulations, or with the rules and regulations of any
securities exchange or market, including The New York Stock Exchange, upon which
American Depositary Shares may be traded, listed or quoted or to conform with
any usage with respect thereto, (iii) as may be necessary to indicate any
special limitations or restrictions to which any particular Receipts or American
Depositary Shares are subject by reason of the date of issuance of the Deposited
Securities, or (iv) may be required by DTC.
(c) Title. Title to a Receipt (and to each American Depositary Share
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of the State of New York;
provided, however, that the Depositary, notwithstanding any notice to the
contrary, may deem and treat the Holder of a Receipt as the absolute owner
thereof for all purposes, and the Depositary shall have no obligation or be
subject to any liability under this Deposit Agreement to any holder of a Receipt
or any Beneficial Owner unless such holder is the registered Holder of such
Receipt on the books of the Depositary or, in the case of any Beneficial Owner,
such Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
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(d) Book-Entry Systems. The Depositary shall make arrangements for
the acceptance of the American Depositary Shares into DTC. A single ADR in the
form of a "Balance Certificate" will evidence all ADSs held through DTC and will
be registered in the name of the nominee for DTC (currently "Cede & Co."). As
such, the nominee for DTC will be the only "Holder" of the ADR evidencing all
ADSs held through DTC. Each Beneficial Owner of ADSs held through DTC must rely
upon the procedures of DTC and the financial institutions (or any nominee of
such institutions) having one or more participant accounts with DTC for holding
and receiving the securities and cash held through DTC (the "DTC Participants")
to exercise or be entitled to any rights attributable to such ADSs. The DTC
Participants shall for all purposes be deemed to have all requisite power and
authority to act on behalf of the Beneficial Owners of the ADSs held in the DTC
Participants' respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given to it
by DTC Participants on behalf of Beneficial Owners of ADSs. So long as ADSs are
held through DTC or unless otherwise required by law, ownership of beneficial
interests in the ADR registered in the name of the nominee for DTC will be shown
on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC (or its nominee), or (ii) DTC Participants (or their
nominees).
SECTION 2.02. Deposit of Shares. Subject to the terms and conditions of
this Deposit Agreement, Shares or evidence of rights to receive Shares (other
than Restricted Securities) may be deposited by any person (in the case of the
Company, or any Affiliate, subject to Section 5.07 hereof) including the
Depositary in its individual capacity by delivery thereof to the Custodian,
accompanied by any appropriate instrument or instruments of transfer or
endorsement, in a form satisfactory to such Custodian (in the case of Shares in
registered form) and of any coupons appertaining thereto (in the case of Shares
in bearer form) together with (i) all such certifications and payments
(including, without limitation, those referred to in Exhibit B hereto and
amounts in respect of any applicable stamp, transfer or other applicable taxes
or duties) or evidence of such payments (including, without limitation, stamping
or otherwise marking such Shares by way of receipt) as may be required by the
Depositary or such Custodian in accordance with the provisions of this Deposit
Agreement and (ii) if the Depositary so requires, a written order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of American
Depositary Shares representing the Shares so deposited.
No Shares shall be accepted for deposit unless accompanied by (a) payment
in respect of any applicable stamp, transfer or other applicable taxes or duties
or evidence of such payment as provided above and (b) evidence satisfactory to
the Depositary (which may be an opinion of counsel) that any necessary approval
has been granted by, or there has been compliance with the rules and regulations
of, the governmental agency in England, if any, which is then performing the
function of the regulation of currency exchange.
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If required by the Depositary, Shares presented for deposit at any time,
whether or not the transfer books of the Company or the Share Registrar are
closed, shall also be accompanied by (1) an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for additional
Shares, or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of any such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary and (2) if the Shares are
registered in the name of the person on whose behalf they are presented for
deposit, a proxy or proxies entitling the Custodian to vote such deposited
Shares for any and all purposes.
At the request, risk and expense of any holder of Shares, and for the
account of such holder, the Depositary may receive Shares to be deposited,
evidence that Shares have been electronically transferred or that irrevocable
instructions have been given to cause the transfer of such Shares to the account
of the Custodian, together with the other orders, instruments and evidence
herein specified, for the purpose of forwarding such Shares to the Custodian for
deposit hereunder.
The Depositary has instructed the Custodian, upon each delivery to a
Custodian of Shares to be deposited hereunder (or other Deposited Securities
pursuant to Section 4.03, 4.04, 4.05 or 4.11), together with the other documents
above specified, to advise the Depositary of such deposit, and to present, as
soon as transfer and recordation can be accomplished, such certificate or
certificates, together with the appropriate instrument or instruments of
transfer or endorsement, duly stamped, to the Company (or the Share Registrar)
for transfer and recordation of the Deposited Securities being deposited in the
name of the Depositary or its nominee or such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary, the Custodian or any of their
nominees (on behalf of Holders) at such other place or places as the Depositary
shall determine.
SECTION 2.03. Execution and Delivery of Receipts. The Depositary has
instructed the Custodian, upon receipt by the Custodian of a deposit of Shares
pursuant to Section 2.02 hereof, and receipt and confirmation from the Company
or the Share Registrar of such transfer, satisfactory to the Custodian, that any
such Deposited Securities have been recorded as specified above, together with
all other required documents, to notify the Depositary of such deposit and the
person or persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares to
be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex,
facsimile or other means of electronic transmission. Upon receiving such notice
from such Custodian, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver at its Principal Office to or upon
the order of the person or persons named in the notice delivered to the
Depositary, a Receipt or Receipts, registered in the name or names requested by
such person or persons and evidencing in the aggregate the number of American
Depositary Shares to which such person or persons are entitled, but only upon
payment to the Depositary of the charges of the Depositary for making a deposit
and the issuance and delivery of such Receipt or Receipts (as set forth in
Section 5.09 and Exhibit B hereto) and in respect of all stamp, transfer or
other applicable taxes (except insofar as already accounted for) and
governmental charges and fees payable in connection with such deposit and the
transfer of the Deposited Securities and the issuance of the Receipt or
Receipts. The Depositary shall not be required to issue any Fractional Receipts
or any Receipts for Fractional Shares.
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SECTION 2.04. Transfer of Receipts; Combination and Split-up of Receipts.
The Registrar, subject to the terms and conditions of this Deposit Agreement,
shall register transfers of Receipts on its transfer books, upon any surrender
to the Principal Office of the Depositary of a Receipt by the Holder thereof in
person or by duly-authorized attorney, properly endorsed or accompanied by
proper instruments of transfer (including signature guarantees in accordance
with standard industry practice and, in the case of any Receipt, the accurate
completion of any endorsements appearing on such Receipt) and duly stamped as
may be required by the laws of the State of New York and of the United States of
America. Subject to the terms and conditions of this Deposit Agreement,
including payment of the charges set forth in Section 5.09 and Exhibit B hereto,
the Depositary shall execute and, if the Depositary's signature is by facsimile,
the Registrar shall manually countersign, 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.
The Depositary, subject to the terms and conditions of this Deposit
Agreement shall, upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts and upon payment
of the charges set forth in Section 5.09 and in Exhibit B hereto, execute and,
if the Depositary's signature is by facsimile, the Registrar shall manually
countersign and deliver, a new Receipt or Receipts for any authorized number of
American Depositary Shares requested, evidencing the same aggregate number of
American Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may, upon the request or with the approval of the Company,
appoint one or more co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Holders of Receipts or persons entitled thereto and will be
entitled to protection and indemnity to the same extent as the Depositary. Such
co-transfer agents may be removed and substitutes appointed by the Depositary
with the approval of the Company. Each co-transfer agent appointed under this
Section 2.04 (other than the Depositary) shall give, notice in writing to the
Company and the Depositary accepting such appointment and agreeing to be bound
by the applicable terms of this Deposit Agreement.
SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited
Securities. Upon surrender, at the Principal Office of the Depositary, of a
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth at Section 5.09 and
Exhibit B hereof) and (ii) all fees, stamp, transfer or other applicable taxes
and governmental charges payable in connection with such surrender and
withdrawal, and subject to the terms and conditions of this Deposit Agreement,
the Company's Memorandum and Articles of Association, Section 7.08 hereof and
any other provisions of or governing the Deposited Securities and other
applicable laws, the Holder of such Receipt shall be entitled to delivery, to
him or upon his order, of the Deposited Securities at the time represented by
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the American Depositary Shares evidenced by such Receipt. Subject to the last
paragraph of this Section 2.05, such Deposited Securities may be delivered in
registered form or by electronic delivery. Such Deposited Securities may be
delivered by the delivery of (a) certificates in the name of such Holder or as
ordered by him or by certificates properly endorsed or accompanied by proper
instruments of transfer to such Holder or as ordered by him and (b) any other
securities, property and cash to which such Holder is then entitled in respect
of such Receipts to such Holder or as ordered by him. Delivery shall be made
without unreasonable delay at the principal office of the Custodian or, subject
to the last paragraph of this Section 2.05, at the Principal Office of the
Depositary for further delivery to such Holder.
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 at the designated office of the
Custodian, subject to Sections 2.06, 3.01, 3.02, 5.09 and to the other terms and
conditions of this Deposit Agreement, to the Memorandum and Articles of
Association of the Company, and to the provisions of or governing the Deposited
Securities and other 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 if so required by the Depositary as provided above, the Deposited
Securities represented by such Receipt 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, except that the Depositary may make
delivery to such person or persons at the Principal Office of the Depositary of
any dividends or distributions with respect to the Deposited Securities
represented by such Receipt, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
The Depositary shall not accept for surrender a Receipt evidencing
American Depositary Shares representing less than one Share. 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 recorded in the name
of the Holder surrendering such Receipt, and shall deliver to the person
surrendering such Receipt the net cash proceeds from the sale by the Depositary
of any remaining fractional Share.
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 any cash or other property (other than rights) held in respect of, and
any certificate or certificates and other proper documents of or relating to
title to, the Deposited Securities represented by such Receipt to the Depositary
for delivery at the Principal Office of the Depositary, and for further delivery
to such Holder. Such direction shall be given by letter or, at the request, risk
and expense of such Holder, by cable, telex or facsimile transmission.
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SECTION 2.06. Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc. As a condition precedent to the
execution and delivery, registration, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (a) payment from the depositor of Shares or presenter of
the Receipt of a sum sufficient to reimburse it for any stamp, transfer or other
applicable tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable expenses or charges as provided in Section 5.09, or in Exhibit B
hereof, (b) the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section 3.01
hereof and (c) compliance with (i) any laws or governmental regulations relating
to Receipts or American Depositary Shares or to the withdrawal of Deposited
Securities and (ii) such reasonable regulations, if any, as the Depositary and
the Company may establish consistent with the provisions of this Deposit
Agreement.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of Receipts
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 transfers of Receipts generally may be suspended, during any period when the
transfer books of the Company, the Depositary or the Share Registrar are closed
or if any such action is deemed necessary or advisable by the Depositary or the
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange on which the Receipts or Shares are listed, or under any
provision of this Deposit Agreement or provisions of or governing Deposited
Securities, or any meeting of shareholders of the Company or for any other
reason, subject, in all cases, to Section 7.08 hereof. Notwithstanding any
provision of this Deposit Agreement or the Receipts to the contrary, the Holders
of Receipts are entitled to withdraw the Deposited Securities at any time
subject only to the limitations permitted in General Instruction I.A.(1) to Form
F-6 (as such instruction may be amended from time to time) under the Securities
Act in connection with (i) temporary delays caused by closing the transfer books
of the Depositary or the Company or the deposit of Shares in connection with
voting at a shareholders' meeting, or the payment of dividends, (ii) the payment
of fees, taxes and similar charges, and (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Shares or other Deposited Securities required to be registered under the
provisions of the Securities Act, unless a registration statement is in effect
as to such Shares or other Deposited Securities.
SECTION 2.07. Lost Receipts. etc. In case any Receipt shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange and substitution for such mutilated Receipt upon
cancellation thereof, or (b) in lieu of and in substitution for such destroyed,
lost, or stolen Receipt, after the Holder thereof (i) has delivered to the
Depositary a written request for such exchange and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser, (ii) has provided such security or indemnity (including an indemnity
bond) satisfactory to the Depositary as may be required by the Depositary to
save it and any of its agents harmless, and (iii) has satisfied any other
reasonable requirements imposed by the Depositary, including, without
limitation, evidence satisfactory to the Depositary of such destruction, loss or
theft of such Receipt, the authenticity thereof and the Holder's ownership
thereof.
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SECTION 2.08. Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
canceled by the Depositary. Canceled Receipts shall not be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose.
The Depositary is authorized to destroy Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Shares for deposit or any Holder may be required from time to
time to file such proof of citizenship or residence, taxpayer status, payment of
all applicable taxes or other governmental charges, exchange control approval,
compliance with applicable laws and the terms of this Deposit Agreement or other
information (or, in the case of Shares in registered form presented for deposit,
such information relating to the registration on the books of the Company or of
the appointed agent of the Company for the registration and transfer of Shares),
to execute such certificates and to make such representations and warranties, 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 the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are delivered to the
Depositary's, the Registrar's and the Company's satisfaction. The Depositary
shall provide the Company, in a timely manner, with copies or originals if
necessary and appropriate of (i) any such proofs of citizenship or residence,
taxpayer status, or exchange control approval which it receives, and (ii) any
other information or documents which the Company may reasonably request and
which the Depositary shall request and receive from the Holder or any person
presenting Shares for deposit.
SECTION 3.02. Liability of Holder for Taxes and Other Charges. If any
stamp, transfer or other applicable tax or other governmental charge shall
become payable with respect to any Receipt or any Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, such
tax or other governmental charge shall be payable by the Holder of such Receipt
to the Depositary. The Depositary may refuse to effect any registration of
transfer of all or part of such Receipt or to issue any new Receipt or Receipts
or to permit any deposit or withdrawal of Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt until such payment is
made, and the Company and the Depositary may withhold or deduct from any
dividends or other distributions, or may sell for the account of the Holder
thereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge, with the Holder of such Receipt remaining liable for
any deficiency.
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SECTION 3.03. Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares and the certificates therefor are validly
issued and outstanding, fully paid and non-assessable, that all preemptive
rights, if any, with respect to such Shares have been validly waived or
exercised and that each such person making such deposit is duly authorized so to
do. Each such person shall also be deemed to represent that the Shares presented
for deposit are not, and the American Depositary Shares issuable upon such
deposit will not be, Restricted Securities. Such representations and warranties
shall survive the deposit and withdrawal of Shares and the issuance and
cancellation of Receipts in respect thereof. If any such representations or
warranties are false in any way, the Company and the Depositary shall be
authorized, at the cost and expense of the person depositing Shares, to take any
and all actions reasonably necessary to correct the consequences thereof.
SECTION 3.04. Compliance with Information Requests. Notwithstanding any
other provision of this Agreement, each Holder agrees to comply with requests
from the Company pursuant to English law, the rules and requirements of the
London Stock Exchange, and any other stock exchange on which the Shares or
American Depositary Shares are, or will be, registered, traded or listed or the
Memorandum and Articles of Association of the Company, which are made to provide
information, inter alia, as to the capacity in which such Holder owns Receipts
(and Shares as the case may be) and regarding the identity of any other person
interested in such Receipts and the nature of such interest and various other
matters, whether or not they are Holders at the time of such request. The
Depositary agrees to use its reasonable efforts to comply, at the Company's
expense, with written instructions received from the Company in a timely manner
requesting that the Depositary forward any such request from the Company to the
Holders and to forward to the Company any such responses to such requests
received by the Depositary.
SECTION 3.05. Ownership Restrictions. The Company may restrict transfers
of the Shares where such transfer might result in ownership of Shares exceeding
limits imposed by applicable law or the Memorandum and Articles of Association
of the Company. The Company may also restrict, in such manner as it deems
appropriate, transfers of the American Depositary Shares where such transfer may
result in the total number of Shares represented by the American Depositary
Shares owned by a single Holder to exceed any such limits. The Company may, in
its sole discretion, instruct the Depositary to take action with respect to the
ownership interest of any Holder in excess of the limitation set forth in the
preceding sentence, including but not limited to a mandatory sale or disposition
on behalf of a Holder of the Shares represented by the American Depositary
Shares held by such Holder in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Memorandum and Articles
of Association of the Company.
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ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.01. Power of Attorney. Each Holder and Beneficial Owner, upon
acceptance of American Depositary Share(s) represented by a Receipt issued in
accordance with the terms hereof, hereby appoints the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all steps or action provided for or contemplated herein with respect to
the Deposited Securities, to adopt any and all procedures necessary to comply
with applicable law, including, but not limited to, those set forth in this
Article IV, and to take such further steps or action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
this Deposit Agreement.
SECTION 4.02. Cash Distributions. Whenever the Depositary receives any
cash dividend or other cash distribution on any Deposited Securities, 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 4.08
hereof, be converted on a practicable basis into Dollars transferable to the
United States, and subject to the Deposit Agreement, promptly convert or cause
to be converted such dividend or distribution into Dollars and will distribute
promptly the amount thus received (net of fees of, and expenses incurred by, the
Depositary) to the Holders entitled thereto as of the record date fixed pursuant
to Section 4.09 hereof, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one Cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of Receipts then outstanding. If the
Company 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 to the relevant governmental authority by the person holding the
withheld amounts.
SECTION 4.03. 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 and registered in the
name of the Custodian and thereupon the Depositary may, subject to Section 5.07
hereof, either (i) distribute to the Holders entitled thereto, as of the record
date fixed pursuant to Section 4.09 hereof, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts for American Depositary Shares, which
represents in aggregate the number of Shares received as such dividend, or free
distribution, subject to the terms of this Deposit Agreement, including, without
limitation, Sections 2.02, 2.03, 5.07 and 5.09 hereof, in lieu of delivering
Receipts for fractional American Depositary Shares in any such case, the
Depositary shall sell the number of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions described in Section 4.02 or (ii) if additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also represent the
additional Shares distributed upon the Deposited Securities represented thereby.
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, or, if
after the Company, in the fulfillment of its obligation under Section 5.07
hereof, has furnished an opinion of U.S. counsel determining that Shares must be
registered under the Securities Act or other laws in order to be distributed to
Holders, or if the Company does not provide a satisfactory opinion as provided
in Section 5.07, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable to pay any such taxes or charges, or effect the distribution of
unregistered Shares, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to Holders entitled thereto
in proportion to the number of American Depositary Shares held by them
respectively and the Depositary shall distribute any unsold balance of such
property in accordance with the provisions of this Deposit Agreement.
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SECTION 4.04. Rights. In the event that the Company shall offer or cause
to be offered to the holders of any Deposited Securities any rights to subscribe
for additional Shares or any rights of any other nature, the Depositary may,
after consultation with the Company, and, if requested in writing by the
Company, shall, take action, subject to the terms of this Deposit Agreement, as
follows:
(a) if at the time of the offering of any rights, the Depositary
determines in its discretion, after obtaining, at the Company's expense,
opinion(s) of counsel reasonably satisfactory to the Depositary, that it is
lawful and feasible to make such rights available to all or certain Holders or
Beneficial Owners but not to others, by means of warrants or otherwise, the
Depositary may distribute warrants or other instruments therefor in such form as
it may determine, to the Holders entitled thereto, in proportion to the number
of American Depositary Shares representing such Deposited Securities held by
them respectively, or employ such other method as it may deem feasible after
obtaining, at the Company's expense, opinion(s) of counsel reasonably
satisfactory to the Depositary in order to facilitate the exercise, sale or
transfer of rights or the securities obtainable upon exercise of such rights, by
such Holders or Beneficial Owners; or
(b) if at the time of the offering of any rights, the Depositary
determines in its discretion after obtaining, at the Company's expense,
opinion(s) of counsel reasonably satisfactory to the Depositary, that it is not
lawful or not feasible to make such rights available to certain Holders or
Beneficial Owners by means of warrants or otherwise, or if the rights
represented by such warrants or such other instruments are not exercised and
appear to be about to lapse, the Depositary may, in its discretion, sell such
rights or such warrants or other instruments at public or private sale, in a
riskless principal capacity, at such place or places and upon such terms as it
may deem proper, and allocate the proceeds of such sales for the account of the
Holders otherwise entitled to such rights, warrants or other instruments upon an
averaged or other practicable basis without regard to any distinctions among
such Holders because of exchange restrictions or the date of delivery of any
Receipt or Receipts, or otherwise, and distribute such net proceeds so allocated
to the extent practicable as in the case of a distribution of cash pursuant to
Section 4.02 hereof. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or feasible to make such rights available to
Holders in general or any Holder or Holders in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale, or (iii) any
liability to the purchaser of such rights, warrants or other instruments.
A-14
If the Depositary does not receive such written request from the Company,
the Depositary shall, after consultation with the Company, and after obtaining
opinion(s) of counsel reasonably satisfactory to the Depositary, have discretion
as to the procedure to be followed (i) in making such rights available to the
Holders, or (ii) in disposing of such rights on behalf of such Holders and
distributing the net proceeds available in dollars to such Holders as in the
case of a distribution of cash pursuant to Section 4.02 hereof, or (iii) in
allowing such rights to lapse in the event such rights may not be made available
to Holders or be disposed of and the net proceeds thereof made available to
Holders.
Notwithstanding anything to the contrary in this Section 4.04, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not offer such rights
to the Holders (i) unless and until a registration statement under the
Securities Act covering such offering is in effect, or (ii) unless the Company
furnishes 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, satisfactory to the Depositary or other evidence
satisfactory to the Depositary to the effect that the offering and sale of such
securities to the Holders of such Receipts are exempt from or do not require
registration under the provisions of the Securities Act or any other applicable
laws. Because English law presently does not contemplate the issuance of
preemptive rights in negotiable form and the possibility of such issuance is
unlikely, a liquid market for preemptive rights may not exist, and this may
adversely affect (1) the ability of the Depositary to dispose of such rights or
(2) the amount the Depositary would realize upon disposal of rights.
References in this Section 4.04 to "Holders" are to Holders as of the
record date fixed pursuant to Section 4.09.
SECTION 4.05. Distributions Other Than Cash, Shares or Rights. Whenever
the Custodian shall receive any distribution other than cash, Shares or rights
upon any Deposited Securities, the Depositary shall, after consultation with the
Company, and after obtaining, at the Company's expense, opinion(s) of counsel
satisfactory to the Depositary that the proposed distribution does not violate
any applicable laws or regulations, cause the securities or property so received
to be distributed to the Holders entitled thereto, as of the record date fixed
pursuant to Section 4.09 hereof, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution, net of expenses of the
Depositary; provided, however, that, if in the opinion of the Depositary or its
counsel, it cannot cause such securities or property to be distributed or such
distribution cannot be made proportionately among the Holders entitled thereto,
or if for any other reason (including without limitation any requirement (i)
that the Company, the Depositary or the Custodian withhold an amount on account
of taxes or other governmental charges or (ii) that under applicable securities
or exchange control regulations or law such securities must be registered under
the Securities Act or other law in order to be distributed to Holders), the
Depositary deems all or any portion of such distribution not to be feasible, the
Depositary may rely on such advice and shall determine a practicable method for
effecting such distribution or paying such taxes or governmental charges, which
method may include, but may not be limited to, the sale (at public or private
sale) of the securities or property thus received, or any part thereof, and the
distribution of the net proceeds of any such sale (net of taxes, fees and
expenses of the Depositary set forth in Section 5.09 or Exhibit B hereof) by the
Depositary to the Holders entitled thereto as in the case of a distribution
received in cash.
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SECTION 4.06. Distributions with Respect to Deposited Securities in Bearer
Form. Subject to the terms of this Article IV, distributions in respect of
Shares that are held by the Custodian in bearer form shall be made to the
Custodian for the account of the respective Holders of Receipts with respect to
which any such distribution is made upon due presentation by the Custodian or
the Custodian to the Company of any relevant coupons, talons, or certificates.
The Company shall promptly notify the Depositary and the Custodian of such
distributions. The Depositary has instructed the Custodian to promptly present
such coupons, talons or certificates, as the case may be, in connection with any
such distribution.
SECTION 4.07. Redemption. In the event that the Company exercises any
right of redemption in respect of Shares, and the Company has issued a notice to
the Depositary as set forth below, the Depositary will redeem, from the amounts
received by it in respect of such redemption, that number of American Depositary
Shares of Shares with respect to which such right of redemption is exercised
which represents the number of Shares deposited hereunder so redeemed. Subject
to Sections 4.02, 4.03 and 4.08 hereof (to the extent applicable), the
redemption price per American Depositary Share to be redeemed will be equal to
the per share amount received by the Depositary upon the redemption of the
Shares represented by such American Depositary Share multiplied by the number of
Shares (or the fraction of a Share) represented by each such American Depositary
Share. If less than all of the outstanding Shares are redeemed, the American
Depositary Shares to be redeemed will be selected by lot or redeemed pro rata as
may be determined by the Depositary. Notice from the Company of its exercise of
its rights of redemption in respect of the Shares must be given to the
Depositary not less than 30 days nor more than 60 days prior to the date fixed
for redemption. Promptly after receiving such notice from the Company, the
Depositary will deliver such notice to all Holders.
SECTION 4.08. Conversion of Foreign Currency. Whenever the Depositary or
the Custodian shall receive foreign currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars distributable to the Holders
entitled thereto and transferable to the United States, 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 transfer such Dollars
(net of any of its reasonable and customary expenses incurred in such conversion
and any expenses incurred on behalf of the Holder in complying with currency
exchange control or other governmental requirements) to the Holders entitled
thereto or, if the Depositary shall have distributed any warrants or other
instruments that entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest thereon. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have discretion and authority
to file such application for approval or license, if any, as it may deem
desirable. In no event, however, shall the Depositary be obligated to make such
a filing.
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If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a practicable
basis into Dollars distributable to the Holders entitled thereto and
transferable to the United States, or if any approval or license of any
government or authority or agency thereof that is required for such conversion
and/or transfer is denied or in the opinion of the Depositary is not obtainable
at a reasonable cost or within a reasonable period as determined by the
Depositary, the Depositary may distribute the foreign currency (or an
appropriate document evidencing the right to receive such foreign currency) to,
or in its discretion may hold such foreign currency (without liability for
interest thereon) for the respective accounts of, the Holders entitled to
receive the same.
If any such conversion of foreign currency, in whole or in part, is not
practicable for distribution to certain Holders entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent practicable to the Holders entitled thereto and may distribute the
balance of the foreign currency received by the Depositary to, or hold such
balance (without liability for interest thereon) for the account of, the Holders
for whom such conversion and distribution is not practicable.
SECTION 4.09. Fixing of Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any cash dividend or other
cash distribution or any distribution other than cash, or any rights to be
issued with respect to the Deposited Securities, 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 holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation of any consent or any other matter, the Depositary
shall; after consultation with the Company and subject to the rules of the
exchange on which ADSs may be listed, fix a record date for the determination of
the Holders of Receipts who shall be entitled to receive such dividend,
distribution rights or the net proceeds of the sale thereof, 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. Subject
to the provisions of Section 4.02 through 4.08 and to the other terms and
conditions of this Deposit Agreement, the Holders of Receipts at the close of
business on such record date shall be entitled to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively, or to give
such voting instructions, to receive such notice or solicitation, or otherwise
take action.
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SECTION 4.10. Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix a record date in respect of such
meeting for the giving of instructions for voting or such consent or proxy. The
Depositary shall, if requested in writing in a timely manner (which notice shall
have been received by the Depositary at least 20 days prior to such vote or
meeting or the Depositary shall have no obligation to so notify Holders
hereunder) by the Company and at the Company's expense, mail to Holders (a) such
notice of meeting, (b) a statement that the Holders at the close of business on
the specified record date will be entitled, subject to any applicable law, the
Memorandum and Articles of Association of the Company and the provisions of or
governing Deposited Securities (which provisions, if any, shall be summarized in
pertinent part by the Company), to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Shares or other Deposited
Securities represented by such Holder's American Depositary Shares, and (c) a
brief statement as to the manner in which such instructions may be given. Upon
the written request of a Holder of American Depositary Shares evidenced by a
Receipt on such record date received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law and the provisions of the
Memorandum and Articles of Association of the Company and the provisions of the
Deposited Securities, to vote or cause the Custodian to vote the Shares and/or
other Deposited Securities represented by American Depositary Shares evidenced
by such Receipt in accordance with the instructions set forth in such request.
Unless specifically instructed by at least five Holders or Holders
representing not less than 10% of the total voting rights of all holders of
Shares having the right to vote at such meeting, the Depositary shall not demand
voting by a poll and, in such case where polling is not used, the Depositary
shall follow the instructions of the Holders having sent in timely voting
instructions holding Receipts evidencing a majority of the American Depositary
Shares held by all Holders having sent timely voting instructions.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, 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 American Depositary Shares for which
no specific voting instructions are received by the Depositary from the Holder
shall not be voted.
SECTION 4.11. Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement or
otherwise in respect of, such Deposited Securities shall be treated as new
Deposited Securities under this Deposit Agreement, and the Receipts shall,
subject to the provisions of this Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of an opinion of counsel to the Company satisfactory to
the Depositary that such distributions are not in violation of any applicable
laws or regulations, execute and deliver additional Receipts as in the case of a
stock dividend on the Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts, in either case, as well as in the event of
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newly deposited Shares, with necessary modifications to the form of Receipt
contained in Exhibit A hereto, specifically describing such new Deposited
Securities or corporate change. The Company agrees to, jointly with the
Depositary, amend the Registration Statement on Form F-6 as filed with the
Commission to permit the issuance of such new form of Receipts. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, and with the Company's
approval, shall if the Company requests, subject to receipt of an opinion of
Company's counsel satisfactory to the Depositary that such action is not in
violation of any applicable laws or regulations, sell such securities at public
or private sale, at such place or places and upon such terms as it may deem
proper and may allocate the net proceeds of such sales for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.02. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or any
Holder or Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or (iii) any liability to the purchaser
of such securities.
SECTION 4.12. Available Information. The Company is subject to the
reporting requirements of the Exchange Act applicable to foreign private issuers
and accordingly files certain reports and documents with the Commission. These
reports and documents can be inspected and copied at the public reference
facilities maintained by the Commission located at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, DC 20549 and at the Commission's New York office
located at Seven World Trade Center, 13t' Floor, New York, New York 10048.
SECTION 4.13. Reports. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall, if so
requested by, and at the expense of, the Company, also send to Holders copies of
such reports when furnished by the Company to the Custodian pursuant to Section
5.06.
SECTION 4.14. List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders.
SECTION 4.15. Taxation. The Depositary or the Custodian will forward to
the Company or its agents such information from its records as the Company may
reasonably request to enable the Company or its agent to file necessary reports
with governmental authorities or agencies, and the Depositary, the Custodian or
the Company or its agents may file such reports as are necessary to reduce or
eliminate applicable taxes on distributions in respect of Deposited Securities
on dividends and other benefits under applicable tax treaties for the Holders.
In accordance with instructions from the Company and to the extent practicable
and at the expense of the Company, the Depositary will take, or will cause the
Custodian to take, reasonable administrative actions to obtain tax refunds,
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reduced withholding of tax at source on dividends and other benefits under
applicable tax treaties with respect to dividends and other distributions on the
Deposited Securities. Holders of American Depositary Shares evidenced by
Receipts representing Deposited Securities may be required from time to time to
file such proof of taxpayer status or residence, to execute such certificates
and to make such representations and warranties, or to provide any other,
information or documents as the Depositary may deem necessary or proper to
fulfill the Depositary's obligations under applicable law. Holders shall provide
the Depositary, in a timely manner, with copies, or originals if necessary and
appropriate, of any such proofs of residence, taxpayer status, beneficial
ownership and any other information or documents which the Depositary may
reasonably request. The Holders shall indemnify the Depositary, the Company, the
Custodian and any of their respective directors, employees, agents and
Affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained for such Holder pursuant to this Section
4.15.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the 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 Registrar 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 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 a matter related to this
Deposit Agreement or the Receipts.
The Registrar 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 Section 7.08
hereof.
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, with the written
approval of the Company, 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 upon the written request or with the
written approval of the Company.
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SECTION 5.02. Prevention or Delay in Performance. Neither the Depositary
nor the Company nor any of their respective controlling persons, directors,
employees, agents or affiliates shall incur any liability to any Holder or any
other person, if, by reason of any provision of any present or future law or
regulation of the United States, England or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or by reason
of any provision, present or future, of the Memorandum and Articles of
Association of the Company or governing any Deposited Securities, or by reason
of any act of God or war or other circumstances beyond its control, the
Depositary, its controlling persons or its agents or the Company or its agents
shall be prevented or forbidden from or subjected to any civil or criminal
penalty or restraint on account of, or delayed in, doing or performing any act
or thing which by the terms of this Deposit Agreement it is provided shall be
done or performed; nor shall the Depositary, its controlling persons or its
agents or the Company, its controlling persons or its agents incur any liability
to any Holder or other person by reason of any non-performance or delay, caused
as aforesaid, in performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement or in the Memorandum and Articles of Association of the
Company or provisions of or governing Deposited Securities. Where, by the terms
of a distribution pursuant to Section 4.02, 4.03, or 4.04 of this Deposit
Agreement, or an offering or distribution pursuant to Section 4.05, 4.11 or 5.07
of this Deposit Agreement or the Memorandum and Articles of Association of the
Company, or for any other reason, such distribution or offering may not be made
available to Holders, or some of them, and the Depositary may not dispose of
such distribution or offering on behalf of such Holders and make the net
proceeds available to such Holders, then the Depositary shall not make such
distribution or offering, and shall allow any such rights, if applicable, to
lapse.
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company. Each of the Company and its agents assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the Receipts to Holders
or other persons, except that each of the Company and its agents agrees to
perform its obligations specifically set forth in this Deposit Agreement without
negligence or bad faith and using its reasonable judgment, without any liability
on the part of the Company or the Depositary to any Holder.
The Depositary assumes no obligation and shall be subject to no liability
under this Deposit Agreement or the Receipts to Holders or other persons
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that the Depositary agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Without limitation of the foregoing, neither the Depositary, its
controlling persons, nor any of its agents, nor the Company its controlling
persons nor any of its agents shall be (a) under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense (including fees and disbursements of counsel) and liability be
furnished as often as may be required (and no Custodian shall be under any
obligation whatsoever with respect to such proceedings, the responsibility of
the Custodian being solely to the Depositary), or (b) liable for any action or
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inaction by it in reliance upon the advice of or information from legal counsel
(including internal legal counsel), accountants, any person presenting 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, its controlling
persons, its agents, any Custodian and the Company, its controlling persons and
its agents may rely and shall be protected in acting upon any written notice,
request or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any vote is cast or the effect of any vote, provided that any such
action or omission is in good faith and in accordance with the terms of this
Deposit Agreement.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of its election to do so delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment by the Company of
a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written notice
of such removal, which notice shall be effective on the earlier of (i) the 60th
day after delivery thereof to the Depositary, or (ii) upon the appointment by
the Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor, but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall, (i) execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder, (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.
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SECTION 5.05. The Custodian. The Depositary, after consultation with the
Company, may from time to time appoint one or more agents to act for it as
custodian hereunder. The Depositary has initially appointed Citibank, N.A.,
London Branch as Custodian and agent of the Depositary for the purpose of this
Deposit Agreement. The Custodian or its successors in acting hereunder shall be
subject at all times and in all respects to the direction of the Depositary for
the Shares and the American Depositary Shares and Receipts with respect to which
the Custodian acts as custodian and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties. If, upon the
effectiveness of such resignation, there should be no custodian acting
hereunder, the Depositary shall, promptly after receiving such notice, appoint a
substitute custodian that is organized under the laws of England with respect to
the Deposited Securities with respect to which the Custodian has so resigned
which shall thereafter be the Custodian hereunder. Whenever the Depositary
determines, in its discretion, that it is in the best interest of the Holders to
do so, it may appoint an additional custodian with respect to any Deposited
Securities, or discharge the Custodian with respect to any Deposited Securities
and appoint a substitute custodian, which shall thereafter be Custodian
hereunder with respect to the Deposited Securities. Upon demand of the
Depositary, any Custodian shall deliver such of the Deposited Securities held by
it together with all records maintained by it as Custodian with respect to such
Deposited Securities as are requested of it to any other Custodian or such
substitute or additional custodian or custodians. Immediately upon any such
change, the Depositary shall give notice thereof in writing to all Holders of
Receipts with respect to which such appointment has been made, each other
Custodian and the Company.
Upon the appointment of any successor depositary with respect to any
Deposited Securities and the corresponding Shares, American Depositary Shares
and Receipts hereunder, any Custodian then acting hereunder with respect to such
Deposited Securities shall forthwith become, without any further act or writing,
the agent hereunder of such successor depositary and the appointment of such
successor depositary shall in no way impair the authority of each Custodian
hereunder; but 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 as agent hereunder of such successor depositary.
SECTION 5.06. Notices and Reports. On or before the first date on which
the Company gives notice, by publication or otherwise, of any meeting of holders
of Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Memorandum and Articles of Association of the
Company that may be relevant or pertain to such notice of meeting or be the
subject of a vote thereat.
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The Depositary, at the Company's expense, will arrange for the prompt
transmittal by the Custodian to the Depositary of such notices, and any other
reports and communications which are both (a) received by the Depositary, the
Custodian or the nominees of either as the holder of the Deposited Securities
and (b) made generally available by the Company to holders of its Shares or
other Deposited Securities, and arrange for the mailing, at the Company's
expense and if so requested by the Company, of copies thereof to all Holders or
make such notices, reports and other communications available to all Holders on
a basis similar to that for holders of Shares or other Deposited Securities or
on such other basis as the Company may advise the Depositary or as may be
required by any applicable law, regulation or stock exchange requirement. The
Depositary may, at the Company's expense, but shall not be required to, obtain
English translations or adequate English summaries of any notices, such reports
and communications that are not furnished to the Depositary in English. The
Company has delivered to the Depositary and the Custodian a copy of the
Company's Memorandum and Articles of Association of or governing the Shares and
any other Deposited Securities issued by the Company or any Affiliate of the
Company in connection with such Shares, 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. The Depositary may rely upon
such copy for all purposes of this Deposit Agreement.
The Depositary will, at the expense of the Company, make such copy,
summary and any other notices, reports and other communications issued by the
Company in connection therewith available for inspection by the Holders of the
Receipts evidencing the Shares governed by such provisions at the Depositary's
Principal Office, at the office of the Custodian and at any other designated
transfer office.
SECTION 5.07. Issuance of Additional Shares, etc. The Company agrees that
in the event that the Company or any Affiliate issues as a dividend or
distribution (a) additional Shares, (b) rights to subscribe for Shares or other
Deposited Securities, (c) securities convertible or exchangeable into Shares, or
(d) rights to subscribe for securities convertible or exchangeable into Shares,
the Company will promptly furnish to the Depositary a written opinion of counsel
for the Company, which counsel shall be satisfactory to the Depositary, stating
whether or not the circumstances of such issue require a registration statement
under the Securities Act or other applicable laws to be in effect prior to the
delivery of the Receipts to be issued in connection with such securities or the
issuance of such rights to the Holders entitled thereto; provided, however, that
no such opinion shall be required in the event of an issuance of Shares as a
bonus, share split or similar free distribution of Shares event. If in the
opinion of such counsel a registration statement is required, such counsel shall
furnish to the Depositary a written opinion as to whether such registration
statement is in effect.
The Company agrees that it will obtain legal advice as to whether future
issuances for cash of (1) additional Shares, (2) rights to subscribe for Shares
or other Deposited Securities, (3) securities convertible into or exchangeable
for Shares, or (4) rights to subscribe for securities convertible into or
exchangeable for Shares, require a registration statement under the Securities
Act covering such securities to be in effect. If, being so advised by counsel,
the Company determines that an issuance of such securities is required to be
registered under the Securities Act, the Company will register such issuance to
the extent necessary, alter the terms of the issuance to avoid the registration
requirements of the Securities Act or direct the Depositary to take specific
measures with respect to the acceptance for deposit of Shares to prevent such
issuance from being made in violation of the registration requirements of the
Securities Act.
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The Company agrees with the Depositary that neither the Company nor any
Affiliate 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, unless such transaction is registered under the Securities Act, or is
exempt from registration thereunder as confirmed by a written opinion from
counsel for the Company in the United States, which counsel shall be reasonably
satisfactory to the Depositary, 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 except under circumstances
complying in all respects with the Securities Act.
SECTION 5.08. Indemnification. The Company agrees to indemnify the
Depositary, the Custodian and any of their respective directors, employees,
agents and Affiliates against, and hold each of them harmless from, any loss,
liability, tax, charge or expense of any kind whatsoever (including, but not
limited to, the reasonable fees and expenses of counsel) that may arise (a) out
of or in connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Shares, or other
Deposited Securities, as the case may be, or any offering documents in respect
thereof or (b) out of acts performed or omitted, including, but not limited to,
any delivery by the Depositary on behalf of the Company of information regarding
the Company in connection with this Deposit Agreement, the Receipts, the
American Depositary Shares, the Shares, or any Deposited Securities, as the same
may be amended, modified or supplemented from time to time, in any such case (i)
by the Depositary, the Custodian or any of their respective directors,
employees, agents and affiliates, except to the extent such loss, liability,
tax, charge or expense is due to negligence or bad faith of any of them, or (ii)
by the Company or any of its directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which may arise out of any Pre-Release Transaction (as
defined in Section 5.10 hereof) other than a Pre-Release Transaction entered
into at the request of the Company.
The Depositary agrees to indemnify the Company and its directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any loss, liability, charge or expense of any kind whatsoever (including, but
not limited to, the reasonable fees and expenses of counsel) which may arise out
of acts performed or omitted by the Depositary in any such case, due to the
negligence or bad faith of the Depositary.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this Section 5.08) and shall
consult in good faith with the indemnifying person as to the conduct of the
defense of such action or claim, which defense shall be reasonable in the
circumstances. No indemnified person shall compromise or settle any action or
claim without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
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SECTION 5.09. Charges of Depositary. The Company agrees to pay the
expenses, fees or charges of the Depositary and the Registrar, co-transfer agent
and co-registrar, and any other agent of the Depositary appointed under this
Deposit Agreement, as indicated in this Section 5.09 and Exhibit B hereto to be
paid by the Company, or in accordance with the written agreements between the
Company and the Depositary from time to time, in each case other than the
following items which are payable by Holders: (1) the charges of the Depositary
for the execution and delivery of Receipts (other than Receipts issued upon the
distribution of a Share dividend) and the surrender of Receipts, (2) stamp,
transfer and other applicable taxes and other governmental charges, (3) such
registration fees as may from time to time be in effect for the registration of
transfers, if any, of Shares generally on the share register of the Company (or
any appointed agent of the Company for transfer and registration of Shares which
may be the Share Registrar) and accordingly applicable to transfers of Shares to
the name of the Depositary, a Custodian or their nominees or the person who
makes a withdrawal of Shares, on the making of deposits or withdrawals pursuant
to Sections 2.02 or 2.05, (4) such cable, telex and facsimile transmission and
delivery expenses as are expressly provided in this Deposit Agreement to be at
the expense of persons depositing Shares or Holders, (5) such customary expenses
and charges as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.08 (including, without limitation, expenses
incurred on behalf of Holders in connection with compliance with foreign
exchange control restrictions), and (6) such fees and expenses as are incurred
by the Depositary (including without limitation expenses incurred on behalf of
Holders in connection with compliance with foreign exchange control regulations)
in delivery of Deposited Securities. Any other charges and expenses of the
Depositary hereunder will be paid by the Company after consultation and
agreement in writing between the Depositary and the Company as to the amount and
nature of such charges and expenses. Responsibility for payment of such charges
may at any time and from time to time be changed by agreement between the
Company and the Depositary. Unless otherwise agreed, the Depositary shall
present its statement for such expenses and fees or charges to the Company once
every three months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement and, as to any Depositary, the resignation or removal of such
Depositary as described in Section 5.04 for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal.
SECTION 5.10. Certain Rights of the Depositary; Limitations. Subject to
the further terms and provisions of this Section 5.10, the Depositary and its
agents, on their own behalf, may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Depositary may issue Receipts
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares furnished on behalf of the holder thereof. In its
capacity as Depositary, the Depositary shall not lend Shares or Receipts;
provided, however, that the Depositary may (i) issue Receipts prior to the
receipt of Shares pursuant to Section 2.02 and (ii) deliver Shares prior to the
receipt and cancellation of Receipts pursuant to Section 2.05, including
Receipts which were issued under (i) above but for which Shares may not have
been received (each such transaction a "Pre-Release Transaction"). The
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Depositary may receive Receipts in lieu of Shares under (i) above and receive
Shares in lieu of Receipts under (ii) above. Each such Pre-Release Transaction
will be (a) accompanied by or subject to a written agreement whereby the person
or entity (the "Applicant") to whom Receipts or Shares are to be delivered (w)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or Receipts that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or Receipts in its records and to hold such Shares or
Receipts in trust for the Depositary until such Shares or Receipts are delivered
to the Depositary or the Custodian, (y) unconditionally guarantees to deliver to
the Depositary or the Custodian, as applicable, such Shares or Receipts and (z)
agrees to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, United States
government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of Receipts and Shares involved in such Pre-Release Transactions at any
one time to thirty percent (30%) of the Receipts outstanding (without giving
effect to Receipts outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may also set limits with respect to
the number of Receipts and Shares involved in Pre-Release Transactions with any
one person on a case by case basis as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
SECTION 5.11. List of Restricted Securities Owners. Upon each issuance by
the Company of any securities that are Restricted Securities, the Company shall
provide the Depositary a list setting forth, to the actual knowledge of the
Company, those persons or entities who beneficially acquired Restricted
Securities. The Company agrees to advise in writing each of the persons or
entities so listed that such Restricted Securities are ineligible for deposit
hereunder. The Depositary may rely on any such list and shall not be liable for
any action or omission made in reliance thereon.
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ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment, Supplement. The Receipts outstanding hereunder
and any provisions of this Deposit Agreement (including the form of Receipt
attached hereto) 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. Any amendment or supplement which shall impose or increase any fees or
charges (other than transfer and registration fees, fees in connection with
foreign exchange control regulations, and taxes and other governmental charges,
delivery and other such expenses), or which shall otherwise prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding Receipts until the expiration of 60 days
after notice of such amendment or supplements 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
Shares to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by Holders,
shall be deemed not to prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment or supplement and to be bound by
the 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 the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the Receipt at any time in accordance with such changed
rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
SECTION 6.02. Termination. The Depositary shall, at any time at the
written direction of the Company, terminate this Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. If 60
days shall have expired after (i) the Depositary shall have delivered to the
Company a written notice of its election to resign, or (ii) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Section
2.05 and subject to the conditions and restrictions therein set forth, and upon
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payment of any applicable stamp, transfer or other applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of this Deposit
Agreement, the Registrar thereafter shall discontinue the registration of
transfers of Receipts, and the Depositary shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in this
Deposit Agreement, and shall continue to deliver Deposited Securities, subject
to the conditions and restrictions set forth in Section 2.05, together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of this Deposit Agreement and any applicable stamp, transfer or other
applicable taxes or governmental charges or assessments). At any time after the
expiration of six months from the date of termination of this Deposit Agreement,
the Depositary may and intends to sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, in an unsegregated
account, without liability for interest for the pro rata benefit of the Holders
of Receipts whose Receipts have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all obligations under this
Deposit Agreement with respect to the Receipts and the Shares, Deposited
Securities and American Depositary Shares, except for its obligations to the
Company under Section 5.08 hereof and except to account for such net proceeds
and other cash (after deducting, or charging, as the case may be, in each case
the charges of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable stamp, transfer or other applicable taxes
or governmental charges or assessments). Upon the termination of this Deposit
Agreement as to Receipts, the Company shall be discharged from all obligations
under this Deposit Agreement as to the Receipts and the Shares, Deposited
Securities and American Depositary Shares except for its obligations to the
Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts shall constitute one and the same agreement. Copies of this
Deposit Agreement shall be kept by the Depositary and shall be open to
inspection by any Holder during business hours.
SECTION 7.02. No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto and shall not be deemed to give any
legal or equitable right, remedy or claim whatsoever to any other person (except
as specifically contemplated herein). Nothing in this Agreement shall be deemed
to give rise to a partnership or joint venture among the parties nor establish a
fiduciary or similar relationship among the parties. The parties hereto
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acknowledge and agree that (i) the Depositary and its Affiliates may at any time
have multiple banking relationships with the Company and its Affiliates, (ii)
the Depositary and its Affiliates may be engaged at any time in transactions in
which parties adverse to the Company or the Holders or Beneficial Owners may
have interests and (iii) nothing contained in this Agreement shall (a) preclude
the Depositary or any of its Affiliates from engaging in such transactions or
establishing or maintaining such relationships or (b) obligate the Depositary or
any of its Affiliates to disclose such transactions or relationships or to
account for any profit made or payment received in such transactions or
relationships.
SECTION 7.03. Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and Beneficial Owners from time to time shall be parties to the
Deposit Agreement and shall be bound by all of the terms and conditions thereof
and of any Receipt by acceptance thereof or any beneficial interest therein.
Holders and beneficial owners of american depositary shares issued under the
Original Deposit Agreement agree, by continuing to hold such american depositary
shares or to have such beneficial interest, to be parties to this Amended and
Restated Deposit Agreement and are bound by all of the terms and conditions
hereof.
Each Holder and each Beneficial Owner, upon acceptance of any Receipt or
any beneficial interest therein, thereby appoints the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all steps or action provided for or contemplated herein with respect to
the Deposited Securities and to take such further steps or action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement.
SECTION 7.05. Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Imperial Tobacco Group PLC, P.O. Box 244, Upton Road, Bristol,
BS99, 7UJ, England, Attention: Company Secretary, with a copy to Weil, Gotshal &
Manges LLP, 767 Fifth Avenue, New York, NY 10153, Attention: Ellen J. Odoner, or
to any other address which the Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank,
N.A., 111 Wall Street, New York, New York 10043, U.S.A. Attention: ADR
Department, or to any other address which the Depositary may specify in writing
to the Company.
Any and all notices to be given to the Custodian shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank,
N.A., London Branch, P.O. Box 200, Cottons Centre, Hays Lane, London, SE1 2QT,
England or to any other address which the Custodian may specify in writing to
the Company.
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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 cable, telex or facsimile
transmission, confirmed by letter, 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 cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex or facsimile transmission
received by it from the other or from any Holder, notwithstanding that such
cable, telex or facsimile transmission shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.06. 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 7.06,
the Company and the Depositary agree that any federal or state court located in
the Borough of Manhattan, the City of New York, 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 CT Corporation System, now at 1633 Broadway, New York, New York
10019, 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
7.06. 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 United States on the terms
and for the purposes of this Section 7.06 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 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 7.05 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.
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Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder 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 either case, in any state or federal court of the United States,
and the Depositary or the Company have any claim, for indemnification or
otherwise, against each other arising out of the subject matter of such suit,
action or proceeding, then the Company and the Depositary may pursue such claim
against each other in the state or federal court in the United States in which
such suit, action, or proceeding is pending and, for such purposes, and 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 7.06, 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.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
The provisions of this Section 7.06 shall survive any termination of this
Deposit Agreement, in whole or in part.
SECTION 7.07. Assignment. Subject to the provisions of Section 5.04 and
Article IV hereof, this Deposit Agreement may not be assigned by either the
Company or the Depositary.
SECTION 7.08. Compliance with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
SECTION 7.09. Amendment and Instatement of Prior Agreements. This Deposit
Agreement amends and restates the Deposit Agreement, dated as of September 25,
1996, by and among the Company, the Depositary and all Holders and Beneficial
Owners of Receipts evidencing American Depositary Shares issued thereunder.
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IN WITNESS WHEREOF, IMPERIAL TOBACCO GROUP PLC and CITIBANK, N. A. have
duly executed this Amended and Restated Deposit Agreement as of the day and year
first above set forth and all Holders and Beneficial Owners shall become parties
hereto upon acceptance by them of American Depositary Shares evidenced by
Receipts issued in accordance with the terms hereof. Holders and beneficial
owners of depositary shares issued under the Original Deposit Agreement shall
automatically become parties hereto by continuing to hold the american
depositary shares evidenced by receipts issued thereunder after the effective
date hereof.
IMPERIAL TOBACCO GROUP PLC
By: /s/ R Dyrbus
--------------------------
Name: R Dyrbus
Title: Finance Director
CITIBANK, N.A.
By: /s/ Nancy C. Lissemore
--------------------------
Name: Nancy C. Lissemore
Title: Vice President
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Number CUSIP 435142101
American Depositary Shares,
each American Depositary Share
representing two (2) fully paid
Ordinary Shares, par value of 10p each
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
Representing
DEPOSITED ORDINARY SHARES
Of
IMPERIAL TOBACCO GROUP PLC
(A public limited company incorporated in England - Company Number 3236483)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (herein called the
"Depositary"), hereby certifies that _____________ is the owner of _____
American Depositary Shares, each representing two (2) deposited Ordinary Shares,
par value of 10p each, including evidence of rights to receive such Ordinary
Shares (the "Shares") of Imperial Tobacco Group PLC, a public limited company
incorporated in England (the "Company"). As of the date of the Deposit Agreement
(hereinafter referred to), each American Depositary Share represents two (2)
Shares deposited under the Deposit Agreement with the Custodian which at the
date of execution of the Deposit Agreement is Citibank, N.A., London Branch (the
"Custodian"). The ratio of Depositary Shares to shares of stock is subject to
subsequent amendment as provided in Article IV of the Deposit Agreement. The
Depositary's principal executive office is located at 111 Wall Street, New York,
New York 10043, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("Receipts"), executed and delivered
pursuant to the Deposit Agreement, dated as of September 25, 1996, as amended as
of September 30, 1996, and as amended and restated as of November 2, 1998 (as so
amended and restated and as may be further amended from time to time, the
"Deposit Agreement"), by and among the Company, the Depositary, and all Holders
and Beneficial Owners of American Depositary Shares evidenced by American
Depositary Receipts (the "Receipts") issued thereunder, each of whom by
accepting a Receipt agrees to become a party thereto and become bound by all the
terms and conditions thereof. The Deposit Agreement sets forth the rights and
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obligations of Holders and Beneficial Owners and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect of such
Shares and held thereunder (such Shares, securities, property and cash,
collectively, "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Principal Office of the Depositary and the Custodian.
Holders and Beneficial Owners from time to time shall be parties to the
Deposit Agreement and shall be bound by all of the terms and conditions thereof
and of this Receipt by acceptance hereof of any beneficial interest therein.
Holders and beneficial owners of american depositary shares issued under the
Original Deposit Agreement (as defined in the Deposit Agreement) agree, by
continuing to hold such american depositary shares or to have such beneficial
interest, to be parties to this Amended and Restated Deposit Agreement and are
bound by all of the terms and conditions hereof.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Memorandum and Articles
of Association of the Company 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.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of this Receipt and upon
payment of (i) the charges of the Depositary for the making of withdrawals and
cancellation of Receipts (as set forth in Article (10) hereof and Section 5.09
and Exhibit B of the Deposit Agreement) and (ii) all fees, stamp, transfer or
other applicable taxes and governmental charges payable in connection with such
surrender and withdrawal, and, subject to the terms and conditions of the
Deposit Agreement, the Company's Memorandum and Articles of Association, Article
(23) of this Receipt and the provisions of or governing the Deposited Securities
and other applicable laws, the Holder hereof is entitled to the delivery, to him
or upon his order, of the amount of Deposited Securities at the time represented
by the American Depositary Shares evidenced by this Receipt. Subject to the last
sentence of this paragraph, such Deposited Securities may be delivered in
registered form or by electronic delivery. Such Deposited Securities may be
delivered by the delivery of (a) certificates in the name of the Holder hereof
or as ordered by him or by certificates properly endorsed or accompanied by
proper instruments of transfer to such Holder or as ordered by him and (b) any
other securities, property and cash to which such Holder is then entitled in
respect of this Receipt. Delivery shall be made, at the option of the Holder
hereof, either at the principal office of the Custodian or at the Principal
Office of the Depositary for further delivery to such Holder, provided that the
forwarding of certificates for Shares or other Deposited Securities for such
delivery at the Principal Office of the Depositary shall be at the request, risk
and expense of the Holder hereof, and for the account of such Holder.
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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 at the designated office of the
Custodian, subject to Sections 2.06, 3.01, 3.02, 5.09 and to the other terms and
conditions of the Deposit Agreement, the Company's Memorandum and Articles of
Association, and to the provisions of or governing the Deposited Securities and
other 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 if
so required by the Depositary as provided above, the Deposited Securities
represented by such Receipt together with any certificate or other proper
documents of or relating to title for the Deposited Securities, except that the
Depositary may make delivery to such person or persons at the Principal Office
of the Depositary of any dividends or distributions with respect to the
Deposited Securities represented by such Receipt, or of any proceeds of sale of
any dividends, distributions or rights, which may at the time be held by the
Depositary.
The Depositary shall not accept for surrender a Receipt evidencing
American Depositary Shares representing less than one Share. 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 recorded in the name
of the Holder surrendering such Receipt, and shall deliver to the person
surrendering such Receipt the net cash proceeds from the sale by the Depositary
of any remaining fractional share.
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the
limitations set forth herein and in the Deposit Agreement, the transfer of this
Receipt is registrable on the books of the Depositary at its Principal Office by
the Holder hereof in person or by duly authorized attorney, upon surrender of
this Receipt at any of the Depositary's designated transfer offices, properly
endorsed for transfer or accompanied by a proper instrument or instruments of
transfer (including any certifications that the Depositary or the Company may
require in order to comply with applicable laws, signature guarantees in
accordance with standard industry practice and the accurate completion of any
endorsements appearing on this Receipt) and (i) duly stamped as may be required
by the laws of the State of New York and the United States of America, and (ii)
accompanied by funds sufficient to pay any applicable stamp, transfer or other
applicable taxes, duties and the charges set forth in Article (10) hereof, and
upon compliance with such regulations, if any, as the Depositary may establish
for such purpose, subject to Article (23) of this Receipt. This Receipt may be
split into other such Receipts, or may be combined with other such Receipts into
one Receipt for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary, any Custodian or any Registrar may require payment
from the presenter of the Receipt of a sum sufficient to reimburse it for any
stamp, transfer or other applicable tax, duties or other governmental charge and
any stock transfer or registration fee with respect thereto (including any such
tax, duty, charge, fee and expense with respect to Shares being deposited or
Deposited Securities being withdrawn) and payment of any applicable fees as
provided in this Receipt, may require the production of proof satisfactory to it
as to the identity and genuineness of any signature or other matters, subject to
Article (23) of this Receipt, and may also require compliance with any laws or
governmental regulations relating to American Depositary Receipts or to the
withdrawal of Deposited Securities.
A-3
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of Receipts
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 outstanding Receipts generally may be suspended, during any
period when the transfer books of the Depositary or the Company (or the
appointed agent for the Company for the transfer and registration of Shares,
which may but need not be the Share Registrar) are closed, or if any such action
is deemed necessary or advisable by the Depositary or the Company in good faith
at any time or from time to time, because of any requirement of law or of any
government or governmental body or commission, or any securities exchange on
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 (23) hereof. Notwithstanding any provision of the Deposit Agreement or
this Receipt to the contrary, Holders of Receipts are entitled to withdraw the
Deposited Securities at any time, subject only to the limitations permitted in
General Instructions I.A.(l) to Form F-6 (as such instruction may be amended
from time to time) under the Securities Act of 1933 in connection with (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a shareholders'
meeting, or the payment of dividends, (ii) the payment of fees, taxes, and
similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. 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
Securities Act of 1933, unless a registration statement is in effect as to such
Shares or other Deposited Securities.
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: ____________________ By: ____________________
Authorized Officer Vice President
The address of the Principal Office of the Depositary is 111 Wall Street,
New York, New York 10043, U.S.A.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(5) Compliance With Information Requests. Notwithstanding any other
provision of this Deposit Agreement, the Company may from time to time request
Holders or former Holders to provide information as to the capacity in which
they hold or held Receipts and regarding the identity of any other persons then
or previously interested in such Receipts and the nature of such interest and
various other matters. Each Holder agrees to provide any such information
reasonably requested by the Company or the Depositary pursuant to this Section,
whether or not they are Holders at the time of such request. The Depositary
agrees to use reasonable efforts to comply with written instructions received
from the Company requesting the Depositary to forward any such requests to the
Holders and to forward to the Company any such responses to such requests
received by the Depositary.
(6) Ownership Restrictions. The Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
under applicable law or the Memorandum and Articles of Association of the
Company. The Company may also restrict, in such manner as it deems appropriate,
transfers of the American Depositary Shares where such transfer may result in
the total number of Shares represented by the American Depositary Shares
beneficially owned by a single Holder to exceed the limits under any applicable
law. The Company may, in its sole discretion, instruct the Depositary to take
action with respect to the ownership interest of any Holder in excess of the
limitation set forth in the preceding sentence, including but not limited to a
mandatory sale or disposition on behalf of a Holder of the Shares represented by
the American Depositary Shares held by such Holder in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any stamp,
transfer or other applicable tax, duty or other governmental charge shall become
payable by or on behalf of the Depositary or any Custodian with respect to any
Receipt or any Deposited Securities represented by the American Depositary
Shares evidenced hereby, such tax, duty or other governmental charge shall be
payable by the Holder hereof to the Depositary. The Depositary may refuse to
effect any registration of transfer of this Receipt or any withdrawal of
Deposited Securities represented by the American Depositary Shares evidenced
hereby until such payment is made, and the Company and the Depositary may
withhold or deduct from any dividends or other distributions, or may sell for
the account of the Holder hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax, duty or other governmental charge, with the Holder hereof
remaining liable for any deficiency. The Holder shall indemnify the Depositary,
the Company, the Custodian and any of their respective directors, employees,
agents, and Affiliates against, and hold each of them harmless from, any claims
by any governmental authority with respect to taxes, additions to tax, penalties
or interest arising out of any refund of tax, reduced rate of withholding at
source or other tax benefit obtained for such Holder pursuant to Section 4.15 of
the Deposit Agreement.
A-5
(8) Representations and Warranties of Depository. Every person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that, to the best of such person's knowledge, such Shares and each
certificate therefor are validly issued and outstanding, fully paid and
non-assessable, that any preemptive rights have been validly waived or exercised
and that the person making such deposit is duly authorized to do so. Each such
person shall be deemed to acknowledge complete responsibility for the report of
any false information relating to foreign exchange transactions to the
Depositary, the Custodian or any governmental authority in England in connection
with the issuance of Receipts and the deposit, transfer, surrender or withdrawal
of Shares or Receipts. Every such person shall be deemed to represent that the
deposit of Shares or sale of Receipts by that person is not restricted, and such
Shares do not constitute Restricted Securities, under the Securities Act of
1933. Such representations and warranties shall survive any such deposit,
transfer, surrender and withdrawal of Shares and Receipts. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions reasonably necessary to correct the
consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit or any Holder may, in addition to the requirements
of Articles (4) and (5) hereof, be required from time to time (i) to file with
the Depositary or a Custodian such proof of citizenship or residence, taxpayer
status, exchange control approval, payment of all applicable taxes or other
governmental charges, the identity of any person legally or beneficially
interested in the Receipt and the nature of such interest, (ii) provide such
information relating to the registration on the books of the Company (or the
appointed agent of the Company for transfer and registration of Shares, which
may, but need not, be the Share Registrar) of the Shares presented for deposit,
(iii) establish compliance with all applicable laws, rules and regulations of or
governing the Deposited Securities and the terms of the Deposit Agreement, and
(iv) execute and deliver to the Depositary or a Custodian such certificates and
to make such representations and warranties as the Depositary or the Company may
deem necessary or proper or as the Company reasonably may require by written
request to the Depositary and the Custodian. Subject to Article (23) hereof and
the terms of the Deposit Agreement, the Depositary may withhold the delivery or
registration of transfer of any Receipt or the distribution or sale of any
dividend or other distribution of rights or of the proceeds thereof, or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are delivered or such representations and warranties
made.
(10) Charges of Depositary. The Depositary shall charge any party to whom
Receipts are issued (including, without limitation, deposit or issuance pursuant
to a stock split declared by the Company or an exchange of stock for the Shares
or Deposited Securities, or a distribution of Receipts pursuant to Section 4.11
of the Deposit Agreement), or who surrenders Receipts, a fee of U.S. $3.00 or
less, and a fee of U.S. $5.00 or less, in each case, per 100 American Depositary
Shares (or portion thereof) for the issuance or surrender, respectively, of a
Receipt. In addition, Holders will pay all stamp, transfer and other applicable
taxes and other governmental charges, registration fees, cable, telex and
facsimile transmission and delivery expenses, and customary and other expenses
incurred by the Depositary in connection with its obligations and duties under
the Deposit Agreement, as set forth in Exhibit B thereof. Any other charges and
expenses of the Depositary under the Deposit Agreement will be paid by the
Company after consultation and agreement between the Depositary and the Company
concerning the nature and amount of such charges and expenses. All fees and
charges may at any time and from time to time be changed by agreement between
the Company and the Depositary. The charges and expenses of the Custodian,
nominee or any other agent of the Depositary are for the sole account of the
Depositary. The provisions in respect of these charges may be changed in the
manner indicated in Article (21) of this Receipt.
A-6
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each American Depositary Share
evidenced hereby), when such Receipt is properly endorsed or accompanied by a
proper instrument or instruments of transfer, is transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that the Company and the Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this Receipt is registered on the books of
the Depositary as the absolute owner hereof for the purpose of determining the
person entitled to any distribution of dividends or other distributions or to
any notice provided for in the Deposit Agreement and for all other purposes, and
neither the Depositary nor the Company shall have the obligations or be subject
to any liability hereunder or under the Deposit Agreement to any holder of a
Receipt unless such holder is a Holder thereof.
(12) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt has been executed by the Depositary by the manual signature
of a duly authorized signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar has been appointed and this Receipt
has been countersigned by the manual signature of a duly authorized officer of
the Registrar, and provided, further, that, only with respect to the Receipts
originally issued, the signatures of both the Depositary and the Registrar may
be facsimiles.
(13) Reports; Inspection of Transfer Books. The Company is subject to the
reporting requirements of the Exchange Act applicable to foreign private issuers
and accordingly files certain reports and documents with the Commission. These
reports and documents can be inspected and copied at the public reference
facilities maintained by the Commission located at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, DC 20549 and at the Commission's New York office
located at Seven World Trade Center, 13th Floor, New York, New York 10048.
The Depositary will make available for inspection by Holders at its
Principal Office and at the office of each Custodian, copies of the Deposit
Agreement, any notices, reports or communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary, a 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. To the extent required under Rule 12g3-2(b)
or otherwise in accordance with the Securities Exchange Act of 1934, as amended,
such reports and communications shall be in English. The Depositary will also
send to Holders copies of such reports when furnished by the Company pursuant to
Section 5.06 of the Deposit Agreement.
The Registrar will keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by Holders, provided that such inspection shall not be for the purpose of
communicating with Holders in the interest of a business or object other than
the business of the Company or a matter related to the Deposit Agreement or the
Receipts.
A-7
Subject to Article (23) hereof, the Registrar may close the transfer books
(with notice to the Company if other than in the ordinary course of business),
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.
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary or any Custodian receives any cash dividend or other cash
distribution on any Deposited Securities, 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 4.08 of the Deposit Agreement, be
converted on a practicable basis, by sale or any other manner that it may
determine in accordance with applicable law, into Dollars transferable to the
United States, and subject to the Deposit Agreement, promptly convert or cause
to be converted such dividend or distribution into Dollars and will distribute
promptly the amount thus received (net of fees of, and expenses incurred by, the
Depositary) to the Holders entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively without liability for interest thereon. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Holder a fraction of one Cent, and any balance not so distributable shall
be held by the Depositary (without liability for interest thereon) and shall be
added to and become part of the next sum received by the Depositary for
distribution to Holders of Receipts then outstanding. Pursuant to Articles (4)
and (7) hereof, if the Company 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 to the relevant
governmental authority by the person holding the withheld amounts.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall deposit or cause such
Shares to be deposited with and registered in the name of the Custodian and
thereupon the Depositary may, subject to Section 5.07 hereof, either (i)
distribute to the Holders entitled thereto, as of the record date fixed pursuant
to Section 4.09 of the Deposit Agreement, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts for American Depositary Shares, which
represents in aggregate the number of Shares received as such dividend, or free
distribution, subject to the terms of this Deposit Agreement, including, without
limitation, Sections 2.02, 2.03, 5.07 and 5.09 of the Deposit Agreement; in lieu
of delivering Receipts for fractional American Depositary Shares in any such
case, the Depositary shall sell the number of Shares represented by the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.02 of the Deposit
Agreement, or (ii) if additional Receipts are not so distributed (except
pursuant to the preceding sentence), each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby. In the event that the Depositary determines that
any distribution in property (including Shares and rights to subscribe therefor)
A-8
is subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, after the Company, in the fulfillment of its
obligations under Section 5.07 of the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders, or if the
Company does not provide a satisfactory opinion as provided in Section 5.07, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges, or effect the distribution of unregistered
Shares, and the Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to Holders entitled thereto in
proportion to the number of American Depositary Shares held by them respectively
and the Depositary shall distribute any unsold balance of such property in
accordance with the provisions of this Deposit Agreement.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares of the corresponding Series or any rights of any other nature, the
Depositary may, after consultation with the Company, and, if requested in
writing by the Company, shall, take action, subject to the terms of this Deposit
Agreement, as follows:
(a) if at the time of the offering of any rights, the Depositary
determines in its discretion, after obtaining, at the Company's expense,
opinion(s) of counsel reasonably satisfactory to the Depositary, that it is
lawful and feasible to make such rights available to all or certain Holders or
Beneficial Owners but not to others, by means of warrants or otherwise, the
Depositary may distribute warrants or other instruments therefor in such form as
it may determine, to the Holders entitled thereto, in proportion to the number
of American Depositary Shares representing such Deposited Securities held by
them respectively, or employ such other method as it may deem feasible after
obtaining, at the Company's expense, opinion(s) of counsel reasonably
satisfactory to the Depositary in order to facilitate the exercise, sale or
transfer of rights or the securities obtainable upon the exercise of such
rights, by such Holders or Beneficial Owners; or
(b) if at the time of the offering of any rights, the Depositary
determines in its discretion, after obtaining, at the Company's expense,
opinion(s) of counsel reasonably satisfactory to the Depositary, that it is not
lawful or not feasible to make such rights available to certain Holders or
Beneficial Owners by means of warrants or otherwise, or if the rights
represented by such warrants or such other instruments are not exercised and
appear to be about to lapse, the Depositary may, in its discretion, sell such
rights or such warrants or other instruments at public or private sale, in a
riskless principal capacity, at such place or places and upon such terms as it
may deem proper, and allocate the proceeds of such sales for the account of the
Holders otherwise entitled to such rights, warrants or other instruments upon an
averaged or other practicable basis without regard to any distinctions among
such Holders because of exchange restrictions or the date of delivery of any
Receipt or Receipts, or otherwise, and distribute such net proceeds so allocated
to the extent practicable as in the case of a distribution of cash pursuant to
Section 4.02 hereof. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or feasible to make such rights available to
Holders in general or any Holder or Holders in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale, or (iii) any
liability to the purchaser of such rights, warrants or other instruments.
A-9
If the Depositary does not receive such written request from the Company,
the Depositary shall, after consultation with the Company, and after obtaining
opinion(s) of counsel reasonably satisfactory to the Depositary, have discretion
as to the procedure to be followed (i) in making such rights available to the
Holders, or (ii) in disposing of such rights on behalf of such Holders and
distributing the net proceeds available in dollars to such Holders as in the
case of a distribution of cash pursuant to Section 4.02 of the Deposit
Agreement, or (iii) in allowing such rights to lapse in the event such rights
may not be made available to Holders or be disposed of and the net proceeds
thereof made available to Holders.
Notwithstanding anything to the contrary in this Article (14), if
registration (under the Securities Act or any other applicable law) of 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 offer such rights to the
Holders (i) unless and until a registration statement under the Securities Act
covering such offering is in effect, or (ii) unless the Company furnishes 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, satisfactory to the Depositary or other evidence satisfactory to
the Depositary to the effect that the offering and sale of such securities to
the Holders of such Receipts are exempt from or do not require registration
under the provisions of the Securities Act or any other applicable laws. Because
English law presently does not recognize the issuance of preemptive rights in
negotiable form and the possibility of such issuance is unlikely, a liquid
market for preemptive rights may not exist, and this may adversely affect (1)
the ability of the Depositary to dispose of such rights or (2) the amount the
Depositary would realize upon disposal of rights.
Whenever the Custodian shall receive any distribution other than cash,
Shares or rights upon any Deposited Securities, the Depositary shall, after
consultation with the Company, and after obtaining, at the Company's expense,
opinion(s) of counsel satisfactory to the Depositary that the proposed
distribution does not violate any applicable laws or regulations, cause the
securities or property so received to be distributed to the Holders entitled
thereto, as of a record date fixed pursuant to Section 4.09 of the Deposit
Agreement, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution, net of expenses of the Depositary; provided, however, that, if in
the opinion of the Depositary or its counsel, it cannot cause such securities or
property to be distributed or such distribution cannot be made proportionately
among the Holders entitled thereto, or if for any other reason (including
without limitation any requirement (i) that the Company, the Depositary or the
Custodian withhold an amount on account of taxes or other governmental charges
or (ii) that under applicable securities or exchange control regulations or law
such securities must be registered under the Securities Act or other law in
order to be distributed to Holders), the Depositary deems such distribution not
to be feasible, the Depositary shall determine a practicable method of effecting
such distribution and may rely on such advice, which method may include, but not
be limited to, the sale (at public or private sale) of the securities or
property thus received, or any part thereof, and the distribution of the net
proceeds of any such sale (net of taxes, fees and expenses of the Depositary set
forth in Section 5.09 or in Exhibit B of the Deposit Agreement) by the
Depositary to the Holders entitled thereto as in the case of a distribution
received in cash.
A-10
Pursuant to Articles (4) and (7) hereof, if the Depositary determines that
any distribution in property (including Shares and rights to subscribe therefor)
is subject to any tax, duty 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, duties or governmental charges,
and the Depositary shall distribute the net proceeds of any such sale after
deduction of such taxes, duties or governmental charges to Holders entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively and shall distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement.
The Custodian, the Depositary or the Company or its agents shall use
reasonable efforts to make and maintain arrangements enabling Holders who are
citizens or residents of the United States to receive any rebates, tax and/or
duty credits or other benefits (pursuant to treaty or otherwise) relating to
dividend payments on the American Depositary Shares to which they are entitled,
and they may file any such reports necessary to obtain benefits under applicable
tax treaties for the Holders.
(15) Fixing of Record Date. Whenever the Depositary shall receive notice
of the fixing of a record date by the Company for the determination of holders
of Deposited Securities entitled to receive any cash dividend or other cash
distribution or any distribution other than cash, or any rights to be issued
with respect to the Deposited Securities, 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 holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation of any consent or any other matter, the Depositary
shall, after consultation with the Company and subject to the rules of the
exchange on which ADSs are listed, fix a record date for the determination of
the Holders of Receipts who shall be entitled to receive such dividend,'
distribution rights or the net proceeds of the sale thereof, 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. Subject
to the provisions of Sections 4.02 through 4.08 of the Deposit Agreement and to
the other terms and conditions of this Receipt and the Deposit Agreement, the
Holders of Receipts at the close of business on such record date shall be
entitled to receive the amount distributable by the Depositary with respect to
such dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by them
respectively, or to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
A-11
(16) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Shares are entitled to vote, or
of solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix a record date in respect of such meeting
for the giving of instructions for voting or such consent or proxy. The
Depositary shall, if requested in writing in a timely manner by the Company and
at the Company's expense, mail to Holders: (a) such notice of meeting, (b) a
statement that the Holders at the close of business on the specified record date
will be entitled, subject to any applicable law, the Company's Memorandum and
Articles of Association and the provisions of or governing Deposited Securities
(which provisions, if any, shall be summarized in pertinent part by the
Company), to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the Shares or other Deposited Securities represented by such
Holder's American Depositary Shares and (c) a brief statement as to the manner
in which such instructions may be given. Upon the written request of a Holder of
American Depositary Shares evidenced by a Receipt on such record date received
on or before the date established by the Depositary for such purpose, the
Depositary shall endeavor, insofar as practicable and permitted under applicable
law and the provisions of the Company's Memorandum and Articles of Association
and the provisions of the Deposited Securities, to vote or cause the Custodian
to vote the Shares and/or other Deposited Securities represented by American
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request.
Unless specifically instructed by at least five Holders or Holders
representing not less than 10% of the total voting rights of all holders of
Shares having the right to vote at such meeting, the Depositary shall not demand
voting by a poll and, in such case where polling is not used, the Depositary
shall follow the instructions of the Holders having sent in timely voting
instructions holding Receipts evidencing a majority of the American Depositary
Shares held by all Holders having sent timely voting instructions.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, 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 American Depositary Shares for which
no specific voting instructions are received by the Depositary from the Holder
shall not be voted.
(17) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or a Custodian in
exchange for, or in conversion of or replacement or otherwise in respect of,
such Deposited Securities shall be treated as new Deposited Securities under the
Deposit Agreement, and the Receipts shall, subject to the provisions of the
Deposit Agreement and applicable law, evidence American Depositary Shares
representing the right to receive such additional securities. Alternatively, the
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of an opinion
of counsel to the Company satisfactory to the Depositary that such distributions
are not in violation of any applicable laws or regulations, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts, in
either case, as well as in the event of newly deposited shares, with necessary
modifications to the form of Receipt contained in this Exhibit A to the Deposit
A-12
Agreement, specifically describing such new Deposited Securities or corporate
change. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new Receipts. Notwithstanding the foregoing, in the event that
any security so received may not be lawfully distributed to some or all Holders,
the Depositary may, and with the Company's approval, shall if the Company
requests, subject to receipt of an opinion of Company's counsel satisfactory to
the Depositary that such action is not in violation of any applicable laws or
regulations, if the Company requests, sell such securities at public or private
sale, at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales for the account of the Holders otherwise
entitled to such securities upon an averaged or other practicable basis without
regard to any distinctions among such Holders and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to Section 4.02 of the Deposit Agreement. The Depositary shall not
be responsible for (i) any failure to determine that it may be lawful or
feasible to make such securities available to Holders in general or any Holder
or Holders in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
(18) Indemnification. The Company agrees to indemnify the Depositary, the
Custodian and any of their respective directors, employees, agents and
affiliates against, and hold each of them harmless from, any loss, liability,
tax, charge or expense of any kind whatsoever (including, but not limited to,
the reasonable fees and expenses of counsel) that may arise (a) out of or in
connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Shares or other
Deposited Securities, as the case may be, or any offering documents in respect
thereof or (b) out of acts performed or omitted, including but not limited to
any delivery by the Depositary on behalf of the Company of information regarding
the Company, in connection with the Deposit Agreement, the Receipts, the
American Depositary Shares, the Shares or any Deposited Securities, as the same
may be amended, modified or supplemented from time to time, in any such case (i)
by the Depositary, the Custodian or any of their respective directors,
employees, agents and affiliates, except to the extent such loss, liability,
tax, charge or expense is due to negligence or bad faith of any of them, or (ii)
by the Company or any of its directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which may arise out of any Pre-Release Transaction (as
defined in Article (24) hereof and Section 5.10 of the Deposit Agreement) other
than a Pre-Release Transaction entered into at the request of the Company.
The Depositary agrees to indemnify the Company and its directors,
employees, agents and affiliates and hold each of them harmless from any loss,
liability, charge or expense of any kind whatsoever (including, but not limited
to, the reasonable fees and expenses of counsel) which may arise out of acts
performed or omitted by the Depositary in any such case, due to the negligence
or bad faith of the Depositary.
The obligations set forth in this Article (18) shall survive the
termination of the Deposit Agreement and the succession or substitution of any
party hereto.
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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 otherwise than under this Article (18) and Section
5.08 of the Deposit Agreement) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim,
which defense shall be reasonable in the circumstances. No indemnified person
shall compromise or settle any action or claim without the consent of the
indemnifying person, which consent shall not be unreasonably withheld.
(19) Liability of the Company and the Depositary. None of the Depositary,
its controlling persons or its agents nor the Company, its controlling persons
nor its agents, if any, will incur any liability to any Holder or other person
if, by reason of any present or future law, the Memorandum and Articles of
Association of the Company, the provisions of or governing any Deposited
Security, act of God, war or other circumstance beyond its control, the
Depositary, its agents or the Company or its agents shall be prevented, delayed
or forbidden from doing or performing any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement. Each of the Depositary, its controlling persons and its
agents, the Company, its controlling persons and its agents assumes no
obligation and shall be subject to no liability under the Deposit Agreement or
this Receipt to Holders or other persons, except to perform such obligations as
are specifically set forth and undertaken by it to perform in the Deposit
Agreement in good faith and using its reasonable judgment. The Depositary and
the Company undertake to perform such duties and only such duties as are
specifically set forth in the Deposit Agreement, and no implied covenants or
obligations will be read into the Deposit Agreement against the Depositary or
the Company or their respective agents. None of the Depositary, its controlling
persons or its agents nor the Company its controlling persons or its agents will
be (a) under any obligation to appear in, prosecute or defend any action, suit
or other proceeding in respect of any Deposited Securities or this Receipt that
in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it in its sole discretion against all expense and liability be
furnished as often as may be required or (b) liable for any action or inaction
by it or them in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder or any other
person believed by it or them in good faith to be competent to give such advice
or information. The Depositary, its controlling persons and its agents and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request, direction or other document believed
by them in good faith to be genuine and to have been signed or presented by the
proper party or parties. Subject to the provisions of this paragraph (19), the
Depositary and its agents will not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, for the manner in which
any such vote is cast or for the effect of any such vote. The Depositary may own
and deal in any class of securities of the Company and its affiliates and in
Receipts.
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(20) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of its election so to do delivered to the
Company, such resignation to be effective on the earlier of (i) the 60th day
after delivery thereof to the Company, of (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal which notice shall be effective on the earlier of
(i) the 60th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its best efforts to
appoint a successor depositary which shall be a bank or trust company having an
office in the Borough of Manhattan, the City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor, but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall (i) execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder, (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.
(21) Amendment, Supplement. The Receipts outstanding under the Deposit
Agreement in respect of the Shares and any provisions of the Deposit Agreement
(including this form of Receipt) 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. Any amendment or supplement which shall impose or
increase any fees or charges (other than transfer and registration fees, fees in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders or Beneficial
Owners, shall not, however, become effective as to outstanding Receipts until
the expiration of 60 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 Shares to be traded solely in electronic book-entry form
and (ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to prejudice any substantial rights of
Holders or Beneficial Owners. Every Holder and Beneficial Owner at the time any
amendment or supplement so becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment or supplement and to
be bound by the Deposit Agreement as amended or supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender 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 the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement the Deposit Agreement and the Receipt at any time in
accordance with such changed rules. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance.
A-15
(22) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in Article (20) hereof and Section 5.04 of
the Deposit Agreement, the Depositary may terminate the Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed for such termination. On
and after the date of termination of the Deposit Agreement, the Holder will,
upon surrender of such Receipt at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of Receipts
referred to in Article (2) hereof and Section 2.05 of the Deposit Agreement and
subject to the conditions and restrictions therein set forth, and upon payment
of any applicable stamp, transfer or other applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by such Receipt. If any Receipts shall remain
outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.05 of the Deposit Agreement, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, or charging, as the case may be, in each case
the charges of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder in accordance with the terms and conditions of the
Deposit Agreement and any applicable stamp, transfer or other applicable taxes
or governmental charges or assessments). At any time after the expiration of six
months from the date of termination of the Deposit Agreement, the Depositary may
and intends to sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, in an unsegregated account, without
liability for interest for the pro rata benefit of the Holders of Receipts whose
Receipts have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
with respect to the Receipts and the Shares, Deposited Securities and American
Depositary Shares, except for its obligations to the Company under Article (18)
hereof and Section 5.08 of the Deposit Agreement and except to account for such
net proceeds and other cash (after deducting, or charging, as the case may be,
in each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable stamp, transfer or other
applicable taxes or governmental charges or assessments). Upon the termination
of the Deposit Agreement as to Receipts, the Company shall be discharged from
all obligations under the Deposit Agreement as to the Receipts and the Shares,
Deposited Securities and American Depositary Shares except for its obligations
to the Depositary under Articles (10) and (18) hereof, and Sections 5.08 and
5.09 of the Deposit Agreement.
A-16
(23) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this Receipt or the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Instruction I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
(24) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this Article (24), the Depositary and its agents, on
their own behalf, may own and deal in any class of securities of the Company and
its affiliates and in Receipts. The Depositary may issue Receipts against
evidence of rights to receive Shares from the Company, any agent of the Company
or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares. Such
evidence of rights shall consist of written blanket or specific guarantees of
ownership of Shares furnished on behalf of the holder thereof. In its capacity
as Depositary, the Depositary shall not lend Shares or Receipts; provided,
however, that the Depositary may (i) issue Receipts prior to the receipt of
Shares pursuant to Section 2.02 of the Deposit Agreement and (ii) deliver Shares
prior to the receipt and cancellation of Receipts pursuant to Section 2.05 of
the Deposit Agreement, including Receipts which were issued under (i) above but
for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive Receipts in lieu of
Shares under (i) above and receive Shares in lieu of Receipts under (ii) above.
Each such Pre-Release Transaction will be (a) accompanied by or subject to a
written agreement whereby the person or entity (the "Applicant") to whom
Receipts or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or
Receipts that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) agrees to indicate the Depositary as owner of such Shares or
Receipts in its records and to hold such Shares or Receipts in trust for the
Depositary until such Shares or Receipts are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or Receipts and (z) agrees to any
additional restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized with cash, United States government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of Receipts and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the Receipts outstanding (without giving effect to Receipts
outstanding under (i) above), provided, however, that the Depositary reserves
the right to change or disregard such limit from time to time as it deems
appropriate. The Depositary may also set limits with respect to the number of
Receipts and Shares involved in Pre-Release Transactions with any one person on
a case by case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be for the benefit of the Holders (other than the Applicant).
A-17
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ________________ whose taxpayer identification number is
______________________ and whose address including postal zip code is
__________________, the within Receipt and all rights and interests represented
thereby, and hereby irrevocably constitutes and appoints
________________________ 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 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.
All endorsements or assignments of Receipts
must be guaranteed by a member of a
Medallion Signature Program approved by the
Securities Transfer Association Inc.
SIGNATURE GUARANTEED
______________________________
A-18
EXHIBIT B
CHARGES OF THE DEPOSITARY
- ------------------------------------------------------ ---------------------------------- --------------------------------
Service Rate By Whom Paid
- ------------------------------------------------------ ---------------------------------- --------------------------------
(1) Issuance of ADSs upon deposits of Shares Up to $3.00 per 100 ADSs (or Party for whom deposits are
(excluding issuances as a result of a dividend fraction thereof) issued made or party receiving ADSs
in Shares).
- ------------------------------------------------------ ---------------------------------- --------------------------------
(2) Delivery of Deposited Securities, property and Up to $5.00 per 100 ADSs (or Party surrendering ADSs or
cash against surrender of ADSs. fraction thereof) surrendered. making withdrawal.
- ------------------------------------------------------ ---------------------------------- --------------------------------
II. Charges
Holders and Beneficial Owners shall be responsible for the following
charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or
any nominees upon the making of deposits and withdrawals,
respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses
as are expressly provided in the Deposit Agreement to be at the
expense of the person depositing Shares or Holders and Beneficial
Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities.
B-1