EXHIBIT 17(c)1
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WASTE MANAGEMENT INTERNATIONAL plc,
CITIBANK, N.A.,
As Depositary,
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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Deposit Agreement
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Dated as of April 1, 1992
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TABLE OF CONTENTS
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PARTIES......................................................................1
RECITALS.....................................................................1
ARTICLE I
DEFINITIONS
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SECTION 1.01. American Depositary Shares............................2
SECTION 1.02. Articles of Assoication...............................2
SECTION 1.03. Commission............................................2
SECTION 1.04. Company...............................................3
SECTION 1.05. Custodian; Custodians.................................3
SECTION 1.06. Deposit Agreement.....................................3
SECTION 1.07. Depositary............................................3
SECTION 1.08. Deposited Securities..................................4
SECTION 1.09. Dollars; Pounds Sterling;
▇▇▇▇▇ or "P"..........................................4
SECTION 1.10. Holder................................................4
SECTION 1.11. Principal Office......................................4
SECTION 1.12. Receipts..............................................5
SECTION 1.13. Registrar.............................................5
SECTION 1.14. Restricted Securities.................................5
SECTION 1.15. Securities Act of 1933................................6
SECTION 1.16. Securities Exchange Act of
1934..................................................6
SECTION 1.17. Shares................................................6
SECTION 1.18. Shares Registrar......................................6
SECTION 1.19. Stamp Taxes...........................................6
SECTION 1.20. U.K. Taxing Authority.................................7
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS
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SECTION 2.01. Form and Transferability of
Receipts..............................................7
SECTION 2.02. Deposit of Shares....................................10
SECTION 2.03. Execution and Delivery of
Receipts.............................................12
SECTION 2.04. Transfer of Receipts; Combina-
tion and Split-up of Receipts.........................14
SECTION 2.05. Surrender of Receipts and
Withdrawal of Deposited
Securities............................................16
SECTION 2.06. Limitations on Execution and
Delivery, Transfer, Etc. of
Receipts; Suspension of Deliv-
ery, Transfer, Etc....................................18
SECTION 2.07. Lost Receipts, Etc....................................21
SECTION 2.08. Cancellation and Destruction
of Surrendered Receipts...............................21
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
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SECTION 3.01. Filing Proofs, Certificates
and Other Information.................................22
SECTION 3.02. Liability of Holder for Taxes.........................23
SECTION 3.03. Warranties on Deposit of
Shares................................................23
SECTION 3.04. Disclosure of Beneficial
Ownership.............................................24
ARTICLE IV
THE DEPOSITED SECURITIES
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SECTION 4.01. Power of Attorney.....................................26
SECTION 4.02. Cash Distributions; Withhold-
ing and Other Taxes...................................26
SECTION 4.03. Distributions Other Than Cash,
Shares or Rights......................................28
SECTION 4.04. Distribution in Shares................................29
SECTION 4.05. Rights................................................30
SECTION 4.06. Conversion of Foreign
Currency..............................................33
SECTION 4.07. Fixing of Record Date.................................35
SECTION 4.08. Voting of Deposited Securities........................37
SECTION 4.09. Changes Affecting Deposited
Securities............................................40
SECTION 4.10. Available Information.................................41
SECTION 4.11. Reports...............................................41
SECTION 4.12. Lists of Receipt Holders..............................43
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SECTION 4.13. Withholding 44
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
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SECTION 5.01. Maintenance of Office and
Transfer Books by the
Depositary 45
SECTION 5.02. Prevention or Delay in
Performance 46
SECTION 5.03. Obligations of the Depositary,
the Custodian and the Company 47
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of
Successor Depositary 49
SECTION 5.05. The Custodian 51
SECTION 5.06. Notices and Reports 53
SECTION 5.07. Issuance of Additional Shares,
Etc 54
SECTION 5.08. Indemnification 57
SECTION 5.09. Charges of Depositary 59
SECTION 5.10. Exclusivity 62
SECTION 5.11. List of Restricted Securities
Owners 62
SECTION 5.12. Certain Rights of the Deposi-
tary; Limitations 62
ARTICLE VI
AMENDMENT AND TERMINATION
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SECTION 6.01. Amendment 65
SECTION 6.02. Termination 66
ARTICLE VII
MISCELLANEOUS
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SECTION 7.01. Counterparts 69
SECTION 7.02. No Third Party Beneficiaries 69
SECTION 7.03. Severability 69
SECTION 7.04. Holders and Parties; Binding
Effect 69
SECTION 7.05. Notices 70
SECTION 7 06. Governing Law 71
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SECTION 7.07. Assignment 72
SECTION 7.08. Compliance With U.S. Securi-
ties Laws 72
TESTIMONIUM 73
SIGNATURES 73
EXHIBIT A
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FORM OF FACE OF RECEIPT
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Introductory Paragraph A-1
(1) The Deposit Agreement A-2
(2) Surrender of Receipts and with-
drawal of Deposited Securities A-3
(3) Transfers, Split-ups and
Combinations A-4
(4) Liability of Holder For Taxes A-7
(5) Warranties by Depositor A-8
(6) Charges of Depositary A-9
(7) Filing Proofs, Certificates, and
Other Information A-10
(8) Disclosure of Beneficial Ownership A-11
(9) Title to Receipts A-12
(10) Validity of Receipt A-13
(11) Available Information A-13
FORM OF REVERSE OF RECEIPT--Summary of Certain
-------------------------- Additional Provisions of the Deposit Agreement
(12) Dividends and Distributions;
Rights A-14
(13) Record Dates A-18
(14) Voting of Deposited Securities A-19
(15) Changes Affecting Deposited
Securities A-22
(16) Reports; Inspection of Transfer
Books A-23
(17) Withholding A-24
(18) Liability of the Company and
Depositary A-24
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(19) Resignation and Removal of Deposi-
tary; Substitution of Custodian A-29
(20) Amendment of Deposit Agreement and
Receipts A-30
(21) Termination of Deposit Agreement A-31
(22) Compliance With U.S. Securities
Laws A-33
EXHIBIT B
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Charges of the Depositary B-1
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DEPOSIT AGREEMENT
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DEPOSIT AGREEMENT dated as of April 1, 1992 among WASTE MANAGEMENT
INTERNATIONAL plc, a company incorporated under the laws of England and Wales
(the "Company"), CITIBANK, N.A., a national banking association organized
under the laws of the United States of America (the "Depositary"), and all
Holders from time to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H :
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WHEREAS, the parties hereto desire to provide arrangements for the
deposit of Shares as hereinafter defined of the Company, from time to time
with the Depositary or with the Custodian (as hereinafter defined), which at
the date hereof is Citibank (London), as agent of the Depositary for the
purposes set forth in this Deposit Agreement, for the creation of American
Depositary Shares representing the Shares so deposited and for the execution
and delivery of American Depositary Receipts in respect of the American
Depositary Shares,
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
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The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit
Agreement:
SECTION 1.01. American Depositary Shares. The term "American
Depositary Shares" shall mean the rights represented by the Receipts issued
hereunder and the interests in the Deposited Securities represented thereby.
Each one (1) American Depositary Share shall represent two (2) Shares, until
there shall occur a distribution upon Deposited Securities covered by Section
4.04 or a change in Deposited Securities covered by Section 4.09 with respect
to which additional Receipts are not executed and delivered, and thereafter
American Depositary Shares shall represent the Shares or Deposited Securities
specified in such Sections.
SECTION 1.02. Articles of Association. The term "Articles of
Association" means the Articles of Association of the Company.
SECTION 1.03. Commission. The term "Commission" shall mean the
Securities and Exchange Commission of the United
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States or any successor governmental agency in the United States.
SECTION 1.04. Company. The term "Company" shall mean WASTE MANAGEMENT
INTERNATIONAL plc, a company incorporated and existing under the laws of
England and Wales, having its registered office at Windsor House, ▇▇-▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and its successors.
SECTION 1.05. Custodian; Custodians. The term "Custodian" shall mean,
as of the date hereof, Citibank (London), having its principal office at ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, England, as Custodian and agent of the Depositary
for the purposes of this Deposit Agreement, and any other firm or corporation
which may be appointed by the Depositary pursuant to the terms of Section 5.05
as a substitute or an additional or custodians hereunder, as the context shall
require, and the term "Custodian" shall mean all of them, collectively.
SECTION 1.06. Deposit Agreement. The term "Deposit Agreement" shall
mean this instrument as it may from time to time be amended in accordance with
the terms hereof and all instruments supplemental hereto.
SECTION 1.07. Depositary. The term "Depositary" shall mean Citibank,
N.A., a national banking association
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incorporated under the laws of the United States of America, and any successor
as depositary hereunder.
SECTION 1.08. Deposited Securities. The term "Deposited Securities" as
of any time shall mean shares at such time deposited under this Deposit
Agreement and any and all other securities, property and cash received by the
Depositary or the Custodian in respect thereof and at such time held
hereunder, subject in the case of cash to the provisions of Section 4.06.
SECTION 1.09. Dollars; Pounds Sterling; ▇▇▇▇▇ or "P". The term
"dollars" shall mean United States dollars. The term "Pounds Sterling" shall
mean pounds sterling of England and Wales and the term "▇▇▇▇▇" or "P" shall
mean ▇▇▇▇▇ of England and Wales.
SECTION 1.10. Holder. The term "Holder" shall mean the person in whose
name a Receipt is registered on the books of the Depositary or the Registrar,
if any, maintained for such purpose.
SECTION 1.11. Principal Office. The term "Principal Office", when used
with respect to the Depositary, shall mean the principal office of the
Depositary at which at any particular time its corporate trust business shall
be administered, which, at the date of this Deposit Agreement, is located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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SECTION 1.12. Receipts. The term "Receipts" shall mean the American
Depositary Receipts issued hereunder evidencing American Depositary Shares. A
Receipt may evidence any number of American Depositary Shares.
SECTION 1.13. Registrar. The term "Registrar" shall mean the
Depositary or, upon the request or with the approval of the Company, any bank
or trust company having an office in the Borough of Manhattan, the City of New
York, which shall be appointed by the Depositary to register Receipts and
transfers of Receipts as herein provided, and shall include any co-registrar
appointed by the Depositary, upon the request or with the approval of the
Company, for such purposes.
SECTION 1.14. Restricted Securities. The term "Restricted Securities"
shall mean Shares as defined below, or Receipts representing such Shares,
which are acquired directly or indirectly from the Company or its affiliates
(as defined in Rule 144 to the Securities Act of 1933) in a transaction or
chain of transactions not involving any public offering or which are subject
to resale limitations under Regulation D or Rule 144 under that Act or both,
or which are held by an officer, director (or persons performing similar
functions) or other affiliate of the Company, or which are subject to other
restrictions on sale or deposit under the laws of the United States, England
and
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Wales, or under a shareholder agreement or Articles of Association of the
Company.
SECTION 1.15. Securities Act of 1933. The term "Securities Act of
1933" shall mean the United States Securities Act of 1933, as from time to
time amended.
SECTION 1.16. Securities Exchange Act of 1934. The term "Securities
Exchange Act of 1934" shall mean the United States Securities Exchange Act of
1934, as from time to time amended.
SECTION 1.17. Shares. The term "Shares" shall mean the Ordinary Shares
of 10p. each in the capital of the Company, validly issued and outstanding,
fully paid and shall include evidence of rights to receive Shares; provided
that in no event shall Shares include evidence of rights to receive Shares
with respect to which the full purchase price has not been paid.
SECTION 1.18. Share Registrar. The term "Share Registrar" shall mean
Barclays Bank plc, a company incorporated in England under the Companies Act
of 1862 of Great Britain, which acts as registrar for the Shares, when acting
in such capacity, and any successor in such capacity.
SECTION 1.19. Stamp Tax. The term "Stamp Tax" shall mean, as the
context may require, (a) any stamp duty reserve tax imposed by Part IV of the
Finance Act of 1986 of England and
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Wales (or any statutory modification or re-enactment thereof) in respect of
any deposit of Shares in accordance with Section 2.02 of this Deposit
Agreement, or (b) any stamp duty imposed by Part III of the Finance Act 1986
of England and Wales (or any statutory modification or re-enactment thereof)
in respect of any deposit of Shares in accordance with Section 2.02 of the
Deposit Agreement, or (c) both of them.
SECTION 1.20. U.K. Taxing Authority. The term "U.K. taxing authority"
shall mean the Inland Revenue of the England and Wales.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF
RECEIPTS
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SECTION 2.01. Form and Transferability of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved
borders and shall be substantially in the form set forth in Exhibit A annexed
to this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided or may be required or permitted under the
rules of the New York Stock Exchange. Receipts shall be issued in
denominations of whole numbers of American Depositary Shares. Such Receipts
shall be executed and dated by the Depositary by
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the manual signature of a duly-authorized officer of the Depositary; provided,
however, that such signature may be a facsimile if a Registrar for the
Receipts shall have been appointed and such Receipts are countersigned by the
manual signature of a duly-authorized officer of the Registrar and dated by
such officer. No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose, unless such Receipt shall
have been executed by the Depositary by the manual signature of a
duly-authorized officer or, if a Registrar shall have been appointed, by the
manual signature of a duly-authorized officer of the Registrar, and such
execution of any Receipt by manual signature shall be conclusive evidence, and
the only evidence, that such Receipt has been duly executed and delivered
hereunder. The Depositary shall maintain books in which each Receipt so
executed and delivered as hereinafter provided and the transfer of each
Receipt shall be registered. Receipts bearing the facsimile signature of a
duly-authorized officer of the Depositary, who was at the time of signature a
proper officer of the Depositary, shall bind the Depositary, notwithstanding
the fact that such officer has ceased to hold such office prior to the
execution of such Receipts by the Registrar and their delivery or such officer
did not hold such office at the date of such Receipts.
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The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be necessary to enable the
Depositary to perform its obligations hereunder or as may be required to
comply with any applicable law or regulations thereunder or with the rules and
regulations of any securities exchange or market 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.
Title to a Receipt (and to each American Depositary Share evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of the State of New York;
provided, however, that the Depositary, notwithstanding any notice to the
contrary, may deem and treat the Holder thereof as the absolute owner thereof
for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes.
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SECTION 2.02. Deposit of Shares. Subject to the terms and conditions
of this Deposit Agreement, Shares or evidence of rights to receive Shares
(except as otherwise contemplated by Section 5.12 hereof) may be deposited by
any person (in the case of the Company, or any affiliate, subject to Section
5.07 hereof) including the Depositary in its individual capacity by delivery
thereof to the Custodian, accompanied by any appropriate instrument or
instruments of transfer or endorsement, in form satisfactory to such
Custodian, together with (i) all such certifications and payments (including,
without limitation, amounts in respect of any applicable stamp taxes) and
evidence of such payments (including, without limitation, stamping or
otherwise marking such Shares by way of receipt) as may be required by the
Depositary or such Custodian in accordance with the provisions of this Deposit
Agreement and (ii) if the Depositary requires, a written order directing the
Depositary to execute and deliver to, or upon the written order of, the
persons or persons stated in such order a Receipt or Receipts for the number
of American Depositary Shares representing the Shares so deposited.
Except as otherwise contemplated by Section 5.12, no Shares shall be
accepted for deposit and no Receipts shall be issued unless the Shares are
accompanied by (a) payment of any
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tax or duty of England and Wales, and (b) evidence satisfactory to the
Depositary (which may be an opinion of counsel) that any necessary approval
has been granted by, or there has been compliance with the rules and
regulations of the governmental agency in England and Wales, if any, which is
then performing the function of the regulation of currency exchange.
If required by the Depositary, Shares presented for deposit at any
time, whether or not the transfer books of the Company or the Share Registrar
are closed, shall also be accompanied by (1) an agreement or assignment, or
other instrument satisfactory to the Depositary, which will provide for the
prompt transfer to the Custodian of any dividend, or right to subscribe for
additional Shares or to receive other property which any person in whose name
the Shares are or have been recorded may thereafter receive upon or in respect
of any such deposited Shares, or in lieu thereof, such agreement of indemnity
or other agreement as shall be satisfactory to the Depositary and (2) if the
Shares are registered in the name of the person on whose behalf they are
presented for deposit, a proxy or proxies entitling the Custodian to vote such
deposited Shares for any and all purposes until the Shares are so registered
in the name of the Custodian or its nominee.
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At the request and risk and expense of any holder of Shares, and for
the account of such holder, the Depositary may receive Shares to be deposited,
together with the other instruments herein specified for the purpose of
forwarding such Shares to the Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder (or other Deposited Securities pursuant to
Section 4.02, 4.03, 4.05 or 4.09), together with the other documents above
specified, such Custodian shall advise the Depositary of such deposit, and the
Custodian shall, as soon as practicable, present such certificate or
certificates to the Company (or the appointed agent of the Company for
registration of transfer, which agent may be the Share Registrar) for
registration of transfer of the Shares or the Deposited Securities, as the
case may be, being deposited in the name of the Depositary or its nominee or
such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary (on behalf of Holders) at
such other place or places as the Depositary shall determine.
SECTION 2.03. Execution and Delivery of Receipts. Upon receipt by a
Custodian of a deposit of Shares pursuant to
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Section 2.02 hereunder and, in addition, if the register of the Company (or
any agent of the Company for transfer and registration of Deposited Securities
which may be the Share Registrar) are open, the Depositary may require a
proper acknowledgment or other evidence from the Company or such agent, if
any, satisfactory to the Depositary that any Deposited Securities have been
recorded upon the register of the Company (or any agent of the Company for
transfer and registration of such Deposited Securities) in the name of the
Depositary or its nominee or such Custodian or its nominee, together with the
other documents specified above, such 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 or, at the request and risk and expense of the person making
the deposit, by cable, telex or facsimile transmission. Upon receiving such
notice from such Custodian, or upon the receipt of Shares by the Depositary,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver at its Principal Office to or upon the order of the
person or persons named in the notice delivered to the Depositary, a Receipt
or Receipts, registered in the name or names requested by such
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person or persons and evidencing in the aggregate the number of American
Depositary Shares to which such person or persons are entitled, but only upon
payment to the Depositary of the fees of the Depositary for making a deposit
and the issuance, execution and delivery of such Receipt or Receipts (as set
forth on Exhibit B hereto) and of all taxes (including Stamp Tax) and
governmental charges and fees payable in connection with such deposit and the
transfer of the Deposited Securities.
SECTION 2.04. Transfer of Receipts; Combination and Split-up of
Receipts. The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books, upon
any surrender to the Principal Office of the Depositary of a Receipt by the
Holder thereof in person or by duly-authorized attorney, properly endorsed or
accompanied by proper instruments of transfer and duly stamped as may be
required by applicable law and accompanied by funds sufficient to pay any
applicable transfer taxes. Upon payment to the Depositary of the expenses set
forth on Exhibit B hereto, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of American Depositary Shares
as those evidenced by the Receipts surrendered.
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The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, representing the same aggregate number of
American Depositary Shares as the Receipt or Receipts surrendered.
The Depositary 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. In carrying out its
functions, a co-transfer agent may require evidence of authority and
compliance with applicable laws and other requirements by Holders or persons
entitled thereto and will be entitled to protection and indemnity to the same
extent as the Depositary. Such co-transfer agents may be removed and
substitutes appointed by the Depositary upon the request or with the approval
of the Company. Each co-transfer agent appointed under this Section 2.04
(other than Citibank, N.A.) 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.
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SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited
Securities. Upon surrender at the Principal Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the fee of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth on Exhibit B hereto)
and (ii) all taxes and governmental charges payable in connection with such
surrender and withdrawal, and subject to the terms and conditions of this
Deposit Agreement, the Company's Articles of Association and the provisions of
or governing the Deposited Securities and other applicable laws, the Holder of
such Receipt shall be entitled to delivery, to him or upon his order, of the
Deposited Securities at the time evidenced by such Receipt. Delivery of such
Deposited Securities may be made by the delivery of (a) certificates in the
name of such Holder or as ordered by him or by certificates properly endorsed
or accompanied by proper instruments of transfer to such Holder or as ordered
by him and (b) any other securities, property and cash to which such ▇▇▇▇▇▇ is
then entitled in respect of such Receipts to such Holder or as ordered by him.
Such delivery shall be made, as hereinafter provided, without unreasonable
delay and, at the option of the Holder, either at the office of the Custodian
or at the Principal Office of the Depositary, provided that the
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forwarding of certificates evidencing Shares or other Deposited Securities for
such delivery shall be at the risk and expense of the Holder.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary so requires, the
Holder thereof shall execute and deliver to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn to
be delivered to or upon the written order of a person or persons designated in
such order. Thereupon, the Depositary shall direct the Custodian to deliver at
the designated office of the Custodian, subject to Sections 2.06, 3.01, 3.02,
3.04, 5.01 and 5.12 and to the other terms and conditions of this Deposit
Agreement, the Articles of Association of the Company and to the provisions of
or governing the Deposited Securities and other applicable laws, now or
hereafter in effect, to or upon the written order of the person or persons
designated in the order delivered to the Depositary if so required by the
Depositary as provided above, the Deposited Securities represented by such
Receipt together with any certificate or other proper documents of or relating
to title for the Deposited Securities, except that the Depositary may make
delivery to such person or persons
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at the Principal Office of the Depositary of any dividends or distributions
with respect to the Deposited Securities represented by such Receipt, or of
any proceeds of sale of any dividends, distributions or rights, which may at
the time be held by the Depositary.
At the request, risk and expense of any Holder so surrendering a
Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) held in
respect of, and any certificate or certificates and other proper documents of
or relating to title for, the Deposited Securities represented by such Receipt
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.
SECTION 2.06. Limitations on Execution and Delivery, Transfer, Etc. of
Receipts; Suspension of Delivery, Transfer, Etc. As a condition precedent to
the execution and delivery, registration, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (a) payment from the depositor of Shares or presenter of
the Receipt of a sum sufficient to
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reimburse it for any tax (including any Stamp 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 as provided herein,
or in Exhibit B to this Deposit Agreement, (b) the production of proof
satisfactory to it as to the identity and genuineness of any signature or any
other matter contemplated by Section 3.01 hereof and (c) compliance with (i)
any laws or governmental regulations relating to Receipts or to the withdrawal
of Deposited Securities and (ii) such reasonable regulations, if any, as the
Depositary and the Company may establish consistent with the provisions of
this Deposit Agreement, including, without limitation, Section 7.08 hereof.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the delivery of
Receipts against the deposit of particular Shares may be withheld, or the
registration of transfer of Receipts in particular instances may be refused,
the registration of transfer generally may be suspended, during any period
when the register or transfer books of the Company, the Depositary or the
Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or the
-19-
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange on which the Receipts or Shares are listed, or under any
provision of this Deposit Agreement or the provision of or governing Deposited
Securities, or any meeting of shareholders of the Company or for any other
reason, subject in all cases to Section 7.08 of this Deposit Agreement.
Notwithstanding any provision of this Deposit Agreement or the Receipts to the
contrary, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended or refused, except as permitted in General
Instruction IA(1) to Form F-6 (as such instruction may be amended from time to
time) under the Securities Act of 1933 in connection with (i) temporary delays
relating to the deposit of Shares in connection with voting at a shareholders'
meeting, or the payment of dividends, (ii) the payment of fees, taxes and
similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under this Deposit Agreement any Shares
or other Deposited Securities (a) that are required to be registered under the
provisions of the Securities Act of 1933, unless a registration statement is
in
-20-
effect as to such Shares or other Deposited Securities, or (b) that would
thereby infringe any provisions of the Articles of Association of the Company.
SECTION 2.07. Lost Receipts, Etc. In case any Receipt shall be
mutilated, destroyed, lost, or stolen, the Depositary shall execute and
deliver a new Receipt of like tenor, (a) in the case of a mutilated Receipt,
in exchange and substitution for such mutilated Receipt upon cancellation
thereof, or (b) in lieu of and in substitution for such destroyed, lost, or
stolen Receipt, after the Holder thereof (i) has filed with the Depositary a
written request for such exchange and delivery before the Depositary has
notice that the Receipt has been acquired by a bona fide purchaser, (ii) has
provided a sufficient indemnity bond and (iii) has satisfied any other
reasonable requirements imposed by the Depositary, including, without
limitation, evidence satisfactory to the Depositary of such destruction, loss
or theft of such Receipt, the authenticity thereof and the Holder's ownership
thereof.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
-21-
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
------------------------------------------
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Shares for deposit or any Holder may be required from time
to time to file such proof of citizenship, taxpayer status, residence or
exchange control approval, compliance with applicable laws and the terms of
this Deposit Agreement or other information, to execute such certificates and
to make such representations and warranties, as the Depositary may deem
necessary or proper or as the Company may require by written request to the
Depositary consistent with its obligations hereunder. The Depositary may
withhold the execution or delivery or registration of transfer of any Receipt
or the distribution or sale of any dividend or distribution of rights or of
the proceeds thereof or, subject to Section 7.08, the delivery of any
Deposited Securities until such proof or other Information is filed or such
certificates are executed to the Depositary and the Company's satisfaction.
The Depositary shall provide the Company, in a timely manner, with copies or
originals if necessary and appropriate of (i) any such proofs of citizenship,
taxpayer status, residence, or exchange control approval which it receives,
and (ii) any other information or documents which the Company may reasonably
request and which the
-22-
Depositary shall request and receive from the Holder or any per son
presenting Shares for deposit.
SECTION 3.02. Liability of Holder for Taxes. If any tax or other
governmental charge or assessment imposed under applicable laws (including,
without limitation, any Stamp Tax) shall become payable with respect to any
Receipt or any Deposited Securities evidenced by any Receipt, such tax, other
governmental charge or expense shall be payable by the Holder of such Receipt
to the Depositary. The Depositary may refuse, and the Company shall be under
no obligation, to effect any transfer of such Receipt, or split-up or
combination of such Receipt or, subject to Section 7.08, any withdrawal of
Deposited Securities represented thereby until such payment is made, and may
withhold any dividends or other distributions or securities receivable in
respect of Deposited Securities, or may sell for the account of the Holder
thereof any part or all of the Deposited Securities represented by such
Receipt, and may apply such dividends or other distributions or the proceeds
of any such sale in payment of such tax, other governmental charge or expense,
the Holder of such Receipt remaining liable for any deficiency.
SECTION 3.03. Warranties on Deposit of Shares. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that such Shares and the
-23-
certificates therefor are validly issued, fully paid, nonassessable, that all
preemptive rights, if any, with respect to such Shares have been validly
waived or exercised and that each such person making such deposit is duly
authorized so to do. Each such person shall also be deemed to represent that
the deposit of Shares or sale of Receipts by that person is not restricted,
and that the Shares deposited by that person are not Restricted Securities,
under the Securities Act of 1933. In addition, such person shall be deemed to
represent that such Shares are not liable to disenfranchisement or disposal by
the Company pursuant to the Articles of Association. Such representations and
warranties shall survive the deposit and withdrawal of Shares and the issuance
and cancellation of Receipts in respect thereof.
SECTION 3.04. Disclosure of Beneficial Ownership. Notwithstanding any
other provision of this Deposit Agreement, each Holder agrees to be bound by
and subject to the Articles of Association, and to provide such information as
the Company may request in a disclosure notice (a "Disclosure Notice") given
pursuant to statutory provisions of English law or the Articles of
Association. Failure of a Holder to provide in a timely fashion the
information requested in any Disclosure Notice may, in the Company's sole
discretion, result in the withholding of
-24-
certain rights in respect of such ▇▇▇▇▇▇'s American Depositary Shares
(including voting rights and certain rights as to dividends in respect of the
Shares represented by such American Depositary Shares). 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, any Holder who is or becomes directly or indirectly
interested (within the meaning of the Companies Acts 1985, as amended from
time to time (the "Companies Act")) in 3% (or such other amount as may be
required by the Companies Act) or more of the outstanding Shares, or is aware
that another person for whom it holds such Receipts is so interested, must
within two business days (or such other period as may be required by the
Companies Act) after becoming so interested or so aware, and thereafter upon
any changes of at least 1% of the outstanding Ordinary Shares, notify the
Company as required by the Companies Act.
If the Company requests information from the Depositary or the
Custodian, as the registered holders of Shares, pursuant to the Articles of
Association of the Company or the Companies Act, the obligations of the
Depositary or the Custodian,
-25-
as the case may be, shall be limited to disclosing to the Company such
information relating to the Shares in
question as has in each case been recorded by it pursuant to the terms of
this Deposit Agreement.
ARTICLE IV
THE DEPOSITED SECURITIES
-----------------------
SECTION 4.01. Power of Attorney. Each Holder, upon acceptance of a
Receipt issued in accordance with the terms hereof, hereby appoints the
Depositary its agent, with power to delegate, to act on its behalf and to take
any and all steps or action provided for or contemplated herein with respect
to the Deposited Securities, to adopt any and all procedures necessary to
comply with English law, including, but not limited to, those set forth in
Article IV, and to take such further steps or action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
this Deposit Agreement.
SECTION 4.02. Cash Distributions; Withholding and Other Taxes.
Whenever the Company proposes to make any cash dividend or other cash
distribution on any Deposited Securities the Company shall deliver to the
Depositary and the Custodian written notice with respect thereto. Upon receipt
of such
-26-
dividend or distribution the Depositary shall, subject to the provisions of
Section 4.06, convert, or cause the conversion of, such dividend or
distribution into dollars and shall, after fixing a record date in respect
thereof pursuant to Section 4.07, distribute such amount to the Holders
entitled thereto in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively; provided,
however, that in the event that the Company, the Custodian or the Depositary
shall be 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 or other governmental charges, the amount distributed to the
Holder for American Depositary Shares representing such Deposited Securities
shall be reduced accordingly.
The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent. Any such
fractional amounts shall be rounded downward to the nearest whole cent and so
distributed to the Holders entitled thereto, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders then outstanding. The Company or its
agent will remit to the
-27-
appropriate governmental authority or agency in England and Wales all amounts
required to be withheld by the Company and owing to such authority or agency.
The Depositary will remit to the appropriate governmental authority or agency
in England and Wales all amounts required to be withheld by the Depositary and
owing to such authority or agency. The Depositary will forward to the Company
or its agent such information from its records as the Company may reasonably
request in writing to enable the Company or its agent to file necessary
reports with governmental authorities or agencies, and the Custodian, the
Depositary or the Company or its agent may, but shall not be obligated to,
file any such reports necessary to obtain benefits under applicable tax
treaties for the Holders.
SECTION 4.03. Distributions Other Than Cash, Shares or Rights.
Whenever the Custodian shall receive any distribution other than cash, Shares
or rights upon any Deposited Securities, the Depositary shall, upon
consultation with the Company, cause the securities or property so received to
be distributed to the Holders as of a record date fixed pursuant to Section
4.07 hereto, entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing
-28-
such distribution, net of expenses of the Depositary; provided, however, that
if in the opinion of the Depositary it cannot cause such securities or
property to be distributed or such distribution cannot be made proportionately
among the Holders entitled thereto, or if for any other reason (including
without limitation any requirement (i) that the Company, the Depositary or the
Custodian withhold an amount on account of taxes or other governmental
charges, (ii) under applicable securities or exchange control regulations or
law, or (iii) that such securities must be registered under the Securities Act
of 1933 or other law in order to be distributed to Holders) the Depositary
deems such distribution not to be feasible, the Depositary may, with the
reasonable approval of the Company, 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, and the net proceeds of any such sale (net of taxes and
expenses of the Depositary as set forth in Exhibit B) shall be distributed by
the Depositary to the Holders entitled thereto as in the case of a
distribution received in cash.
SECTION 4.04. Distribution in Shares,. If any distribution upon any
Deposited Securities consists of a dividend in the form of Shares, the
Depositary may, with the Company's
-29-
approval, and shall, if the Company shall so request, (i) instruct the Company
to deposit or cause such Shares to be deposited with and registered in the
name of the Custodian and (ii) distribute to the Holders, as of the record
date fixed pursuant to Section 4.07 hereof, of outstanding Receipts entitled
thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts for an aggregate number of American Depositary Shares representing
the number of Shares received as such dividend, subject to the terms of this
Deposit Agreement, including, without limitation, Sections 2.02, 2.03, 4.13
and 5.09 hereof. In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary shall sell the number of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.02. If additional Receipts are not so distributed (except as pursuant to the
preceding sentence), each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities
represented thereby.
SECTION 4.05. Rights. In the event that the Company shall offer or
cause to be offered to the holders of any
-30-
Deposited Securities any rights to subscribe for additional Shares or any
rights of any other nature, the Depositary may, after consultation with the
Company, and if requested in writing by the Company shall, take action,
subject to the terms of this Deposit Agreement, as follows:
(a) if at the time of the offering of any rights the
Depositary determines in its discretion that it is lawful and feasible
to make such rights available to all Holders or certain Holders but
not to others by means of warrants or otherwise, the Depositary may
distribute warrants or other instruments therefor in such form as it
may determine to the Holders entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited
Securities held by them respectively, or employ such other method as
it may deem feasible in order to facilitate the exercise, sale or
transfer of rights by such Holders; or
(b) if at the time of the offering of any rights the
Depositary determines in its discretion that it is not lawful or not
feasible to make such rights available to certain 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,
-31-
the Depositary in its discretion may sell such rights or such warrants
or other instruments at public or private sale, at such place or
places and upon such terms as it may deem proper, and allocate the
proceeds Of such sales (net of the expenses of the Depositary set
forth in Section 5.09 hereof) for the account of the Holders
otherwise entitled to such rights, warrants or other instruments upon
an averaged or other practicable basis without regard to any
distinctions among such Holders because of exchange restrictions or
the date of delivery of any Receipt or Receipts, or otherwise, and
distribute such net proceeds so allocated to the extent practicable as
in the case of a distribution of cash pursuant to Section 4.02 hereof.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to
Holders in general or any Holder or Holders in particular.
If the Depositary does not receive such written request from the
Company, the Depositary shall, after consultation with the Company, have
discretion as to the procedure to be followed (i) in making such rights
available to the Holders, or (ii) in disposing of such rights on behalf of
such Holders and distributing the net proceeds available in dollars to such
-32-
Holders as in the case of a distribution of cash pursuant to
Section 4.02 hereof, or (iii) in allowing such rights to lapse in the event
such rights may not be made available to Holders or be disposed of and the net
proceeds thereof made available to Holders.
Notwithstanding anything to the contrary in this Section 4.05, if
registration under the Securities Act of 1933 of the securities to which any
rights relate is required in order for the Company to offer such rights or
such securities to Holders and to sell the securities represented by such
rights, the Depositary will not offer such rights to the Holders (i) unless
and until a registration statement under the Securities Act of 1933 covering
such offering is in effect, or (ii) unless the Company furnishes the
Depositary an opinion of counsel for the Company in the United States
satisfactory to the Depositary or other evidence satisfactory to the
Depositary to the effect that the offering and sale of such securities to the
Holders of such Receipts are exempt from or do not require registration under
the provisions of the Securities Act of 1933.
SECTION 4.06. Conversion of Foreign Currency. Whenever the Depositary
or the Custodian shall receive foreign currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which
-33-
in the judgment of the Depositary can at such time be converted on a
reasonable basis into dollars distributable to the Holders entitled thereto
and transferable to the United States, the Depositary shall convert or cause
to be converted, by sale or in any other manner that it may determine, such
foreign currency into dollars, and shall transfer such dollars (net any of its
reasonable and customary expenses incurred in such conversion and any expenses
incurred on behalf of the Holder in complying with currency exchange control
or other governmental requirements) to the Holders entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments that
entitle the holders thereof to such dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
If such conversion or distribution 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 determine that in its judgment any
foreign currency received by the Depositary is
-34-
not convertible on a reasonable basis into dollars distributable to the
Holders entitled thereto, or if any approval or license of any government or
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 as determined by the Depositary, the Depositary may
distribute the foreign currency (or an appropriate document evidencing the
right to receive such foreign currency) to, or in its discretion may hold such
foreign currency (without liability for interest thereon) for the respective
accounts of, the Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, is
not practicable for distribution to some 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 account
of, the Holders for whom such conversion and distribution is not practicable.
SECTION 4.07. Fixing of Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited
-35-
Securities entitled to receive any cash dividend or other cash distribution or
any distribution other than cash, or any rights to be issued with respect to
the Deposited Securities, or whenever for any reason the Depositary causes a
change in the number of Shares that are represented by each American
Depositary Share, or whenever the Depositary shall receive notice of any
meeting of holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation of any consent or any other matter, the Depositary
shall, after consultation with the Company, fix a record date for the
determination of the Holders who shall be entitled to receive such dividend,
distribution, rights or the net proceeds of the sale thereof, to give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or whose Receipts shall evidence such changed number of
Shares. Subject to the provisions of Section 4.02 through 4.06 and to the
other terms and conditions of this Deposit Agreement, the Holders at the close
of business on such record date shall be entitled to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion
to the number of American
-36-
Depositary Shares held by them respectively, or to give such voting
instructions, to receive such notice or solicitation, or otherwise take
action.
SECTION 4.08. Voting of Deposited Securities. As soon as practicable
after receipt of notice of any meeting or solicitation of consents or proxies
from holders of Shares or other Deposited Securities, the Depositary shall fix
a record date in respect of such meeting for the giving of instructions for
voting such consent or proxy and shall mail to Holders a notice which shall
contain: (a) such information as is contained in such notice of meeting, (b) a
statement, in a form provided by the Company, that the Holders at the close of
business on the specified record date will be entitled, subject to any
applicable provisions of the laws of England and Wales, the Articles of
Association of the Company and the provisions of or governing Deposited
Securities (which provisions, if any, shall, be summarized in pertinent part),
to instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Shares or other Deposited Securities represented by American
Depositary Shares evidenced by their respective Receipts, and (c) a brief
statement as to the manner in which such instructions may be given including
an express indication that instructions may be given to the Depositary to give
a discretionary
-37-
proxy to a person or persons designated by the Company. Upon receipt of the
written request of a Holder (an "Instructing Holder" ) on such record date the
Depositary shall endeavor insofar as practicable and permitted under
applicable law and the provisions of the Articles of Association of the
Company and the provisions of the Deposited Securities to vote or cause the
Custodian to vote the Shares and/or other Deposited Securities represented by
American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. In the event a poll is duly demanded
and if no instructions are received, the Depositary will deem, unless
otherwise requested by the Company and unless otherwise provided for in the
Deposit Agreement, such Holders to have instructed the Depositary to give a
discretionary proxy to the person designated by the Company; provided,
however, no discretionary proxy shall be given with respect to any proposition
as to which the Depositary has actual knowledge which (i) involves any
solicitation of opposing proxies or other substantial opposition, or (ii)
authorizes a merger, consolidation, or any other matter which may materially
affect the rights and privileges of the holders of Shares or Receipts. Unless
specifically instructed by at least five Holders or Holders representing not
less than 10% of the total voting rights of all Holders having the right to
vote at such
-38-
meeting, the Depositary shall not join in demanding a poll and, in such case,
the Depositary shall follow the instructions of the Instructing Holders
holding Receipts evidencing a majority of the American Depositary Shares held
by all Instructing Holders.
Subject to the previous paragraph, neither the Depositary nor the
Custodian shall vote or attempt to exercise the right to vote the Shares or
other Deposited Securities represented by American Depositary Shares evidenced
by a Receipt other than in accordance with such written instructions. The
Depositary undertakes to procure the appointment of one or more corporate
representatives authorized to vote at meetings of the Company either on a show
of hands or a poll in accordance with the provisions of this Section 4.08. In
accordance with the Articles of Association and the Companies Act, failure by
a Holder, or a person holding an interest in Shares through a Holder, to
comply with the Company's request for information of the nature referred to in
Section 3.04 may result, inter alia, in withdrawal of the voting rights of the
Shares underlying the Receipts held by that Holder and thus of the rights
described in this Section 4.08 to direct the voting of Deposited Securities
underlying such Receipts.
-39-
SECTION 4.09. Changes Affecting Deposited Securities. Upon any change
in nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the
Company or to which it is a party, any securities which shall be received by
the Depositary or a Custodian in exchange for, or in conversion of or
replacement or otherwise in respect of, Deposited Securities shall be treated
as new Deposited Securities under this Deposit Agreement, and the American
Depositary Shares shall thenceforth represent, in addition to, in replacement
or conversion of, existing Deposited Securities, the right to receive the new
Deposited Securities so received in exchange, conversion, replacement or
otherwise unless additional or new Receipts are 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 the terms
hereof, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to
be exchanged for new Receipts specifically describing such new Deposited
Securities. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the
Depositary may,
-40-
with the Company's approval, and shall if the Company requests, sell such
securities at public or private sale, at such place or places and upon such
terms as it may deem proper, and may allocate the net proceeds of such sales
for the account of the Holders otherwise entitled to such securities upon an
averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.02.
SECTION 4.10. Available information. The Company is subject to the
periodic reporting requirements of the Securities Exchange Act of 1934 and
accordingly files certain reports with the Commission. Such reports and other
information may be inspected and copied at the public reference facilities
maintained by the Commission located at the date hereof at Judiciary Plaza,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (Room ▇▇▇▇), ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
SECTION 4.11. Reports. The Depositary shall make available for
inspection by Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company which are
both (a) received by the Depositary, the Custodian or the nominee of either as
the holder of the Deposited Securities and (b) made generally
-41-
available to the holders of such Deposited Securities by the Company. The
Depositary shall also send to Holders copies of such reports when furnished by
the Company to the Custodian pursuant to Section 5.06.
In addition, upon the express written request of the Company and at
the Company's sole cost and expense, the Depositary agrees to furnish,
without, however, thereby relieving the Company of its obligation under the
Securities Exchange Act of 1934 to do so, and without incurring any liability
for failure to do so, to the Commission, or any other securities regulatory
authority or stock exchange copies of any specified annual or other periodic
reports and other notices, information or communications which the Depositary,
the Custodian or the nominee of either receives from the Company so required
to be furnished. The Depositary shall also furnish to the Commission
semi-annually, so long as required by the Commission, beginning on or before
six months after the effective date of any registration statement filed with
the Commission under the Securities Act of 1933 relating to the Receipts, (a)
the following information in tabular form:
(1) The number of American Depositary Shares evidenced by
Receipts issued during the period covered by the report;
-42-
(2) The number of American Depositary Shares evidenced by
Receipts retired during the period covered by the report;
(3) The total amount of American Depositary Shares evidenced
by Receipts remaining outstanding at the end of the six-month period;
and
(4) The total number of Holders at the end of the six-month
period;
and (b) the name of each dealer known to the Depositary depositing Shares
against issuance of Receipts during the period covered by the report. In
connection with such reports relating to the Receipts, the Company and the
Depositary shall each furnish to the other the name of each such dealer known
to it who (1) has deposited Shares against the issuance of Receipts relating
to each reporting period (including the six months prior to filing such
registration statement), (2) proposes to deposit Shares against the issuance
of Receipts (as to each such person indicating the number of Shares proposed
to be deposited to the extent known), or (3) assisted or participated in the
creation of any plan for the issuance of Receipts or the selection of Shares
to be deposited.
SECTION 4.12. Lists of Receipt Holders. Promptly upon written request
by the Company, the Depositary shall
-43-
furnish to it a list, as of a recent date, of the names, addresses and
holdings of American Depositary Shares of all Holders.
SECTION 4.13. Withholding. Notwithstanding any other provision of this
Deposit Agreement, in the event that the Depositary determines that any
distribution in cash or other property (including Shares or rights to
subscribe therefor) is subject to any tax or other governmental charge or
assessment which the Depositary or the Custodian 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 as the
Depositary deems necessary and practicable or may use such cash to pay such
taxes, charges or assessments by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property or cash after deduction of such taxes, charges or assessments to the
Holders entitled thereto in proportion to the number of American Depositary
Shares held by them respectively.
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ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
---------------------------------------------
SECTION 5.01. Maintenance of Office and Transfer Books by the
Depositary. Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, the City of
New York, an office and facilities for the execution and delivery,
registration, registration of transfers, combination and split-up of Receipts,
the surrender of Receipts and the delivery and withdrawal of Deposited
Securities in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for
inspection by the Company and by the Holders, provided that such inspection
shall not be, to the Depositary's knowledge, 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.
The Depositary may close the transfer books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder.
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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 Registrar or, with the written approval of the Company, appoint a
Registrar or one or more co-registrars for registration of Receipts and
transfers, combinations and split-ups, and to countersign Receipts in
accordance with any requirements of such exchange or exchanges in accordance
with the terms of such appointments. Such Registrar or co-registrars may be
removed and a substitute or substitutes appointed by the Depositary upon the
written request or with the written approval of the Company.
SECTION 5.02. Prevention or Delay in Performance. Neither the
Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Holder or any other
person, if, by reason of any provision of any present or future law or
regulation of the United States, England and Wales or any other country, or of
any other governmental authority or regulatory authority or stock exchange, or
by reason of any provision, present or future, of the Articles of Association
of the Company or governing any Deposited Securities, or by reason of any act
of God or war or other circumstances beyond its control, the Depositary or its
agents or the Company or its agents shall be prevented or
-46-
forbidden from or subjected to any civil or criminal penalty or restraint on
account of, or delayed in, doing or performing any act or thing which by the
terms of this Deposit Agreement it is provided shall be done or performed; nor
shall the Depositary or its agents or the Company or its agents incur any
liability to any Holder or other person by reason of any non-performance or
delay, caused as aforesaid, in performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement or in the Articles of
Association. where, by the terms of a distribution pursuant to Sections 4.02,
4.03, or 4.04 of this Deposit Agreement, or an offering or distribution
pursuant to Section 4.05 or 4.09 of this Deposit Agreement, or for any other
reason, such distribution or offering may not be made available to Holders, or
some of them, and the Depositary may not dispose of such distribution or
offering on behalf of such Holders and make the net proceeds available to such
Holders, then the Depositary shall not make such distribution or offering, and
shall allow any such rights, if applicable, to lapse.
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company. Each of the Company and its agents
-47-
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to Holders or other persons, except that it agrees
to perform its obligations specifically set forth 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 (including without limitation, liability with respect
to the validity or worth of the Deposited Securities), except that it agrees
to perform its obligations specifically set forth in this Deposit Agreement
without negligence or bad faith. The Depositary shall not be subject to any
liability with respect to the validity or worth of the Deposited Securities.
Without limitation of the foregoing, neither the Depositary, nor any
of its agents, nor the Company nor any of its agents shall be (a) under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the
Receipts, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense (including fees and
disbursements of counsel) and liability be furnished as often as may be
required (and no Custodian shall be
-48-
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary), or (b) liable
for any action or 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 in good faith to be competent to
give such advice or information. The Depositary, its agents, the Custodian and
the Company may rely and shall be protected in acting upon any written notice,
request or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary and its agents shall not be responsible 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.
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,
such resignation to be effective upon the appointment of a successor
depositary
-49-
satisfactory to the Company and its acceptance of such appointment as
hereinafter provided, which appointment shall be on terms reasonably
satisfactory to the Company in its sole discretion.
The Depositary may at any time be removed by the Company by written
notice of such removal, such removal to be effective upon the appointment of a
successor depositary satisfactory to the Company and its acceptance of such
appointment as hereinafter provided, which appointment shall be on terms
satisfactory to the Company in its sole discretion.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall (i) execute and deliver an instrument
transferring to such successor all rights and powers of
-50-
such predecessor ▇▇▇▇▇▇▇▇▇, (ii) duly assign, transfer and deliver all right,
title and interest in the Deposited Securities to such successor, and (iii)
deliver to such successor a list of the Holders of all outstanding Receipts
and such other information relating to Receipts and Holders thereof as the
successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to 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 has initially appointed
Citibank (London) as Custodian and agent of the Depositary for the purpose of
this Deposit Agreement. The Custodian or its successors in acting hereunder
shall be subject at all times and in all respects to the direction of the
Depositary and shall be responsible solely to it. Any Custodian may resign and
be discharged 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. If, upon such resignation, there shall be
no custodian acting hereunder, the Depositary shall, promptly after receiving
such notice and after consultation with the Company, appoint a
-51-
substitute custodian which shall thereafter be the Custodian hereunder.
Whenever the Depositary determines, in its discretion, that it is in the best
interest of the Holders to do so, it may appoint an additional custodian, or
discharge the Custodian and appoint a substitute custodian, which shall
thereafter be Custodian hereunder. Upon demand of the Depositary, any
Custodian shall deliver such of the Deposited Securities held by it as are
requested of it to any other Custodian or such substitute or additional
custodian or custodians. Each such substitute or additional custodian shall
deliver to the Depositary forthwith upon its appointment, an acceptance of
such appointment and agreement to be bound by the terms hereof, satisfactory
in form and substance to the Depositary and the Company. Immediately upon any
such change, the Depositary shall give notice thereof in writing to all
Holders and each other Custodian.
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 each Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as
-52-
may be proper to give to such Custodian full and complete power and authority
as agent hereunder of such successor depositary.
SECTION 5.06. Notices and Reports. On or before the first date on
which the Company gives notice, by publication or otherwise, of any meeting of
holders of Shares or other Deposited Securities, or of any adjourned meeting
of such holders, or of the taking of any action by such holders other than at
a meeting, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of Deposited
Securities, the Company shall transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of
Shares or other Deposited Securities.
The Depositary will arrange for the prompt transmittal by the
Custodian to the Depositary of such notices, and any other reports and
communications which are made generally available by the Company to holders of
its Shares or other Deposited Securities, and arrange for the mailing 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 may be required by any
applicable law, regulation or
-53-
stock exchange requirement. The Company has delivered to the Depositary and
the Custodian a copy of the Articles of Association of the Company 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 amendment thereto or change therein. The Depositary may rely upon such
copy for all purposes of this Deposit Agreement. The Depositary will 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.
SECTION 5.07. Issuance of Additional Shares, Etc. The Company and each
company controlling, controlled by or under common control with the Company
agree that in the event of any issuance (otherwise than in a dividend pursuant
to Section 4.04 hereof) of (a) additional Shares, (b) rights to subscribe for
Shares or other Deposited Securities, (c) securities convertible or
exchangeable into Shares, or (d) rights to subscribe for securities
convertible or exchangeable in Shares, as a dividend or distribution with
respect to the Shares or other Deposited Securities evidenced by Receipts, or
in exchange or conversion for Shares or other Deposited Securities, the
Company will
-54-
promptly furnish to the Depositary a written opinion from counsel for the
Company in the United States, which counsel shall be satisfactory to the
Depositary, stating whether or not the circumstances of such issue are such as
to make it necessary for a registration statement under the Securities Act of
1933 to be in effect prior to the delivery of the Receipts to be issued in
connection with such securities or the issuance of such rights to the Holders
entitled thereto; provided, however, that no such opinion shall be required in
the event of an issuance of Shares as a bonus, share split or similar event.
If in the opinion of such counsel a registration statement is required, such
counsel shall furnish to the Depositary a written opinion as to whether or not
there is a registration statement in effect which will cover the issuance of
such securities.
The Company agrees that it will obtain legal advice as to whether
future issuances for cash of (1) additional Shares, (2) rights to subscribe
for Shares or other Deposited Securities, (3) securities convertible into or
exchangeable for Shares, or (4) rights to subscribe for securities convertible
into or exchangeable for Shares (in each event other than as a dividend or
distribution set forth above), are such as to make it necessary for a
registration statement under the Securities Act of 1933 covering such
securities to be in effect. If being
-55-
advised by counsel, the Company determines that an issuance of such securities
is required to be registered under the Securities Act of 1933, the Company
will register such issuance to the extent necessary, alter the terms of the
issuance to avoid the registration requirements of the Securities Act of 1933
or direct the Depositary to take specific measures with respect to the
acceptance for deposit of Shares to prevent such issuance from being made in
violation of the registration requirements of such Act.
The Company agrees with the Depositary that neither the Company nor
any company controlled by, controlling nor under common control with the
Company will at any time (i) deposit any Shares or other Deposited Securities,
either upon original issuance or upon a sale of Shares or other Deposited
Securities previously issued and reacquired by the Company or by any company
under its control, unless a registration statement is in effect as to such
Shares under the Securities Act of 1933, or (ii) issue additional Shares,
rights to subscribe for such Shares, securities convertible into or
exchangeable for Shares, or rights to subscribe for such securities except
under circumstances complying in all respects with the Securities Act of 1933.
-56-
SECTION 5.08. Indemnification. (a) The Company agrees to indemnify the
Depositary and its directors, employees, agents (including each Custodian) and
affiliates against, and hold each of them harmless from, any liability or
expense (including, without limitation, reasonable fees and expenses of
counsel) which may arise (A) out of acts performed or omitted, in accordance
with the provisions of this Deposit Agreement and of the Receipts, as the same
may be amended, modified or supplemented from time to time, (i) by either the
Depositary or any Custodian, except for any liability or expense arising out
of the negligence or bad faith of any of them, or (ii) by the Company or any
of its agents, or (B) out of or in connection with the registration of
Receipts, American Depositary Shares or any Deposited Securities with the
Commission or the offer or sale thereof to the public in the United States
except to the extent that such liability or expense arises out of information
relating to the Depositary or the Custodian, as the case may be, furnished in
writing to the Company by the Depositary or Custodian, as the case may be,
expressly for use in any proxy statement, registration statement, prospectus
or preliminary prospectus relating to the Shares represented by the American
Depositary Shares or omissions from such information.
-57-
(b) The indemnities contained in subsection (a) shall not extend to
any liability or expense which may arise out of any Pre-release Transactions
(as defined in Section 5.12) other than any such transaction to which the
Company is a party and other than the transfer or exchange of any pre-released
Receipts or any other act performed or omitted in accordance with the
provisions of this Deposit Agreement or the Receipts (other than Section 5.12
of this Deposit Agreement). The foregoing provisions of this subsection (b)
shall not apply to any liability or expense which may arise out of any
misstatement or alleged misstatement or omission or alleged omission in any
placement memorandum (in preliminary or final form) or other document relating
to the offer, sale or registration of American Depositary Shares.
(c) The Depositary agrees to indemnify the Company and its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, without limitation, reasonable fees and expenses of
counsel) which may arise out of acts performed or omitted by the Depositary or
its Custodian due to the negligence or bad faith of either the Depositary or
the Custodian.
(d) Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is
-58-
seeking indemnification (the "indemnifying person") of the commencement of any
indemnifiable action or claim promptly after such indemnified person becomes
aware of such commencement (provided that the failure to make such
notification shall not affect such indemnified person's rights otherwise than
under this Section 5.08) and shall consult in good faith with the indemnifying
person as to the conduct of the defense of such action or claim, which shall
be reasonable in the circumstances. No indemnified person shall compromise or
settle any action or claim without the consent of the indemnifying person,
which consent shall not be unreasonably withheld or delayed.
(e) The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of
any person indemnified hereby.
SECTION 5.09. Charges of Depositary. The Depositary shall charge any
party who makes a deposit or to whom Receipts are issued (including, without
limitation, a deposit or issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.04
hereof) or who makes a withdrawal or surrenders Receipts a fee of $5.00 or
less per 100 American Depositary Shares (or portion thereof) for such
deposit, issuance, withdrawal or
-59-
surrender, respectively. In addition, Holders shall pay the charges and
expenses of the Depositary in accordance with the terms of this Deposit
Agreement including Exhibit B hereto. The Depositary may retain for its own
account any compensation for the issuance, in accordance with Section 5.12, of
Receipts against evidence of rights to receive Shares, including without
limitation earnings on the collateral securing such rights. The Company agrees
to pay the fees and charges and reasonable expenses of the Depositary and any
Registrar, co-transfer agent and co-registrar, if any, as indicated in Exhibit
B hereto to be paid by the Company and any other agent of the Depositary
appointed under this Deposit Agreement, and in accordance with the written
agreements between the Company and the Depositary from time to time, in each
case other than the following items which are payable by Holders: (1) the fees
of the Depositary for the execution and delivery of Receipts pursuant to
Section 2.03, the surrender of Receipts pursuant to Section 2.05, (2) taxes
and other governmental charges including any Stamp Tax, (3) such registration
fees as may from time to time be in effect for the registration of transfers,
if any, of Shares generally on the share register of the Company (or any
appointed agent of the Company for transfer and registration of Shares which
may be the Share Registrar) and accordingly applicable to transfers of
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Shares to the name of the Depositary, a Custodian or their nominees or the
person who makes a withdrawal, on the making of deposits or withdrawal
pursuant to Sections 2.02 or 2.05, (4) such cable, telex, facsimile
transmission and delivery expenses as are expressly provided in this Deposit
Agreement to be at the expense of persons depositing Shares or Holders, (5)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.06, and (6) such fees and expenses as are
incurred by the Depositary (including without limitation expenses incurred on
behalf of Holders in connection with compliance with foreign exchange control
regulations) in delivery of Deposited Securities. Any other charges and
expenses of the Depositary hereunder will be paid by the Company after
consultation and agreement in writing between the Depositary and the Company
as to the amount and nature of such charges and expenses. Responsibility for
payment of such charges may at any time and from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed, the
Depositary shall present its statement for such expenses and fees or charges
to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
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SECTION 5.10. Exclusivity. The Company agrees not to appoint any other
depositary for issuance of American Depositary Receipts so long as Citibank,
N.A. is acting as Depositary hereunder.
SECTION 5.11. List of Restricted Securities Owners. Upon each issuance
by the Company of any securities that are Restricted Securities, the Company
shall provide the Depositary a list setting forth, to the actual knowledge of
the Company, those persons or entities who beneficially acquired Restricted
Securities. The Company agrees to advise in writing each of the persons or
entities so listed that such Restricted Securities are ineligible for deposit
hereunder. The Depositary may rely on such a list or update and shall not be
liable for any action or omission made in reliance thereon.
SECTION 5.12. Certain Rights of the Depositary; Limitations. Subject
to the further terms and provisions of this Section 5.12, Citibank, N.A. and
its agents may own and deal in any class of securities of the Company and its
affiliates and in Receipts. The Depositary may issue Receipts against evidence
of rights to receive Shares from the Company, 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
-62-
blanket or specific guarantees of ownership of Shares furnished on behalf of
the holder thereof. Neither the Depositary nor the Custodian shall lend Shares
deposited hereunder or Receipts; provided, however, that the Depositary
reserves the right to (i) issue Receipts prior to the receipt of Shares
pursuant to Section 2.02 and (ii) deliver Shares prior to the receipt and
cancellation of Receipts pursuant to Section 2.05, including Receipts which
were issued under (i) above but for which Shares may not have been received.
The Depositary may receive Receipts in lieu of Shares under (i) above and
receive Shares in lieu of Receipts under (ii) above. Each such transaction (a
"Pre-Release Transaction") shall be (a) accompanied by (x) a written
representation by the person or entity (the "Applicant") to whom Receipts are
issued or Shares delivered that at the time the Depositary issues such
Receipts or delivers such Shares, the Applicant or its customer owns the
Shares or Receipts to be delivered to the Depositary, or (y) such evidence of
ownership of Shares or Receipts as the Depositary deems appropriate, (b)
subject to a written representation by the Applicant that it will hold such
Shares or Receipts in trust for the Depositary until their delivery to the
Depositary or custodian, reflect on its records the Depositary as owner of
such Shares or Receipts and deliver such Shares or Receipts upon the
Depositary's
-63-
request, (c) at all times fully collateralized (marked to market daily) with
cash, United States government securities, or other collateral of comparable
safety and liquidity, (d) terminable by the Depositary on not more than five
(5) business days notice, and (e) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The Depositary intends
that the number of Receipts issued by it under (i) above and outstanding at
any time, generally will not exceed thirty percent (30%) of the Receipts
issued by the Depositary and with respect to which Shares are on deposit with
the Depositary or custodian; provided, however, that the Depositary reserves
the right to change or disregard such limit from time to time as the
Depositary deems appropriate. The Depositary will also set limits with respect
to the number of Receipts and Shares involved in transactions to be effected
hereunder with any one person on a case by case basis as it deems appropriate.
Collateral provided by an Applicant for Receipts or Shares, but not
the earnings thereon, shall be held for the benefit of the Holder. The
Depositary may retain for its own account any compensation received by it in
connection with the foregoing, including without limitation earnings on the
collateral.
-64-
ARTICLE VI
AMENDMENT AND TERMINATION
-------------------------
SECTION 6.01. Amendment. The form of 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 which they may
deem necessary or desirable. Any amendment which shall impose or increase any
fees or charges (other than the fees of the Depositary for deposits, the
execution and delivery of Receipts and taxes and other governmental charges),
or which 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 of outstanding Receipts. The parties hereto agree that
any amendments which (i) are reasonably necessary (as agreed by the Company
and the Depositary) in order for (a) the American Depositary Shares to be
registered on Form F-6 under the Securities Act of 1933 or (b) the American
Depositary Shares or Shares to be traded solely in electronic book-entry form
and (ii) do not in either such case impose or increase any fees or charges to
be borne by Holders, shall be deemed not to prejudice any substantial rights
of Holders. Every Holder at the time any amendment so becomes effective shall
be deemed, by
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continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Holder to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law.
SECTION 6.02. Termination. The Depositary shall, at any time at the
written direction of the Company, terminate this Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. If
60 days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04, this
Deposit Agreement shall automatically terminate on said 60th day after
delivery of such notice. The Depositary shall mail notice of such termination
to the Holders of all Receipts then outstanding at least 30 days prior to the
date fixed in such notice for such termination. On and after the date of
termination, the Holder will, upon surrender of such Receipt at the Principal
-66-
Office of the Depositary, upon the payment of the fees of the Depositary for
the surrender of Receipts referred to in Section 2.05 and subject to the
conditions and restrictions therein set forth, and upon payment of any
applicable taxes or governmental charges, be entitled to delivery, to him or
upon his order, of the amount of Deposited Securities represented by such
Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under this Deposit Agreement, except that the Depositary shall continue
to collect dividends and other distributions pertaining to Deposited
Securities, shall sell rights as provided in this Deposit Agreement, and shall
continue to deliver Deposited Securities, subject to the conditions and
restrictions set forth in Section 2.05, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale
of any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case the
fees of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of this
Deposit Agreement
-67-
and any applicable taxes or governmental charges or assessments). At any time
after the expiration of six months from the date of termination, 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 escrow account,
without liability for interest, for the pro rata benefit of the Holders whose
Receipts have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net proceeds and other cash (after
deducting, or charging, as the case may be, in each case the fees of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement
and any applicable taxes or governmental charges or assessments). Upon the
termination of this Deposit Agreement, the Company shall be discharged from
all obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.08 and 5.09 hereof
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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 each 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 parties hereto and shall not be deemed to
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, prejudiced or disturbed thereby.
SECTION 7.04. Holders and Parties; Binding Effect. The Holders 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. Each Holder
-69-
agrees that, by accepting a Receipt, such Holder shall hold such Receipt
subject to the provisions hereof and the Articles of Association.
SECTION 7.05. Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by
mail, air courier or cable, telex or facsimile transmission, confirmed by
letter, addressed to WASTE MANAGEMENT INTERNATIONAL plc, Windsor House, ▇▇-▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attention: Company Secretary, and a copy to
___________, or to any other address which the Company may specify in writing.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter, addressed to
Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ADR Department, or to any other address which the Depositary may
specify in writing.
Any and all notices to be given to the Custodian shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter, addressed to
_____________ or to any other address which the Custodian may specify in
writing.
-70-
Any and all notices to be given to any Holder shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to such Holder
at the address of such Holder as it appears on the transfer books for Receipts
of the Depositary, or, if such Holder shall have filed with the Depositary a
written request that notices intended for such Holder be mailed to some other
address, at the address specified in such request.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of
a cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary
or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from the other or from any Holder, notwithstanding
that such cable, telex or facsimile transmission shall not subsequently be
confirmed by letter as aforesaid.
SECTION 7.06. Governing Law. This Deposit Agreement and the Receipts
shall be interpreted under, and all rights
-71-
hereunder and thereunder and provisions hereof and thereof shall be governed
by the laws Of the State of New York, U.S.A.
SECTION 7.07. Assignment. This Deposit Agreement may not be assigned
by either the Company or the Depositary.
SECTION 7.08. Compliance With U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the Company and the
Depositary each agrees that it will not exercise any rights it has under this
Deposit Agreement to prevent the withdrawal or delivery of Deposited
Securities in a manner which would violate the United States securities laws,
including, but not limited to, Instruction I A(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
-72-
IN WITNESS WHEREOF, WASTE MANAGEMENT INTERNATIONAL plc and Citibank,
N.A. have duly executed this Agreement as of the day and year first above set
forth and all Holders shall become parties hereto upon acceptance by them of
Receipts issued in accordance with the terms hereof.
WASTE MANAGEMENT INTERNATIONAL plc
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
CITIBANK, N.A.
By: /S/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
UNDER THE LAW OF ENGLAND AND WALES AND THE CONSTITUENT
DOCUMENTS OF THE COMPANY, HOLDERS OF AMERICAN DEPOSITARY
RECEIPTS MAY HAVE CERTAIN DISCLOSURE OBLIGATIONS, A SUMMARY
OF WHICH IS SET FORTH IN ARTICLE 8 HEREOF. FAILURE TO COMPLY
WITH SUCH DISCLOSURE OBLIGATIONS COULD AFFECT SUCH
HOLDER'S VOTING AND DIVIDEND RIGHTS.
Number
AMERICAN DEPOSITARY SHARES
(EACH REPRESENTING
TWO ORDINARY SHARES,
OF 10p. EACH)
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
Evidencing
AMERICAN DEPOSITARY SHARES
Representing
DEPOSITED ORDINARY SHARES,
OF 10p. EACH OF
WASTE MANAGEMENT INTERNATIONAL plc
(Incorporated under the laws of England and Wales)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as Depositary (the
"Depositary"), such Depositary's
principal office being located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
hereby certifies that , or registered assigns, is the owner of
American Depositary Shares, representing deposited Ordinary Shares
of 10p. each ("Shares"), of WASTE MANAGEMENT INTERNATIONAL plc, a corporation
organized under the laws of England and Wales (the "Company"). At the date of
the Deposit Agreement, each American Depositary Share represents two (2) Shares
deposited under the Deposit Agreement (as hereafter defined) with the
Custodian which at the date of execution of the Deposit Agreement is Citibank
(London), 11 Old Jewry, London EC2R8DJ, England (the "Custodian"). The ratio
of American Depositary Shares ("ADSs") to Shares is subject to amendment as
provided in Article IV of the Deposit Agreement.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue (herein called the Receipts), all issued and to be issued upon the terms
and conditions set forth in the Deposit Agreement, dated as of April 1, 1992
(the "Deposit Agreement"), by and among the Company, the Depositary and all
holders (the "Holders") from time to time of Receipts issued thereunder, each
of whom by accepting a Receipt agrees to become a party thereto and becomes
bound by all the terms and provisions thereof. The Deposit Agreement sets
forth the rights
A-2
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 are herein called "Deposited
Securities"). Copies of the Deposit Agreement are on file at the Principal
Office in New York of the Depositary and at the office of the Custodian in
London. 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 of the Deposit Agreement, to which
reference is hereby made. Terms used and not defined herein shall have the
same meaning as in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender at the Principal Office of the Depositary of this Receipt for the
purpose of withdrawal of the Deposited Securities represented hereby, and upon
payment of (i) the fee of the Depositary for the making of withdrawals and
cancellation of Receipts (as set forth on Exhibit B to the Deposit Agreement)
and (ii) all fees, taxes and governmental charges payable in connection with
such surrender and withdrawal, and
A-3
subject to the terms and conditions of the Deposit Agreement and article 3
hereof, the Company's Articles of Association (the "Articles") and the
provisions of or governing the Deposited Securities and other applicable laws,
the Holder of this Receipt shall be entitled to delivery, to him or upon his
order, of the Deposited Securities at the time evidenced by this Receipt.
Delivery of such Deposited Securities may be made by the delivery of (a)
certificates in the name of the Holder or as ordered by him or by certificates
properly endorsed or accompanied by proper instruments of transfer to the
Holder or as ordered by him and (b) any other securities, property and cash to
which the Holder is then entitled in respect of such Receipts to the Holder or
as ordered by him. Such delivery shall be made, as hereinafter provided,
without unreasonable delay and, at the option of the Holder hereof, either at
the office of the Custodian or at the Principal office of the Depositary,
provided that the forwarding of certificates evidencing Shares or other
Deposited Securities for such delivery shall be at the risk and expense of the
Holder.
(3) Transfers; Split-ups and Combinations. The transfer of this Receipt
is registrable on the books of the Depositary by the Holder hereof in person
or by duly authorized attorney, upon surrender of this Receipt to the
Principal Office
A-4
of the Depositary properly endorsed or accompanied by proper instruments of
transfer and funds sufficient to pay any applicable transfer taxes and the
expenses of the Depositary. This Receipt may be split into other Receipts or
may be combined with other Receipts into one Receipt, representing the same
aggregate number of ADSs as the Receipt or Receipts surrendered. As a
condition precedent to the execution and delivery, registration, registration
of transfer, split-up, combination or surrender of any Receipt, the delivery
of any distribution thereon or withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (a) payment from the depositor of
Shares or presenter of the Receipt of a sum sufficient to reimburse it for any
tax (including any Stamp 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 as provided in article (6) hereof, or in
Exhibit B to the Deposit Agreement, (b) the production of proof satisfactory
to it as to the identity and genuineness of any signature or other matter
contemplated by the Deposit Agreement and (c) compliance with (i) any laws or
governmental regulations relating to American Depositary Receipts or to the
withdrawal of Deposited Securities and (ii) such reasonable regulations, if
any, as the
A-5
Depositary and the Company may establish consistent with the provisions of the
Deposit Agreement, subject to article (22) hereof.
The Depositary may refuse to execute and to deliver Receipts, register
the transfer of any Receipt, or make any distribution of, or related to,
Deposited Securities until it has received such proof of citizenship, taxpayer
status, residence, exchange control approval or other information as it may
deem necessary or proper in accordance with applicable laws and regulations
and the terms of the Deposit Agreement, subject to article (22) hereof. The
delivery of Receipts against deposits of Shares generally or against deposits
of particular Shares may be suspended, or the delivery of Receipts against the
deposit of particular Shares may be withheld, or the registration of transfer
of Receipts in particular instances may be refused, the registration of
transfer generally may be suspended, during any period when the transfer books
of the Company, the Depositary or the Share Registrar are closed or if any
such action is deemed necessary or advisable by the Depositary or the Company,
in good faith, at any time or from time to time because of any requirement of
law, any government or governmental body or commission or any securities
exchange on which the Receipts or Shares are listed, or under any provision of
this Deposit Agreement or the
A-6
provision of or governing Deposited Securities, or any meeting of shareholders
of the Company or for any other reason, subject in all cases to article (22)
hereof. Notwithstanding any provision of the Deposit Agreement or the
Receipts to the contrary, the surrender of outstanding Receipts and withdrawal
of Deposited Securities may not be suspended or refused, except as permitted
in General Instruction IA(1) to Form F-6 (as such instruction may be amended
from time to time) under the Securities Act of 1933 in connection with (i)
temporary delays relating to the deposit of Shares in connection with voting
at a shareholders' meeting, or the payment of dividends, (ii) the payment of
fees, taxes and similar charges, and (iii) compliance with any U.S. or foreign
laws or governmental regulations relating to the Receipts or to the withdrawal
of the Deposited Securities. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under the Deposit Agreement
any Shares or other Deposited Securities (a) that are required to be
registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares or other Deposited
Securities, or (b) that would thereby infringe any provisions of the Articles
of the Company
(4) Liability of Holder For Taxes. If any tax or other governmental
charge or assessment imposed under applicable
A-7
laws (including, without limitation, any Stamp Tax) shall become payable with
respect to the Receipt or any Deposited Securities evidenced by the Receipt,
such tax, other governmental charge or expense shall be payable by the Holder
of the Receipt to the Depositary. The Depositary may refuse, and the Company
shall be under no obligation, to effect any transfer of the Receipt, or
split-up or combination of the Receipt or, subject to article 22 hereof, any
withdrawal of Deposited Securities represented hereby until such payment is
made, and may withhold any dividends or other distributions or securities
receivable in respect of Deposited Securities, or may sell for the account of
the Holder hereof any part or all of the Deposited Securities represented by
the Receipt, and may apply such dividends or other distributions or the
proceeds of any such sale in payment of such tax, other governmental charge or
expense, the Holder of the Receipt remaining liable for any deficiency.
(5) Warranties by Depositor. Each person depositing Shares under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Shares and the certificates therefor are validly issued, fully paid,
non-assessable, that all preemptive rights, if any, with respect to such
Shares have been validly waived or exercised and that the person making such
deposit is duly authorized so to do. Each such person shall
A-8
also be deemed to represent that the deposit of Shares or sale of Receipts by
that person is not restricted, and that the Shares deposited by that person
are not Restricted Securities, under the Securities Act of 1933. In addition,
such person shall be deemed to represent that such Shares are not liable to
disenfranchisement or disposal by the Company pursuant to the Articles. Such
representations and warranties shall survive the deposit and withdrawal of
Shares and issuance and cancellation of Receipts in respect thereof.
(6) Charges of Depositary. The Depositary shall charge any party who
makes a deposit or to whom Receipts are issued (including, without limitation,
a deposit or issuance pursuant to a stock dividend or stock split declared by
the Company or an exchange of stock regarding the Receipts or Deposited
Securities or a distribution of Receipts pursuant to Section 4.04 of the
Deposit Agreement) or who makes a withdrawal or surrenders Receipts a fee of
$5.00 or less per 100 ADSs (or portion thereof) for such deposit, issuance,
withdrawal or surrender, respectively. In addition, Holders will pay the
charges and expenses of the Depositary in accordance with the terms of the
Deposit Agreement including Exhibit B thereof. The Company will pay the other
fees, charges and reasonable expenses of the Depositary and any Registrar,
co-transfer agent and
A-9
co-registrar, if any, under the Deposit Agreement, as agreed upon from time to
time between the Company and the Depositary. All charges may be changed by
agreement in writing between the Depositary and the Company at any time and
from time to time, subject to article (20).
(7) Filing Proofs, Certificates, and Other Information. Any person
presenting Shares for deposit or any Holder may be required from time to time
to file such proof of citizenship, taxpayer status, residence or exchange
control approval, compliance with applicable laws and the terms of the Deposit
Agreement or other information, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may require by written request to the Depositary consistent
with its obligations thereunder. The Depositary may withhold the execution or
delivery or registration of transfer of this Receipt or the distribution or
sale of any dividend or distribution of rights or of the proceeds thereof or,
subject to article 22, the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed to the
Depositary and the Company's satisfaction. The Depositary shall provide the
Company in a timely manner with copies, or originals if necessary and
appropriate, of (i) any such proofs of
A-10
citizenship, taxpayer status, residence or exchange control approval which the
Depositary receives, and (ii) any other information or documents which the
Company may reasonably request and which the Depositary shall request from the
Holders or any person presenting Shares for deposit.
(8) Disclosure of Beneficial Ownership. Notwithstanding any other
provision of this Receipt or the Deposit Agreement, the Holder agrees to be
bound by, and subject to the Articles, and to provide such information as the
Company may request in a disclosure notice (a "Disclosure Notice") given
pursuant to statutory provisions of English law or the Articles. Failure of
the Holder to provide in a timely fashion the information requested in any
Disclosure Notice may result in the withholding of certain rights in respect
of the Holder's ADSs (including voting rights and certain rights as to
dividends in respect of the Shares represented by such ADSs). 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, any Holder who is or becomes directly or indirectly
interested (within the meaning of the Companies Acts
A-11
1985, as amended from time to time (the "Companies Act")) in 3% (or such other
amount as may be required by the Companies Act) or more of the outstanding
Shares, or is aware that another person for whom it holds such ADSs is so
interested, must within two business days (or such other period as may be
required by the Companies Act) after becoming so interested or so aware, and
thereafter upon any changes of at least 1% of the outstanding Shares, notify
the Company as required by the Companies Act.
(9) Title to Receipts. It is a condition of this Receipt, and every
successive Holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the ADSs 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 under
the laws of the State of New York; provided, however, that the Depositary,
notwithstanding any notice to the contrary, may deem and treat the person in
whose name this Receipt is registered on the books of the Depositary as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes.
A-12
(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 this Receipt shall have been executed by the Depositary by the
manual signature of a duly authorized officer or, if a Registrar for the
Receipts shall have been appointed, such signature may be a facsimile if this
Receipt is countersigned by the manual signature of a duly authorized officer
of such Registrar.
(11) Available Information. The Company is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934 and accordingly
files certain reports with the Commission, which reports may be inspected and
copied by the Holders at the offices of the Commission in Washington, D.C.
Dated:
Countersigned CITIBANK, N.A.,
as Depositary
By: By:
-------------------------- -------------------------
Authorized Officer Vice President
The address of the Principal Office of the Depositary is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
A-13
(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(12) Dividends and Distributions; Rights. Whenever the Depositary or the
Custodian shall receive foreign currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted
on a reasonable basis into dollars distributable to the Holders entitled
thereto and transferable to the United States, the Depositary shall convert or
cause to be converted, by sale or in any other manner that it may determine,
such foreign currency into dollars, and shall transfer such dollars (net any
of its reasonable and customary expenses incurred in such conversion and any
expenses incurred on behalf of the Holder in complying with currency exchange
control or other governmental requirements) to the Holders entitled thereto
or, if the Depositary shall have distributed any warrants or other instruments
that entitle the holders thereof to such dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among
A-14
Holders on account of any application of exchange restrictions or otherwise.
The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent. Any such
fractional amount shall be rounded to the nearest whole cent and so
distributed to Holders entitled thereto. If in the judgment of the Depositary,
amounts received in foreign currency may not be converted on a reasonable
basis into United States dollars distributable to the Holders entitled
thereto, or may not be so convertible for all of the Holders entitled thereto,
the Depositary may in its discretion make such conversion, if any, and
distribution in United States dollars to the extent permissible to the Holders
entitled thereto and may distribute the balance of the foreign currency
received and not so convertible by the Depositary to, or hold (without
liability for interest thereon) such balance for the account of, the Holders
entitled thereto. If in the opinion of the Depositary any distribution other
than cash or Shares upon any Deposited Securities cannot be made
proportionately among the Holders entitled thereto, or if for any other reason
the Depositary deems such distribution not to be feasible, the Depositary may
adopt such method as it, with the reasonable approval of the Company, may deem
equitable and practicable for
A-15
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, and the net proceeds of any sale (net of taxes and expenses of the
Depositary as set forth in Exhibit B to the Deposit Agreement) shall be
distributed by the Depositary to the Holders entitled thereto as in the case
of a distribution received in cash. If any distribution upon any Deposited
Securities consists of a dividend in the form of Shares, the Depositary may
with the Company's approval, and shall if the Company shall so request, (i)
instruct the Company to deposit or cause such Shares to be deposited with and
registered in the name of the Custodian and (ii) distribute to the Holders of
record of outstanding Receipts entitled thereto, in proportion to the number
of ADSs representing such Deposited Securities held by them respectively,
additional Receipts for an aggregate number of ADSs representing the number of
Shares received as such dividend, subject to the terms of the Deposit
Agreement. In lieu of delivering Receipts for fractional ADSs in any such
case, the Depositary will sell the number of Shares represented by the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions set forth in the Deposit Agreement. In the event
that the Company shall offer or cause to be offered to the holders of any
A-16
Deposited Securities any rights to subscribe for additional Shares or any
rights of any other nature, the Depositary may, after consultation with the
Company, and if requested in writing by the Company shall, either (a) make
such rights available to all Holders or certain Holders but not others by
means of warrants or otherwise, if lawful and feasible, or (b) if making such
rights available is not lawful or not feasible, or if the rights represented
by such warrants or other instruments are not exercised and appear to be about
to lapse, sell such rights or warrants or other instruments 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, as in the case of a
cash distribution, for account of the Holder otherwise entitled thereto 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. In the event the Depositary does not
receive such written notice, the Depositary will have discretion as to whether
such rights are to be made available to the Holders or in disposing of such
rights on behalf of such Holders or in allowing such rights to lapse. The
Depositary shall not be responsible for any failure to make such rights
available to Holders in general or any Holder in particular. If a Holder
A-17
wishes to exercise the rights allocable to the ADSs of such Holder, the
Depositary, upon the Holder's written request and subject to the terms and
conditions of the Deposit Agreement (including Section 4.05 thereof), will
make such rights available to such Holder.
Notwithstanding anything to the contrary in this Receipt, if registration
under the Securities Act of 1933 of the securities to which any rights relate
is required in order for the Company to offer such rights or such securities
to Holders and sell the securities represented by such rights, the Depositary
will not offer such rights to the Holders (i) unless and until a registration
statement under the Securities Act of 1933 covering such offering is in
effect, or (ii) unless the Company furnishes the Depositary an opinion of
counsel for the Company in the United States satisfactory to the Depositary or
other evidence satisfactory to the Depositary to the effect that the offering
and sale of such securities to the Holders of such Receipts are exempt from or
do not require registration under the provisions of the Securities Act of
1933.
(13) Record Dates. Whenever the Depositary shall receive notice of the
fixing of a record date by the Company for the determination of holders of
Deposited Securities entitled to receive any cash, or any rights to be issued
with respect to the
A-18
Deposited Securities, or whenever for any reason the Depositary causes a
change in the number of Shares that are represented by each ADS, or whenever
the Depositary shall receive notice of any meeting of holders of Shares or
other Deposited Securities, or whenever the Depositary shall find it necessary
or convenient in connection with the giving of any notice, solicitation of any
consent or any other matter, the Depositary will, after consultation with the
Company, fix a record date for the determination of the Holders who will be
entitled to receive such dividend, distribution, rights or the net proceeds of
the sale thereof, or to give instructions for the exercise of voting rights at
any such meeting, or to give or withhold such consent, or to receive such
notice or solicitation or to otherwise take action, or whose Receipt shall
evidence such changed number of Shares.
(14) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting or solicitation of consents or proxies from holders
of Shares or other Deposited Securities, the Depositary shall fix a record
date in respect of such meeting for the giving of instructions for voting such
consent or proxy and shall mail to Holders a notice which shall contain: (a)
such information as is contained in such notice of meeting, (b) a statement,
in a form provided by the Company, that the Holders at the close of business
on the
A-19
specified record date will be entitled, subject to any applicable provisions
of the laws of England and Wales, the Articles of the Company and the
provisions of or governing Deposited Securities (which provisions, if any,
shall be summarized in pertinent part), to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Shares or other
Deposited Securities represented by ADSs evidenced by their respective
Receipts, and (c) a brief statement as to the manner in which such
instructions may be given including an express indication that instructions
may be given to the Depositary to give a discretionary proxy to a person or
persons designated by the Company. Upon receipt of the written request of a
Holder (an "Instructing Holder") on such record date the Depositary shall
endeavor insofar as practicable and permitted under applicable law and the
provisions of the Articles of the Company and the provisions of the Deposited
Securities to vote or cause the Custodian to vote the Shares and/or other
Deposited Securities represented by ADSs evidenced by such Receipt in
accordance with the instructions set forth in such request. In the event a
poll is duly demanded and if no instructions are received, the Depositary will
deem, unless otherwise requested by the Company and unless otherwise provided
for in the Deposit Agreement, such Holders to have instructed the Depositary
to give a
A-20
discretionary proxy to the person designated by the Company; provided,
however, no discretionary proxy shall be given with respect to any proposition
as to which the Depositary has actual knowledge which (i) involves any
solicitation of opposing proxies or other substantial opposition, or (ii)
authorizes a merger, consolidation, or any other matter which may materially
affect the rights and privileges of the holders of Shares or the Holders.
Unless specifically instructed by at least five Holders or Holders
representing not less than 10% of the total voting rights of all Holders
having the right to vote at such meeting, the Depositary shall not join in
demanding a poll and, in such case, the Depositary shall follow the
instructions of the Instructing Holders holding Receipts evidencing a majority
of the ADSs held by all Instructing Holders.
Subject to the previous paragraph, neither the Depositary nor the
Custodian shall vote or attempt to exercise the right to vote the Shares or
other Deposited Securities represented by ADSs evidenced by a Receipt other
than in accordance with such written instructions. In accordance with the
Articles and the Companies Act, failure by a Holder, or a person holding an
interest in Shares through a Holder, to comply with the Company's request for
information of the nature referred to in article (8) may result, inter alia,
in withdrawal of the voting
A-21
rights of the Shares underlying the Receipts held by that ▇▇▇▇▇▇ and thus of
the rights described in this article (14) to direct the voting of Deposited
Securities underlying such Receipts.
(15) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or a Custodian in
exchange for, in conversion of or replacement or otherwise in respect of,
Deposited Securities shall be treated as new Deposited Securities under the
Deposit Agreement, and ADSs shall thenceforth represent in addition to, or in
replacement or conversion of, existing Deposited Securities, the right to
receive new Deposited Securities so received in exchange, conversion,
replacement or otherwise, unless additional or new Receipts are 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, execute and
deliver additional Receipts as in the case of a stock dividend on the Shares, or
call for the surrender of outstanding Receipts to be exchanged for new Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be
A-22
lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall if the Company requests, sell such securities at
public or private sale, at such place or places and upon such terms as it may
deem proper, and may allocate the net proceeds of such sales for the account
of the Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash.
(16) Reports; Inspection of Transfer Books. The Depositary will make
available for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting material, 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 such Deposited Securities by the
Company. The Depositary will also send to Holders copies of such reports when
furnished by the Company as provided in the Deposit Agreement. The Depositary
will keep books for the registration of Receipts and their transfer which at
all reasonable times will be open for inspection by the Company and Holders,
provided that such inspection shall not be for
A-23
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. Notwithstanding any other provision of the Deposit
Agreement, in the event that the Depositary determines that any distribution
in cash or other property (including Shares or rights to subscribe therefor)
is subject to any tax or other governmental charge or assessment which the
Depositary or the Custodian 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 as the Depositary deems
necessary and practicable to pay such taxes, charges or assessments 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,
charges or assessments to the Holders entitled thereto (and net of fees of the
Depositary) in the manner specified in article (12) hereof.
(18) Liability of the Company and Depositary. Neither the Depositary nor
the Company nor any of their respective directors, employees, agents or
affiliates shall incur any liability to any Holder or any other person, if, by
reason of any
A-24
provision of any present or future law or regulation of the United States,
England and Wales or any other country, or of any other governmental or
regulatory authority or stock exchange, or by reason of any provision, present
or future, of the Articles of the Company or governing any Deposited
Securities, or by reason of any act of God or war or other circumstance beyond
its control, the Depositary, or its agents, or the Company, or its agents,
shall be prevented or forbidden from, or subjected to any civil or criminal
penalty or restraint on account of, or delayed in, doing or performing any act
or thing which by the terms of the Deposit Agreement it is provided shall be
done or performed; nor shall the Depositary, or its agents, or the Company, or
its agents, incur any liability to any Holder or other person by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act
or thing which by the terms of the Deposit Agreement it is provided shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement or the Articles
Where, by the terms of a distribution pursuant to Sections 4.02, 4.03, or 4.04
of the Deposit Agreement, or an offering or distribution pursuant to Section
4.05 or 4.09 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Holders,
A-25
or some of them, and the Depositary may not dispose of such distribution or
offering on behalf of such Holders and make the net proceeds available to such
Holders, then the Depositary shall not make such distribution or offering, and
shall allow any rights, if applicable, to lapse. Neither the Company or its
agents nor the Depositary or its agents assumes any obligation or shall be
subject to any liability under the Deposit Agreement to Holders or other
persons, except that each of them agrees to perform its duties specifically
set forth in the Deposit Agreement without negligence or bad faith. The
Depositary shall not be subject to any liability with respect to the validity
or worth of the Deposited Securities. Neither the Depositary nor any of its
agents nor the Company nor any of its agents shall be (a) under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of this Receipt, 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 will be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary) or (b) liable for any action or inaction by it in reliance upon
the advice of or
A-26
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary and its agents
shall not be responsible for any failure to carry out any instructions to vote
any of the Deposited Securities, or for the manner in which any such vote is
cast or effect of any such vote, provided that any such action or inaction is
in good faith. No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of the Deposit Agreement. Subject to the further
terms and provisions of this article (18), Citibank, N.A. and its agents may
own and deal in any class of securities of the Company and its affiliates and
in Receipts. The Depositary may issue Receipts against evidence of rights to
receive Shares from the Company, or any custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records
in respect of the Shares. Such evidence of rights shall consist of written
blanket or specific guarantees of ownership of Shares furnished on behalf of
the holder thereof. Neither the Depositary nor the Custodian shall lend Shares
or Receipts; provided, however, that the Depositary reserves the right to (i)
issue Receipts prior to the receipt of Shares pursuant to Section 2.02 of the
Deposit Agreement and (ii) deliver Shares prior to the
A-27
receipt and cancellation of Receipts pursuant to Section 2.05 of the Deposit
Agreement, including Receipts which were issued under (i) above but for which
Shares may not have been received. The Depositary may receive Receipts in lieu
of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. Each such transaction shall be (a) accompanied by (x) a written
representation by the person or entity (the "Applicant") to whom Receipts are
issued or Shares delivered that at the time the Depositary issues such
Receipts or delivers such Shares, the Applicant or its customer owns the
Shares or Receipts to be delivered to the Depositary, or (y) such evidence of
ownership of Shares or Receipts as the Depositary deems appropriate, (b)
subject to a written representation by the Applicant that it will hold such
Shares or Receipts in trust for the Depositary until their delivery to the
Depositary or custodian, reflect on its records the Depositary as owner of
such Shares or Receipts and deliver such Shares or Receipts upon the
Depositary's request, (c) at all times fully collateralized (marked to market
daily) with cash, United States government securities, or other collateral of
comparable safety and liquidity, (d) terminable by the Depositary on not more
than five (5) business days notice, and (e) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary
A-28
intends that the number of Receipts issued by it under (i) above and
outstanding at any time, generally will not exceed thirty percent (30%) of the
Receipts issued by the Depositary and with respect to which Shares are on
deposit with the Depositary or custodian; provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as the Depositary deems appropriate. The Depositary will also set limits
with respect to the number of Receipts and Shares involved in transactions to
be effected hereunder with any one person on a case by case basis as it deems
appropriate.
Collateral provided by an Applicant for Receipts or Shares, but not the
earnings thereon, shall be held for the benefit of the Holder. The Depositary
may retain for its own account any compensation received by it in connection
with the foregoing, including without limitation earnings on the collateral.
(19) Resignation and Removal of Depositary; Substitution of 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,
such resignation to be effective upon the appointment of a successor
depositary, reasonably satisfactory to the Company, and its acceptance of
A-29
such appointment as provided in the Deposit Agreement. The Depositary may at
any time be removed by the Company by written notice of such removal, such
removal to be effective upon the appointment of a successor depositary,
reasonably satisfactory to the Company, and its acceptance of such appointment
as provided in the Deposit Agreement. The Depositary may at any time appoint a
substitute or an additional custodian and the term "Custodian" shall also
refer to such substitute or additional custodian.
(20) Amendment of Deposit Agreement and Receipts. The form of the
Receipts and any provisions of the Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the Depositary in
any respect which they may deem desirable. Any amendment which shall impose or
increase any fees or charges (other than the fees of the Depositary for
deposit, the execution and delivery of Receipts and taxes or other
governmental charges), or which shall otherwise prejudice any substantial
existing right of Holders, shall not, however, become effective as to
outstanding Receipts until the expiration of three (3) months after notice of
such amendment shall have been given to the Holders of outstanding Receipts.
The parties hereto agree that any amendments which (i) are reasonably
necessary (as agreed by the Company and the
A-30
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Every Holder at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement 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 shall, at any time,
at the written direction of the Company, terminate the Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. If 60 days shall have expired after (i) the Depositary shall have
resigned, or (ii) the Company shall have given notice of the removal of the
Depositary under the Deposit Agreement, and, in either case, a successor
depositary shall not have been appointed and accepted its appointment, the
Deposit
A-31
Agreement shall automatically terminate on said 60th day after delivery of
such notice. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, 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 the collection of dividends and other
distributions pertaining to Deposited Securities, the sale of rights and the
delivery of Deposited Securities, subject to Section 2.05 of the Deposit
Agreement, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, the fees of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder in accordance with the
terms and conditions of the Deposit Agreement and any applicable taxes or
other governmental charges or assessments). At any time after the expiration
of six months from the date of termination, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and may thereafter
hold uninvested the net proceeds of any such sale, together with any other
cash then held by it under the Deposit Agreement, in an unsegregated
A-32
escrow account, without liability for interest, for the pro rata benefit of
the Holders whose Receipts have not theretofore been surrendered. Thereafter
the Depositary will be discharged from all obligations under the Deposit
Agreement, except to account for such net proceeds and other cash (after
deducting or charging such fees, expenses, taxes and charges as aforesaid).
Upon the termination of the Deposit Agreement, the Company shall be discharged
from all obligations under the Deposit Agreement except for its obligations to
the Depositary under Sections 5.08 and 5.09 of the Deposit Agreement.
(22) Compliance With U.S. Securities Laws. Notwithstanding any provisions
in this Receipt or the Deposit Agreement to the contrary, the Company and the
Depositary have each agreed that it will not exercise any rights it has under
the Deposit Agreement or the Receipt to prevent the withdrawal or delivery of
Deposited Securities in a manner which violate the United States securities
laws, including, but not limited to Instruction I A(1) of the General
Instructions to Form F-6 Registration Statement, as amended from time to time,
under the Securities Act of 1933.
A-33
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
NOTE: The signature to any endorsement hereon must correspond with the
name as written upon the face of this Receipt in every particular,
without alteration or enlargement or any change whatever.
If the endorsement be executed by an attorney, executor,
administrator, trustee or guardian, the person executing the
endorsement must give his full title in such capacity and proper
evidence of authority to act in such capacity, if not on file with
the Depositary, must be forwarded with this Receipt.
All endorsements or assignments of Receipts must be guaranteed by a
New York Stock Exchange member firm or member of the Clearing House
of the American Stock Exchange Clearing Corporation or by a bank or
trust company having an office or correspondent in the City of New
York.
A-34
EXHIBIT B
CHARGES OF THE DEPOSITARY
Service Rate By Whom Paid
------- ---- ------------
(1) Receipt of deposits Up to $5.00 per 100 Party who makes
and issuance of American Depositary relevant
Receipts (includ- Shares (or fraction deposit or to
ing, without limi- thereof) whom Receipts
tations, deposit or are issued
issuance pursuant
to stock dividend)
(2) Delivery of Depos- Up to $5.00 per 100 Party Surren-
ited Securities American Depositary ▇▇▇▇▇▇ Receipts
against surrender Shares (or fraction or making
of Receipts thereof) withdrawals
The Company after consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges, will pay those
charges of the Depositary and those of any Registrar, co-transfer agent or
co-registrar not payable by the Holders plus reasonable out-of-pocket expenses
such as printing, translation, stationery, postage, insurance, cables, etc.,
incurred by the Depositary in the exercise of its duties and obligations under
the Deposit Agreement, in accordance with written agreements entered into
between the Depositary and the Company from time to time, provided that the
Company shall not in any circumstances pay the fees and charges listed in the
next paragraph.
B-1
In addition to the fees of the Depositary stated above and in the
Deposit Agreement, Holders will pay (i) taxes and other governmental charges,
(ii) 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 the transfer and
registration of Shares) and accordingly applicable to transfers of Shares to
the name of the Depositary or the Custodian or their nominee or the person who
is making a withdrawal, on the making of deposits or withdrawals under the
Deposit Agreement, (iii) 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, (iv) such expenses as are incurred in
the conversion of foreign currency by the Depositary pursuant to Section 4.06
of the Deposit Agreement, and (v) such fees and expenses as are incurred by
the Depositary (including without limitation expenses incurred on behalf of
Holders in connection with compliance with foreign exchange control
regulations) in delivery of Deposited Securities.
B-2
Exhibit (b)
OPERATING LETTER
----------------
AMERICAN DEPOSITARY RECEIPTS
----------------------------
FOR
---
ENGLISH SHARES
--------------
OPERATING LETTER:
-----------------
AMERICAN DEPOSITARY RECEIPTS FOR ENGLISH SHARES
-----------------------------------------------
Citibank N.A.
P.O. Box 78
London
WC2R 1HB
Gentlemen:
We hereby appoint you as our Custodian with respect to certain securities of
English Companies against which the legal entity created by us as Depositary
plans to issue American Depositary Receipts. We shall notify you in writing
of each specific security for which we will authorize you to act as Custodian
and this Operating Letter shall govern your and our duties and
responsibilities with respect to each such security.
Upon request, Citibank New York will furnish Citibank London with a particular
specimen ADR certificate for an underlying ordinary security when you deem
necessary. Likewise, Citibank London will endeavour to furnish a particular
Company specimen certificate for ordinary shares to Citibank New York when
Depositary deems necessary.
For the purpose of this letter, the following words and phrases will have the
respective meanings indicated:
COMPANY Any corporation whose common shares are officially
------- traded in England and for which you agree to act as
our Custodian.
NOMINEE National City Nominees Limited
------- P.O. Box 78
London WC2R 1HB
OPERATING LETTER This instrument signifying multilateral agreement to
---------------- contents therein between Depositary and Custodian.
CUSTODIAN Citibank N.A. London Main Office.
---------
DEPOSITARY Citibank N.A.
---------- ADR Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
TRANSFER AGENT The organization authorized by Company to transfer
-------------- its Common Shares, or if there is no such, then
Company.
ADR'S American Depositary Receipts for Common Shares.
-----
COMMON SHARES Any class of security of a Company which we authorize
------------- you to accept for deposit hereunder.
Page 2 of 7
We hereby authorize you to establish such cash and security accounts as may be
required in the proper performance of your duties as such Custodian. You are
to be guided by this document, and you agree to accept Common Shares for
deposit with you as Custodian for our account and to be bound by the
provisions of this letter.
I. Deposit of Common Shares for the Issuance of ADR's
------------------------------------------------------
Common Shares presented to you as Custodian for deposit as the basis for the
issuance of ADR's must be accompanied by sufficient documentation to effect
transfer of such shares into the name of the Nominee.
Upon receipt of such shares and documentation you agree to satisfy yourselves,
by examination, that they are readily transferable although confirmation of
this fact by the Transfer Agent is not required prior to your cabling us (in
terms of paragraph III, sub-paragraph iii of this document) instructing
issuance of the ADR's. Having made such examination, as far as is
practicable, no further liability is yours in the event that such
documentation proves to be not genuine or subject to title defect. However
you agree to use your best efforts to obtain reimbursement for any losses
suffered in this respect.
The above-mentioned shares must be accompanied by:
(i) A transmittal letter completed and signed by the presentor of Common
Shares substantially in the form attached hereto as Exhibit I, even
though amended to take due account of local legal requirements, if
any.
(ii) Funds for the payment of any cable, telex, telephone or other charges
incurred at the depositor's request and not waived by you unless all
charges are for New York party in which case such charges are to be
advised to ourselves at the time of your request to issue ADR's in
order that we may collect same and reimburse you.
(iii) Funds for the payment of any charge made by Transfer Agent to
register the ownership of such Common Shares in the name of Nominee,
and evidence of payment of Stamp Tax as necessary.
You shall not accept Common Shares for deposit from the Company or any person in
control of the Company unless you shall have also received an opinion of U.S.
counsel (who shall be satisfactory to us) that such deposit and consequent
issuance of ADR's is exempt from or in accordance with, applicable U.S. laws and
regulations, or have advised us of the full circumstances of such deposit and
have received permission or instructions from us to accept such deposit.
II. Notification to Depositary to Issue ADR's
----------------------------------------------
Upon receipt by you of Common Shares for deposit you shall:
(i) Notify us immediately by tested telex or cable of the deposit of the
Common Shares, and/or request for issuance of ADR's. Such telex or
cable should incorporate the number of underlying shares and company,
the name of the presentor, the name of the deliveree, the deposit
number and any other salient information.
Page 3 of 7
(ii) Promptly lodge the Common Share certificates for transfer with the
Transfer Agent for registration into the name of the Nominee.
Upon receipt of Deposit Advices referred to in sub-paragraph (i) of this
paragraph (II) we shall issue and use our best efforts to deliver to the
persons named by you in the Deposit Advice ADR's evidencing the required
number of American Depositary Shares. We will advise you (via cable on same
day of communication with deliveree, if possible) of any issuances which for
any reason we are unable to complete. You will subsequently advise us (via
cable) as to the proper disposition of said issuances including providing
additional information to complete the transaction. The Common Shares are to
be held by you as Custodian for us, subject to our order. After notifying us
to whom or upon whose order the relative ADR's are to be issued and delivered,
you need not be concerned any further as to the interest, if any, therein of
the persons or corporations making the deposit.
Until further notice and upon agreement between Depositary and Custodian with
respect to operating procedures, advices to us of the deposit of Common Shares
with you should be numbered in one numerical sequence for each class of
securities for each Company.
You will ensure that you do not instruct the pre-release of ADR's in excess of
the mutually agreed percentage of shares physically held by yourselves unless
specifically agreed by us. Should you be unable to deliver Common Shares in
transferable order which you have advised us are on deposit with you for our
account in accordance with our request made as provided herein due to your
exceeding the aforementioned agreed percentage without our specific authority,
you agree to accept the liability for any loss suffered by us due to the non
delivery of such Common Shares except as prevented by force majeur.
III. Common Share Deposit in New York for ADR Issuance
-------------------------------------------------------
Upon receipt of Common Shares and completed Letter of Transmittal (Exhibit I)
from a Customer for the issuance of ADR's, Citibank New York will:
(i) Issue a receipt to the Customer for receipt of Common Shares.
(ii) Forward Common Shares to Citibank London including proper
instructions for transfer.
Upon receipt of the Common Shares, Citibank London will:
(i) Perform proper examination of the Common Shares as defined in
paragraph I of this document.
(ii) Cable Citibank New York within 48 hours of receipt advising us of
acceptance and deposit of Common Shares with the Custodian or
rejection of such Common Shares while awaiting further instructions.
(iii) Promptly lodge the Common Share certificates, if acceptable, for
transfer with the Transfer Agent for registration in the name of the
Nominee and hold such shares to our direct order.
Page 4 of 7
Upon receipt of the cable from you signifying acceptance and deposit of the
Common Shares, or rejection of such shares, we will promptly issue and deliver
ADR's to the Depositor providing such Common Shares have been accepted by you,
or communicate the fact of non-acceptance and the reasons therefore to said
customer and obtain additional instructions.
IV. Release of Common Shares Upon Surrender & Cancellation of ADR's in New
---------------------------------------------------------------------------
York
----
We shall immediately notify you of the surrender of ADR's for cancellation
against release and delivery of underlying Common Shares in England, whereupon
you will withdraw certificates representing and corresponding number of Common
Shares of the appropriate class if there be more than one and deliver the
relative certificates in proper form for transfer to or on the order of the
person designated by our instructions and collect the charges, if any, other
than for cancellation of ADR's and cable expenses for advice to you, which may
be incurred by such delivery. You shall also collect or otherwise arrange for
payment by the deliveree of taxes or charges, if any, payable by the
transferor on such delivery unless advised to the contrary by ourselves.
We will advise you via tested telex or cable authorizing the release of Common
Shares by you to the appropriate parties. Such telex or cable will
incorporate the number of underlying shares and Company, the name of the party
requesting cancellation, the name of the deliveree, the delivery number and
any other salient information. We will use one numerical sequence of delivery
numbers for each class of securities and for each Company. You will advise us
(via cable on same day of communication with deliveree, if possible) of any
deliveries which for any reason you are unable to complete. We will
subsequently advise you (via cable) as to the proper disposition of said
deliveries including providing any additional information to complete the
transaction.
V. Monthly Share Reconciliation
--------------------------------
You shall advise us of the number of Common Shares as at the close of business
on the last working day of the month. Such advice shall be given by airmailing
detailed ledgers of movements an balances to us within fifteen calendar days
after the month end. It will be our responsibility to ensure that all
balances reconcile. If there are no discrepancies, we will promptly confirm
balances. Otherwise we will promptly advise you of differences and request
additional information to reconcile.
VI. Share Reconciliation as of Record Date
-------------------------------------------
You shall advise us by cable of the number of Common Shares under your control
as at the close of business on each Record Date. Such advice shall separately
indicate the number of shares registered in the name of the Nominee, the
number of shares which for any reason have not been transferred into the name
of the Nominee as at that date any other relevant information including
separate tabulation of shares pre-released. Additionally, such advice shall
indicate the last Deposit Advice number and Delivery Advice number utilised or
received by you. It will be our responsibility to ensure that all balances
reconcile. If there are no discrepancies, we will confirm balances.
Otherwise, we will advise you of differences and request additional
information to reconcile.
Page 5 of 7
VII. Announcements
-------------------
Citibank London will:
(i) Ascertain and notify us by cable as soon as they are aware of the
intended record date to be used for determination of stockholders
entitled to vote at each annual meeting, each special meeting of
stockholders, of any recommendations of the Board of Directors of
Company as to any cash dividends, free distributions, rights
offerings or other distributions in respect of Common Shares. You
shall also cable advise us of any dividends, rights or other
distributions which may be declared payable or distributable and of
the relative record, and payment dates. Upon receipt by you of
information about such dates, you shall cable us immediately of such
notification since we will fix our record and payment dates to
confirm to those fixed by Company for such meetings and other
purposes. We must by SEC regulation inform the National Association
of Securities Dealers and any interested national security exchange
ten days prior to Company's and our record dates so that they may
inform their respective members. We shall promptly advise you of any
and all record and payment dates fixed by ourselves for the ADR's.
(ii) Notify us promptly of any other corporate action of any nature
affecting the Common Shares, and in any such event you will act in
accordance with our instructions to the extent permitted by local
law, regulation or practice.
VIII. Common Shares not transferred to Nominee on Record Date
--------------------------------------------------------------
You shall, with respect to Common Shares held by you under your control or
owed to you as Custodian on a record date for a cash dividend or other
distribution and which Common Shares have not yet been transferred to the name
of the Nominee, take such action as may be required to ensure the collection
by you when due of the cash or other distribution applicable to the particular
Common Share.
You will utilise the relative funds, whether received from your counterparty
or not, to purchase U.S. dollars within three working days of the London
payment date and will immediately credit same to Head Office's Account. You
will advise us of the number of shares involved, the exchange rate and U.S.
dollars involved by telex or cable. Assuming you follow the procedures as
stated in this section you will not be liable for any loss which may be
suffered by ourselves in this respect.
IX. Cash Distribution
----------------------
All cash dividends and other cash distributions as may be paid to the Nominee
on Common Shares by Transfer Agent will be collected by you in Sterling in
accordance with standard English procedure.
Upon receipt of each dividend you will reconcile to the figures previously
agreed and notified under paragraph VI of this document. Any overage will be
Page 6 of 7
held in Sterling pending dividend claims. Any shortfall will be immediately
rectified by debiting a suitable receivables account of Citibank London. You
will then be holding at our disposal the dividend agreed upon under paragraph
VI of this document.
After deducting therefrom English taxes or governmental charges, if any, which
may be imposed by English Law, regulation or practice you will convert the net
Sterling proceeds of that dividend into U.S. dollars, deduct exchange
commission and advise us by cable of the number of relative shares, dividend
rate per share, tax withheld and exchange rate. The onus to clear any overage
or shortfall will be on yourself. You will credit the net proceeds in U.S.
dollars as stated in the cable advice to Head Office's Account or cable advise
currency conversion was not made, within three working days of receipt of
dividend check. Assuming you follow the procedures as stated in this section
you will not be liable for any loss which may be suffered by ourselves in this
respect.
X. Voting Rights
-----------------
You will transmit to us notices of shareholders meetings and any other reports
or notices directed to its shareholders by Company, upon receipt thereof from
Company. You shall, also upon our instruction, to the extent permitted by
English law and regulation transmit proxies or such other voting instruments
as may be required to Company, in order to cause Common Shares to be voted in
accordance with the directions contained in such instructions. You should not
vote any Common Shares on deposit with you as to which you receive no
instruction from us.
XI. United Kingdom Dividend Tax
--------------------------------
Until changed by law or tax convention you will forward any dividends to us
without further deduction of United Kingdom taxes. Changes in law or tax
convention may necessitate procedural amendments in this Operating Letter
designed to maximize the net dividends available to ADR holders. You are to
advise us of any proposed changes which may affect dividend payments or tax
withholding as soon as you are aware of same.
XII. Stock Dividend or Stock Split (Distribution in Stock)
-----------------------------------------------------------
Should Company contemplate a stock dividend, you shall advise us as soon as
you are aware of same and inform us as to the percentage or ratio. Upon
receipt of your information, we will instruct you how to proceed with respect
to the additional Common Shares received on such stock dividend or stock
split.
XIII. Stock Subscription (Rights)
----------------------------------
In the event of a stock subscription, you shall notify us as soon as you are
aware of same and await our instructions which you shall follow to the extent
permitted by English law and regulation.
XIV. Payment of Custodian Fees
-------------------------------
We shall remit to you on a mutually agreed basis that portion of the amounts
received by us in connection with either the deposit of Common Shares against
the issuance of ADR's or the withdrawal of Common Shares against the
cancellation of ADR's as we may agree upon with respect of each Company's
Common Shares.
Page 7 of 7
XV. Effective Date
-------------------
These instructions shall supersede those agreed upon previously and become
operative on a mutually agreed date after both parties have signed and
exchanged this agreement.
XVI. Modification
------------------
The provisions of this letter may be cancelled, altered or modified by an
instrument in writing signed by the parties hereto or by tested cables
agreeing to such cancellation, alteration or modification, one signed by each
of the parties hereto.
If you are in agreement with the foregoing will you kindly so signify by
signing and returning to the counterpart of this Operating Letter provided for
that purpose.
Very truly yours,
Citibank N.A.
Date: June 30, 1980 By: /s/
------------- --------------------------
Title
Citibank N.A. London
Date: June 30, 1980 By: /s/
------------- --------------------------
Title
EXHIBIT I
---------
Page 1 of 2
(Name and address of broker
requesting issuance of ADR's) (Date)
Letter of Transmittal Covering Delivery
of Shares of Common Stock of
to Custodian and Issuance of American
Depositary Receipts by Citibank N.A.
_______________________________________
Gentlemen:
We deliver herewith certificates representing _____ shares of Common Stock of
____________________________________________ (the 'Company') for deposit with
you as Custodian pursuant to the terms of the American Depositary Receipts in
respect of such Common Stock issued by Citibank N.A., New York, and we hereby
request that American Depositary Receipts for such Common Stock be registered
in the name of and be delivered to or upon the written order of:
1. Name and address of person or persons in whose name American
Depositary Receipts to be registered:
______________________________________________________________
______________________________________________________________
______________________________________________________________
2. Name and address of person to whom American Depositary Receipt
to be delivered if different from 1 above:
______________________________________________________________
______________________________________________________________
______________________________________________________________
We request that you so instruct Citibank N.A. by (air mail) (cable at our
expense). In so doing, you will not be liable for mutilation, interruption,
omissions, errors, or delays incurred in the mails, or on the part of any
telegraph, cable or wireless company, or any employee thereof, or through any
cause beyond your control.
EXHIBIT I
---------
Page 2 of 2
We represent that the certificates for Common Stock delivered herewith are
genuine and that we are authorized by the true owner thereof to deposit the
said certificates with you and we warrant that when said certificates are
presented to the Company or its transfer agent for transfer to the name of the
nominee of Citibank N.A., such transfer will not be refused because of any
defect in the form of documentation or signatures on such certificates and the
accompanying instruments of transfer received from us or by reason of any
defect in the title we are purporting to transfer to you. If any of the above
representations prove to be false or incorrect, we will deliver to you
certificates representing shares of Common Stock which will satisfy the above
representation and warranties or, at your option, we will reimburse you for
any losses, liabilities or expenses incurred by you as a result thereof.
We hereby certify that: (1) neither the depositor nor the persons on whose
behalf securities are being presented for deposit against the issuance of
American Depositary Receipts is an 'issuer' of such securities or is directly
or indirectly acting for such 'issuer'; (2) neither the depositor nor such
other persons has purchased any of such securities from an 'issuer' with a
view to distribution or is proposing to offer or sell any of such securities
for an 'issuer' in connection with, the distribution of such securities; (3)
neither the depositor nor such other persons is participating, or has a direct
or indirect participation, in any such undertaking or in the direct or
indirect underwriting of any such undertaking; (4) such securities do not
constitute the whole or a part of an unsold allotment to or subscription by a
'dealer', as a participant in the distribution of such securities by the
Company issuing the same or by or through an 'underwriter'.
For the purpose of this certification the term 'issuer' includes not only the
Company but also any person directly or indirectly controlling, controlled by
or under the direct or indirect common control with the Company; the term
'dealer' means any person who engages either for all or part of his time,
directly or indirectly, as agent, broker, or principal, in the business of
offering, buying, selling, or otherwise dealing or trading in securities
issued by another person; the term 'underwriter' means any person who has
purchased from the 'issuer' the securities presented for deposit with a view
to, or offers or sells for the 'issuer' in connection with, the distribution
of any such securities, or participates or has a direct or indirect
participation in any such undertaking, or participates or has a participation
in the direct or indirect underwriting of any such undertaking, but the term
'underwriter' does not include a person whose interest is limited to a
commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
Attached hereto in support of the request deposit and issuance of American
Depositary Receipts please find:
1. Certificate(s) for _____ shares of Common Stock of the Company
(properly endorsed for transfer) (accompanied by appropriate
instruments of transfer).
Very truly yours,
Authorized signature.
Exhibit 3(e)
List of Managing Underwriters
-----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co.
Exhibit (g)
POWER OF ATTORNEY
-----------------
Each person whose signature appears below hereby constitutes and appoints
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, and each
them severally, acting alone and without the other, his true and lawful
attorney-in-fact with authority to execute and deliver in the name of each
such person any and all documents, papers, filings, certifications, notice,
application, forms, schedules, disclosures, statements, and other items, and
to take all other actions necessary, appropriate, or advisable in connection
with the public offering of shares (and American Depository Shares evidencing
shares) of WMI Waste Management International plc, including, but not limited
to, (i) filing with the Securities and Exchange Commission (the "Commission"),
together with any exhibits thereto and other documents therewith, any
Registration Statement necessary or advisable to enable the registrant to
comply with Securities Act of 1933, and any rules, regulations, and
requirements of the Commission in respect thereof, and all amendments
(including post-effective amendments) thereto, which amendments may make such
other changes in the Registration Statement as the aforesaid attorney-in-fact
executing the same deems appropriate; (ii) filing with the Commission,
together with any exhibits thereto and other documents therewith, any and all
registration statements and amendments thereto (including post-effective
amendments) which are necessary or advisable to enable the registrant to
comply with the Securities Exchange Act of 1934, and any rules, regulations,
and requirements of the Commission in respect thereof, together with such
other applications, forms, schedules, filings, and other documents as the
aforesaid attorney-in-fact executing the same deems appropriate in connection
with qualification, exemption, or registration under any applicable federal or
state securities laws; (iii) making applications to the New York Stock
Exchange, the London Stock Exchange, and any other stock exchange, filing such
applications together with such other documents or agreements relative to them
as the aforesaid attorney-in-fact executing the same deems appropriate; and
(iv) to do and perform each and every act and thing requisite and necessary to
be done, as fully to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or any of them, or their or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
/s/ /s/
---------------------------- -----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ /s/
---------------------------- -----------------------------
Sir ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ /s/
---------------------------- -----------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ /s/
---------------------------- -----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ /s/
---------------------------- -----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
-------------------
It is proposed that this filing become effective under Rule 466
/ / immediately upon filing.
/ / on (Date) at (Time)
If a separate registration statement has been filed to register the
deposited shares, check the following box /X/
CALCULATION OF REGISTRATION FEE
-------------------------------
Proposed Proposed
Title of each maximum maximum
class of Amount aggregate aggregate Amount of
securities to to be price offering registration
be registered registered per unit* price** fee
-------------------------------------------------------------------------------
American Depositary Shares 37,500,000 US$5.00 US$1,875,000 US$585.94
evidenced by American
Depositary Receipts, each
such Share representing two
Ordinary Shares, each of
10p per share of Waste
Management International plc
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
* Each unit represents 100 American Depositary Shares.
** Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(k), such estimate is computed on the basis of the
maximum aggregate fees or charges to be imposed in connection with the
issuance of such receipts evidencing such American Depositary Shares.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its
-2-
The Prospectus consists of the proposed form of American Depositary
Receipt, included as Exhibit A to the Form of Deposit Agreement filed
as Exhibit (a) to this Registration Statement
-4-
This Registration Statement 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.
-5-
American Depositary Receipts
for fully paid Ordinary Shares,
of 10p each
of
WASTE MANAGEMENT INTERNATIONAL plc
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
Cross Reference
Location in Form of American
Depositary Receipt ("Receipt
Item Number and Caption Filed Herewith as Prospectus
1. Name and address of Introductory Article
depositary
2. Title of American Depositary Face of Receipt, top center
Receipts and identity of
deposited securities
Terms of Deposit:
(i) The amount of deposited Face of Receipt, upper right corner
securities represented by
one unit of American
Depositary Receipts
(ii) The procedure for voting, Articles number 8, 13, 14 and 18
if any, the deposited
securities
(iii) The collection and Articles number 12 and 13
distribution of dividends
(iv) The transmission of notices, Articles number 11, 13, 14 and 16
reports and proxy soliciting
material
-6-
(v) The sale or exercise of rights Article number 12 and 18
(vi) The deposit or sale of Articles number 12 and 15
securities resulting from
dividends, splits or
plans of reorganization
(vii) Amendment, extension or Articles number 20 and 21
termination of the deposit
agreement
(viii) Rights of holders of Articles number 16 and 22
Receipts to inspect the
transfer books of the
depositary and the list of
holders of Receipts
(ix) Restrictions upon the right Articles number 2, 3, 4 and 7
to deposit or withdraw the
underlying securities
(x) Limitation upon the liability Articles number 12 and 16
of the depositary
3. Fees and Charges Article number 6
Item 2. AVAILABLE INFORMATION
Public reports furnished by issuer Article number 11
-7-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
(a) Form of Deposit Agreement among Citibank, N.A., as Depositary,
Waste Management International plc (the "Company") and all holders from time
to time of American Depositary Receipts issued thereunder ("ADRs").
(b) operating Letter dated June 30, 1980, between Citibank, N.A., as
Depositary, and Citibank, N.A. (London), as Custodian.
(d) Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, counsel for the
Depositary.
(e) List of Managing Underwriters.
(g) Powers of Attorney
Item 4. UNDERTAKINGS
(a) The Depositary undertakes to furnish promptly the following
information to the Commission semi-annually, beginning on or before six months
after the effective date of the registration statement:
(1) the following information in substantially the tabular form
indicated:
------------------------------------------------------------------------------
Number of American Number of ADSs Total Amount of Total Number of
Depositary Shares Evidence by ADRs ADSs Evidenced Holders of ADRs
("ADSs") Evidenced Retired During by ADRs Remaining at End of Six -
by ADRs issued Period Covered Outstanding at End Month Period
During Period by Report of Six-Month Period
Covered by Report
----------------- ---------------- ------------------- ---------------
------------------------------------------------------------------------------
(2) The name of each dealer known to the Depositary depositing shares
against issuance of ADRs during the period covered by the report.
II-1
(b) The Depositary hereby undertakes to make available at the
principal office of the Depositary in the United States, for inspection by
holders of the ADRs, any reports and communications received from the issuer
of the deposited securities which are both (1) received by the Depositary as
the holder of the deposited securities, and (2) made generally available to
the holders of the underlying securities by the issuer.
(c) The Depositary hereby undertakes to notify each registered holder
of an ADR at least thirty days before any change in the fee schedule.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, Citibank, N.A., on behalf of the legal entity created by the Deposit
Agreement dated as of April 1, 1992, among Citibank, N.A., as Depositary, the
Company and the holders from time to time of American Depositary Receipts
issued hereunder, certifies that it has reasonable grounds to believe that all
of the requirements for filing on Form F-6 are met and has duly caused to this
registration statement, or amendment thereto, to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New York, State of
New York, March 18, 1992
CITIBANK, N.A.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
II-3
Pursuant to the requirements of the Securities Act of 1933, this
registration statement, or amendment thereto, has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Director
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Director
▇▇▇ ▇▇▇▇▇ Director
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Director
(chief executive officer)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Director
▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇ Director
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Director
(chief financial and
accounting officer)
▇▇▇▇▇▇▇ ▇▇▇▇▇ Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Director
▇▇▇▇▇ ▇▇▇▇ Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Authorized U.S. March 18, 1992
------------------- Representative
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and Attorney-in-Fact
for each of the
Directors
Index to Exhibits
-----------------
Sequentially
Exhibit Document Numbered Page
------- -------- -------------
(a) Deposit Agreement
(b) Operating Letter dated
June 30, 1980, between
Citibank, N.A., as
Depositary, and
Citibank, N.A. (London),
as Custodian
(e) List of Managing
Underwriters
(g) Powers of Attorney
II-7