Filed Pursuant to Rule 424(b)(3).
Registration Statement on Form F-6
(Reg. No. 333-109672)
Number HAN _______________ CUSIP NUMBER: 411349 10 3
American Depositary Shares (each
American Depositary Share
representing five (5) Fully Paid
Ordinary Shares, 10p each
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
HANSON PLC
(Incorporated under the laws of England)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, 10p each, including evidence of rights to receive such ordinary shares
(the "Shares"), of Hanson PLC, a corporation incorporated under the laws of
England (the "Company"). As of the date of the Deposit Agreement (as hereinafter
defined), each ADS represents five (5) Shares deposited under the Deposit
Agreement with the Custodian, which at the date of execution of the Deposit
Agreement is Citibank, N.A., London (the "Custodian"). The ADS-to-Shares ratio
is subject to amendment as provided in Articles IV and VI of the Deposit
Agreement. The Depositary's Principal Office is located at 111 Wall Street, New
York, New York 10043, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("ADRs"), issued upon the terms and
conditions set forth in the Deposit Agreement, dated as of October 14, 2003 (as
amended and supplemented from time to time, the "Deposit Agreement"), by and
among the Company, the Depositary, and all Holders and Beneficial Owners from
time to time of ADSs issued thereunder. The Deposit Agreement sets forth the
rights and obligations of Holders and Beneficial Owners of ADSs and the rights
and duties of the Depositary in respect of the Shares deposited thereunder and
any and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Principal Office of the Depositary and with the
Custodian. Each Holder and each Beneficial Owner, upon acceptance of any ADSs
(or any interest therein) issued in accordance with the terms and conditions of
the Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of the Deposit Agreement and the representative ADR(s), if as
applicable, and (b) appoint the Depositary its attorney-in-fact, with full power
to delegate, to act on its behalf and to take any and all actions contemplated
in the Deposit Agreement and the representative ADR(s), if and as applicable, to
adopt any and all procedures necessary to comply with applicable law and to take
such action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of the Deposit Agreement and the
representative ADR(s), if and as applicable, the taking of such actions to be
the conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of
certain provisions of the Deposit Agreement and the Articles of Association of
the Company (as in effect on the date of the signing of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
Agreement and the Articles of Association, to which reference is hereby made.
All capitalized terms used herein which are not otherwise defined herein shall
have the meanings ascribed thereto in the Deposit Agreement. The Depositary
makes no representation or warranty as to the validity or worth of the Deposited
Securities.
(2) Withdrawal of Deposited Securities. The Holder of this ADR (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the following conditions: (i)
the Holder (or a duly authorized attorney of the Holder) has duly Delivered to
the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if applicable and so required by the Depositary, this
ADR has been properly endorsed in blank or is accompanied by proper instruments
of transfer in blank (including signature guarantees in accordance with standard
securities industry practice), (iii) if so required by the Depositary, the
Holder of the ADSs has executed and delivered to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn to be
Delivered to or upon the written order of the person(s) designated in such
order, and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been
paid, subject, however, in each case, to the terms and conditions of this ADR,
of the Deposit Agreement, of the Company's Articles of Association, of any
applicable laws and the rules of CREST, and to any provisions of or governing
the Deposited Securities, in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADR(s) evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this ADR, of the Articles of Association
of the Company, of any applicable laws and the rules of CREST, and to the terms
and conditions of or governing the Deposited Securities, in each case as in
effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
of the Deposit Agreement, and shall, at the discretion of the Depositary, either
(i) return to the person surrendering such ADSs the number of ADSs representing
any remaining fractional Share, or (ii) sell or cause to be sold the fractional
Share represented by the ADSs so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in this ADR or the Deposit Agreement,
the Depositary may make delivery at the Principal Office of the Depositary of
(i) any cash dividends or cash distributions, or (ii) any proceeds from the sale
of any distributions of shares or rights, which are at the time held by the
Depositary in respect of the Deposited Securities represented by the ADSs
surrendered for cancellation and withdrawal. At the request, risk and expense of
any Holder so surrendering ADSs represented by this ADR, and for the account of
such Holder, the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any cash or other property (other than securities) held by the
Custodian in respect of the Deposited Securities represented by such ADSs to the
Depositary for delivery at the Principal Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled, (y) cause the Registrar to countersign such
new ADRs, and (z) Deliver such new ADRs to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
this ADR has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a transfer thereof, (ii) this ADR has been properly endorsed or is
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this ADR has been
duly stamped (if required by the laws of the State of New York or of the United
States), and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been
paid, subject, however, in each case, to the terms and conditions of this ADR,
of the Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
The Registrar shall register the split-up or combination of this ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR (when canceled), (y) cause the Registrar to countersign such new ADRs,
and (z) Deliver such new ADRs to or upon the order of the Holder thereof, if
each of the following conditions has been satisfied: (i) this ADR has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination hereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement)
have been paid, subject, however, in each case, to the terms and conditions of
this ADR, of the Deposit Agreement and of applicable law, in each case as in
effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, the registration of issuance, transfer,
split-up, combination or surrender, of any ADR, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in the Deposit Agreement and in this ADR, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matters contemplated in the Deposit Agreement, and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and delivery of ADRs or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary or the Company
may establish consistent with the provisions of this ADR and the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of ADSs in particular
instances may be refused, or the registration of transfers of ADSs generally may
be suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action
is deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law, any
government or governmental body or commission or any securities exchange upon
which the Shares or ADSs are listed, or under any provision of the Deposit
Agreement or this ADR, or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject in all cases to paragraph (24) hereof. Notwithstanding any
provision of the Deposit Agreement or this ADR to the contrary, Holders are
entitled to surrender outstanding ADSs to withdraw the Deposited Securities at
any time subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders' meeting or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the ADRs or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 (as such General Instructions may be amended from time to time). The
Depositary shall comply with written instructions of the Company that the
Depositary shall not accept hereunder any Shares identified in such instructions
at such times and under such circumstances as may reasonably be specified in
such instructions in order to facilitate the Company's compliance with the
securities laws of the United States.
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company
in accordance with applicable law, the rules and requirements of the London
Stock Exchange, and of any other stock exchange on which Shares or ADSs are, or
will be, registered, traded or listed, or the Articles of Association of the
Company, which are made to provide information, inter alia, as to the capacity
in which such Holder or Beneficial Owner owns ADSs (and Shares, as the case may
be) and regarding the identity of any other person(s) interested in such ADSs
and the nature of such interest and various other matters, whether or not they
are Holders and/or Beneficial Owners at the time of such request. The Depositary
agrees to use its reasonable efforts to forward, upon the request of the Company
and at the Company's expense, any such request from the Company to the Holders
and to forward to the Company any such responses to such requests received by
the Depositary and the Company agrees to reimburse the Depositary for reasonable
out-of-pocket expenses incurred by the Depositary in connection with such
requests.
Notwithstanding any other provision of this Deposit Agreement or any
ADR(s) and without limiting the foregoing, each Holder and Beneficial Owner
agrees to provide such information as the Company may request in a disclosure
notice (a "Disclosure Notice") given pursuant to the Great Britain Companies Act
1985 (as amended from time to time and including any statutory modification or
re-enactment thereof, the "Companies Act" or the Articles of Association of the
Company. Each Holder and Beneficial Owner acknowledges that it understands that
failure to comply with a Disclosure Notice may result in the imposition of
sanctions against the holder of Shares in respect of which the non-complying
person is or was, or appears to be or has been, interested as provided in the
Companies Act and the Articles of Association which currently include, the
withdrawal of voting rights of such Shares and the imposition of restrictions on
the rights to receive dividends on and to transfer such Shares. In addition,
each Holder and Beneficial Owner agrees to comply with the provisions of the
Companies Act with regard to the notification to the Company of interests in
Shares, which currently provide, inter alia, that any Holder or Beneficial Owner
who is or becomes directly or indirectly interested (within the meaning of the
Companies Act) in 3% or more of the outstanding Shares or is aware that another
person for whom it holds directly or indirectly such Shares or ADSs representing
such Shares is so interested, must within two (2) business days after becoming
so interested or so aware (and thereafter in certain circumstances upon any
change in the particulars previously notified) notify the Company as required by
the Companies Act. After the relevant threshold is exceeded, similar
notifications must be made in respect of whole percentage figure increases or
decreases, rounded down to the nearest whole number.
(6) Ownership Restrictions. Notwithstanding any provision of this ADR or
of the Deposit Agreement, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of ADSs where
such transfer may result in the total number of Shares represented by the ADSs
owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association of the Company.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR, any Deposited Securities or ADSs shall be payable by the Holders and
Beneficial Owners to the Depositary. The Company, the Custodian and/or
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or charges, the Holder and the Beneficial Owner hereof remaining
liable for any deficiency. The Custodian may refuse the deposit of Shares and
the Depositary may refuse to issue ADSs, deliver ADRs, register the transfer of
ADSs, register the split-up or combination of ADRs and (subject to paragraph
(24) hereof) the withdrawal of Deposited Securities until payment in full of
such tax, charge, penalty or interest is received. Every Holder and Beneficial
Owner agrees to indemnify the Depositary, the Company, the Custodian, and any of
their agents, officers, employees and Affiliates for, and hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares and the certificates therefor are duly authorized,
validly issued, fully paid, non-assessable and legally obtained by such person,
(ii) all preemptive (and similar) rights, if any, with respect to such Shares
have been validly waived or exercised, (iii) the person making such deposit is
duly authorized so to do, (iv) the Shares presented for deposit are free and
clear of any lien, encumbrance, security interest, charge, mortgage or adverse
claim, (v) the Shares presented for deposit are not, and the ADSs issuable upon
such deposit will not be, Restricted Securities (except as contemplated in
Section 2.13 of the Deposit Agreement), and (vi) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and the Depositary shall be authorized, at the cost and
expense of the person depositing Shares, to take any and all actions necessary
to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement or the ADRs evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration of Shares on the books of
the Company or of the Share Registrar) as the Depositary or the Custodian may
deem necessary or proper or as the Company may reasonably require by written
request to the Depositary consistent with its obligations under the Deposit
Agreement. The Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any ADS or the distribution
or sale of any dividend or other distribution of rights or of the proceeds
thereof or, to the extent not limited by paragraph (24) hereof, the delivery of
any Deposited Securities until such proof or other information is filed or such
certifications are executed, or such representations are made or such
information and documentation are provided, in each case to the Depositary's,
the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or
portion thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraphs (iii)
and (v) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of
U.S. $ 5.00 per 100 ADSs (or portion thereof) so surrendered;
(iii) No Fee shall be payable upon distribution of (a) cash
dividends or (b) ADSs pursuant to stock dividends (or other
free distributions of stock) so long as the charging of such
fee is prohibited by the exchange upon which the ADSs are
listed. If charging of such fees is not prohibited, the fees
specified in (i) above shall be payable in respect of ADS
distributions pursuant to stock dividends (or other free
distributions of stock) and the fees specified in (iv) below
shall be payable in respect of distributions of cash;
(iv) to any Holder of ADSs, a fee not in excess of U.S. $ 2.00 per
100 ADSs (or portion thereof) held for the distribution of
cash proceeds (i.e., upon the sale of rights and other
entitlements); and
(v) to any Holder of ADSs, a fee not in excess of U.S. $ 5.00 per
100 ADSs (or portion thereof) issued upon the exercise of
rights to purchase additional ADSs.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by paragraph (22) of this ADR. The Depositary will provide, without
charge, a copy of its latest fee schedule to anyone upon request. The charges
and expenses of the Custodian are for the sole account of the Depositary.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each Certified ADS evidenced hereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that the ADR has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of this
ADR (that is, the person in whose name this ADR is registered on the books of
the Depositary) as the absolute owner thereof for all purposes. Neither the
Depositary nor the Company shall have any obligation nor be subject to any
liability under the Deposit Agreement or this ADR to any holder of this ADR or
any Beneficial Owner unless such holder is the Holder of this ADR registered on
the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this ADR has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly-authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly-authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of ADRs. ADRs bearing the facsimile
signature of a duly-authorized signatory of the Depositary or the Registrar, who
at the time of signature was a duly authorized signatory of the Depositary or
the Registrar, as the case may be, shall bind the Depositary, notwithstanding
the fact that such signatory has ceased to be so authorized prior to the
delivery of such ADR by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington D.C. 20549. The Depositary shall make available for inspection by
Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
provide to Holders copies of such reports when furnished by the Company pursuant
to Section 5.6 of the Deposit Agreement.
The Registrar shall keep books for the registration of issuances and
transfers of ADRs which at all reasonable times shall be open for inspection by
the Company and by the Holders of such ADRs, provided that such inspection shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such ADRs in the interest of a business or object other than the
business of the Company or other than a matter related to the Deposit Agreement
or the ADRs.
The Registrar may close the transfer books with respect to the ADRs, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to paragraph
(24) hereof.
If any ADRs or the ADSs evidenced thereby are listed on one or more stock
exchanges or automated quotation systems in the United States, the Depositary
shall act as Registrar or appoint a Registrar or one or more co-registrars for
registration of ADRs and transfers, combinations and split-ups, and to
countersign such ADRs in accordance with any requirements of such exchanges or
systems. Such Registrar or co-registrars may be removed and a substitute or
substitutes appointed by the Depositary.
Dated:
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: _______________________________ By: __________________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 111 Wall Street,
New York, New York 10043, U.S.A.
[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will (i) if at the time of receipt thereof any amounts received in a
Foreign Currency can, in the judgment of the Depositary (upon the terms of the
Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (upon the terms of the
Deposit Agreement), (ii) if applicable, establish the ADS Record Date upon the
terms described in Section 4.9 of the Deposit Agreement, and (iii) distribute
promptly the amount thus received (net of (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes withheld) to the
Holders entitled thereto as of the ADS Record Date in proportion to the number
of ADSs held as of the ADS Record Date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority.
Upon receipt of confirmation of a deposit of Shares with the Custodian as
a result of any distribution upon any Deposited Securities consisting of a
dividend in, or free distribution of, Shares, the Depositary shall distribute to
the Holders as of the ADS Record Date (established upon the terms of the Deposit
Agreement) in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in aggregate the number of Shares received as
such dividend, or free distribution, subject to the terms of the Deposit
Agreement (including, without limitation, (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary, and (b) taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares or
ADSs, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms set forth in the Deposit Agreement.
If additional ADSs are not so distributed, each ADS issued and outstanding as of
the applicable ADS Record Date shall also represent proportionate rights and
interests in the integral number of additional Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes). In the
event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to satisfy any such tax or
governmental charges.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders of ADSs upon the terms
described in the Deposit Agreement, the Depositary shall consult with the
Company as to the lawfulness of making the elective distribution available to
Holders and shall determine whether it is reasonably practicable to make such
elective distribution available to the Holders of ADSs. The Depositary shall not
make such elective distribution available to Holders unless (i) the Company
shall have timely requested the Depositary to make such elective distribution
available to Holders (60 days prior to the elective distribution being a typical
timeframe for delivery of initial notice to the Depositary), (ii) the Depositary
shall have determined that such elective distribution is reasonably practicable
and (iii) the lawfulness of such distribution shall have been established to the
reasonable satisfaction of the Company and the Depositary. If so, the Depositary
shall, subject to the terms and conditions of the Deposit Agreement, establish
an ADS Record Date according to paragraph (16) and establish procedures to
enable the Holder hereof to elect to receive the proposed distribution in cash
or in additional ADSs. If a Holder elects to receive the distribution in cash,
the distribution shall be made as in the case of a distribution in cash. If the
Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be made as in the case of a distribution in Shares upon the
terms described in the Deposit Agreement. If (i) the Company does not timely
request the Depositary to make such elective distribution available to Holders,
or (ii) the Depositary shall have determined that such distribution is not
reasonably practicable or (iii) the lawfulness of making the elective
distribution available to Holders shall not have been established to the
reasonable satisfaction of the Company and the Depositary, the Depositary shall,
to the extent permitted by law, distribute to Holders, on the basis of the same
determination as is made in England in respect of the Shares for which no
election is made, either (x) cash or (y) additional ADSs representing such
additional Shares, in each case, upon the terms described in the Deposit
Agreement. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof or Holders generally will be given the opportunity to
receive elective distributions on the same terms and conditions as the holders
of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall not make such rights available to
any Holders unless (i) the Company shall have timely requested that such rights
be made available to Holders (60 days prior to distribution of rights being a
typical timeframe for delivery of initial notice to the Depositary), (ii) the
Depositary shall have determined that such distribution is reasonably
practicable and (iii) the lawfulness of such distribution shall have been
established to the reasonable satisfaction of the Company and the Depositary. If
the above conditions are satisfied, the Depositary shall establish an ADS Record
Date (upon the terms described in the Deposit Agreement) and establish
procedures (x) to distribute rights to purchase additional ADSs (by means of
warrants or otherwise), (y) to enable the Holders to exercise the rights (upon
payment of the subscription price and of the applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs
upon the valid exercise of such rights. Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise rights to subscribe for Shares (rather than ADSs). If (i) the
Company does not timely request the Depositary to make the distribution of
rights to Holders or if the Company requests not to make such distribution to
Holders, (ii) the Depositary determines it is not reasonably practicable to make
the rights available to Holders, (iii) the lawfulness of such distribution is
not established to the reasonable satisfaction of the Company and the Depositary
or (iv) any rights made available are not exercised and appear to be about to
lapse, the Depositary, in its discretion, may sell such rights, in a riskless
principal capacity, at such place and upon such terms (including public and
private sale) as it may deem practicable. The Depositary shall, upon such sale,
convert and distribute proceeds of such sale (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to make
any rights available to Holders or to arrange for the sale of the rights upon
the terms described above, the Depositary shall allow such rights to lapse. The
Depositary shall not be liable to Holders or Beneficial Owners for (i) any
failure to determine that it may be lawful or practicable to make such rights
available to Holders in general or any Holders in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale or exercise, or
(iii) the content of any materials forwarded to the ADS Holders on behalf of the
Company in connection with the rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) it is established to the reasonable satisfaction
of the Company and the Depositary that the offering and sale of such securities
to Holders and Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws. In the
event that the Company, the Depositary or the Custodian shall be required to
withhold and does withhold from any distribution of property (including rights)
an amount on account of taxes or other governmental charges, the amount
distributed to the Holders of ADSs representing such Deposited Securities shall
be reduced accordingly. In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or to be able to exercise
such rights. Nothing herein or in the Deposit Agreement shall obligate the
Company to file any registration statement in respect of any rights or Shares or
other securities to be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall consult with the Company as to the lawfulness of
such distribution to Holders of ADSs and shall determine whether such
distribution to Holders is reasonably practicable. The Depositary shall not make
such distribution unless (i) the Company shall have requested the Depositary to
make such distribution to Holders, (ii) the Depositary shall have determined
that such distribution is reasonably practicable and (iii) the lawfulness of
such distribution shall have been established to the reasonable satisfaction of
the Company and the Depositary. Upon satisfaction of such conditions, the
Depositary shall distribute the property so received to the Holders of record,
as of the ADS Record Date, in proportion to the number of ADSs held by them
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary deems necessary and
practicable to satisfy any taxes (including applicable interest and penalties)
or other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem practicable and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
to the Holders as of the ADS Record Date upon the terms hereof and of the
Deposit Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
(15) Intentionally omitted.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall fix a record date ("ADS Record Date") for the
determination of the Holders of ADSs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. Subject
to applicable law and the terms and conditions of this ADR and the Deposit
Agreement, only the Holders of ADSs at the close of business in New York on such
ADS Record Date shall be entitled to receive such distribution, to give such
voting instructions, to receive such notice or solicitation, or otherwise take
action. The Depositary shall, as required by applicable rules, promptly notify
The New York Stock Exchange, Inc. or other stock exchange or automated quotation
system where the ADSs are listed or quoted of any action to fix a record date
for the ADSs or to close the transfer books for the ADSs.
(17) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of such consent or proxy in accordance with the
applicable terms of the Deposit Agreement. The Depositary shall, if requested by
the Company in a timely manner (30 days prior to the date of vote or meeting
being a typical timeframe for delivery of such notice to the Depositary) and
provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS
Record Date: (a) such notice of meeting or solicitation of consent or proxies,
(b) a statement that the Holders at the close of business on the ADS Record Date
will be entitled, subject to any applicable law, the provisions of the Deposit
Agreement, the Company's Articles of Association and the provisions of or
governing Deposited Securities (which provisions, if any, shall be summarized in
pertinent part by the Company), to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Deposited Securities represented by
such Holder's ADSs, and (c) a brief statement as to the manner in which such
voting instructions may be given. Voting instructions may be given only in
respect of a number of ADSs representing an integral number of Deposited
Securities. Upon the timely receipt of voting instructions from a Holder of ADSs
as of the ADS Record Date in the manner specified by such notice or solicitation
statement, the Depositary shall endeavor, insofar as practicable and permitted
under applicable law and the provisions of the Deposit Agreement, the Articles
of Association of the Company and the provisions of the Deposited Securities, to
vote, or cause the Custodian to vote, the Deposited Securities (in person or by
proxy) represented by such Holder's ADSs in accordance with the manner of the
voting instructions set forth in such notice or solicitation statement. Unless
otherwise stated in the notice or solicitation statement, such vote may be
either on a show of hands, in which case the Custodian shall be instructed to
vote the Deposited Securities in accordance with the voting instructions
received from a majority of Holders giving voting instructions, or by poll, in
which case the Custodian shall be instructed to vote in accordance with the
voting instructions received from the Holders giving voting instructions.
Unless specifically instructed by at least three (3) Holders of ADSs
representing not less than 10% of the total voting rights of all Holders of ADSs
having the right to vote at such meeting, the Depositary may not join in
demanding a poll. Under the Articles of Association of the Company (as in effect
on the date of the Deposit Agreement), a poll may be demanded at any general
meeting by the chairman of the meeting, by at least three (3) members present in
person or by proxy and having the right to vote at the meeting, or by a member
or members present in person or by proxy holding Shares conferring a right to
vote at the meeting, being Shares on which the aggregate sum has been paid up
equal to not less than 10% of the total sum paid up on all the Shares conferring
that right.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise, the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein. Unless the Company requests in writing to the contrary, if the
Depositary timely receives voting instructions from a Holder which fail to
specify the manner in which the Depositary is to vote the Deposited Securities
represented by such Holder's ADSs, the Depositary will deem such Holder (unless
otherwise specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such voting instructions.
Deposited Securities represented by ADSs for which no timely voting instructions
are received by the Depositary from the Holder shall not be voted.
Notwithstanding anything else contained in this Deposit Agreement or any
Receipt, the Depositary shall, if so requested in writing by the Company,
represent all Deposited Securities (whether or not voting instructions have been
received in respect of such Deposited Securities from Holders as of the ADS
Record Date) for the sole purpose of establishing quorum at such meeting.
Notwithstanding anything else contained in the Deposit Agreement or this ADR,
the Depositary shall not have any obligation to take any action with respect to
any meeting, or solicitation of consents or proxies, of holders of Deposited
Securities if the taking of such action would violate U.S. laws. There can be no
assurance that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable the Holder to return
voting instructions to the Depositary in a timely manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the ADRs shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. The
Depositary may, with the Company's approval, and provided the lawfulness thereof
has been established to the reasonable satisfaction of the Company and the
Depositary, execute and deliver additional ADRs as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding ADRs to be
exchanged for new ADRs, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to the form of ADR contained in
this Exhibit A to the Deposit Agreement, specifically describing such new
Deposited Securities or corporate change. Notwithstanding the foregoing, in the
event that any security so received may not be lawfully distributed to some or
all Holders, the Depositary may, with the Company's approval, and shall if the
Company requests, subject to the determination of the Depositary that such
action is not in violation of any applicable laws or regulations, sell such
securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of (a) fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) for the account of the Holders otherwise entitled to such securities upon
an averaged or otherwise 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 the
Deposit Agreement. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or feasible to make such securities available
to Holders in general or to any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company nor any of their
respective controlling persons, directors, employees, agents, or affiliates
shall be obligated to do or perform any act which is inconsistent with the
provisions of the Deposit Agreement or incur any liability (i) if the Depositary
or the Company shall be prevented or forbidden from, or subjected to any civil
or criminal penalty or restraint on account of, or delayed in, doing or
performing any act or thing required by the terms of the Deposit Agreement and
this ADR, by reason of any provision of any present or future law or regulation
of the United States, England or any other country, or of any other governmental
authority or regulatory authority or stock exchange, or on account of possible
criminal or civil penalties or restraint, or by reason of any provision, present
or future, of the Articles of Association of the Company or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Articles of
Association of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADSs, or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
Depositary, its controlling persons, any Custodian and the Company, its
controlling persons directors, employees, agents and affiliates may rely and
shall be protected in acting upon any written notice, request or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties. No disclaimer of liability under the Securities Act is
intended by any provision of the Deposit Agreement or this ADR.
(20) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
ADR to any Holder(s) or Beneficial Owner(s), except that the Company and
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without negligence or bad faith. The
Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any vote is cast or the effect of any vote, provided that any such action or
omission is in good faith and in accordance with the terms of this Deposit
Agreement. The Depositary shall not incur (absent negligence or bad faith) any
liability for any failure to determine that any distribution or action may be
lawful or reasonably practicable, for the content of any information submitted
to it by the Company for distribution to the Holders or for any inaccuracy of
any translation thereof, for allowing any rights to lapse upon the terms of the
Deposit Agreement or for the failure or timeliness of any notice from the
Company. Notwithstanding the foregoing, the Depositary shall not incur any
liability for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the ninetieth (90th) day
after delivery thereof to the Company, or (ii) upon the appointment by the
Company of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may at any time be removed by
the Company by written notice of such removal, which removal shall be effective
on the later of (i) the ninetieth (90th) day after delivery thereof to the
Depositary, or (ii) upon the appointment by the Company of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
the Deposit Agreement). The predecessor depositary, upon payment of all sums due
it and on the written request of the Company, shall (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in the Deposit Agreement),
(ii) duly assign, transfer and deliver all right, title and interest to the
Deposited Securities to such successor, and (iii) deliver to such successor a
list of the Holders of all outstanding ADSs and such other information relating
to ADSs and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly provide notice of its appointment to such
Holders. Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
(22) Amendment/Supplement. Subject to the terms and conditions of this
paragraph 22, the Deposit Agreement and applicable law, this ADR and any
provisions of the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. The parties
hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
settled solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s), to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and this ADR, if applicable, as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such ADS and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and this ADR at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement and this ADR in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If (i)
ninety (90) days shall have expired after the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) ninety (90) days
shall have expired after the Company shall have delivered to the Depositary a
written notice of the removal of the Depositary, and in either case a successor
depositary shall not have been appointed and accepted its appointment as
provided herein and in the Deposit Agreement, the Depositary may terminate the
Deposit Agreement by providing notice of such termination to the Holders of all
ADSs then outstanding at least ninety (90) days prior to the date fixed for such
termination. On and after the date of termination of the Deposit Agreement, the
Holder will, upon surrender of such Holders' ADS(s) at the Principal Office of
the Depositary, upon the payment of the charges of the Depositary for the
surrender of ADSs referred to in paragraph (2) hereof and in the Deposit
Agreement and subject to the conditions and restrictions therein set forth, and
upon payment of any applicable taxes or governmental charges, be entitled to
Delivery, to him or upon his order, of the amount of Deposited Securities
represented by such ADS. If any ADSs shall remain outstanding after the date of
termination of the Deposit Agreement, the Registrar thereafter shall discontinue
the registration of transfers of ADSs, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in the Deposit Agreement, together with
any dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for ADSs
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of an ADS, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose ADSs have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement with respect to the ADSs, the Deposited
Securities and the ADSs, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case, the charges of
the Depositary for the surrender of an ADS, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR or the Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (25), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
of the Company and its Affiliates and in ADSs. The Depositary may issue ADSs
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs
prior to the receipt of Shares pursuant to Section 2.3 of the Deposit Agreement
and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs
which were issued under (i) above but for which Shares may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to
a written agreement whereby the person or entity (the "Applicant") to whom ADSs
or Shares are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs, and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
U.S. government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days' notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one
time to thirty percent (30%) of the ADSs outstanding (without giving effect to
ADSs outstanding under (i) above), provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate. The Depositary may also set limits with respect to the number
of ADSs and Shares involved in Pre-Release Transactions with any one person on a
case by case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not earnings thereon, shall be
held for the benefit of the Holders (other than the Applicant).
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within ADR and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADR on the books of the Depositary with full power of substitution
in the premises.
Dated: Name:________________________________
By:
Title:
NOTICE: The signature of the Holder to
this assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
If the endorsement be executed by an
attorney, executor, administrator,
trustee or guardian, the person
executing the endorsement must give
his/her full title in such capacity and
proper evidence of authority to act in
such capacity, if not on file with the
Depositary, must be forwarded with this
ADR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs
must be guaranteed by a member of a
Medallion Signature Program approved by
the Securities Transfer Association,
Inc.