to Amended and Restated Deposit Agreement, dated as of May 22, 2006
(a)(ii)
Amendment No. 1
to
Amended and Restated
Deposit Agreement, dated as
Deposit Agreement, dated as
of
May 22, 2006
AND
CITIBANK,
N.A.,
As
Depositary
AND
THE
HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN
DEPOSITARY SHARES
________________________________
Amendment
No. 1
to
Amended
and Restated Deposit Agreement
Dated
as of May 22, 2006
AMENDMENT
NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO
AMENDED AND RESTATED DEPOSIT AGREEMENT,
is made
as of May 22, 2006 (this “Amendment”), by and among Unilever PLC, a company
incorporated under the laws of England (the “Company”), CITIBANK, N.A., a
national banking association organized under the laws of the United States
of
America and acting solely as depositary (the “Depositary”), and all Holders and
Beneficial Owners of American Depositary Shares issued under the Deposit
Agreement (as hereinafter defined).
W I T N E S S E T H
T H A T
WHEREAS,
the
parties hereto entered into that certain Amended and Restated Deposit Agreement,
dated as of February 14, 2006 (the “Deposit Agreement”), for the creation of
American Depositary Shares (“ADSs”) representing the Shares (as defined in the
Deposit Agreement) so deposited and for the execution and delivery of such
ADSs;
WHEREAS,
the
Company (i) has changed: (i) the ratio of Shares to ADSs (as set forth in
Section 1.5 of the Deposit Agreement and the first paragraph of the form of
American Depositary Receipt attached to the Deposit Agreement) from four (4)
Shares to one (1) ADS to one (1) Share to one (1) ADS and (ii) the nominal
value
per Share (as set forth in Section 1.35 of the Deposit Agreement and on the
first page of the form of American Depositary Receipt attached to the Deposit
Agreement) from 1.4 ▇▇▇▇▇ per Share to 3 1/9 ▇▇▇▇▇ per Share, and (ii) desires
to amend the Deposit Agreement to reflect such changes and;
WHEREAS,
pursuant to Section 6.1 of the Deposit Agreement, the Company and the Depositary
deem it necessary and desirable to amend the Deposit Agreement and the form
of
American Depositary Receipt (“ADR”) annexed thereto as Exhibit A for the
purposes set forth herein.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01.
Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT
SECTION
2.01.
Deposit
Agreement.
All
references in the Deposit Agreement to the term “Deposit Agreement” shall, as of
the Effective Date (as hereinafter defined), refer to the Amended and Restated
Deposit Agreement, dated as of February 14, 2006, and as amended by this
Amendment, together with all exhibits thereto, as the same may be amended and
supplemented in accordance with the terms of the Deposit Agreement.
SECTION
2.02.
Change
of Ratio.
All
references made in the Deposit Agreement to one (1) ADS representing four (4)
Shares shall, as of the Effective Date, refer to one (1) ADS representing one
(1) Share.
SECTION
2.03.
Change
of Nominal Value.
All
references made in the Deposit Agreement to the nominal value of 1.4 ▇▇▇▇▇
per
Share shall, as of the Effective Date, refer to the nominal value of 3 1/9
▇▇▇▇▇
per Share.
ARTICLE
III
AMENDMENTS
TO THE FORM OF ADR
SECTION
3.01.
Change
of Ratio.
All
references made to one (1) ADS representing four (4) Shares made in the ADRs
issued and outstanding as of the Effective Date shall, as of the Effective
Date,
refer to one (1) ADS representing one (1) Share.
SECTION
3.02.
Change
of Nominal Value.
All
references made to the nominal value of 1.4 ▇▇▇▇▇ per Share made in the ADRs
issued and outstanding as of the Effective Date shall, as of the Effective
Date,
refer to the nominal value of 3 1/9 ▇▇▇▇▇ per Share.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations
and Warranties.
The
Company represents and warrants to, and agrees with, the Depositary and the
Holders, that this Amendment constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms
(subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors’ rights generally
from time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and
fair
dealing, regardless of whether considered in a proceeding in equity or at law).
ARTICLE
V
MISCELLANEOUS
SECTION
5.01.
Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
of
such date (the “Effective Date”).
SECTION
5.02.
New
ADRs.
From
and after the Effective Date, the Depositary shall arrange to have new ADRs
printed or amended that reflect the changes to the form of ADR effected by
this
Amendment. All ADRs issued hereunder after the Effective Date, once such new
ADRs are available, whether upon the deposit of Shares or other Deposited
Securities or upon the transfer, combination or split-up of existing ADRs,
shall
be substantially in the form of the specimen ADR attached as Exhibit
A
hereto.
However, ADRs issued prior or subsequent to the Effective Date, which do not
reflect the changes to the form of ADR effected hereby, do not need to be called
in for exchange and may remain outstanding until such time as the Holders
thereof choose to surrender them for any reason under the Deposit Agreement.
The
Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing. Notwithstanding the foregoing, the terms
of
this Amendment, including the change in the ratio of the number of Shares
represented by each ADS to (1) ADS representing (1) Share, shall be effective
to
bind all Holders of ADSs irrespective of whether such ADSs were issued before
or
after the Effective Date or the ADRs representing such ADSs do or do not reflect
the terms of this Amendment.
SECTION
5.03.
Notice
of Amendment to Holders.
The
Depositary is hereby directed to send notices informing the Holders of (i)
the
terms of this Amendment, (ii) the Effective Date of this Amendment and (iii)
that the Holders shall be given the opportunity, but that it is unnecessary,
to
surrender outstanding ADRs.
SECTION
5.04.
Indemnification.
The
Company hereby acknowledges that Section 5.8 of the Deposit Agreement shall
remain in full force and effect and that the terms thereof, to the extent set
forth therein, shall apply to this Amendment and the transactions contemplated
hereby.
SECTION
5.05.
Ratification.
Except
as expressly amended hereby, the terms, covenants and conditions of the Deposit
Agreement as originally executed shall remain in full force and
effect.
SECTION
5.06. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York without reference to its principles of choice of
law.
SECTION
5.07.
Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original, and all of such counterparts together shall be deemed an
original, and all such counterparts together shall constitute one and the same
instrument.
IN
WITNESS
WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
| |
|
|
| By: | /s/ A.M. ▇▇▇▇▇▇ | |
|
Name: A.M. ▇▇▇▇▇▇ |
||
| Title: DEPUTY SECRETARY | ||
|
CITIBANK,
N.A.,
as Depositary
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
||
|
Title:
Vice
President
|
||
EXHIBIT
A
[FORM
OF ADR]
|
Number
002
|
CUSIP
NUMBER: ▇▇▇▇▇▇▇▇▇
|
|
American
Depositary Shares (each American Depositary Share representing one
(1)
fully paid ordinary share, each nominal value of
3 1/9 ▇▇▇▇▇ per share, of Unilever PLC)
|
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
of
(Incorporated
under the laws of England)
CITIBANK,
N.A.,
a
national banking association organized and existing under the laws of the United
States of America, as depositary (the "Depositary"), hereby certifies that
______________________ is
the
owner of ________________ American
Depositary Shares (hereinafter "ADS"), representing
deposited ordinary shares, each of nominal value of 3 1/9 ▇▇▇▇▇ per share
(including evidence of rights to receive such ordinary shares, the "Shares"),
of
Unilever PLC, a corporation
incorporated under the laws of England (the "Company"). As of the date of the
Deposit Agreement (as hereinafter defined), each ADS represents one (1) Share
deposited under the Deposit Agreement with the Custodian, which at the date
of
execution of the Deposit Agreement is Citibank, N.A., London
Branch (the "Custodian"). The ADS(s)-to-Share(s) ratio is subject to amendment
as provided in Articles II, IV and VI of the Deposit Agreement. The Depositary's
Principal Office is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇.▇.▇.
(1)
The
Deposit Agreement. This
American Depositary Receipt is one of an issue of American Depositary Receipts
("ADRs"), all
issued and to be issued upon the terms and
conditions
A-1
set
forth
in the Amended and Restated Deposit Agreement, dated as of February 14, 2006
(as
amended and supplemented from time to time, the "Deposit Agreement"), by and
among the Company, the Depositary, and all Holders and Beneficial Owners from
time to time of ADSs. The Deposit Agreement sets forth the rights and
obligations of Holders and Beneficial Owners
of
ADSs 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 are herein called "Deposited Securities").
Copies of the Deposit Agreement are on file at the Principal Office of the
Depositary and with the Custodian. Each Holder and each Beneficial Owner, upon
acceptance of any ADSs (or any interest therein) issued in accordance with
the
terms and conditions of the Deposit Agreement, shall be deemed for all purposes
to (a) be a party to and bound by the terms of the Deposit Agreement and
applicable ADR(s), and (b) appoint the Depositary its attorney-in-fact, with
full power to delegate, to act on its behalf and to take any and all actions
contemplated in the Deposit Agreement and the applicable ADR(s), to adopt any
and all procedures necessary to comply with applicable law and to take such
action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of the Deposit Agreement and the
applicable ADR(s), the taking of such actions to be the conclusive determinant
of the necessity and appropriateness thereof.
The
statements made
on the face and reverse of this ADR are summaries of certain provisions
of the Deposit Agreement and the Memorandum and Articles of Association of
the
Company (as in effect on the date of the signing of the Deposit Agreement)
and
are qualified by and subject to the detailed provisions of the Deposit Agreement
and Memorandum and Articles of
Association, to which reference is hereby made. All capitalized terms used
herein which are not
otherwise defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The
Depositary makes no representation or warranty as to the validity or worth
of
the Deposited Securities.
The Depositary has made arrangements for the acceptance of the ADSs into DTC.
Each
Beneficial Owner of ADSs held through DTC must rely on the procedures of DTC
and
the DTC Participants to exercise and be entitled to any rights attributable
to
such ADSs.
(2)
Withdrawal
of Deposited Securities. The
Holder of this ADR (and of the ADSs evidenced
hereby) shall be entitled to Delivery (at the Custodian's designated office)
of
the Deposited
Securities at the time represented by the ADSs evidenced hereby upon
satisfaction of each of the following conditions: (i) the Holder (or a duly
authorized attorney of the Holder) has duly
Delivered to the Depositary at its Principal Office the ADSs evidenced hereby
(and, if applicable,
this ADR) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the Depositary, this ADR has
been
properly endorsed
in blank or is accompanied by proper instruments of transfer in blank (including
signature
guarantees in accordance with standard securities industry practice), (iii)
if
so required by the Depositary, the Holder of the ADSs has executed and delivered
to the Depositary a written
order directing the Depositary to cause the Deposited Securities being withdrawn
to be Delivered
to or upon the written order of the person(s) designated in such order, and
(iv)
all applicable fees and charges of, and expenses incurred by, the Depositary
and
all applicable taxes and governmental charges (as are set forth in Section
5.9
of, and Exhibit
B
to, the
Deposit Agreement)
have been paid, subject,
however, in each case, to
the
terms and conditions of this ADR,
of
the Deposit Agreement, of the Company's Memorandum and Articles
A-2
of
Association, of
any
applicable laws and the rules of CREST, and to any provisions of or governing
the Deposited Securities, in each case as in effect at the time
thereof.
Upon
satisfaction of
each of the conditions specified above, the Depositary (i) shall cancel the
ADSs
Delivered to it (and, if applicable, the ADR(s) evidencing the ADSs so
Delivered), (ii) shall direct the Registrar to record the cancellation of the
ADSs so Delivered on the books maintained for such purpose, and (iii) shall
direct the Custodian to Deliver (without unreasonable delay) at the Custodian's
designated office the Deposited Securities represented by the
ADSs
so canceled together with any certificate or other document of title for the
Deposited Securities, or evidence of the electronic transfer thereof (as
applicable), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such
purpose, subject
however, in each case, to
the
terms and conditions of the Deposit Agreement, of this ADR, of the Memorandum
and Articles of Association of the Company, of any
applicable laws and the rules of CREST, and to the terms and conditions of
or
governing the Deposited
Securities, in each case as in effect at the time thereof.
The
Depositary shall
not accept for surrender ADSs representing less than one Share. In the
case
of Delivery to it of ADSs representing a number other than a whole number of
Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares
to be
Delivered in accordance with the terms hereof, and shall, at the discretion
of
the Depositary, either (i) return
to
the person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered
and remit the proceeds of such sale (net of (a) applicable fees and charges
of,
and expenses incurred by, the Depositary and (b) taxes withheld) to the person
surrendering the ADSs.
Notwithstanding anything else contained in this ADR or the Deposit Agreement,
the Depositary
may make delivery to Holders surrendering ADSs for withdrawal of Deposited
Securities
at the Principal Office of the Depositary of (i) any cash dividends or cash
distributions, or
(ii)
any proceeds from the sale of any distributions of shares or rights, which
are
at the time held
by
the Depositary in respect of the Deposited Securities represented by the ADSs
surrendered
for cancellation and withdrawal. At the request, risk and expense of any Holder
so surrendering
ADSs represented by this ADR, and for the account of such Holder, the Depositary
shall
direct the Custodian to forward (to the extent permitted by law) any cash or
other property (other
than securities) held by the Custodian in respect of the Deposited Securities
represented by such
ADSs
to the Depositary for delivery at the Principal Office of the Depositary. Such
direction
shall be given by letter or, at the request, risk and expense of such Holder,
by
cable, telex
or
facsimile transmission.
(3)Transfer,
Combination and Split-Up of ADRs. In
connection with the requested
transfer of this ADR, the Registrar shall register the transfer of this ADR
(and
of the ADSs
represented hereby) on the books maintained for such purpose and the Depositary
shall (x)
cancel this ADR and execute new ADRs in the name of the transferee evidencing
the same aggregate
number of ADSs as those evidenced by this ADR when canceled, (y) cause the
Registrar
to countersign such new ADRs, and (z) Deliver such new ADRs to or upon the
order
of the
transferee entitled thereto, if each of the following conditions has been
satisfied: (i) this ADR
submitted for transfer has been duly Delivered by the Holder (or by a duly
authorized attorney of the Holder) to the Depositary at its Principal Office
for
the purpose of effecting a transfer thereof, (ii) this ADR has been properly
A-3
endorsed
or is accompanied by proper instruments of transfer (including signature
guarantees in accordance with standard securities industry
practice), (iii) this ADR has been duly stamped (if required by the laws of
the
State of New York or of the United States), and (iv) all applicable fees and
charges of, and expenses incurred by, the Depositary and all applicable taxes
and governmental charges (as are set forth in Section 5.9 of, and Exhibit
B
to, the
Deposit Agreement) have been paid, subject,
however, in each case, to
the
terms and conditions of this ADR, of the Deposit Agreement and of applicable
law, in each case as in effect at the time thereof.
In
connection with
the requested combination or split-up of this ADR, the Registrar shall
register
the split-up or combination of this ADR (and of the ADSs represented hereby)
on
the books
maintained for such purpose and the Depositary shall (x) cancel this ADR and
execute new
ADRs
for the number of ADSs requested, but in the aggregate not exceeding the number
of ADSs evidenced by this ADR (when canceled), (y) cause the Registrar to
countersign such new ADRs,
and
(z) Deliver such new ADRs to or upon the order of the Holder thereof, if each
of
the following conditions has been satisfied: (i) this ADR submitted for
combination or split-up has been
duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to
the
Depositary
at its Principal Office for the purpose of effecting a split-up or combination
hereof, and (ii) all applicable fees and charges of, and expenses incurred
by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 of, and Exhibit
B to,
the
Deposit Agreement) have been paid, subject,
however, in each case, to
the
terms and conditions
of this ADR, of the Deposit Agreement and of applicable law, in each case as
in
effect at the time thereof.
(4)
Pre-Conditions
to Registration, Transfer, Etc.
As
a
condition precedent to the execution and delivery, the registration of issuance,
transfer, split-up, combination or surrender, of
any
ADR, the delivery of any distribution thereon, or the withdrawal of any
Deposited Securities,
the Depositary, the Company or the Custodian may require (i) payment from the
depositor
of Shares or the presenter of ADSs or ADRs of a sum sufficient to reimburse
it
for any tax
or
other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and
payment of any applicable fees and charges of the Depositary as provided in
the
Deposit Agreement and in this ADR, (ii) the production of proof satisfactory
to
it as to the identity and genuineness of any signature or any other matters
contemplated by Section 3.1 of the Deposit Agreement,
and (iii) compliance with (A) any laws or governmental regulations relating
to
the execution
and delivery of ADRs or ADSs or to the withdrawal of Deposited Securities,
(B)
the provisions
of the Company's Memorandum and Articles of Association as in effect from time
to time
and
applicable resolutions or regulations adopted by the Company's board of
directors, and (C)
such
reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of this ADR and the Deposit Agreement and
applicable law.
The
issuance of ADSs
against deposits of Shares generally or against deposits of particular
Shares may be suspended, or the deposit of particular Shares may be refused,
or
the registration
of transfers of ADSs in particular instances may be refused, or the registration
of transfer of ADSs generally may be suspended, during any period when the
transfer books of the Company,
the Depositary, a Registrar or the Share Registrar are closed or if any such
action is
deemed
necessary
A-4
or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law or regulation, any government
or
governmental body or commission or any securities exchange on which the ADSs
or
Shares are listed,
or under any provision of the Deposit Agreement or this ADR, or under any
provision of, or
governing, the Deposited Securities, or because of a meeting of shareholders
of
the Company or for any other reason, subject in all cases to paragraph
(24).
Notwithstanding
any provision of the
Deposit Agreement or this ADR to the contrary, Holders are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities associated therewith
at
any time subject only to (i)
temporary delays caused by closing the transfer books of the Depositary or
the
Company or the deposit of Shares in connection with voting at a shareholders'
meeting or the payment of dividends, (ii) the payment of fees, taxes and similar
charges, (iii) compliance with any U.S. or foreign
laws or governmental regulations relating to the ADRs or ADSs to the withdrawal
of the Deposited
Securities, and (iv) other circumstances specifically contemplated by
Instruction I.A.(l) of the General Instructions to Form F-6 under the Securities
Act (as such General Instructions
may be amended from time to time).
(5)
Compliance
With Information Requests.
Notwithstanding
any other provision of
the
Deposit Agreement or this ADR, each Holder and Beneficial Owner of the ADSs
represented hereby agrees to comply with requests from the Company pursuant
to
applicable law (including, without limitation, the provisions of Section 212
of
Part VI of the Companies ▇▇▇ ▇▇▇▇ of England, as amended or reenacted from
time
to time), the rules and requirements of the London
Stock Exchange or the New York Stock Exchange, and of any other stock exchange
on which
Shares or ADSs are, or will be, registered, traded or listed, or the Memorandum
and Articles
of Association of the Company or resolutions and regulations of the Company's
board of
directors, which are made to provide or obtain (i) information, inter
alia, as
to the
capacity in which
such Holder or Beneficial Owner owns ADSs (and Shares as the case may be) and
regarding the identity of any other person(s) interested in such ADSs and the
nature of such interest
and various other matters, whether or not they are Holders and/or Beneficial
Owners at the time of such request and (ii) information for purposes of blocking
transfer, voting, the exercising
of other rights, to enforce disclosure requirements, or to limit any ownership
or enforce
compliance with such request.
(6)
Ownership
Restrictions.
Notwithstanding
any other provision of this ADR or of the
Deposit Agreement, the Company may restrict transfers of the Shares where such
transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Memorandum
and Articles of Association of the Company. The Company may also restrict,
in
such
manner as it deems appropriate, transfers of ADSs where such transfer may result
in the total
number of Shares represented by the ADSs owned by a single Holder or Beneficial
Owner to
exceed
any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits
set
forth in the preceding sentence, including, but not limited to, the imposition
of restrictions on the transfer of ADSs, the removal or limitation of
voting
rights or a mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the ADSs held by such Holder or Beneficial
Owner in excess of such limitations,
if and to the extent such disposition is permitted by applicable law and the
Memorandum
and Articles of Association of the Company.
A-5
(7)
Liability
of Holder for Taxes and Other Charges.
Any
tax
or other governmental charge payable by the Custodian or by the Depositary
with
respect to any ADR or any
Deposited Securities or ADSs shall be payable by the Holders and Beneficial
Owners to the Depositary. The Company, the Custodian and/or the Depositary
may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of a Holder and/or Beneficial Owner
any
or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, and the Holder and the Beneficial Owner hereof shall remain liable
for any deficiency. The Custodian may refuse the deposit of Shares and the
Depositary may refuse to issue
ADSs, to deliver ADRs, register the transfer of ADSs, register the split-up
or
combination of
ADRs
and (subject to paragraph (24) hereof) the withdrawal of Deposited Securities
until payment
in full of such tax, charge, penalty or interest is received. Every Holder
and
Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian, and any of
their
agents, officers, employees and Affiliates for, and to hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
(8)
Representations
and Warranties of Depositors.
Each
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued and outstanding, fully paid,
non-assessable and legally obtained and held by such person, (ii) all preemptive
(and similar)
rights, if any, with respect to such Shares have been validly waived or
exercised, (iii) the person making such deposit is duly authorized so to do,
(iv) the Shares presented for deposit are free
and
clear of any lien, encumbrance, security interest, charge, mortgage or adverse
claim, (v) the Shares presented for deposit are not, and the ADSs issuable
upon
such deposit will not be, Restricted
Securities (except as contemplated in Section 2.13 of the Deposit Agreement),
and (vi)
the
Shares presented for deposit have not been stripped of any rights or
entitlements. Such representations
and warranties shall survive the deposit and withdrawal of Shares, the issuance
and
cancellation of ADSs in respect thereof and the transfer of such ADSs. If any
such representations
or warranties are false in any way, the Company and the Depositary shall be
authorized,
at the cost and expense of the person depositing Shares, to take any and all
actions necessary to correct the consequences thereof.
(9)
Filing
Proofs, Certificates and Other Information.
Any
person presenting Shares
for deposit, and any Holder and any Beneficial Owner may be required, and every
Holder and
Beneficial Owner agrees, from time to time to (A) provide to the Depositary
and
the Custodian such proof of (i) citizenship or residence, (ii) taxpayer status,
(iii) payment of all applicable
taxes or other governmental charges, (iv) exchange control approval, (v) legal
or beneficial
ownership of ADSs and Deposited Securities, and (vi) compliance with applicable
laws, the terms of the Deposit Agreement or this ADR and the provisions of,
or
provisions governing, the Deposited Securities, and (B) to execute such
certifications and to make such representations and warranties, and to provide
such other information and documentation (or, in the case of Shares in
registered form presented for deposit, such information relating to the
registration
on the books of the Company or of the Share Registrar) as the Depositary or
the
Custodian
may deem necessary or proper or as the Company may reasonably require by written
request to the Depositary consistent with its obligations under the Deposit
Agreement and this
ADR. The
A-6
Depositary
and the Registrar, as applicable, may withhold the execution or delivery
or
registration of transfer of any ADR or ADS or the distribution or sale of any
dividend or other distribution
of rights or of the proceeds thereof or, to the extent not limited by paragraph
(24),
the
delivery of any Deposited Securities until such proof or other information
is
filed or such certifications are executed, or such representations are made
or
such information and documentation
are provided, in each case to the Depositary's, the Registrar's and the
Company's satisfaction.
(10)
Charges
of Depositary.
The
Depositary shall charge the following fees:
|
|
(i)
|
Issuance
Fee: to
any person depositing Shares or to whom ADSs are issued
upon the deposit of Shares, a fee not in excess of U.S. $5.00 per
100
ADSs (or portion thereof) so issued under the terms of the Deposit
Agreement; and
|
|
(ii)
|
Cancellation
Fee:
to
any person surrendering ADSs for cancellation and withdrawal
of Deposited Securities, a fee not in excess of U.S. $5.00 per
100
ADSs (or portion thereof) so
surrendered.
|
In
addition,
Holders, Beneficial Owners, persons depositing Shares and persons surrendering
ADSs for cancellation and withdrawal of Deposited Securities will be required
to
pay
the
following charges:
|
(i)
|
taxes
(including applicable interest and penalties) and other governmental
charges;
|
|
|
(ii)
|
such
registration fees as may from time to time be in effect for the
registration
of Shares or other Deposited Securities on the share register and
applicable to transfers of Shares or other Deposited Securities to
or
from
the name of the Custodian, the Depositary or any nominees upon the
making
of deposits and withdrawals,
respectively;
|
|
(iii)
|
such
cable, telex and facsimile transmission and delivery expenses as
are
expressly
provided in the Deposit Agreement to be at the expense of the person
depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
|
|
(iv)
|
the
expenses and charges incurred by the Depositary in the conversion
of
foreign currency;
|
|
(v)
|
such
fees and expenses as are incurred by the Depositary in connection
with
compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and
ADRs;
and
|
A-7
| (vi) |
the
fees and expenses incurred by the Depositary, the Custodian, or any
nominee
in connection with the delivery or servicing of Deposited
Securities.
|
Any
other charges and
expenses of the Depositary under the Deposit Agreement will be paid
by
the Company upon agreement between the Depositary and the Company. All fees
and
charges
may, at any time and from time to time, be changed by agreement between the
Depositary
and Company but, in the case of fees and charges payable by Holders or
Beneficial Owners,
only in the manner contemplated by paragraph (22) of this ADR and as
contemplated in the
Deposit Agreement. The Depositary will provide, without charge, a copy of its
latest fee schedule to anyone upon request. The charges and expenses of the
Custodian are for the sole account
of the Depositary.
(11)
Title
to ADRs.
It
is a
condition of this ADR, and every successive Holder of this ADR
by
accepting or holding the same consents and agrees, that title to this ADR (and
to each Certificated ADS evidenced hereby) shall be transferable upon the same
terms as a certificated security
under the laws of the State of New York, provided that, this ADR has been
properly endorsed
or is accompanied by proper instruments of transfer. Notwithstanding any notice
to the contrary,
the Depositary and the Company may deem and treat the Holder of this ADR (that
is, the
person in whose name this ADR is registered on the books of the Depositary)
as
the absolute owner
thereof for all purposes. Neither the Depositary nor the Company shall have
any
obligation
nor be subject to any liability under the Deposit Agreement or this ADR to
any
holder of
this
ADR or any Beneficial Owner unless such holder is the Holder of this ADR
registered on the
books
of the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner
or the Beneficial
Owner's representative is the Holder registered on the books of the
Depositary.
(12)
Validity
of ADR. The
Holder(s) of this ADR (and the ADSs represented hereby) shall
not
be entitled to any benefits under the Deposit Agreement, nor shall this ADR
be
valid or enforceable
for any purpose against the Depositary or the Company, unless this ADR has
been
(i) dated, (ii) signed by the manual or facsimile signature of a duly-authorized
signatory of the Depositary,
(iii) countersigned by the manual or facsimile signature of a duly-authorized
signatory
of the Registrar, and (iv) registered in the books maintained by the Registrar
for the registration
of issuances and transfers of ADSs. An ADR bearing the facsimile signature
of a
duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature
was a
duly authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the
delivery of such ADR by the Depositary.
(13)
Available
Information; Reports; Inspection of Transfer Books.
The
Company is
subject to the periodic reporting requirements of the Exchange Act and
accordingly files certain information with the Commission. These reports and
documents can be retrieved from the
Commission's website (▇▇▇.▇▇▇.▇▇▇)
and can
be inspected and copied at the public reference facilities maintained by the
Commission located at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇. The Depositary shall make available for inspection by Holders at its
Principal Office
any reports and communications, including any proxy soliciting materials,
received from the Company which are both
A-8
(a)
received by the Depositary, the Custodian, or the nominee of either of them
as
the holder of the Deposited Securities and (b) made generally available to
the
holders of such Deposited Securities by the Company.
The
Registrar shall
keep books for the registration of ADSs which at all reasonable times shall
be
open for inspection by the Company and by the Holders of such ADSs, provided
that such inspection shall not be, to the Registrar's knowledge, for the purpose
of communicating with
Holders of such ADSs in the interest of a business or object other than the
business of the Company
or other than a matter related to the Deposit Agreement or the
ADSs.
The
Depositary is
authorized to, and shall at the Company's request, from time to time
provide to the Company, the Share Registrar and any other agent of the Company
designated
by the Company in writing (irrespective of their nationality, residency, or
regulatory regime)
in electronic or print format the information contained in the register of
ADSs.
Every Holder
and Beneficial Owner of ADSs upon acceptance of any ADSs (or any interest
therein) shall
be
deemed to have consented to the Depositary providing such information to such
persons.
The
Registrar may
close the transfer books with respect to the ADSs, at any time or from
time
to
time, when deemed necessary or advisable by it in good faith in connection
with
the performance of its duties hereunder, or at the reasonable written request
of
the Company subject, in all cases, to paragraph (24).
Dated:
| CITIBANK, N.A. | CITIBANK, N.A. | |||
| Transfer Agent and Registrar | as Depositary | |||
| By: | By: | |||
|
Authorized Signatory |
Authorized
Signatory
|
|||
The
address of the
Principal Office of the Depositary is ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
A-9
[FORM
OF REVERSE OF ADR]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE
DEPOSIT AGREEMENT
(14)
Dividends
and Distributions in Cash, Shares, etc. Whenever
the Depositary receives
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution
on any Deposited Securities, or receives proceeds from the sale of any Deposited
Securities
or any other entitlements held in respect of Deposited Securities under the
terms of the Deposit Agreement, the Depositary will (i) if at the time of
receipt thereof any amounts received in a Foreign Currency can, in the judgment
of the Depositary (upon the terms of the Deposit Agreement),
be converted on a practicable basis into Dollars transferable to the United
States, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
into Dollars (upon the terms of the Deposit Agreement), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9 of the
Deposit Agreement, and (iii) distribute promptly the amount thus received (net
of (a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the Holders entitled thereto as of the
ADS
Record
Date in proportion to the number of ADSs held as of the ADS Record Date. The
Depositary
shall distribute only such amount, however, as can be distributed without
attributing to
any
Holder a fraction of one cent, 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 ADSs outstanding
at
the time of
the
next distribution. If the Company, the Custodian or the Depositary is required
to withhold and
does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed
to Holders on the ADSs representing such Deposited Securities shall be reduced
accordingly.
Such withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment thereof
by the Company
shall be forwarded by the Company to the Depositary upon request.
If
any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution
of, Shares, the Company shall cause such Shares to be deposited with the
Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian
or
their respective
nominees. Upon receipt of confirmation of such deposit from the Custodian,
the
Depositary
shall, subject to and in accordance with the Deposit Agreement, establish the
ADS Record Date and either (i) the Depositary shall distribute to the Holders
as
of the ADS Record Date in proportion to the number of ADSs held as of the ADS
Record Date, additional ADSs, which
represent in the aggregate the number of Shares received as such dividend,
or
free distribution,
subject to the terms of the Deposit Agreement (including, without limitation,
(a) the applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes),
or
(ii) if additional
ADSs are not so distributed, each ADS issued and outstanding after the ADS
Record Date shall, to the extent permissible by law, thenceforth also represent
rights and interests in the additional integral number of Shares distributed
upon the Deposited Securities represented thereby (net of (a) the applicable
fees and charges of, and
A-10
expenses
incurred by, the Depositary, and
(b)
taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the
number of Shares
or
ADSs, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms set forth in the Deposit
Agreement.
In
the event
that the Depositary determines that any distribution in property (including
Shares)
is subject to any tax or other governmental charges which the Depositary is
obligated to withhold,
or, if the Company in the fulfillment of its obligations under the Deposit
Agreement, has furnished an opinion of U.S. counsel determining that Shares
must
be registered under the Securities
Act or other laws in order to be distributed to Holders (and no such
registration statement
has been declared effective), the Depositary may dispose of all or a portion
of
such property (including Shares and rights to subscribe therefor) in such
amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable,
and the Depositary
shall distribute the net proceeds of any such sale (after deduction of (a)
taxes
and (b) fees and charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement.
Upon
timely
receipt of a notice indicating that the Company wishes an elective distribution
to be made available to Holders of ADSs upon the terms described in the Deposit
Agreement, the Company and the Depositary shall determine whether such
distribution is lawful and
reasonably practicable. If so, the Depositary shall, subject to the terms and
conditions of the Deposit
Agreement, establish an ADS Record Date according to paragraph (16) and
establish procedures to enable the Holder hereof to elect to receive the
proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the distribution shall be made as in the
case
of a distribution in cash upon the terms described in the Deposit Agreement.
If
the Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be made as in the case of a distribution in Shares upon
the
terms described in the Deposit Agreement.
If such elective distribution is not reasonably practicable or if the Depositary
did not receive
reasonably satisfactory documentation set forth in the Deposit Agreement, the
Depositary shall, to the extent permitted by law, distribute to Holders, on
the
basis of the same determination as
is
made in the United Kingdom in respect of the Shares for which no election is
made, either (x)
cash
or (y) additional ADSs representing such additional Shares, in each case, upon
the terms described
in the Deposit Agreement. Nothing herein or in the Deposit Agreement shall
obligate the
Depositary to make available to the Holder hereof a method to receive the
elective distribution
in Shares (rather than ADSs). There can be no assurance that the Holder hereof
will be
given
the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
Upon
timely
receipt by the Depositary of a notice indicating that the Company wishes
rights
to
subscribe for additional Shares to be made available to Holders of ADSs, the
Depositary upon consultation with the Company, shall determine, whether it
is
lawful and reasonably practicable
to make such rights available to the Holders. The Depositary shall make such
rights available
to any Holders only if (i) the Company shall have timely requested that such
rights be made available to Holders, (ii) the Depositary shall have received
the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the
Depositary shall sell the rights as
A-11
described
below. In the event all conditions set forth above are satisfied,
the Depositary shall establish an ADS Record Date (upon the terms described
in
the Deposit
Agreement) and establish procedures (x) to distribute rights to purchase
additional ADSs (by means of warrants or otherwise), (y) to enable the Holders
to exercise the rights (upon payment of the subscription price and of the
applicable (a) fees and charges of, and expenses incurred by, the Depositary
and
(b) taxes), and (z) to deliver ADSs upon the valid exercise of such
rights. Nothing herein or in the Deposit Agreement shall obligate the Depositary
to make available
to the Holders a method to exercise rights to subscribe for Shares (rather
than
ADSs). If
(i)
the Company does not timely request the Depositary to make the rights available
to Holders or
if the
Company requests that the rights not be made available to Holders, (ii) the
Depositary fails
to
receive the documentation required by the Deposit Agreement or determines it
is
not reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are
not
exercised and appear to be about to lapse, the Depositary shall determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity, at such place
and
upon such terms (including public or private sale) as it may deem practicable.
The Depositary
shall, upon such sale, convert and distribute proceeds of such sale (net of
applicable (a) fees and charges of, and expenses incurred by, the Depositary
and
(b) taxes) upon the terms hereof
and of the Deposit Agreement. If the Depositary is unable to make any rights
available to Holders
or to arrange for the sale of the rights upon the terms described above, the
Depositary shall
allow such rights to lapse. The Depositary shall not be responsible for (i)
any
failure to determine that it may be lawful or practicable to make such rights
available to Holders in general or
any
Holders in particular, (ii) any foreign exchange exposure or loss incurred
in
connection with
such
sale or exercise, or (iii) the content of any materials forwarded to the Holders
on behalf of
the
Company in connection with the rights distribution.
Notwithstanding
anything herein or in the Deposit Agreement to the contrary, if registration
(under the Securities Act or any other applicable law) of the rights or the
securities to which any rights relate may be required in order for the Company
to offer such rights or such securities
to Holders and to sell the securities represented by such rights, the Depositary
will not distribute such rights to the Holders (i) unless and until a
registration statement under the Securities
Act (or other applicable law) covering such offering is in effect or (ii) unless
the Company
furnishes the Depositary opinion(s) of counsel for the Company in the United
States and
counsel to the Company in any other applicable country in which rights would
be
distributed,
in each case reasonably satisfactory to the Depositary, to the effect that
the
offering and sale of such securities to Holders and Beneficial Owners are exempt
from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws. In
the
event that
the
Company, the Depositary or the Custodian shall be required to withhold and
does
withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines that
any
distribution in property (including Shares and rights to subscribe therefor)
is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary
may dispose of all or a portion of such property (including Shares and rights
to
subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the
Depositary deems necessary and practicable to pay any such taxes or
charges.
A-12
There
can be
no assurance that Holders generally, or any Holder in particular, will be given
the opportunity to receive or exercise rights on the same terms and conditions
as the holders
of Shares or be able to exercise such rights. Nothing herein or in the Deposit
Agreement shall
obligate the Company to file any registration statement in respect of any rights
or Shares or other securities to be acquired upon the exercise of such
rights.
Upon
receipt
of a notice indicating that the Company wishes property other than cash,
Shares
or
rights to purchase additional Shares, to be made available to Holders of ADSs,
the Depositary
and the Company shall determine whether such distribution to Holders is lawful
and reasonably practicable. The Depositary shall not make such distribution
unless (i) the Company shall have requested the Depositary to make such
distribution to Holders, (ii) the Depositary shall have received reasonably
satisfactory documentation contemplated in the Deposit Agreement, and (iii)
the
Depositary shall have determined that such distribution is reasonably
practicable. Upon satisfaction of the conditions set forth in the Deposit
Agreement, the Depositary
shall distribute the property so received to the Holders of record, as of the
ADS Record
Date established for such distribution pursuant to Section 4.9 of the Deposit
Agreement, in proportion to the number of ADSs held by them respectively and
in
such manner as the Depositary may deem practicable for accomplishing such
distribution (i) upon receipt of payment or net of the applicable fees and
charges of, and expenses incurred by, the Depositary, and
(ii)
net of any taxes withheld. The Depositary may dispose of all or a portion of
the
property so
distributed and deposited, in such amounts and in such manner (including public
or private sale)
as
the Depositary may deem practicable or necessary to satisfy any taxes (including
applicable
interest and penalties) or other governmental charges applicable to the
distribution.
If
the
conditions above are not satisfied, the Depositary shall sell or cause such
property to
be
sold in a public or private sale, at such place or places and upon such terms
as
it may deem practicable and shall (i) cause the proceeds of such sale (if in
a
Foreign Currency) to be converted
into Dollars and (ii) distribute the proceeds of such sale and conversion
received by the
Depositary (net of applicable (a) fees and charges of, and expenses incurred
by,
the Depositary
and (b) taxes) to the Holders as of the ADS Record Date upon the terms hereof
and of the
Deposit Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose
of such property for the account of the Holders in any way it deems reasonably
practicable
under the circumstances.
(15)
Redemption. Upon
timely receipt of notice from the Company that it intends to exercise its right
of redemption in respect of any of the Deposited Securities, and upon
determining that such proposed redemption is practicable and upon receipt of
reasonably satisfactory documentation required by the Deposit Agreement, the
Depositary shall provide to each Holder a notice setting forth the Company's
intention to exercise the redemption rights and any
other
particulars set forth in the Company's notice to the Depositary. Upon receipt
of
confirmation
from the Custodian that the redemption has taken place and that funds
representing the redemption price have been received, the Depositary shall
convert, transfer and distribute the proceeds (net of applicable (a) fees and
charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire
ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by Holders
thereof upon the terms of the Deposit Agreement. If less than all outstanding
Deposited Securities
are redeemed, the ADSs to be retired will be selected by lot or on a pro rata
basis, as
may be
determined by the
A-13
Depositary.
The redemption price per ADS shall be the dollar equivalent
of the per share amount received by the Depositary (adjusted to reflect the
ADS(s)-to--Share(s) ratio) upon the redemption of the Deposited Securities
represented by ADSs (subject to the terms of the Deposit Agreement and the
applicable fees and charges of, and expenses incurred by, the Depositary, and
taxes) multiplied by the number of Shares represented by each ADS
redeemed.
(16)
Fixing
of ADS Record Date.
Whenever
the Depositary shall receive notice of the
fixing of a record date by the Company for the determination of holders of
Deposited Securities
entitled to receive any distribution (whether in cash, Shares, rights, or other
distribution), or whenever for any reason the Depositary causes a change in
the
number of Shares that
are
represented by each ADS, or whenever the Depositary shall receive notice of
any
meeting
of, or solicitation of consents or proxies of, holders of Shares or other
Deposited Securities,
or whenever the Depositary shall find it necessary or convenient in connection
with the
giving of any notice, solicitation of any consent or any other matter, the
Depositary shall fix a record
date (the "ADS
Record Date")
for the
determination of the Holders of ADSs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any
such
meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise
take action, or to exercise the rights of Holders with respect to such changed
number of
Shares
represented by each ADS. If the ADSs shall be listed on any securities exchange,
then such
record date shall be fixed in compliance with any applicable rules of such
securities exchange.
The Depositary shall make reasonable efforts to establish the ADS Record Date
as
closely
as possible to the applicable record date for the Deposited Securities (if
any)
set by the Company
in England. Subject to applicable law and the terms and conditions of this
ADR
and the
Deposit Agreement, only the Holders of ADSs at the close of business in New
York
on such ADS Record Date shall be entitled to receive such distribution, to
give
such voting instructions, to
receive such notice or solicitation, or otherwise take action.
(17)
Voting
of Deposited Securities.
As
soon
as practicable after receipt of notice of any
meeting at which the holders of Deposited Securities are entitled to vote,
or of
solicitation of consents
or proxies from holders of Deposited Securities, the Depositary shall fix the
ADS Record
Date in respect of such meeting or solicitation of consent or proxy in
accordance with Section
4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company
in writing
in a timely manner (the Depositary having no obligation to take any further
action if the request
shall not have been received by the Depositary at least thirty (30) days prior
to the date of such
vote
or meeting), at the Company's expense and provided no U.S. legal prohibitions
exist, distribute
to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation
of consent or proxy, (b) a statement that the Holders at the close of business
on the ADS Record Date will be entitled, subject to any applicable law, the
provisions of the Deposit Agreement, the Memorandum and Articles of Association
of the Company and the provisions of or the provisions governing the Deposited
Securities (which provisions, if any, shall be summarized in pertinent part
by
the Company), to instruct the Depositary as to the exercise of the voting
rights, if
any,
pertaining to the Deposited Securities represented by such Holder's ADSs, and
(c) a brief statement
as to the manner in which such voting instructions may be given, (including
an
express indication that instructions may be deemed to have been given in
accordance with the last sentence
of the paragraph below if no instructions are received by the Depositary prior
to the
deadline
set for such purposes) to the
A-14
Depositary
to give a discretionary proxy to a person designated
by the Company to vote the Shares or other Deposited Securities represented
by
such Holder's
ADSs in his or her discretion. Voting instructions may be given only in respect
of a number
of
ADSs representing an integral number of Deposited Securities. Upon the timely
receipt
from a Holder of ADSs as of the ADS Record Date of voting instructions in the
manner specified
by the Depositary, the Depositary shall endeavor, insofar as practicable and
permitted under
applicable law, the provisions of the Deposit Agreement, the Memorandum and
Articles of Association of the Company and the provisions of the Deposited
Securities, to vote, or cause the Custodian
to vote, the Deposited Securities (in person or by proxy) represented by such
Holder's ADSs
in
accordance with such voting instructions.
Neither
the
Depositary nor the Custodian shall under any circumstances exercise any
discretion as to voting and neither the Depositary nor the Custodian shall
vote,
attempt to exercise
the right to vote, or in any way make use of the Deposited Securities
represented by ADSs,
except pursuant to and in accordance with the voting instructions timely
received from Holders
as of the ADS Record Date or as otherwise contemplated therein. If the
Depositary does not
receive instructions from a Holder as of the ADS Record Date on or before the
date established by the Depositary for such purpose, such Holder shall be
deemed, and the Depositary shall
deem such Holder, to have instructed the Depositary to give a discretionary
proxy to a person
designated by the Company to vote the Deposited Securities held by such Holder,
and the Depositary
shall give such discretionary proxy to such person; provided, however, that
no
such discretionary
proxy shall be given by the Depositary with respect to any matter to be voted
upon as
to
which the Company informs the Depositary that (i) the Company does not wish
such
proxy to
be
given, (ii) substantial opposition exists, or (iii) the rights of holders of
Deposited Securities may
be
adversely affected. Notwithstanding anything else contained in the Deposit
Agreement or
in
this ADR, the Depositary shall, if so requested in writing by the Company,
represent, or cause
the
Custodian to represent all Deposited Securities (whether or not voting
instructions have been
received in respect of such Deposited Securities from Holders as of the ADS
Record Date) for
the
sole purpose of establishing quorum at a meeting of shareholders. On the
business day following
the date fixed by the Depositary as the last date for delivery of voting
instructions, the Depositary
shall give notice to the Company of the voting instructions received by the
Depositary
from the Holders as of the close of business as of such fixed date.
Notwithstanding
anything contained in the Deposit Agreement or any ADR to the contrary,
the Depositary shall not have any obligation to take any action with respect
to
any meeting,
or solicitation of consents or proxies, of holders of Deposited Securities
if
the taking of such
action would violate U.S. laws. The Company agrees to take any and all actions
reasonably necessary
to enable Holders and Beneficial Owners to exercise the voting rights accruing
to the Deposited Securities and to deliver to the Depositary, if reasonably
requested by the Depositary, an opinion of U.S. counsel addressing any actions
requested to be taken to enable such vote.
There
can be
no assurance that Holders generally or any Holder in particular will receive
the
notice described above with sufficient time to enable the Holder to return
voting instructions to the Depositary in a timely manner.
A-15
(18)
Changes
Affecting Deposited Securities. Upon
any
change in nominal or par value,
split-up, cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the
Company or to which it is a party, any securities which shall be received by
the
Depositary or the
Custodian in exchange for, or in conversion of or replacement of or otherwise
in
respect of, such Deposited Securities shall, to the extent permitted by law,
be
treated as new Deposited Securities under the Deposit Agreement, and the ADRs
shall, subject to the provisions of the Deposit Agreement and applicable law,
evidence ADSs representing the right to receive such additional securities.
In
effectuation of any such change, split up, cancellation, consolidation or other
reclassification of Deposited Securities, recapitalization, reorganization,
merger or consolidation
or sale of assets, the Depositary may, with the Company's approval, and shall,
if the
Company shall so request, subject to the terms of the Deposit Agreement and
receipt of an opinion of counsel to the Company reasonably satisfactory to
the
Depositary that such actions are not in violation of any applicable laws or
regulations, (i) execute and deliver additional ADRs in the case of a stock
dividend on the Shares, (ii) amend the Deposit Agreement and the form of ADR
contained in Exhibit
A
thereto,
(iii) amend the Registration Statement on Form F-6 as filed with the Commission
in connection with the Deposit Agreement, (iv) call for the surrender
of outstanding ADRs to be exchanged for new ADRs, (v) issue such new ADRs in
exchange
for outstanding ADRs called for surrender and (vi) take such other actions
as
reasonably
requested by the Company. Notwithstanding the foregoing, in the event that
any
security
so received may not be lawfully distributed to some or all Holders, the
Depositary may, with
the
Company's approval, and shall, if the Company requests, subject to receipt
of
reasonably
satisfactory legal documentation contemplated in the Deposit Agreement, sell
such securities
at public or private sale, at such place or places and upon such terms as it
may
deem proper
and may allocate the net proceeds of such sales (net of (a) fees and charges
of,
and expenses
incurred by, the Depositary and (b) taxes) for the account of the Holders
otherwise entitled
to such securities and distribute the net proceeds so allocated to the extent
practicable as in
the
case of a distribution received in cash pursuant to the Deposit Agreement.
The
Depositary shall
not
be responsible for (i) any failure to determine that it may be lawful or
feasible to make such
securities available to Holders in general or to any Holder in particular,
(ii)
any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser
of such securities.
(19)
Exoneration.
Neither
the Depositary nor the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of the Deposit Agreement
or
incur any liability
(i) if the Depositary or the Company shall be prevented or forbidden from,
or
delayed in, doing
or
performing any act or thing required by the terms of the Deposit Agreement
and
this ADR,
by
reason of any provision of any present or future law or regulation of the United
States, the
United Kingdom or any other country, or of any other governmental authority
or
regulatory authority
or stock exchange, or on account of the possible criminal or civil penalties
or
restraint, or by reason of any provision, present or future, of the Memorandum
and Articles of Association of
the
Company or any provision of or provision governing any Deposited Securities,
or
by reason
of
any act of God or war or other circumstances beyond its control (including,
without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Memorandum and
Articles of Association of the Company
A-16
or
provisions of or provisions governing Deposited Securities, (iii) for any action
or inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADSs, or (v) for any consequential
or
punitive damages
for any breach of the terms of the Deposit Agreement. The Depositary, its
controlling persons
and its agents, any Custodian and the Company, its Affiliates, its controlling
persons and its
agents may rely and shall be protected in acting upon any written notice,
request or other document believed by it to be genuine and to have been signed
or presented by the proper party or
parties. No disclaimer of liability under the Securities Act is intended by
any
provision of the Deposit
Agreement or this ADR.
(20)
Standard
of Care.
The
Company and the Depositary assume no obligation and shall not be subject to
any
liability under the Deposit Agreement or this ADR to any Holder(s) or Beneficial
Owner(s), except that the Company and the Depositary agree to perform their
respective obligations specifically set forth in the Deposit Agreement and
this
ADR without negligence
or bad faith. Without limitation of the foregoing, neither the Depositary,
nor
the Company,
nor any of their respective Affiliates, controlling persons, or agents, shall
be
under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any
Deposited Securities or in respect of the ADSs, which in its opinion may involve
it in expense
or liability, unless indemnity satisfactory to it against all expense (including
fees and disbursements
of counsel) and liability be furnished as often as may be required (and no
Custodian
shall be under any obligation whatsoever with respect to such proceedings,
the
responsibility
of the Custodian being solely to the Depositary). The Depositary and its agents
shall
not
be liable for any failure to carry out any instructions to vote any of the
Deposited Securities,
or for the manner in which any vote is cast or the effect of any vote, provided
that any such
action or omission is in good faith and in accordance with the terms of the
Deposit Agreement.
The Depositary shall not incur any liability for any failure to determine that
any distribution
or action may be lawful or reasonably practicable, for the content of any
information submitted
to it by the Company for distribution to the Holders or for any inaccuracy
of
any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities,
for the validity or worth of the Deposited Securities or for any tax
consequences that may
result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness
of any third party, for allowing any rights to lapse upon the terms of the
Deposit Agreement or for the failure or timeliness of any notice from the
Company.
(21)
Resignation
and Removal of the Depositary; Appointment of Successor Depositary.
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of resignation delivered to the Company, such resignation to
be
effective on the earlier of (i) the 90th day after delivery thereof to the
Company, or (ii) upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement.
The Depositary may at any time be removed by the Company as Depositary under
the
Deposit Agreement by written notice of such removal, which removal shall be
effective on the later of
A-17
(i)
the
30th day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided
in
the Deposit Agreement.
In case at any time the Depositary acting hereunder shall resign or be removed,
the Company
shall use its reasonable 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 (except as required by applicable law), shall
become fully
vested with all the rights, powers, duties and obligations of its predecessor.
The predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor,
and
(iii) deliver to such successor a list of the Holders of all outstanding ADSs
and such
other information relating to ADSs and Holders thereof as the successor may
reasonably request.
Any such successor depositary shall promptly provide notice of its appointment
to such Holders.
Any corporation into or with which the Depositary may be merged or consolidated
shall
be
the successor of the Depositary without the execution or filing of any document
or any further
act.
(22)
Amendment/Supplement. Subject
to the terms and conditions of this paragraph 22, the Deposit Agreement and
applicable law, this ADR and any provisions of the Deposit Agreement may at
any
time and from time to time be amended or supplemented by written agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable without the prior written consent of the Holders or
Beneficial Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding ADSs until the expiration of thirty (30)
days
after notice of such
amendment or supplement shall have been given to the Holders of outstanding
ADSs. The parties
hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs
to be
settled solely in electronic book-entry form and
(ii)
do not in either such case impose or increase any fees or charges to be borne
by
Holders, shall
be
deemed not to materially prejudice any substantial rights of Holders or
Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes
effective shall be deemed, by continuing to hold such ADS(s), to consent and
agree to such amendment or supplement and to be bound by the Deposit Agreement
and this ADR as amended
or supplemented thereby. In no event shall any amendment or supplement impair
the right
of
the Holder to surrender such ADS and receive therefor the Deposited Securities
represented
thereby, except in order to comply with mandatory provisions of applicable
law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require an amendment of, or supplement to,
the
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and this ADR at any time in
accordance with such changed laws, rules or
regulations. Such amendment or
A-18
supplement
to the Deposit Agreement and this ADR in such circumstances
may become effective before a notice of such amendment or supplement is given
to
Holders or within any other period of time as required for compliance with
such
laws, or rules or
regulations.
(23)
Termination. The
Depositary shall, at any time at the written direction of the Company, terminate
the Deposit Agreement by providing notice of such termination to the Holders
of
all ADSs then outstanding at least thirty (30) days prior to the date fixed
in
such notice
for such termination. If ninety (90) days shall have expired after the
Depositary shall have delivered
to the Company a written notice of its election to resign, or if thirty (30)
days shall have
expired after the Company shall have delivered to the Depositary a written
notice of the removal
of the Depositary, and in either case a successor depositary shall not have
been
appointed and accepted its appointment as provided herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by providing
notice of such termination to the Holders
of all ADSs then outstanding at least thirty (30) days prior to the date fixed
for such termination.
On and after the date of termination of the Deposit Agreement, the Holder of
ADS(s) will, upon surrender of such ADS(s) at the Principal Office of the
Depositary, upon the payment of the charges of the Depositary for the surrender
of ADSs referred to in paragraph (2) and in the Deposit Agreement and subject
to
the conditions and restrictions therein set forth, and upon payment of any
applicable taxes or governmental charges, be entitled to Delivery, to him or
upon his order, of the amount of Deposited Securities represented by such ADS.
If any ADSs shall remain outstanding after the date of termination of the
Deposit Agreement, the Registrar thereafter shall discontinue the registration
of transfers of ADSs, and the Depositary shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights as provided in the Deposit Agreement,
and shall continue to deliver Deposited Securities, subject to the conditions
and restrictions set forth in the Deposit Agreement, together with any dividends
or other distributions received with respect thereto and the net proceeds of
the
sale
of any rights or other property, in exchange for ADSs surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case,
the
charges of the Depositary for the
surrender of an ADS, any expenses for the account of the Holder in accordance
with the terms and conditions of the Deposit Agreement and any applicable taxes
or governmental charges
or assessments). At any time after the expiration of six (6) months from the
date of termination
of the Deposit Agreement, the Depositary may sell the Deposited Securities
then
held hereunder and may thereafter hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, in an unsegregated
account, without liability for interest for the pro rata benefit of the Holders
whose ADSs have not theretofore been surrendered.
After making such sale, the Depositary shall be discharged from all obligations
under
the
Deposit Agreement with respect to the ADSs and the Deposited Securities, except
to account
for such net proceeds and other cash (after deducting, or charging, as the
case
may be, in each
case, the charges of the Depositary for the surrender of ADSs, any expenses
for
the account of the Holder in accordance with the terms and conditions of the
Deposit Agreement and any applicable
taxes or governmental charges or assessments). Upon the termination of the
Deposit Agreement,
the Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
A-19
(24)
Compliance
with U.S. Securities Laws.
Notwithstanding
any provisions in this ADR or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by
Instruction I.A.(1) of the General Instructions to the Form F-6, as amended
from
time to time, under the Securities Act.
(25)
Certain
Rights of the Depositary; Limitations.
Subject
to the further terms and provisions
of this paragraph (25), the Depositary, its Affiliates and their agents, on
their own behalf, may own and deal in any class of securities of the Company
and
its Affiliates and in ADSs.
The
Depositary may issue ADSs against evidence of rights to receive Shares from
the
Company,
any agent of the Company or any custodian, registrar, transfer agent, clearing
agency or
other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence
of rights shall consist of written blanket or specific guarantees of ownership
of Shares. In
its
capacity as Depositary, the Depositary shall not lend Shares or ADSs;
provided,
however,
that
the
Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to Section
2.3 of the
Deposit Agreement and (ii) deliver Shares prior to the receipt of ADSs for
withdrawal of Deposited Securities pursuant to Section 2.7 of the Deposit
Agreement, including ADSs which were
issued under (i) above but for which Shares may not have been received (each
such transaction
a "Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction
will be (a) subject to a written agreement whereby the person or entity (the
"Applicant")
to whom ADSs or Shares are to be delivered (w) represents that at the time
of
the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are
to be
delivered
by the Applicant under such Pre-Release Transaction, (x) agrees to indicate
the
Depositary
as owner of such Shares or ADSs in its records and to hold such Shares or ADSs
in trust
for
the Depositary until such Shares or ADSs are delivered to the Depositary or
the
Custodian,
(y) unconditionally guarantees to deliver to the Depositary or the Custodian,
as
applicable,
such Shares or ADSs, and (z) agrees to any additional restrictions or
requirements that
the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
U.S. government securities or such other collateral as the Depositary deems
appropriate, (c) terminable
by the Depositary on not more than five (5) business days' notice and (d)
subject to such
further indemnities and credit regulations as the Depositary deems appropriate.
The Depositary will normally limit the number of ADSs and Shares involved in
such Pre-Release Transactions
at any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect
to
ADSs outstanding under (i) above), provided, however,
that the
Depositary reserves the right
to
change or disregard such limit from time to time as it deems appropriate. The
Depositary may
also
set limits with respect to the number of ADSs and Shares involved in Pre-Release
Transactions
with any one person on a case by case basis as it deems appropriate. The
Depositary
may retain for its own account any compensation received by it in conjunction
with the foregoing. Collateral provided pursuant to (b) above, but not the
earnings thereon, shall be held for the benefit of the Holders (other than
the
Applicant).
A-20
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR
VALUE
RECEIVED, the undersigned Holder hereby sells, assigns and transfers unto
_____________________________________
whose taxpayer identification number is _____________________________
and whose address including postal zip code is ___________,
the
within ADR and all rights thereunder, hereby irrevocably constituting and
appointing
_____________________________
attorney-in-fact to transfer said ADS on the books of the Depositary
with full power of substitution in the premises.
| Dated: | Name: | |
|
By:
Title:
|
||
|
NOTICE:
The signature of the Holder to this assignment must correspond
with the
name as written
upon the face of the within instrument in every particular, without
alteration or enlargement or
any change whatsoever.
|
||
|
If
the endorsement be executed by an attorney, executor, administrator,
trustee or guardian, the person executing the endorsement must
give
his/her full title in such capacity and proper evidence of authority
to
act in such capacity, if not on file with the
Depositary, must be forwarded with this ADR.
|
||
|
________________________
SIGNATURE GUARANTEED
|
||
|
All
endorsements or assignments of ADRs must be guaranteed
by a member of a Medallion Signature Program
approved by the Securities Transfer Association,
Inc.
|
||
Legends
[The
ADRs issued in respect of Partial Entitlement American Depositary Shares shall
bear
the following legend on the face of the ADR: "This ADR evidences ADSs
representing 'partial entitlement' [type of shares] of [Company] and as such
do
not entitle
the holders thereof to the same per-share entitlement as other [type of shares]
Shares
(which are 'full entitlement' [type of shares] Shares) issued and outstanding
at
such
time. The ADSs represented by this ADR shall entitle holders to distributions
and
entitlements identical to other ADSs when the [type of shares] Shares
represented
by such ADSs become 'full entitlement' [type of shares]
Shares."]
A-21