MARKS and ▇▇▇▇▇▇▇ GROUP p.l.c.
and
JPMORGAN CHASE BANK
As Depositary
and
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
--------------------------------------------------------------------------------
Deposit Agreement
--------------------------------------------------------------------------------
Dated as of March 19, 2002
TABLE OF CONTENTS
Page
PARTIES........................................................................1
RECITALS.......................................................................1
ARTICLE I
Definitions
SECTION 1.01. American Depositary Shares.....................................1
SECTION 1.02. Commission.....................................................1
SECTION 1.03. Custodian......................................................1
SECTION 1.04. Deliver, Execute, et al........................................1
SECTION 1.05. Deposit Agreement..............................................1
SECTION 1.06. Depositary's Office............................................1
SECTION 1.07. Deposited Securities...........................................2
SECTION 1.08. Direct Registration Receipt....................................2
SECTION 1.09. Direct Registration System.....................................2
SECTION 1.10. Dollars........................................................2
SECTION 1.11. Holder.........................................................2
SECTION 1.12. Receipt Register...............................................2
SECTION 1.13. Receipts.......................................................2
SECTION 1.14. Securities Act of 1933.........................................2
SECTION 1.15. Shares.........................................................2
ARTICLE II
Form of Receipts, Deposit of Shares,
Execution and Transfer of Receipts and
Withdrawal of Deposited Securities
SECTION 2.01. Form and Transferability of Receipts...........................3
SECTION 2.02. Deposit of Shares..............................................3
SECTION 2.03. Execution and Delivery of Receipts.............................4
SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts.....4
SECTION 2.05 Surrender of Receipts and Withdrawal of Shares.................5
SECTION 2.06. Limitations on Execution and Delivery and Transfer of
Receipts and Withdrawal of Deposited Securities................5
SECTION 2.07. Substitution of Receipts.......................................6
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts...........7
ARTICLE III
Certain Obligations of Holders
SECTION 3.01. Information....................................................7
SECTION 3.02. Liability of Holder for Taxes..................................7
SECTION 3.03. Warranties on Deposit of Shares................................7
i
SECTION 3.04. Disclosure of Interests........................................8
ARTICLE IV
Deposited Securities
SECTION 4.01. Cash Distributions.............................................8
SECTION 4.02. Share Distributions............................................8
SECTION 4.03. Rights Distributions...........................................9
SECTION 4.04. Other Distributions............................................9
SECTION 4.05. Conversion of Foreign Currency................................10
SECTION 4.06. Fixing of Record Date.........................................11
SECTION 4.07. Voting of Deposited Securities................................11
SECTION 4.08. Changes Affecting Deposited Securities........................11
SECTION 4.09. Withholding...................................................11
ARTICLE V
The Depositary, the Custodian, and the Company
SECTION 5.01. Maintenance of Depositary's Office and Receipt Register;
Certain Agents of the Depositary; Lists of Holders; Reports...12
SECTION 5.02. Prevention or Delay in Performance............................13
SECTION 5.03. Obligations Limited...........................................13
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary..........................................13
SECTION 5.05. The Custodian ................................................14
SECTION 5.06. Notices and Reports to Holders................................14
SECTION 5.07. Issuance of Additional Shares, etc............................15
SECTION 5.08. Indemnification...............................................15
SECTION 5.09. Charges of Depositary.........................................15
SECTION 5.10. Statutory Reports.............................................16
SECTION 5.1l. Available Information to the Commission......................16
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment.....................................................16
SECTION 6.02. Termination...................................................17
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts..................................................17
SECTION 7.02. No Third Party Beneficiaries..................................17
SECTION 7.03. Severability..................................................17
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SECTION 7.04. Holders Parties; Binding Effect...............................17
SECTION 7.05. Notices.......................................................17
SECTION 7.06. Governing Law.................................................18
TESTIMONIUM...................................................................19
SIGNATURES....................................................................19
iii
EXHIBIT A
FORM OF FACE OF RECEIPT......................................................A-l
Introductory Paragraph.......................................................A-l
(1) The Deposit Agreement..........................................A-l
(2) Withdrawal of Deposited Securities.............................A-1
(3) Transfers, Split-ups and Combinations..........................A-2
(4) Certain Limitations............................................A-2
(5) Liability of Holder for Taxes..................................A-3
(6) Warranties by Depositor........................................A-3
(7) Disclosure of Interests........................................A-3
(8) Charges of Depositary..........................................A-4
(9) Title to Receipts..............................................A-4
(10) Validity of Receipt............................................A-4
(11) Available Information..........................................A-4
Signature of Depositary......................................................A-5
Address of Depositary's Office...............................................A-5
FORM OF REVERSE OF RECEIPT...................................................A-6
(12) Distributions upon Deposited Securities........................A-6
(13) Record Dates...................................................A-7
(14) Voting of Deposited Securities.................................A-7
(15) Changes Affecting Deposited Securities.........................A-8
(16) Reports; Inspection of Receipt Register........................A-8
(17) Withholding....................................................A-8
(18) Liability of the Company and the Depositary....................A-8
(19) Resignation and Removal of Depositary; the Custodian...........A-9
(20) Amendment of Deposit Agreement and Receipts...................A-10
(21) Termination of Deposit Agreement..............................A-10
EXHIBIT B
CHARGES OF THE DEPOSITARY....................................................▇-▇
▇▇
DEPOSIT AGREEMENT dated as of March 19, 2002 among MARKS and ▇▇▇▇▇▇▇ GROUP
p.l.c., a corporation incorporated under the laws of England and Wales (the
"Company"), JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder
and any successor as depositary hereunder (the "Depositary"), and all Holders
from time to time of American Depositary Receipts issued hereunder.
WITNESSETH:
WHEREAS, the Company desires to provide for the deposit of Ordinary Shares
of 25p each (the "Shares") of the Company from time to time with the Depositary
or the Custodian and for the execution and delivery of American Depositary
Receipts evidencing the American Depositary Shares representing the Shares so
deposited; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto;
NOW, THEREFORE, in consideration of the premises, it is agreed by and among
the parties hereto as follows:
ARTICLE I
Definitions
SECTION 1.01. The term "American Depositary Shares": shall mean the rights
evidenced by the Receipts executed and delivered hereunder, including the
interests in the Deposited Securities granted to the holders of Receipts
pursuant to the terms and conditions of this Deposit Agreement. Each American
Depositary Share shall represent rights to receive six Shares until there shall
occur a distribution upon Deposited Securities referred to in Section 4.02 or a
change in Deposited Securities referred to in Section 4.08 with respect to which
additional Receipts are not executed and delivered, and thereafter each American
Depositary Share shall represent the right to receive the Deposited Securities
specified in such Sections.
SECTION 1.02. The term "Commission" shall mean the Securities and Exchange
Commission of the United States of America or any successor governmental agency.
SECTION 1.03. The term "Custodian" shall mean one or more agent or agents
of the Depositary (singly or collectively, as the context requires) appointed by
it to act as Custodian hereunder pursuant to Section 5.05.
SECTION 1.04. The terms "deliver", "execute", "issue", "register",
"surrender", "transfer" or "cancel", when used with respect to Direct
Registration Receipts, shall refer to an entry or entries or an electronic
transfer or transfers in the Direct Registration System.
SECTION 1.05. The term "Deposit Agreement" shall mean this Agreement, as
the same may be amended from time to time in accordance with the provisions
hereof.
SECTION 1.06. The term "Depositary's Office" shall mean the office of the
Depositary for the administration of depositary receipts.
SECTION 1.07. The term "Deposited Securities" as of any time shall mean all
Shares at such time deposited under this Deposit Agreement and any and all other
Shares, securities, property and cash received at any time by the Depositary or
the Custodian in respect or in lieu of such deposited Shares and other Shares
(or evidence of rights to receive Shares), securities, property and cash at such
time held hereunder.
SECTION 1.08. The term "Direct Registration Receipt" means a Receipt, the
ownership of which is recorded on the Direct Registration System.
SECTION 1.09. The term "Direct Registration System" means the system for
the uncertificated registration of ownership of securities established by The
Depository Trust Company ("DTC") and utilized by the Depositary pursuant to
which the Depositary may record the ownership of Receipts without the issuance
of a certificate, which ownership shall be evidenced by periodic statements
issued by the Depositary to the Holders entitled thereto. For purposes hereof,
the Direct Registration System shall include access to the Profile Modification
System maintained by DTC which provides for automated transfer of ownership
between DTC and the Depositary.
SECTION 1.10. The term "dollars" shall mean United States dollars. The term
"(pound)" or "p" shall mean pounds or ▇▇▇▇▇, respectively, of the United
Kingdom.
SECTION 1.11. The term "Holder" shall mean the person or persons in whose
name a Receipt is registered on the Receipt Register maintained by the
Depositary for such purpose.
SECTION 1.12. The term "Receipt Register" means the register maintained by
the Depositary for the registration of transfer, combination and split-up of
Receipts, and, in the case of Direct Registration Receipts, shall include the
Direct Registration System.
SECTION 1.13. The term "Receipts" shall mean the American Depositary
Receipts executed and delivered hereunder. Receipts may be either in physical
certificated form or Direct Registration Receipts. Receipts in physical
certificated form shall be in substantially the form of Exhibit A hereto,
evidencing American Depositary Shares, as the same may be amended from time to
time in accordance with the provisions hereof. References to "Receipts" shall
include Direct Registration Receipts, unless the context otherwise requires.
SECTION 1.14. The term "Securities Act of 1933" shall mean the United
States Securities Act of 1933, as from time to time amended. The term
"Securities Exchange Act of 1934" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.15. The term "Shares" shall mean the Ordinary Shares of 25p each
of the Company and shall include evidence of rights to receive Shares.
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ARTICLE II
Form of Receipts, Deposit of Shares,
Execution and Transfer of Receipts and
Withdrawal of Deposited Securities
SECTION 2.01. Form and Transferability of Receipts, (a) Certificated
Receipts. Receipts in certificated form shall be engraved or printed or
lithographed on steel-engraved borders and shall be substantially in the form
set forth in Exhibit A annexed hereto, with appropriate insertions,
modifications and omissions as hereinafter provided. Receipts maybe issued in
denominations of any number of American Depositary Shares. Receipts in
certificated form shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized officer of the Depositary. Unless so executed, no
Receipt in certificated form shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose. Receipts in
certificated form bearing the facsimile signature of anyone who was at any time
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of such Receipts. Receipts in certificated form may, with the prior
written consent of the Company (which consent shall not be unreasonably
withheld), be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with this Deposit Agreement as
may be required by the Depositary in respect of its obligations hereunder or as
may be required to comply with any applicable law or regulations or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be traded or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
(b) Direct Registration Receipts. Notwithstanding anything in this Deposit
Agreement or in the Receipt to the contrary, American Depositary Shares shall be
evidenced by Direct Registration Receipts, unless certificated Receipts are
specifically requested by the Holder and for no additional fee. Holders shall be
bound by the terms and conditions of this Deposit Agreement and of the form of
Receipt, regardless of whether their Receipts are Direct Registration Receipts
or certificated Receipts.
(c) Transferability. Title to a Receipt (and to the Deposited Securities
represented by the American Depositary Shares evidenced thereby), when properly
endorsed (in the case of Receipts in certificated form) or upon delivery to the
Depositary of properly executed instruments of transfer, shall be transferable
by delivery with the same effect as in the case of a negotiable instrument;
provided that the Company and the Depositary, notwithstanding any notice to the
contrary, may treat the Holder thereof as the absolute owner thereof for the
purpose of determining the person entitled to any distribution or notice and for
all other purposes.
SECTION 2.02. Deposit of Shares, (a) Deposit with Custodian.
Subject to the terms and conditions of this Deposit Agreement, Shares may
be deposited under this Deposit Agreement by delivery thereof to the Custodian,
properly endorsed or accompanied by a duly executed instrument or instruments of
transfer in form satisfactory to the Custodian, together with any other
documents and payments required under this Deposit Agreement, and 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
2
Receipts through the Direct Registration System (or, if specifically requested,
certificated Receipts) for the number of American Depositary Shares representing
such deposited Shares. At the request, risk and expense of any holder of Shares,
and for the account of such holder, the Depositary may receive certificates for
Shares to be deposited, together with any other documents and payments required
under this Deposit Agreement, for the purpose of forwarding such Share
certificates to the Custodian for deposit hereunder.
(b) Assignment and Proxy. If required by the Depositary, Shares presented
for deposit at any time, whether or not any register of Shareholders of the
Company is 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 or its nominees of any dividend or right to
subscribe for additional Shares or to receive other property which any person in
whose name the Shares are or have been recorded may thereafter receive upon or
in respect of such deposited Shares, or in lieu thereof such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary, and (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 until the Shares are registered in the
name of the Custodian or its nominee.
(c) Registration and Holding. Upon each delivery to the Custodian of a
certificate or certificates for Shares (or other Deposited Securities pursuant
to Section 4.02, 4.03, 4.04, 4.08) in registered form to be deposited hereunder,
together with any other documents and payments required under this Deposit
Agreement, the Custodian shall as soon as practicable present such certificate
or certificates for registration of transfer of the Shares (or other Deposited
Securities) being deposited in the name of the Custodian or its nominee at the
cost and expense of the person making such deposit (or for whose benefit such
deposit is made) and shall obtain evidence satisfactory to it of such
registration. Deposited Securities shall be held by the Custodian for the
account and to the order of the Depositary at such place or places as the
Depositary shall determine.
SECTION 2.03. Execution and Delivery of Receipts. After the deposit of any
Shares pursuant to Section 2.02, the Custodian shall 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, first class airmail postage prepaid, or, at the request, risk
and expense of the person making the deposit, by cable, telex or facsimile
transmission. After receiving such notice from the Custodian, the Depositary,
subject to this Deposit Agreement, shall execute and deliver at the Depositary's
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.
SECTION 2.04. Transfer, Combination and Split-up of Receipts. The
Depositary, subject to this Deposit Agreement, shall register transfers of
Receipts in the Receipt Register from time to time upon receipt at any of its
designated transfer offices of proper instruments of transfer or upon any
surrender of a Receipt at any of its designated transfer offices by the Holder
in person or by duly authorized attorney, properly endorsed or accompanied by a
proper instrument or instruments of transfer, and duly stamped as may be
required by applicable law. Thereupon the Depositary shall execute a new Receipt
or Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same
3
aggregate number of American Depositary Shares as those evidenced by the
Receipts surrendered, The Depositary, subject to this Deposit Agreement, shall
upon surrender at any of its designated transfer offices of a Receipt or
Receipts for the purpose of effecting a split-up or combination of such Receipt
or Receipts, execute 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 those evidenced by the Receipt or
Receipts surrendered. At the request of a Holder, the Depositary shall, for the
purpose of substituting a certificated Receipt with a Direct Registration
Receipt, or vice versa, execute and deliver a certificated Receipt or a Direct
Registration Receipt, as the case may be, for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as those evidenced by the certificated Receipt or Direct
Registration Receipt, as the case may be, substituted. The Depositary may close
the Receipt Register at any time or from time to time, when deemed expedient by
it in connection with the performance of its duties hereunder or at the request
of the Company.
SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited
Securities. Upon receipt at the Depositary's Office or at such other offices as
the Depositary may designate of a Holder's written order directing the
Depositary to cause the Deposited Securities represented by the American
Depositary Shares evidenced by a Receipt to be withdrawn and delivered to or
upon the written order of the person or persons designated in such order along
with a certificated Receipt (properly endorsed in blank or accompanied by proper
instruments of transfer in blank, to the extent required by the Depositary) or,
in the case of a Direct Registration Receipt, proper instruments of transfer in
blank, to the extent required by the Depositary, the Depositary shall (i) cancel
such certificated Receipt or make a notation on the Direct Registration System
reflecting the cancellation of such Direct Registration Receipts, as the case
may be, and (ii) direct the Custodian to deliver without unreasonable delay,
subject to this Deposit Agreement and to the provisions of or governing
Deposited Securities, to or upon the written order of the person or persons
designated in such order, the Deposited Securities at the time represented by
the American Depositary Shares evidenced by such Receipt, and the Custodian
shall so deliver such Deposited Securities, at the office of the Custodian,
except that the Depositary may, at the request, risk and expense of the Holder
make delivery of such Deposited Securities without unreasonable delay to such
person or persons at the Depositary's Office or at any other place specified by
the Holder in such order. Directions shall be given by letter or, at the
request, risk and expense of the Holder, by cable, telex or facsimile
transmission. Delivery of Deposited Securities may be made by the delivery of
certificates, to the extent such Deposited Securities may be represented by
certificates, which, if required by law, shall be properly endorsed or
accompanied by a properly executed instrument or instruments of transfer, and if
such certificates may be so registered, registered in the name of such Holder,
or as ordered by such Holder or properly endorsed or accompanied by proper
instruments of transfer. Notwithstanding any provision of this Deposit Agreement
or the Receipts to the contrary, the Depositary may restrict withdrawals of
Deposited Securities only for the reasons set forth in General Instruction
I.A.(l) to Form F-6 (as such instructions may be amended from time to time)
under the Securities Act of 1933.
SECTION 2.06. Limitations on Execution and Delivery and Transfer of
Receipts and Withdrawal of Deposited Securities. As a condition precedent to the
execution and delivery, registration, registration of transfer, split-up or
combination of any Receipt, the delivery of any distribution thereon or the
withdrawal of any Deposited Securities, the Depositary, the Company or the
Custodian may require of the Holder, the presenter of the
4
Receipt or the depositor of Shares: (a) payment of a sum sufficient to pay or
reimburse it for payment of (i) any stock transfer or other tax or other
governmental charge with respect thereto, (ii) any stock transfer or
registration fees for the registration of transfers of Shares or other Deposited
Securities upon any applicable register and (iii) any charges of the Depositary
upon delivery of Receipts against deposits of Shares and upon withdrawal of
Deposited Securities against surrender of Receipts set forth in Exhibit B to
this Deposit Agreement; (b) the production of proof satisfactory to it as to the
identity and genuineness of any signature and as to any other matter
contemplated by Section 3.01; and (c) compliance with 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 may be suspended, deposits of Shares may be refused, or the
registration of transfer of Receipts, their split-up or combination or the
withdrawal of Deposited Securities maybe suspended, in particular instances or
generally, when the Receipt Register or any register for Shares or other
Deposited Securities is closed, or at any time or from time to time when any
such action is deemed necessary or advisable by the Depositary or the Company
for any reason, including without limitation any requirement of law or of any
government or governmental body or commission, any provision of this Deposit
Agreement or the provisions of or governing Deposited Securities, any meeting of
Shareholders or any payment of dividends. The Depositary may issue Receipts
against rights to receive Shares from the Company, or any Custodian, or any
registrar, transfer agent, clearing agency or other entity recording Share
ownership or transactions. The Depositary may issue Receipts against other
rights to receive Shares (a "pre-release") only if (x) such Receipts are fully
collateralized (marked to market daily) with cash or U.S. government securities
until such Shares are deposited, (y) the applicant for such Receipts represents
in writing that it owns such Shares, has assigned all beneficial right, title
and interest in such Shares to the Depositary, holds such Shares for the account
of the Depositary, shall not dispose of such Shares other than in satisfaction
of the pre-release and will deliver such Shares to the Custodian within five
business days of demand therefor (no evidence of ownership is required or time
of delivery specified) and (z) all such Receipts represent not more than 30% of
all American Depositary Shares (excluding those evidenced by Pre-released
Receipts), provided, however, that the Depositary reserves the right to change
or disregard such limit from time to time as it deems appropriate. Such
collateral, but not the earnings thereon, shall be held for the benefit of the
Holders. The Depositary may retain for its own account any compensation for the
issuance of Receipts against such other rights to receive Shares, including
without limitation earnings on the collateral securing such rights. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares required to be registered
pursuant to the provisions of the Securities Act of 1933, unless a registration
statement under the Securities Act of 1933 is in effect as to such Shares. The
Depositary will use reasonable efforts to comply with written instructions of
the Company not to accept for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company's compliance
with securities laws in the United States.
SECTION 2.07. Substitution of Receipts. In case any Receipt in
certificated form shall be mutilated, destroyed, lost or stolen, the Depositary
shall issue a new Receipt through the Direct Registration System or, as the
Holder may specifically request, execute and deliver a new Receipt of like
tenor, in either case in exchange and substitution for such mutilated Receipt
upon cancellation thereof, or in lieu of and in substitution for such destroyed
or lost or stolen Receipt, unless the Depositary has notice that such Receipt
has been acquired by a bona fide purchaser, upon the Holder thereof filing with
the Depositary (a) a request for such
5
execution and delivery and (b) a sufficient indemnity bond and satisfying any
other reasonable requirements imposed by the Depositary, including, without
limitation, evidence satisfactory to the Depositary of such destruction or loss
or theft of such Receipt, the authenticity thereof and the Holder's ownership
thereof.
SECTION 2.08. Cancellation and Destruction of Receipts. All Receipts
surrendered to the Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy Receipts so cancelled.
ARTICLE III
Certain Obligations of Holders
SECTION 3.01. Information. Any person presenting Shares for deposit or any
Holder of a Receipt may be required from time to time to file with the
Depositary or the Custodian such proof as to the citizenship, residence,
exchange control approval, legal or beneficial ownership of Receipts, Deposited
Securities or other securities, compliance with all applicable laws and
regulations, all applicable provisions of or governing Deposited Securities, and
the terms of this Deposit Agreement, or other information, and to execute and
deliver to the Depositary or the Custodian such certificates, including such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may require by written request to the Depositary or the
Custodian. The Depositary may withhold the delivery or the registration of
transfer of any Receipt or any distribution on or withdrawal of any Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt until the foregoing is accomplished to the Company's and the
Depositary's satisfaction.
SECTION 3.02. Liability of Holder for Taxes. If any tax or other
governmental charge shall become payable by or on behalf of the Custodian or the
Depositary 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, who shall
pay the amount thereof to the Depositary. The Depositary may refuse to effect
the registration of transfer of such Receipt or any split-up or combination
thereof or any withdrawal of such Deposited Securities until such payment is
made, and may withhold or deduct from any distributions on such Deposited
Securities until such payment is made, and may withhold or deduct from any
distributions on such Deposited Securities or may sell for the account of the
Holder thereof any part or all of such Deposited Securities (after attempting by
reasonable means to notify such Holder prior to such sale), and may apply the
cash or proceeds resulting from any such sale in payment of such tax or other
governmental charge, the Holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Warranties on Deposit of Shares. Every person depositing
Shares under this Deposit Agreement shall be deemed thereby to represent and
warrant that such Shares and each certificate therefore are validly issued and
outstanding, fully paid, nonassessable and not subject to preemptive rights,
that the person making such deposit is duly authorized so to do and that such
Shares (A) are not "restricted securities" as such term is defined in Rule 144
under the Securities Act of 1933 unless at the time of deposit they may be
freely transferred in accordance with Rule 144(k) and may otherwise be offered
and sold freely in the United States or (B) have been registered under the
Securities Act of 1933. Such representations and warranties shall survive the
deposit of Shares and the execution and delivery of Receipts therefor.
6
SECTION 3.04. Disclosure of Interests. Notwithstanding any other provision
of this Deposit Agreement and without prejudice to the disclosure obligations in
respect of the Shares contained in the Companies Act of 1985 and the Articles of
Association of the Company and the remedies of the Company for non-compliance
therewith, each Holder agrees to comply with requests from the Company which are
made under relevant legislation to provide information, inter alia, as to the
capacity in which such Holder owns Receipts and regarding the identity of any
other person interested in such Receipts and the nature of such interest and
shall, in accordance with such legislation and any provision of the Articles of
Association of the Company, forfeit the right to direct the voting of Shares as
to which compliance is not made, all as if such Receipts were to the extent
practicable the Shares represented thereby, and the Depositary agrees to use its
reasonable efforts to comply with any instructions received from the Company
requesting that the Depositary take the reasonable actions specified therein to
obtain such information. In addition and without prejudice to the disclosure
obligations in respect of the Shares contained in the Companies ▇▇▇ ▇▇▇▇, any
Holder who has, or who acquires (alone, or in certain circumstances, with
others) an interest (within the meaning of the Companies Act 1985) in the Shares
equal to or in excess of the then "notifiable percentage" (at the date hereof,
five percent) referred to in the Companies ▇▇▇ ▇▇▇▇, or is aware that another
person for whom it holds such Receipt is so interested, shall within five
business days after becoming so interest or so aware, and thereafter upon
certain changes in such interest, disclose the prescribed particulars to the
Company in respect of such Shares as required by the Companies ▇▇▇ ▇▇▇▇.
ARTICLE IV
Deposited Securities
SECTION 4.01. Cash Distributions . Whenever the Depositary or the
Custodian shall receive any cash dividend or other cash distribution upon any
Deposited Securities, the Depositary shall, after any necessary conversion of
such distribution into dollars pursuant to Section 4.05 and after fixing a
record date in respect thereof pursuant to Section 4.06, subject to this Deposit
Agreement, distribute the amount thus received, by checks drawn on bank in The
City of New York, to the Holders on such record date of Receipts evidencing
American Depositary Shares representing such Depositary Shares representing such
Deposited Securities held by each of them respectively; provided that the
Depositary shall make appropriate adjustments in the amounts so distributed in
respect of (a) any of such Deposited Securities being not entitled, by reason of
its date of issuance or otherwise, to received all or any portion of such
distribution or (b) any amounts (i) required to be withheld by the Company, the
Custodian or the Depositary from any such distribution on account of taxes or
(ii) charged by the Depositary in connection with the conversion of foreign
currency into dollars pursuant to Section 4.05. The Depositary shall distribute
only such amount as can be distributed without distributing to any Holder a
fraction of one cent, and any balance not so distributed 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.
SECTION 4.02. Share Distributions. If any distribution upon any Deposited
Securities consists of a dividend in, or free distribution of, Shares, the
Depositary may or shall, if the Company shall so request, subject to this
Deposit Agreement, distribute to those Holders or record on the date fixed
pursuant to Section 4.06, Receipts evidencing American Depositary Shares
representing such Deposited Securities, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by each of them
7
respectively, additional Receipts for an aggregate number of American Depositary
Shares representing the number of Shares received as such dividend or free
distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in the case of any such distribution, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds of such sale as in the case of a distribution received in cash
pursuant to Section 4.01. If additional Receipts are not so distributed, each
American Depositary Share shall thenceforth also represent its proportionate
interest in the additional Shares so distributed upon such Deposited Securities.
The Depositary may withhold any distribution of Receipts under this Section 4.02
to Holders having an address in the United States until the Company furnishes to
the Depositary (a) evidence that a registration statement under the Securities
Act of 1933 covering such Receipts and related Shares and American Depositary
Shares is in effect or (b) an opinion of counsel for the Company in the United
States satisfactory to the Depositary to the effect that such distribution does
not require registration under the Securities Act of 1933.
SECTION 4.03. Rights Distributions. If 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 nature, the Depositary shall have
discretion as to the procedure to be followed in making such rights available to
the Holders or in disposing of such rights and distributing the net proceeds
thereof as in the case of a distribution received in cash pursuant to Section
4.01; provided that the Depositary shall, if requested by the Company, subject
to this Deposit Agreement: (a) if at the time of the offering of any such rights
the Depositary determines that it is lawful and feasible to make such rights
available to Holders by means of warrants or otherwise, the Depositary shall
distribute such warrants or other instruments therefor in such form as it may
determine to those Holders of record on the date fixed pursuant to Section 4.06
of Receipts evidencing American Depositary Shares representing such Deposited
Securities, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by each of them respectively, or
employ such other method as it may deem feasible in order to facilitate the
exercise, sale or transfer of rights by such Holders; or (b) if at the time of
any such offering of any such rights the Depositary determines that it is not
lawful or not feasible to make such rights available to Holders 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 in its discretion may sell such rights or such warrants other
instruments at public or private sale, at such place or places and upon such
terms as it may deem proper, and may allocate the proceeds of such sales for the
accounts 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 the net
proceeds so allocated to the extent practicable as in the case of a distribution
received in cash pursuant to Section 4.01. The Depositary will not offer such
rights to Holders having an address in the United States, unless the Company
furnishes to the Depositary (i) evidence that a registration statement under the
Securities Act of 1933 covering such offering is in effect or (ii) an opinion of
counsel for the Company in the United States satisfactory to the Depositary to
the effect that such offering does not require registration under the Securities
Act of 1933.
SECTION 4.04. Other Distributions. Whenever the Depositary or the
Custodian shall receive any distribution other than cash, Shares or rights upon
any Deposited Securities, subject to this Deposit Agreement, the Depositary
shall cause the securities or property that it so receives to be distributed as
soon as practicable to the Holders on a record date fixed
8
pursuant to Section 4.06 of Receipts evidencing American Depositary Shares
representing such Deposited Securities, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by each of them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided that if in the opinion
of the Depositary such distribution cannot be made proportionately among the
Holders entitled thereto, or if for any other reason (including, without
limitation, any tax withholding or securities laws requirement) the Depositary
deems such distribution not to be feasible or practicable, the Depositary may
adopt such method as it may deem equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or private sale) of
the securities or property thus received, or any part thereof (including in the
case of a distribution of exchangeable, redeemable or similar Securities by the
Company, if so instructed by the Company, effecting a redemption, exchange or
similar transaction of such Securities, provided Holders are given the
opportunity to elect to receive such Securities, in which case non-electing
Holders will receive the net cash proceeds from the redemption, exchange or
similar disposition thereof and electing Holders will receive such Securities),
and the distribution by the Depositary to the Holders of the net proceeds of any
such sale as in the case of a distribution received in cash pursuant to Section
4.01.
SECTION 4.05. Conversion of Foreign Currency. Whenever the Depositary or
the Custodian shall receive foreign currency, as a cash dividend or other
distribution or as the net proceeds from the sale of securities, property or
rights, which, in the judgment of the Depositary can then be converted on a
reasonable basis into dollars which can then be transferred 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 the resulting U.S. dollars (net of its charges and expenses in
effecting such conversion) to the United States. Such dollars shall be
distributed 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 or instruments, as
applicable, upon surrender thereof for cancellation. Such distribution may be
made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of exchange restrictions or otherwise. If
such conversion or distribution can be effected only with the approval or
license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable. If at any
time the Depositary shall file such application for approval or license, if any,
as it may deem desirable. If at any time the Depositary shall determine that in
its judgment any foreign currency received by the Depositary is not convertible
on a reasonable basis into dollars transferable to the United States, or if any
approval or license of any governmental authority or agency thereof that is
required for such conversion is denied or in the opinion of the Depositary is
not obtainable at a reasonable cost or within a reasonable period, the
Depositary shall in its discretion, but subject to applicable laws and
regulations, either distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) to, or 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, can be effected for distribution to some but not
all of the Holders entitled thereto, the Depositary may in its discretion make
such conversion and distribution in dollars to the extent permissible 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 respective accounts of, the Holders entitled thereto
for whom such conversion and distribution is not practicable.
9
SECTION 4.06. Fixing of Record Date. Whenever any distribution is being
made upon any Deposited Securities or any meeting of holders of Shares or other
Deposited Securities is being held 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 (unless such consultation is not practicable, in
which case, upon notice to the Company), fix a record date for the determination
of the Holders of Receipts evidencing the American Depositary Shares
representing such Deposited Securities who shall be entitled to receive such
distribution or the net proceeds of the sale thereof, to give instructions for
the exercise of voting rights at any such meeting, to receive such notice or
solicitation or to act in respect of such other matter. Subject to this Deposit
Agreement, only such Holders at the close of business on such record date shall
be entitled to receive any such distribution or proceeds, to give such voting
instructions, to receive such notice or solicitation or to act in respect of any
such other matter.
SECTION 4.07. Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting or solicitation of consents or proxies of
holders of Shares or other Deposited Securities, the Depositary shall mail to
the Holders a notice containing (a) such information as is contained in such
notice of meeting, (b) a statement that each Holder at the close of business on
a specified record date will be entitled, subject to any provisions of law and
the provisions of or governing Deposited Securities, to instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Holders' Receipts, including an express indication that instructions may be
given to the Depositary to give a discretionary proxy to a person designated by
the Company and (c) a statement as to the manner in which such instructions may
be given. Upon the written request of a Holder 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 any
applicable provisions of law and the provisions of or governing Deposited
Securities to vote or cause to be voted the Deposited Securities represented by
the American Depositary Shares evidenced by such Holder's Receipts in accordance
with any nondiscretionary instructions set forth in such request. The Depositary
shall not vote any Deposited Securities except in accordance with written
instructions from Holders entitled hereunder to give such instructions.
SECTION 4.08. Changes Affecting Deposited Securities. Upon any change in
par value, split-up, consolidation, cancellation 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 that shall be received by the Depositary in exchange for, or in
conversion, replacement, or otherwise in respect of, Deposited Securities shall
be treated as Deposited Securities under this Deposit Agreement, and the
Receipts shall thenceforth evidence American Depositary Shares representing the
right to receive the Deposited Securities including the securities so received
to the extent additional Receipts are not delivered pursuant to the following
sentence. In any such case the Depositary may with the Company's approval, and
shall if the Company shall so request, subject to this Deposit Agreement,
execute and deliver additional Receipts as in the case of a dividend of Shares,
or call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such newly received Deposited Securities.
SECTION 4.09. Withholding. In connection with any distribution to Holders,
the Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by the Company; and the
10
Depositary and the Custodian will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Depositary or the Custodian. The Depositary will
forward to the Company such information from its records as the Company may
reasonably request to enable the Company to file necessary reports with
governmental authorities or agencies, and either the Company or the Depositary
may file any such reports necessary to obtain benefits under any applicable tax
treaties for Holders. If the Depositary determines that any distribution in
property other than cash (including Shares or rights) on Deposited Securities is
subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto as in the
case of a distribution pursuant to Section 4.01, 4.02, 4.03 or 4.04.
ARTICLE V
The Depositary, the Custodian and the Company
SECTION 5.01. Maintenance of Depositary's Office and Receipt Register;
Certain Agents of the Depositary; Lists of Holders; Reports, (a) Depositary's
Office. The Depositary shall maintain at its transfer office in the Borough of
Manhattan, The City of New York, facilities for the delivery and surrender of
Shares, the execution and delivery, registration, registration of transfer,
combination and split-up of Receipts and the withdrawal of Deposited Securities
all in accordance with the provisions of this Deposit Agreement.
(b) The Register. The Depositary shall keep at its transfer office in the
Borough of Manhattan, the City of New York, a Receipt Register for the
registration of Receipts and transfers of Receipts that at all reasonable times
shall be open for inspection by the Holders and the Company; 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 this Deposit Agreement or the Receipts.
(c) Receipt Registrars and Co-Transfer Agents. If any Receipts or the
American Depositary Shares evidenced thereby are listed on one or more stock
exchanges in the United States, the Depositary shall act as Receipt registrar
or, upon the written request or with the written approval of the Company,
appoint a Receipt registrar or one or more co-registrars to register Receipts
and transfers, combinations and split-ups of Receipts and to countersign
Receipts in accordance with any requirements of such exchange or exchanges and
with the terms of any such appointment. Such Receipt 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. The Depositary,
upon the written request or with the written approval of the Company, may
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. Such co-transfer agents may be removed and substitutes
appointed by the Depositary upon the written request or with written approval of
the Company. Each Receipt registrar, co-registrar or co-transfer agent appointed
under this Section 5.01 (other than JPMorgan Chase Bank) 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.
11
SECTION 5.02. Prevention or Delay in Performance. Neither the Depositary,
its agents nor the Company shall incur any liability if, by reason of any
present or future law, the provisions of or governing any Deposited Securities,
act of God, war or other circumstances beyond its control, the Depositary, its
agents or the Company shall be prevented or forbidden from, or subjected to any
civil or criminal penalty 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 agents or the Company incur
any liability to any Holder or other person by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that 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.
SECTION 5.03 Obligations Limited. The Company assumes no obligation and
shall be subject to no liability under this Deposit Agreement or the Receipts to
Holders or other persons, except to perform such obligations as are specifically
set forth and undertaken by it to perform in this Deposit Agreement without
negligence or bad faith. Each of the Depositary 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 (other than the Company), except to
perform such obligations as are specifically set forth and undertaken by it to
perform in this Deposit Agreement without negligence or bad faith. Without
limitation of the preceding sentence, none of the Depositary, its agents or the
Company 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 the
Receipts 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 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 to be competent to give such advice or
information. The Depositary, its agents and the Company may rely and shall be
protected in acting upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or presented by
the property party or parties. The Depositary and its agents shall not be
responsible 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 and its agents may own and deal in any
class of securities of the Company and its affiliates and in Receipts. No
disclaimer of liability under the Securities Act of 1933 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 so to do delivered to the Company or
may at any time be removed as Depositary by the Company by written notice of
such removal delivered to the Depositary, such resignation or removal to take
effect upon the appointment of and acceptance by a successor Depositary 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 to it and on the written
request of the Company shall execute and deliver an instrument transferring to
12
such successor all rights and powers of such predecessor hereunder, and such
predecessor shall thereupon duly assign, transfer and deliver all right, title
and interest in the Deposited Securities to such successor, and shall deliver to
such successor a list of the Holders. Any such successor Depositary shall
promptly mail notice of its appointment to the 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.
SECTION 5.05. The Custodian. The Depositary, upon the written request or
with the written approval of the Company, may from time to time appoint one or
more agents to act for it as Custodian hereunder. Each Custodian so appointed
(other than JPMorgan Chase Bank) shall give notice in writing to the Company and
the Depositary accepting such appointment and agreeing to be bound by the
applicable terms hereof. Any Custodian in acting hereunder shall be subject at
all times and in all respects to the directions of the Depositary and shall be
responsible solely to it. Any Custodian may resign from its duties hereunder by
notice of such resignation delivered to the Depositary at least 30 days prior to
the date on which such resignation is to become effective. The Depositary may
discharge any at any time upon notice to the Custodian being discharged. Any
Custodian ceasing to act hereunder as Custodian shall deliver all Deposited
Securities held by it to a Custodian continuing to act upon the instruction of
the Depositary. The Depositary shall give notice in writing to all Holders of
the appointment of and the name and location of any Custodian not named in the
Receipts. Upon the appointment of any successor Depositary hereunder, any
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor Depositary and the appointment
of such successor Depositary shall in no way impair the authority of any
Custodian hereunder; but the successor Depositary so appointed shall,
nevertheless, on the written request of any Custodian, 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 to Holders. 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, the Company shall transmit to the Custodian a copy of the notice
thereof in the form given or to be given to holders of Shares or other Deposited
Securities. The Depositary will, at the Company's expense, arrange for the
prompt transmittal by the Custodian to the Depositary of such notices and of any
reports and other communications that are 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, of copies thereof to all Holders or, at
the request of the Company, 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 Company has delivered to the Depositary and the
Custodian a copy of the provisions of or governing the Shares and any other
Deposited Securities issued by the Company or any affiliate of the Company, and
promptly upon any amendment thereto or change therein, the Company shall deliver
to the Depositary and the Custodian a copy of such provisions as so amended or
changed. 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
and such notices, reports and other communications available for inspection by
Holders at the Depositary's Office, at the office of the Custodian and at any
other designated transfer offices.
13
SECTION 5.07. Issuance of Additional Shares etc. Before the Company or any
company controlled by the Company (a) issues to holders of Deposited Securities
(otherwise than in a free distribution or bonus share issue) (i) additional
Shares, (ii) rights to subscribe for Shares, (iii) securities convertible into
or exchangeable for Shares, or (iv) rights to subscribe for any such securities
or (b) deposits any Shares under this Deposit Agreement (otherwise than in a
free distribution or bonus share issue, except where the distribution or bonus
share issue involves an investment decision to made by the holder entitled to
such distribution or bonus share issue), the Company will furnish to the
Depositary a written opinion from counsel for the Company in the United States,
which counsel shall be satisfactory to the Depositary, to the effect that a
registration statement under the Securities Act of 1933 in respect of such issue
or deposit is either in effect or not required under such Act. The Company
agrees with the Depositary that neither the Company nor any company controlled
by the Company will at any time deposit any Shares, either upon original
issuance or upon a sale of Shares previously issued and reacquired by the
Company or by any company under its control, if such Shares are required to be
registered under the provisions of the Securities Act of 1933 and no
registration statement is in effect as to such Shares. The Depositary will use
reasonable efforts to comply with written instructions of the Company not to
accept for deposit hereunder any Shares identified in such instructions at such
times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with securities
laws in the United States.
SECTION 5.08. Indemnification. The Company shall indemnify, defend and
save harmless (i) the Depositary, (ii) the Custodian, and (iii) any Receipt
registrar, co-transfer agent, co-registrar and any other agent of the Depositary
appointed pursuant to the provisions hereof (the "indemnified persons") against
any loss, liability or expense (including reasonable fees and expenses of
counsel) that may arise (a) out of acts performed or omitted in accordance with
this Deposit Agreement and the Receipts, as the same may be amended, modified or
supplemented from time to time (1) by such indemnified person, except to the
extent such loss, liability or expense is due to the negligence or bad faith of
an indemnified person, or (2) by the Company or any of its agents (other than
the indemnified persons), or (b) out of or in connection with any offer or sale
of Receipts, American Depositary Shares, Shares or other Deposited Securities or
any registration statement under the Securities Act of 1933 in respect thereof,
except to the extent such loss, liability or expense arises out of (x)
information (or omissions from such information) relating to such indemnified
persons, furnished in writing to the Company by such indemnified person
expressly for use in a registration statement under the Securities Act of 1933
or (y) any wrongful act or omission of any indemnified person. The Depositary
shall indemnify, defend and save harmless the Company against any loss,
liability or expense (including reasonable fees and expenses of counsel) that
may arise out of acts performed or omitted by the Depositary (or any Custodian,
Receipt registrar, co-transfer agent, co-registrar or other agent of the
Depositary) due to their negligence or bad faith. The obligations set forth in
this Section 5.08 shall survive the termination of this Deposit Agreement and
the succession or substitution of any indemnified person.
SECTION 5.09. Charges of Depositary. Except as hereafter agreed upon in
writing by the Company and the Depositary, the Company shall not pay or be
liable for any charges of the Depositary or any out-of-pocket expenses incurred
in the ordinary course by the Depositary in connection with it serving as
Depositary hereunder; provided, however, that the Company agrees to pay
out-of-pocket expenses so incurred by the Depositary, the Custodian or either's
agents for postage, insurance of Shares or Receipts while in transit,
stationary, the
14
printing of Receipts and cable, telex and facsimile transmission (to the extent
persons depositing Shares or Holders withdrawing Shares are not required to pay
such cable, telex or facsimile transmission expenses under the Deposit
Agreement). Any out-of-pocket expenses of the Depositary, the Custodian or
either's agents hereunder not incurred in the ordinary course will be paid by
the Company after consultation and agreement, prior to the incurrence thereof,
between the Depositary and the Company as to the amount and nature of such
expenses. Stock transfer or other taxes and other governmental charges are
payable by persons or Holders depositing Shares. Persons depositing Shares or
Holders withdrawing Shares shall pay (i) such registration fees as may from time
to time be in effect for the registration of transfers of Shares generally on
the Share register of the Company (or the appointed agent of the Company for
transfer and registration of Shares) and accordingly applicable to transfers of
Shares to the name of the Depositary or its nominee or the Custodian or its
nominee on the making of deposits or withdrawals hereunder and (ii) such cable,
telex and facsimile transmission expenses as are expressly provided in the
Deposit Agreement to be at the expense of persons depositing Shares or Holders
delivering Shares, Receipts or deposited Securities. Such expenses as are
incurred by the Depositary in the conversion of foreign currency shall be paid
out of such foreign currency.
SECTION 5.10. Statutory Reports. The Depositary shall make available for
inspection by Holders at the Depositary's Office and at any other designated
transfer offices any reports and communications received from the Company which
are both (a) received by the Depositary, the Custodian or the nominee of either
as the holder of Deposited Securities and (b) made generally available to the
holders of Deposited Securities by the Company.
SECTION 5.11. Available Information to the Commission. The Company will
furnish the Commission with certain public reports and documents required by
foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange Act
of 1934. Such reports and documents maybe inspected and copied at the public
reference facilities maintained by the Commission located at the date hereof at
Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇. Should the
Company become subject to additional informational requirements under the
Securities Exchange Act of 1934, it will in accordance therewith file reports
and other information with the Commission.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect. Any amendment that shall impose
or increase any fees or charges (other than the fees and charges referred to in
Exhibit B hereto as being payable by the person depositing Shares, the Holder,
or as a result of the conversion of foreign currency) or that shall otherwise
prejudice any substantial existing right of Holders, shall not, however, become
effective as to outstanding Receipts until the expiration of three months after
notice of such amendment shall have been given to the Holders. Every Holder at
the expiration of three months after such notice shall be deemed by holding such
Receipt to consent and agree to such amendment and to be bound by the Deposit
Agreement or the Receipts as amended thereby. In no event shall any amendment
impair the right of the Holder of any Receipt to surrender such Receipt and
receive therefor the Deposited Securities represented thereby, except in order
to comply with mandatory provisions of applicable law.
15
SECTION 6.02. Termination. The Depositary shall at any time at the
direction of the Company terminate this Deposit Agreement by giving notice of
such termination to the Holders at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may terminate this Deposit
Agreement, upon the notice set forth in the preceding sentence of this Section
6.02, at anytime after 90 days after the Depositary shall have delivered to the
Company its written resignation, provided that no successor Depositary shall
have been appointed and accepted its appointment as provided in Section 5.04
before the end of such 90 days. After the date so fixed for termination, the
Depositary and its agents shall perform no further acts under this Deposit
Agreement, except to advise Holders of such termination, to receive and hold
distributions on Deposited Securities (or sell property or rights or convert
Deposited Securities into cash as provided in this Deposit Agreement) and to
deliver Deposited Securities in exchange for Receipts surrendered to the
Depositary. As soon as practicable after the expiration of six months from the
date so fixed for termination, the Depositary shall sell the Deposited
Securities and may thereafter (so long as it may lawfully do so) hold the net
proceeds of any such sale, together with any other cash then held by it
hereunder, without liability for interest, for the pro rata benefit of the
Holders of Receipts that have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all obligations in respect of
the Receipts and this Deposit Agreement, except to account for such net proceeds
and any other cash. After the date so fixed for termination, the Company shall
be discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary and its agents under Sections 5.08 and 5.09.
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 instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodian 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 Company, the Depositary and, to the extent
contemplated hereby, the Holders, and their respective successors hereunder and
shall not give any legal or equitable right, remedy or claim whatsoever to any
other person.
SECTION 7.03. Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudice or disturbed thereby.
SECTION 7.04. Holders Parties; Binding Effect. The Holders and owners of
Receipts from time to time shall be parties to this Deposit Agreement and
shall be bound by all of the terms and conditions hereof and of the Receipts by
acceptance thereof.
SECTION 7.05. Notices, (a) To the Company. Any and all notices to be given
to the Company shall be duly given if personally delivered or sent by mail,
first class airmail postage prepaid, or by cable, telex or facsimile
transmission, in each case confirmed by letter, addressed to Marks and ▇▇▇▇▇▇▇
Group p.l.c., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or any other address which the Company
may specify in writing to the Depositary.
(b) To the Depositary. Any and all notices to be given to the Depositary
shall be duly given if personally delivered or sent by mail, first class airmail
postage prepaid, or by cable, telex or facsimile transmission, in each case
confirmed by letter, addressed to JPMorgan Chase Bank, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ADR Administration, which is the location of the
Depositary's Office on the date of this Deposit Agreement, or any other address
which the Depositary may specify in writing to the Company.
To the Holders. Any and all notices to be given to any Holder shall be duly
given if personally delivered or sent by mail, first class airmail postage
prepaid, or by cable, telex or facsimile transmission, in each case 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 designated in such
request.
General. Notice given as aforesaid, (i) to the Company or the Depositary,
shall be deemed to be effected when received, and (ii) to a Holder by mail or by
cable, telex or facsimile transmission, shall be deemed to be effected 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, first
class airmail postage prepaid, in a post-office letter box. The Depositary or
the Company may 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 as aforesaid.
SECTION 7.06. Governing Law. This Deposit Agreement and the Receipts shall
be interpreted and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by the laws of the State of New York.
17
IN WITNESS WHEREOF, MARKS AND ▇▇▇▇▇▇▇ GROUP p.l.c. and JPMORGAN CHASE BANK
have duly executed this Deposit Agreement as of the day and year first above set
forth and all holders of Receipts shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof.
MARKS AND ▇▇▇▇▇▇▇
GROUP p.l.c.
By.
-----------------
Name:
Title:
JPMORGAN CHASE BANK
By.
-----------------
Name:
Title: Vice President
18
EXHIBIT A
TO DEPOSIT AGREEMENT
[FORM OF FACE OF RECEIPT] AMERICAN DEPOSITARY RECEIPT
evidencing AMERICAN DEPOSITARY SHARES
representing ORDINARY SHARES of 25p EACH
of MARKS AND ▇▇▇▇▇▇▇ GROUP p.l.c.
(Incorporated under the laws of England and Wales)
No. __________________
JPMORGAN CHASE BANK, incorporated under the laws of the State of New York, as
depositary (the "Depositary"), hereby certifies that __________________ is the
owner of __________________ American Depositary Shares, representing deposited
Ordinary Shares of 25p each, or evidence of rights to receive such Ordinary
Shares ("Shares"), of Marks and ▇▇▇▇▇▇▇ Group p.l.c., a corporation incorporated
under the laws of England and Wales (the "Company"). At the date hereof, each
American Depositary Share represents six Shares deposited under the Deposit
Agreement (hereinafter defined) at the London office of JPMorgan Chase Bank, as
Custodian (the "Custodian").
(1) The Deposit Agreement. This American Depositary Receipt is one of
the receipts (the "Receipts") executed and delivered pursuant to the Deposit
Agreement dated as of March 19, 2002 (as amended from time to time, the "Deposit
Agreement") by and among the Company, the Depositary and all registered holders
("Holders") from time to time of Receipts, each of whom by accepting a Receipt
becomes a party thereto, bound by all applicable terms and provisions thereof
and hereof. The Deposit Agreement sets forth the rights of Holders 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, the "Deposited Securities"). Copies of the
Deposit Agreement and of the Company's provisions of or governing Deposited
Securities are on file at the Depositary's Office, the office of the Custodian
and at any other designated transfer offices. The statements made on the face
and the reverse of this Receipt are summaries of certain provisions of the
Deposit Agreement and are qualified by and subject to the detailed provisions
thereof. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. Capitalized terms used herein that are not
defined herein shall have the meanings assigned to them in the Deposit
Agreement.
(2) Withdrawal of Deposited Securities. Upon surrender of this Receipt and
payment of the fee of the Depositary provided for in paragraph (8) of this
Receipt at the Depositary's Office or at such other offices as it may designate,
subject to the Deposit Agreement and the provisions of or governing the
Deposited Securities, the Holder hereof is entitled to the delivery without
unreasonable delay at the office of the Custodian to such Holder or upon such
Holder's order of the Deposited Securities at the time represented by the
American Depositary Shares evidenced by this Receipt. At the request, risk and
expense of the Holder hereof, the Depositary may deliver such Deposited
Securities at the Depositary's Office or at such other
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place as may have been requested by the Holder. Delivery of Deposited Securities
may be made by the delivery of certificates to the extent such Deposited
Securities may be represented by certificates. Notwithstanding any provision of
the Deposit Agreement or this Receipt to the contrary, the Depositary may
restrict withdrawals of Deposited Securities only for the reasons set forth in
General Instruction I.A.(l) to Form F-6 (as such instructions may be amended
from time to time) under the Securities Act of 1933
(3) Transfers, Split-ups and Combinations. This Receipt is transferable on
the Receipt Register maintained by the Depositary by the Holder hereof in person
or by duly authorized attorney, upon surrender of this Receipt at any designated
transfer office properly endorsed or accompanied by a proper instrument or
instruments of transfer and duly stamped as may be required by applicable law;
provided that the Depositary may close the Receipt Register at any time or from
time to time when deemed expedient by it in connection with the performance of
its duties under the Deposit Agreement or at the request of the Company. This
Receipt may be split into other Receipts or may be combined with other Receipts
into one Receipt, evidencing the same aggregate number of American Depositary
Shares as those evidenced by the Receipt or Receipts surrendered. The Depositary
may close the Receipt Register at any time or from time to time, when deemed
expedient by it in its reasonable discretion in connection with the performance
of its duties under the Deposit Agreement or at the reasonable request of the
Company.
(4) Certain Limitations. Prior to the execution and delivery,
registration, registration of transfer, split-up or combination of any Receipt,
the delivery of any distribution in respect thereof, or the withdrawal of any
Deposited Securities, the Depositary, the Company or the Custodian may require:
(a) payment (i) any stock transfer or other tax or other governmental charge
with respect thereto, (ii) any stock transfer or registration fees in effect for
the registration of transfers of Shares or any other Deposited Securities upon
any applicable register and (iii) any applicable charges listed in clauses (i)
and (ii) of paragraph (8) of this Receipt; (b) the production of proof
satisfactory to it of the identity and genuineness of any signature and of such
other information (including without limitation information as to citizenship,
residence, exchange control approval, or legal or beneficial ownership of any
securities) as it may deem necessary or proper or as the Company may require;
and (c) compliance with such regulations, if any, as the Depositary may
establish consistent with the Deposit Agreement. The delivery of Receipts
against deposits of Shares may be suspended, deposits of Shares may be refused,
or the registration of transfer of Receipts, their split-up or combination or
the withdrawal of Deposited Securities may be suspended, generally or in
particular instances, when the Receipt Register or any register for Shares or
other Deposited Securities is closed or when any such action is deemed necessary
or advisable by the Depositary or the Company for any reason. The Depositary may
issue Receipts against rights to receive Shares from the Company, or any
Custodian, or any registrar, transfer agent, clearing agency or other entity
recording Share ownership or transactions. The Depositary may issue Receipts
against other rights to receive Shares (a "pre-release") only if (x) such
Receipts are fully collateralized (marked to market daily) with cash or U.S.
government securities until such Shares are deposited, (y) the applicant for
such Receipts represents in writing that it owns such Shares, has assigned all
beneficial right, title and interest in such Shares to the Depositary, holds
such Shares for the account of the Depositary, shall not dispose of such Shares
other than in satisfaction of the pre-release and will deliver such Shares to
the Custodian within five business days of demand therefor (no evidence of
ownership is required or time of delivery specified) and (z) all such Receipts
represent not more than 30% of all American Depositary Shares (excluding those
evidenced by Pre-released
A-2
Receipts), provided, however, that the Depositary reserves the right to change
or disregard such limit from time to time as it deems appropriate. Such
collateral, but not the earnings thereon, shall be held for the benefit of the
Holders. The Depositary may retain for its own account any compensation for the
issuance of Receipts against such other rights to receive Shares, including
without limitation earnings on the collateral securing such rights.
(5) Liability of Holder for Taxes. If any tax or other governmental charge
shall become payable by or on behalf of the Custodian or the Depositary with
respect to this Receipt or any Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, such tax or other governmental
charge shall be payable by the Holder hereof, who shall pay the amount thereof
to the Depositary. The Depositary may refuse to effect any registration of
transfer of this Receipt or any split-up or combination hereof or any withdrawal
of such Deposited Securities until such payment is made, and may withhold or
deduct from any distributions on such Deposited Securities, or may sell for the
account of the Holder hereof any part or all or such Deposited Securities (after
attempting by reasonable means to notify the Holder hereof prior to such sale),
and may apply the cash or the proceeds resulting from any such sale in payment
of such tax or other governmental charge, the Holder hereof remaining liable for
any deficiency.
(6) Warranties by Depositor. Every person depositing Shares under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Shares and each certificate therefor are validly issued and outstanding, fully
paid and nonassessable and free of pre-emptive rights, that the person making
such deposit is duly authorized so to do and that such Shares (A) are not
"restricted securities" as such term is defined in Rule 144 under the Securities
Act of 1933 unless at the time of deposit they may be freely transferred in
accordance with Rule 144(k) and may otherwise be offered and sold freely in the
United States or (B) have been registered under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
(7) Disclosure of Interests. Without prejudice to the disclosure
obligations in respect of the Shares contained in the Companies ▇▇▇ ▇▇▇▇ and the
Memorandum and Articles of Association of the Company and the remedies of the
Company for non-compliance therewith, each Holder agrees to comply with requests
from the Company which are made under relevant legislation to provide
information, inter alia as to the capacity in which such Holder owns Receipts
and regarding the identity of any other person interested in such Receipts and
the nature of such interest and shall, in accordance with such legislation and
any provisions of the Articles of Association of the Company, forfeit the right
to direct the voting of Shares as to which compliance is not made, all as if
such Receipts were to the extent practicable the Shares represented thereby and
the Depositary agrees to use its reasonable efforts to comply with any
instructions received from the Company requesting that the Depositary take the
reasonable actions specified therein to obtain such information. In addition and
without prejudice to the disclosure obligations in respect of the Shares
contained in the Companies ▇▇▇ ▇▇▇▇, any Holder who has, or who acquires (alone,
or in certain circumstances, with others) an interest (within the meaning of the
Companies Act 1985) in the Shares equal to or in excess of the then "notifiable
percentage" (at the date of the Deposit Agreement, five percent) referred to in
the Companies ▇▇▇ ▇▇▇▇, or is aware that another person for whom it holds such
Receipt is so interested, shall within five business days after becoming so
interested or so aware and thereafter upon certain changes in such interest,
disclose the prescribed particulars to the Company in respect of such Shares as
required by the Companies ▇▇▇ ▇▇▇▇.
A-3
(8) Charges of Depositary. The Depositary will charge each person to whom
Receipts are delivered against deposits of Shares, and each person surrendering
Receipts for withdrawal of Deposited Securities, U.S. $5.00 for each 100
American Depositary Shares (or portion thereof) evidenced by the Receipts
delivered or surrendered. Except as agreed upon in writing by the Company and
the Depositary, the Company shall not pay or be liable for any charges of the
Depositary or any out-of-pocket expenses incurred in the ordinary course by the
Depositary in connection with it serving as Depositary under the Deposit
Agreement; provided that the Company agrees to pay out-of-pocket expenses so
incurred by the Depositary, the Custodian or either's agents for postage,
insurance of Shares or Receipts while in transit, stationary, the printing of
the Receipts and cable, telex and facsimile transmission (to the extent persons
depositing Shares or Holders withdrawing Shares are not required to pay such
cable, telex or facsimiles transmission expenses under the Deposit Agreement).
Any out-of-pocket expenses of the Depositary, the Custodian or either's agents
under the Deposit Agreement not incurred in the ordinary course will be paid by
the Company after consultation and agreement, prior to the incurrence thereof,
between the Depositary and the Company as to the amount and nature of such
expenses. Stock transfer or other taxes and other governmental charges are
payable by persons or Holders depositing Shares. Persons depositing Shares or
Holders withdrawing Shares shall pay (z) such registration fees as may from time
to time be in effect for the registration of transfers of Shares generally on
the Share register of the Company (or the appointed agent of the Company for
transfer and registration of Shares) and accordingly applicable to transfers of
Shares to the name of the Depositary or its nominee or the Custodian or its
nominee on the making of deposits or withdrawals hereunder and (if) such cable,
telex and facsimile transmission expenses as are expressly provided in the
Deposit Agreement to be at the expense of persons depositing Shares or Holders
delivering Shares, Receipts or Deposited Securities. Such expenses as are
incurred by the Depositary in the conversion of foreign currency shall be paid
out of such foreign currency. The provisions in respect of these charges may be
changed in the manner indicated on the reverse hereof.
(9) Title to Receipts. Title to this Receipt (and to the Deposited
Securities represented by the American Depositary Shares evidenced hereby), when
properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided 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 Receipt Register maintained by the Depositary as the absolute
owner hereof for the purpose of determining the person entitled to any
distribution or notice and for all other purposes.
(10) 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 executed by the Depositary by the manual signature of a duly authorized
officer of the Depositary or, if a Receipt registrar for the Receipts shall have
been appointed, by the manual signature of a duly authorized officer of such
registrar or any co-registrar.
(11) Available Information. The Company will furnish the Securities and
Exchange Commission with certain public reports and documents required by
foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange Act
of 1934. Such reports and documents may be inspected and copied at the public
reference facilities maintained by the Commission located at the date of the
Deposit Agreement at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇.
A-4
Dated:
JPMORGAN CHASE BANK, as Depositary
By
--------------------------------
(Title)
As of the date of the Deposit Agreement, the address of the Depositary's
Office is ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
A-5
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS OF THE DEPOSIT AGREEMENT'
(12) Distributions Upon Deposited Securities. Whenever the Depositary
or the Custodian shall receive any cash dividend or other cash distribution upon
any Deposited Securities, the Depositary shall, subject to the Deposit
Agreement, distribute the amount thus received, by checks drawn on a bank in The
City of New York, to the Holders on the record date set by the Depositary
therefor of Receipts evidencing American Depositary Shares representing such
Deposited Securities, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by each of them respectively,
provided that the Depositary shall make appropriate adjustments in the amounts
so distributed in respect of (a) any of the Deposited Securities being not
entitled, by reason of its date of issuance or otherwise, to receive all or any
portion of such distribution or (b) any amounts (z) required to be withheld by
the Company, the Custodian or the Depositary on account of taxes or (if) charged
by the Depositary in connection with the conversion of foreign currency into
U.S. dollars. Cash distributions and cash proceeds from sales of non-cash
distributions in foreign currency will be converted by sale or such other manner
as the Depositary may determine into U.S. dollars (net of the Depositary's
charges and expenses in effecting such conversion) before distribution to
Holders. If in the judgment of the Depositary amounts received in foreign
currency may not be converted on a reasonable basis into U.S. dollars
transferable to the United States, or may not be so convertible for all of the
Holders entitled thereto, the Depositary may in its discretion make such
conversion and distribution in U.S. dollars to the extent reasonable and
permissible to the Holders entitled thereto and may distribute the balance in
foreign currency to the Holders entitled thereto or hold such balance or all
such foreign currency for the Holders entitled thereto (without liability for
interest thereon). If any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Shares, the Depositary may or shall if
the Company shall so request, subject to the Deposit Agreement, distribute to
the Holders on a record date set by the Depositary therefor of Receipts
evidencing American Depositary Shares representing such Deposited Securities, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by each of them respectively, additional Receipts for
an aggregate number of American Depositary Shares representing the number of
Shares received as such dividend or free distribution. In lieu of delivering
Receipts for fractional American Depositary Shares in the case of any such
distribution, the Depositary shall sell the number of Shares represented by the
aggregate of such fractions and distribute the net proceeds to the Holders
entitled thereto as in the case of a distribution received in cash. If
additional Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent its proportionate interest in the additional Shares
so distributed upon such Deposited Securities. If 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 nature, the Depositary
shall have discretion as to whether and how such rights are to be made available
to the Holders; provided that the Depositary will, if requested by the Company,
either (y) make such rights available to Holders by means of warrants or
otherwise, if lawful and feasible, or (z) if making such rights available is not
lawful or not feasible, or if such rights or warrants are not exercised and
appear to be about to lapse, sell such rights or warrants at public or private
sale, at such place or places and upon such terms as the Depositary may deem
proper, and allocate the proceeds of such sales for the accounts of the Holders
otherwise entitled thereto upon an averaged or other practicable basis without
regard to any distinctions among such Holders
A-6
because of exchange restrictions, or the date of delivery of any Receipt or
Receipts, or otherwise, and distribute the net proceeds so allocated to the
Holders entitled thereto as in the case of a distribution received in cash. The
Depositary will distribute as soon as practicable to Holders on a record date
set by it therefor any distribution on Deposited Securities other than cash,
Shares or rights in any manner that the Depositary deems equitable and
practicable; provided that if in the opinion of the Depositary any distribution
other than cash, Shares or rights upon any Deposited Securities cannot be made
proportionately among the Holders entitled thereto, or if for any other reason
(including, without limitation, any tax withholding or securities laws
requirement), the Depositary deems such distribution not to be feasible or
practicable, the Depositary may adopt such method as it may deem equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof (including in the case of a distribution of exchangeable,
redeemable or similar Securities by the Company, if so instructed by the
Company, effecting a redemption, exchange or similar transaction of such
Securities, provided Holders are given the opportunity to elect to receive such
Securities, in which case non-electing Holders will receive the net cash
proceeds from the redemption, exchange or similar disposition thereof and
electing Holders will receive such Securities), and the net proceeds of any such
sale will be distributed by the Depositary to the Holders as in the case of a
distribution received in cash. The Depositary need not distribute securities,
Receipts or rights unless the Company furnishes certain evidence or opinions in
respect of United States securities laws (which the Company has no obligation to
do).
(13) Record Dates. Whenever any distribution is being made upon any
Deposited Securities or any meeting of holders of Shares or other Deposited
Securities is being held or whenever the Depositary shall find it necessary or
convenient in connection with the giving of any notice, the solicitation of any
consent or any other matter, the Depositary will, after consultation with the
Company, if practicable, fix a record date for the determination of the Holders
who shall be entitled to receive such distribution or the net proceeds of the
sale thereof, to give instructions for the exercise of voting rights at any such
meeting, to receive such notice or solicitation or act in respect of such other
matter, subject to the provisions of the Deposit Agreement.
(14) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting or solicitation of consents or proxies of holders of
Shares or other Deposited Securities, the Depositary will mail to the Holders a
notice containing (a) such information as is contained in such notice of
meeting, (b) a statement that each Holder at the close of business on a
specified record date will be entitled, subject to any applicable provisions of
law and the provisions of or governing the Deposited Securities, to instruct the
Depositary as to the exercise of voting rights, if any, pertaining to the
Deposited Securities represented by the American Depositary Shares evidenced by
such Holders' Receipts, including an express indication that instructions may be
given to the Depositary to give a discretionary proxy to a person designated by
the Company and (c) a statement as to the manner in which such instructions may
be given. Upon the written request of a Holder of Receipts on such record date,
received on or before the date established by the Depositary for such purpose,
the Depositary will endeavor insofar as practicable and permitted under any
applicable provisions of law and the provisions of or governing the Deposited
Securities to vote or cause to be voted the Deposited Securities represented by
the American Depositary Shares evidenced by such Holder's Receipts in accordance
with any nondiscretionary instructions set forth in such request. The Depositary
will not vote any Deposited Securities represented by the
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American Depositary Shares evidenced by this Receipt except in accordance with
written instructions from such Holders.
(15) Changes Affecting Deposited Securities. Upon any change in par value,
split-up, consolidation, cancellation 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 that shall be received by the Depositary in exchange for, or in
conversion, replacement or otherwise in respect of, Deposited Securities shall
be treated as Deposited Securities under the Deposit Agreement; and, the
Depositary may with the Company's approval, and shall if the Company shall so
request, execute and deliver additional Receipts in respect of such securities
as in the case of a dividend of Shares or call for the surrender of outstanding
Receipts to be exchanged for new Receipts, reflecting such securities, and to
the extent that such additional or new Receipts are not delivered this Receipt
shall thenceforth evidence American Depositary Shares representing the right to
receive the Deposited Securities including the securities so received.
(16) Reports, Inspection of Receipt Register. The Depositary will make
available for inspection by Holders at the Depositary's Office and at any other
designated transfer offices any reports and communications received from the
Company which are both (a) received by the Depositary, the custodian or the
nominee of either as the holder of the Deposited Securities and (b) made
generally available to the holders of Deposited Securities by the Company. The
Depositary will also mail or make available to Holders copies of such reports
when furnished by the Company as provided in the Deposit Agreement. The
Depositary will keep, at its transfer office in the Borough of Manhattan, The
City of New York, a register for the registration and the registration of
transfer of Receipts that at all reasonable times will be open for inspection by
the Holders and the Company; 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.
(17) Withholding. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld by the Company and owing to such
authority or agency by the Company; and the Depositary and the Custodian will
remit to the appropriate governmental authority or agency all amounts (if any)
required to be withheld by the Company and owing to such authority or agency by
the Depositary or the Custodian. If the Depositary determines that any
distribution in property other than cash (including Shares or rights) on
Deposited Securities is subject to any tax that the Depositary or the Custodian
is obligated to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto.
(18) Liability of the Company and the Depositary. Neither the Depositary,
its agents nor the Company shall incur any liability if, by reason of any
present or future law, the provisions of or governing any Deposited Securities,
act of God, war or other circumstance beyond its control, the Depositary, its
agents or the Company shall be prevented or forbidden from, or subjected to any
civil or criminal penalty on account of, or delayed in, doing or performing any
act or thing which by the terms of the Deposit Agreement it is provided shall be
done or performed; nor shall the Depositary, its agents or the Company incur any
liability to any Holder or other person by reason of any non- performance or
delay, caused as
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aforesaid, in the performance of any act or thing that 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. The Company 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 without negligence or bad
faith. Each of the Depositary and its agents assumes no obligations and shall be
subject to no liability under the Deposit Agreement or this Receipt to Holders
or other persons (other than the Company), except to perform such obligations as
are specifically set forth and undertaken by it to perform in the Deposit
Agreement without negligence or bad faith. Neither the Depositary, its agents
nor the Company 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 against all expense and liability
be furnished as often as may be required, or (b) liable for any action or
inaction by it 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 to be competent to give such advice or information. The
Depositary, its agents and the Company may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by them
to be genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible 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 and its agents may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Company has agreed to indemnify
the Depositary, the Custodian, any Receipt registrar, co-transfer agent,
co-registrar and other agent of the Depositary appointed pursuant to the Deposit
Agreement (the "indemnified persons") against any loss, liability or expense
(including reasonable fees and expenses of counsel) that may arise (a) out of
acts performed or omitted in accordance with the Deposit Agreement and the
Receipts, (f) by any indemnified person, except to the extent that any such
loss, liability or expense is due to the negligence or bad faith of an
indemnified person, or (if) by the Company or any of its agents (other than the
indemnified persons), or (b) out of or in connection with any offer or sale of
Receipts, American Depositary Shares, Shares or any other Deposited Securities
or any registration statement under the Securities Act of 1933 in respect
thereof, except to the extent such loss, liability or expense arises out of (x)
information (or omissions from such information) relating to such indemnified
person, furnished in writing to the Company by such indemnified person expressly
for use in a registration statement under the Securities Act of 1933 or (y) any
wrongful act or omission of any indemnified person. The Depositary shall
indemnify, defend and save harmless the Company against any loss, liability or
expense (including reasonable fees and expenses of counsel) that may arise out
of acts performed or omitted by the Depositary (or any Custodian, Receipt
registrar, co-transfer agent, co-registrar or other agent of the Depositary) due
to their negligence or bad faith.
(19) Resignation and Removal of Depositary; the Custodian. The Depositary
may at any time resign as Depositary under the Deposit Agreement by written
notice of its election so to do delivered to the Company or may at any time be
removed by the Company by written notice of such removal delivered to the
Depositary, such resignation or removal to take effect upon the appointment of
and acceptance by a successor depositary as provided in the Deposit Agreement.
The Depositary may, upon written request or written approval of the Company, at
anytime appoint substitute or additional Custodians and the term "Custodian"
refers to each Custodian or all Custodians as the context requires.
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(20) Amendment of Deposit Agreement and Receipts. The Receipts and the
Deposit Agreement may be amended by agreement between the Company and the
Depositary. Any amendment that shall impose or increase any fees or charges
(other than stock transfer or other taxes and other governmental charges,
transfer or registration fees, cable, telex or facsimile transmission costs,
delivery costs, and expenses of the Depositary in connection with conversion of
foreign currency into U.S. dollars) or that shall otherwise prejudice any
substantial existing right of Holders, shall not, however, become effective as
to outstanding Receipts until the expiration of three months after notice of
such amendment shall have been given to the Holders. Every Holder at the
expiration of such three months shall be deemed by holding such Receipt to
consent and agree to such amendment and to be bound by the Deposit Agreement or
the Receipt as amended thereby. In no event shall any amendment impair the right
of the Holder hereof to surrender this Receipt and receive therefor the
Deposited Securities represented hereby, except in order to comply with
mandatory provisions of applicable law.
(21) Termination of Deposit Agreement. The Depositary will at any time at
the direction of the Company terminate the Deposit Agreement by mailing notice
of such termination to the Holders at least 30 days prior to the date fixed in
such notice for such termination. The Depositary may terminate the Deposit
Agreement, upon the notice set forth in the preceding sentence, at any time
after 90 days after the Depositary shall have resigned, provided that no
successor Depositary shall have been appointed and accepted its appointment
within such 90 days. After the date so fixed for termination, the Depositary
will perform no further acts under the Deposit Agreement, except to advise
Holders of such termination, receive and hold distributions on Deposited
Securities (or sell property or rights or convert Deposited Securities into
cash) and deliver Deposited Securities being withdrawn. As soon as practicable
after the expiration of six months from the date so fixed for termination, the
Depositary shall sell the Deposited Securities and shall thereafter (as long as
it may lawfully do so) hold the net proceeds of any such sale, together with any
other cash then held by it under the Deposit Agreement, without liability for
interest, for the pro rata benefit of the Holders of Receipts not theretofore
surrendered.
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CHARGES OF THE DEPOSITARY
The charges of the Depositary, subject to Sections 5.09 and 6.01 of the
Deposit Agreement, are as follows:
Service Rate By Whom Paid
------------------------------- ------------------------------ -----------------------------
Delivery of Receipts against $5 per 100 American Depositary Person to whom Receipts are
deposits of Shares Shares or portion thereof delivered
Withdrawal of Deposited $5 per 100 American Depositary Persons surrendering Receipts
Securities against surrender of Shares or portion thereof
Receipts
Except as agreed upon by the Company and the Depositary, the Company shall
not pay or be liable for any charges of the Depositary or any out-of-pocket
expenses incurred in the ordinary course by the Depositary in connection with it
serving as Depositary hereunder; provided that the Company agrees to pay
out-of-pocket expenses so incurred by the Depositary, the Custodian or either's
agents for postage, insurance of Shares or Receipts while in transit,
stationary, the printing of the Receipts and cable, telex and facsimile
transmission (to the extent persons depositing Shares or Holders withdrawing
Shares are not required to pay such cable, telex or facsimile transmission
expenses under the Deposit Agreement). Any out-of-pocket expenses of the
Depositary, the Custodian or either's agents hereunder not incurred in the
ordinary course will be paid by the Company after consultation and agreement,
prior to the incurrence thereof, between the Depositary and the Company as to
the amount and nature of such expenses. Stock transfer or other taxes and other
governmental charges are payable by persons or Holders depositing Shares.
Persons depositing Shares or Holders withdrawing Shares shall pay (z) such
registration fees as may from time to time be in effect for the registration of
transfer or Shares generally on the Share register of the Company (or the
appointed agent of the Company for transfer and registration of Shares) and
accordingly applicable to transfers of Shares to the name of the Depositary or
its nominee or the Custodian or its nominee on the making of deposits or
withdrawals hereunder and (ii) such cable, telex and facsimile transmission
expenses as are expressly provided in the Deposit Agreement to be at the expense
of persons depositing Shares or Holders delivering Shares, Receipts or deposited
Securities. Such expenses as are incurred by the Depositary in the conversion of
foreign currency shall be paid out of such foreign currency.
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