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Exhibit 99(a)(ii)
CUSIP Number ___________
American Depository Shares (1
American Depositary Share
representing five fully paid
ordinary shares)
EXHIBIT A
[FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
WPP GROUP plc
(Incorporated under the laws of the United Kingdom)
CITIBANK, N.A., a national banking association organized
and existing under the laws of the United States of America, as depositary
(herein called the "Depositary"), hereby certifies that _____________________
is the owner of _____ American Depositary Shares, representing deposited
ordinary shares, each of Par Value of 10 pence, including evidence of rights
to receive such ordinary shares (the "Shares") of WPP Group plc, a
corporation incorporated under the laws of the United Kingdom (the
"Company"). As of the date of the date of the Deposit Agreement (hereinafter
referred to), each American Depositary Share represents five Shares deposited
under the Deposit Agreement with the Custodian which at the date of execution
of the Deposit
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Agreement is Citibank (London) (the "Custodian"). The ratio of Depositary Shares
to shares of stock is subject to subsequent amendment as provided in Article IV
of the Deposit Agreement. The Depositary's principal executive office is located
at 111 Wall Street, 5th Floor, New York, New York 10043, U.S.A.
(1) THE DEPOSIT AGREEMENT. This American Depositary receipt is
one of an issue of Americas Depositary Receipts ("Receipts"), executed and
delivered pursuant to the Amended and Restated Deposit Agreement, dated as of
October 24, 1995 (as amended from time to time, the "Deposit Agreement"), by and
among the Company, the Depositary, and all registered Holders and Beneficial
Owners of Receipts from time to time of Receipts, issued thereunder, each of
whom by accepting a Receipt agrees to become a party thereto and become bound by
all the terms and conditions thereof. The Deposit Agreement sets forth the
rights and obligations of Holders and Beneficial Owners and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property
and cash, collectively, "Deposited Securities"). Copies of the Deposit Agreement
are on file at the principal Office of the Depositary and the principal office
of the Custodian.
The statements made on the face and reverse of this Receipt
are summaries of certain provisions of the Deposit Agreement and are qualified
by and subject to the detailed
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provisions of the Deposit Agreement, to which reference is hereby made. All
capitalized terms used herein which are not otherwise defined herein shall have
the meanings ascribed thereto in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities.
(2) SURRENDER OF RECEIPTS AND WITHDRAWAL OF DEPOSITED
SECURITIES. Upon surrender at the Principal Office of the Depositary, of this
Receipt and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Article (10) hereof
and Section 5.09 and Exhibit B of the Deposit Agreement) and (ii) all fees,
expenses, taxes and governmental charges payable in connection with such
surrender and withdrawal, and, subject to the terms and conditions of the
Deposit Agreement the Company's Memorandum and Articles of Association, Article
(22) of this Receipt and the provisions of or governing the Deposited Securities
and other applicable laws, the Holder hereof is entitled to the delivery, to him
or upon his order, of the amount of Deposited Securities at the time represented
by the American Depositary Shares evidenced by this Receipt. Subject to the last
sentence of this paragraph, such Deposited Securities may be delivered in
registered form or by electronic delivery. Such Deposited Securities may be
delivered by the delivery of (a) certificates in the name of the Holder hereof
or as ordered by him or by certificates properly endorsed or accompanied by
proper instruments of transfer to such Holder or as ordered by him and
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(b) any other securities, property and cash to which such Holder is then
entitled in respect of this Receipt. Delivery shall be made, at the option of
the Holder hereof, either at the principal office of the Custodian or at the
Principal Office of the Depositary for further delivery to such Holder, PROVIDED
THAT the forwarding of certificates for Shares or other Deposited Securities for
such delivery at the Principal Office of the Depositary shall be at the request,
risk and expense of the Holder hereof, and for the account of such Holder.
A Receipt surrendered for such purposes shall if so required
by the Depositary be properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary so requires, the Holder
thereof shall execute and deliver to the Depositary a written order directing
the Depositary to cause the Deposited Securities being withdrawn to be delivered
to or upon the written order of a person or persons designated in such order.
The Depositary shall not accept for surrender a Receipt
evidencing American Depositary Shares representing less than one Share. In the
case of surrender of a Receipt evidencing a number of Americas Depositary Shares
representing other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be recorded in the name
of the Holder surrendering such Receipt, and shall issue and deliver to the
person surrendering such Receipt a new Receipt evidencing
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American Depositary Shares representing any remaining fractional Share.
(3) TRANSFERS, SPLIT-UPS AND COMBINATIONS OF RECEIPTS. Subject to the
limitations set forth herein and in the Deposit Agreement, the transfer of this
Receipt is registrable on the books of the Depositary at its Principal Office by
the Holder hereof in person or by duly authorized attorney, upon surrender of
this Receipt at any of the Depositary's designated transfer offices, properly
endorsed for transfer or accompanied by a proper instrument or instruments of
transfer (including any certifications that the Depositary or the Company may
require in order to comply with applicable laws, signature guarantees in
accordance with standard industry practice and the accurate completion of any
endorsements appearing on this Receipt) and (i) duly stamped as may be required
by the laws of the State of New York and the United States of America, and (ii)
accompanied by funds sufficient to pay any applicable transfer taxes, duties and
the fees and expenses of the Depositary including the fees set forth in Article
(10) hereof, and upon compliance with such regulations, if any, as the
Depositary may establish for such purpose, subject to Article (22) of this
Receipt. This Receipt may be split into other such Receipts, or may be combined
with other such Receipts into one Receipt for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
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(4) PRE-CONDITIONS TO REGISTRATION, TRANSFER, ETC. As a
condition precedent to the execution and delivery, registration, registration of
transfer, split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon or withdrawal of any Deposited Securities, the Depositary
or the Custodian may require (a) payment from the depositor of Shares or
presenter of the Receipt of a sum sufficient to reimburse it for any 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 charges as provided
in Section 5.09 of the Deposit Agreement or in Exhibit B thereof, (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 of the Deposit
Agreement and (c) compliance with (i) any laws or governmental regulations
relating to Receipts or American Depositary Shares or to the withdrawal of
Deposited Securities and (ii) such reasonable regulations, if any, as the
Depositary and the Company may establish consistent with the provisions of the
Deposit Agreement.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the delivery of
Receipts against the deposit of particular Shares may be withheld, or the
registration of transfer of Receipts in particular instances may be refused, or
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the registration of transfers of Receipts generally, may be suspended, during
any period when the transfer books of the Company, the Depositary or the Share
Registrar are closed or if any such action is deemed necessary or advisable by
the Depositary or the Company, in good faith,, at any time or from time to
time because of any requirement of law, any government or governmental body or
commission or any securities exchange on which the Receipts or Shares are
listed, or under any provision of the Deposit Agreement or provisions of or
governing Deposited Securities, or any meeting of shareholders of the Company or
for any other reason. Notwithstanding any provision of the Deposit Agreement or
this Receipt 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 in connection with (i)
temporary delays caused by closing transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a shareholders
meeting, or the payment of dividends, (ii) the payment of fees, taxes and
similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities.
(5) DISCLOSURE OF BENEFICIAL OWNERSHIP. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder agrees to comply
with requests from the
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Company pursuant to English law, the rules of the London Stock Exchange, and any
other stock exchange on which the Shares are, or will be, registered, traded or
listed or the Memorandum and Articles of Association of the Company, which are
made to provide information, INTER ALIA, as to the capacity in which such Holder
owns Receipts (and Shares as the case may be) and regarding the identity of any
other person interested in such Receipts and the nature of such interest,
whether or not they are Holders at the time of such request. The Depositary
agree to use its reasonable efforts to comply, at the Company's expense, with
written instructions received from the Company requesting that the Depositary
forward any such request from the Company to the Holder and to forward to the
Company any such responses to such requests received by the Depositary.
Each Holder agrees that such Holder (i) is bound by and
subject to the Articles of Association of the Company as if such Holder were a
registered holder of Shares and (ii) will provide such information within the
prescribed period as the Company may request in a disclosure notice ("Disclosure
Notice") given pursuant to any applicable provision of English law or the
Articles of Association of the Company. Each Holder further acknowledges that
failure by such Holder to provide on a timely basis the information required in
any Disclosure Notice may result in the withholding of certain rights in respect
of such Holder's American Depositary Shares including, without limitation,
voting rights, the right to receive dividends or
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other payments and rights of free transferability in respect of the Shares
represented by such American Depositary Shares. Each Holder agrees to comply
with all applicable provisions of English law and the Articles of Association of
the Company with regard to notification to the Company of such Holder's interest
in Shares, including any provision requiring such Holder to disclose within a
prescribed period an interest in Shares equal to or in excess of three percent
(3%) of such Shares outstanding or such other percentage as may be required from
time to time pursuant to any provision of English law or the Articles of
Association of the Company.
(6) OWNERSHIP RESTRICTIONS. The Company may restrict transfers
of the Shares where such transfer might result in ownership of Shares exceeding
limits under applicable law or the Memorandum and Articles of Association of the
Company. The Company may also restrict, in such manner as it deems appropriate,
transfers of the American Depositary Shares where such transfer may result in
the total number of Shares represented by the American Depositary Shares
beneficially owned by a single Holder to exceed the limits under any applicable
law. The Company may, in its sole discretion, instruct the Depositary to take
action with respect to the ownership interest of any Holder in excess of the
limitation set forth in the preceding sentence, including but not limited to a
mandatory sale or disposition on behalf of a Holder of the Shares represented by
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the Americas Depositary Shares held by such Holder in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law.
(7) LIABILITY OF HOLDER FOR TAXES, DUTIES AND OTHER CHARGES.
If any tax or other governmental charge shall become payable with respect to any
Receipt or any Deposited Securities represented by the American Depositary
Shares evidenced by this Receipt, such tax or other governmental charge shall be
payable by the Holder of such Receipt to the Depositary. The Depositary may
refuse to effect any registration of transfer of all or part of such Receipt or
to issue any new Receipt or Receipts or to permit any deposit or withdrawal of
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt until such payment is made, and the Company and the Depositary
may withhold or deduct from any dividends or other distributions, or may sell
for the account of the Holder thereof any part or all of the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge, the Holder
of such Receipt remaining liable for any deficiency. The Holder shall indemnify
the Depositary, the Company, the Custodian and any of their respective
directors, employees, agents, and Affiliates against, and hold each of them
harmless from, any claims by any governmental authority with respect to taxes,
additions to tax, penalties or interest arising
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out of any refund of tax, reduced rate of withholding at source or other tax
benefit obtained for such Holder pursuant to Section 4.13 of the Deposit
Agreement.
(8) REPRESENTATIONS AND WARRANTIES OF DEPOSITORS. Every person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that, to the best of such person's knowledge, such Shares
and each certificate therefor are validly issued, outstanding, fully paid,
non-assessable, not subject to calls for additional payments of any kind and
that any preemptive rights have been validly waived or exercised and that the
person making such deposit is duly authorized to do so. Each such person shall
be deemed to acknowledge complete responsibility for the report of any false
information relating to foreign exchange transactions to the Depositary, the
Custodian or any governmental authority in England in connection with the
issuance of Receipts and the deposit, transfer, surrender or withdrawal of
shares or Receipts. Every such person shall be deemed to represent that, the
deposit of Shares or sale of Receipts by that person is not restricted, and such
Shares do not constitute Restricted Securities, under the Securities Act of
1933. Such representations and warranties shall survive any such deposit,
transfer, surrender and withdrawal of Shares and Receipts.
(9) FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
person presenting Shares for deposit or any Holder may, in addition to the
requirements of Articles (4) and (5) hereof, be
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required from time to time (i) to file with the Depositary or a Custodian such
proof of citizenship or residence, taxpayer status, exchange control approval,
payment of all applicable taxes or other governmental charges, the identity of
any person legally or beneficially interested in the Receipt and the nature of
such interest, (ii) provide such information relating to the registration on the
books of the Company (or the appointed agent of the Company for transfer and
registration of Shares, which may, but need not, be the Share Registrar) of the
Shares presented for deposit, (iii) establish compliance with all applicable
laws, rules and regulations of or governing the Deposited Securities and the
terms of the Deposit Agreement, and (iv) execute and deliver to the Depositary
or a Custodian such certificates and to make such representations and warranties
as the Depositary or the Company may deem necessary or proper or as the Company
reasonably may require by written request to the Depositary and the Custodian.
Subject to Article (22) hereof and the terms of the Deposit Agreement, the
Depositary may withhold the delivery or registration of transfer of any Receipt
or the distribution or sale of any dividend or other distribution of rights or
of the proceeds thereof, or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties made.
(10) CHARGES OF DEPOSITARY. The Depositary shall charge any
party to whom Receipts are issued (including, without
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limitation, deposit or issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock for the Shares or Deposited
Securities, or a distribution of Receipts pursuant to Section 4.03 or 4.09 of
the Deposit Agreement), or who surrenders Receipts a fee of U.S. $5.00 or less
per 100 American Depositary Shares (or portion thereof) for the issuance or
surrender, respectively, of a Receipt. In addition the Depositary shall charge
to the Holders a fee of U.S. $2.00 or less per 100 American Depositary Shares
(or portion thereof) for any cash distribution made pursuant to the Deposit
Agreement, including but not limited to, Sections 4.02 through 4.05 thereof, and
$5.00 or less per 100 American Depositary Shares (or portion thereof) in case of
stock dividend, made pursuant to the Deposit Agreement including, but not
limited to Section 4.02 through 4.05 thereof. The Depositary shall also charge
the holder hereof a fee of $1.50 or less per certificate for a Receipt or
Receipts for transfers made pursuant to the terms of the Deposit Agreement. In
addition, Holders will pay taxes and other governmental charges, registration
fees, cable, telex and facsimile transmission and delivery expenses, and
customary and other expenses incurred by the Depositary in connection with its
obligations and duties under the Deposit Agreement and Exhibit B thereof. Any
other charges and expenses of the Depositary under the Deposit Agreement will be
paid by the Company after consultation and agreement between the Depositary and
the Company concerning the nature and amount of such charges and expenses.
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All fees and charges may at any time and from time to time be changed by
agreement between the Company and the Depositary. The charges and expenses of
the Custodian, nominee or any other agent of the Depositary are for the sole
account of the Depositary. The provisions in respect of these charges may be
changed in the manner indicated in Article (20) of this Receipt.
(11) TITLE TO RECEIPTS. It is a condition of this Receipt, and
every successive Holder of this Receipt by accepting or holding the same
consents and agrees, that title to this Receipt (and to each American Depositary
Share evidenced hereby), when such Receipt is properly endorsed or accompanied
by a proper instrument or instruments of transfer, is transferable by delivery
with the same effect as in the case of a negotiable instrument under the laws of
the State of New York; PROVIDED, HOWEVER, that the Company and the Depositary,
notwithstanding any notice to the contrary, may treat the person in whose name
this Receipt is registered on the books of the Depositary as the absolute owner
hereof for the purpose of determining the person entitled to any distribution of
dividends or other distributions or to any notices provided for in the Deposit
Agreement and for all other purposes, and neither the Depositary nor the Company
shall have the obligations or be subject to any liability hereunder or under the
Deposit Agreement to any holder of a Receipt unless such holder is a Holder
thereof.
(12) VALIDITY OR RECEIPT. This Receipt shall not be entitled
to any benefits under the Deposit Agreement or be valid
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or obligatory for any purpose, unless this Receipt has been executed by the
Depositary by the manual signature of a duly authorized signatory of the
Depositary; PROVIDED, HOWEVER, that such signature may be a facsimile if a
Registrar has been appointed and this Receipt has been countersigned by the
manual signature of a duly authorized officer of the Registrar.
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: By:
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Authorized Officer Vice President
The address of the Principal Office of the Depositary is 111
Wall Street, 5th Floor, New York, New York 10043, U.S.A.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) REPORTS; INSPECTION OF TRANSFER BOOKS. 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 public reference facilities
maintained by the Commission located at the date hereof at Judiciary Plaza, 450
Fifth Street N.W. (Room 1024), Washington, D.C. 20549.
The Depositary will make available for inspection by Holders
at its Principal Office and at the office of each Custodian, copies of the
Deposit Agreement, any notices reports or communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary, a Custodian, or the nominee of either of them as the holder of
the Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. To the extent required under the Securities
Exchange Act of 1934, such reports and communications shall be in English. The
Depositary will also send to Holders copies of such reports when furnished by
the Company pursuant to Section 5.06 of the Deposit Agreement.
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The Depositary will keep books for the registration of
Receipts and transfers of Receipts which at all reasonable times shall be open
for inspection by Holders, provided that such inspection shall not be for the
purpose of communicating with Holders in the interest of a business or object
other than the business of the Company or a matter related to the Deposit
Agreement or the Receipts.
Subject to Article (22) hereof, the Depositary may close the
transfer books (with notice to the Company if other than in the ordinary course
of business), at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties hereunder or at the reasonable
written request of the Company.
(14) DIVIDENDS AND DISTRIBUTIONS IN CASH, SHARES, ETC.
Whenever the Depositary receives any cash dividend or other cash distribution
on any Deposited Securities, the Depositary will, if at the time of receipt
thereof any accounts received in a foreign currency can in the judgment of
the Depositary, pursuant to Section 4.06 of the Deposit Agreement, be
converted on a reasonable basis into Dollars transferable to the United
States, and subject to the Deposit Agreement, promptly convert or cause to be
converted such dividend or distribution into Dollars and will distribute
promptly the amount thus received (net of fees of, and expenses incurred by,
the Depositary) to the Holders entitled thereto, in proportion to the number
of American Depository Shares representing such Deposited Securities held by
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them respectively. The Depositary shall distribute only such amount, however, as
can be distributed without attributing to any Holder a fraction of one Cent, and
any balance not so distributable shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of Receipts then
outstanding. Pursuant to Articles (4) and (7) hereof, if the Company or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. Such withheld amounts shall be
forwarded by the Company to the relevant governmental authority.
If any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Shares the Company shall deposit or
cause such Shares to be deposited with and registered in the name of the
Custodian and thereupon the Depositary may, subject to Section 5.07 of the
Deposit Agreement, either (i) distribute to the Holders entitled thereto, as of
the record date fixed pursuant to Section 4.07 of the Deposit Agreement, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts for American
Depositary Shares, which represents in aggregate the number of Shares received
as
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such dividend, or free distribution, subject to the terms of the Deposit
Agreement, including, without limitation, Sections 2.02, 2.03, 4.04, 5.07 and
5.09 of the Deposit Agreement; in lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell the
number of Shares represented by the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions described in
Section 4.02 of the Deposit Agreement, or (ii) if additional Receipts are not so
distributed (except pursuant to the preceding sentence), each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby. In the event that
the Depositary determines that any distribution in property (including Shares
and rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, or after the Company, in
the fulfillment of its obligations under Section 5.07 hereof, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges, or effect the distribution of unregistered
Shares, and the Depositary shall distribute the net proceeds of any such sale
after deduction of
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such taxes or charges to Holders entitled thereto in proportion to the number of
American Depositary Shares held by them respectively and the Depositary shall
distribute any unsold balance of such property in accordance with the provisions
of the Deposit Agreement.
In the event that the Company shall offer or cause to be
offered to the holders of any Deposited Securities any rights to subscribe for
additional Shares of the corresponding Series or any rights of any other nature,
the Depositary may, after consultation with the Company, and, if requested in
writing by the Company, shall, take action, subject to the terns of the Deposit
Agreement, as follows:
(a) if at the time of the offering of any rights, the
Depositary determines in its discretion, after
obtaining, at the Company's expense, opinion(s) of
United States and United Kingdom counsel, as
applicable, reasonably satisfactory to the
Depositary, that it is lawful and feasible to make
such rights available to all or certain Holders or
Beneficial Owners but not to others, by means of
warrants or otherwise, the Depositary may distribute
warrants or other instruments therefor in such form
as it may determine, to the Holders entitled thereto,
in proportion to the number of American Depositary
Shares representing such Deposited Securities held by
them respectively, or
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employ such other method as it may deem feasible
after obtaining, at the Company's expense, opinion(s)
of United States and United Kingdom counsel, as
applicable, reasonably satisfactory to the Depositary
in order to facilitate the exercise, sale or transfer
of rights or the securities obtainable upon the
exercise of such rights, by such Holders or
Beneficial Owners; or
(b) if at the time of the offering of any rights, the
Depositary determines in its discretion, after
obtaining, at the Company's expense, opinion(s) of
United States and United Kingdom counsel, as
applicable, reasonably satisfactory to the
Depositary, that it is not lawful or not feasible to
make such rights available to certain Holders or
Beneficial Owners by means of warrants or otherwise,
or if the rights represented by such warrants or such
other instruments are not exercised and appear to be
about to lapse, the Depositary, in its discretion may
sell such rights or such warrants or other
instruments at public or private sale, in a riskless
principal capacity, at such place or places and upon
such terms as it may deem proper, and allocate the
proceeds of such sales for the account of the Holders
otherwise entitled to such rights, warrants or other
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instruments upon an averaged or other practicable
basis without regard to any distinctions among such
Holders because of exchange restrictions or the date
of delivery of any Receipt or Receipts, or otherwise,
and distribute such net proceeds so allocated to the
extent practicable as in the case of a distribution
of cash pursuant to Section 4.02 hereof. The
Depositary shall not be responsible for (i) any
failure to determine that it may be lawful or
feasible to make such rights available to Holders in
general or any Holder or Holders in particular or
(ii) any foreign exchange exposure or loss incurred
in connection with such sale, or (iii) any liability
to the purchaser of such rights, warrants or other
instruments.
If the Depositary does not receive such written request from
the Company, the Depositary shall, after consultation with the Company, and
after obtaining opinion(s) of United States and United Kingdom counsel, as
applicable, reasonably satisfactory to the Depositary, have discretion as to the
procedure to be followed (i) in making such rights available to the Holders, or
(ii) in disposing of such rights on behalf of such Holders and distributing the
net proceeds available in dollars to such Holders as in the case of a
distribution of cash pursuant to Section 4.02 of the Deposit Agreement, or (iii)
in allowing such rights to lapse in the event such rights may not be made
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available to Holders or be disposed of and the net proceeds thereof made
available to Holders.
Notwithstanding anything to the contrary in this Article
(14), if registration (under the Securities Act or any other applicable law)
of the securities to which any rights relate may be required in order for the
Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not offer such
rights to the Holders (i) unless and until a registration statement under the
Securities Act covering such offering is in effect, or (ii) unless the
Company furnishes the Depositary opinion(s) of counsel for the Company in the
United States and counsel to the Company in any other applicable country in
which rights would be distributed, satisfactory to the Depositary or other
evidence satisfactory to the Depositary to the effect that the offering and
sale of such securities to the Holders of such Receipts are exempt from or do
not require registration under the provisions of the Securities Act or any
other applicable laws.
Whenever the Custodian shall receive any distribution other
than cash, Shares or rights upon any Deposited Securities, the Depositary
shall, after consultation with the Company, and after obtaining, at the
Company's expense, opinion(s) of United States and United Kingdom counsel, as
applicable, satisfactory to the Depositary that the proposed distribution does
not violate any applicable laws or regulations, cause the securities or property
so received to be distributed to the Holders entitled
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<PAGE>
thereto, as of a record date fixed pursuant to Section 4.07 of the Deposit
Agreement, in proportion to the number of American Depositary Shares of the
corresponding Series representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution, net of expenses of the
Depositary; PROVIDED, HOWEVER, that, if in the opinion of the Depositary or its
counsel, it cannot cause such securities or property to be distributed or such
distribution cannot be made proportionately among the Holders entitled thereto,
or if for any other reason (including without limitation any requirement (i)
that the Company, the Depositary or the Custodian withhold an amount on account
of taxes or other governmental charges or (ii) that under applicable securities
or exchange control regulations or law such securities must be registered under
the Securities Act or other law in order to be distributed to Holders), the
Depositary deems such distribution not to be feasible, the Depositary may, in
its sole discretion, determine an equitable and practicable method of effecting
such distribution, which method may include, but not be limited to, the sale (at
public or private sale) of the securities or property thus received, or any
part thereof, and the distribution of the net proceeds of any such sale (net of
taxes, fees and expenses of the Depositary set forth in Section 5.09 or in
Exhibit B hereof) by the Depositary to the Holders entitled thereto as in the
case of a distribution received in cash.
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<PAGE>
Pursuant to Articles (4) and (7) hereof, if the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax, duty or other governmental charges
which the Depositary is obligated to withhold, the Depositary may dispose of all
or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable to pay any such taxes,
duties or governmental charges, and the Depositary shall distribute the net
proceeds of any such sale after deduction of such taxes, duties or governmental
charges to Holders entitled thereto in proportion to the number of American
Depositary Shares held by them respectively and shall distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
(15) FIXING OF RECORD DATE. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any cash
dividend or other cash distribution or any distribution other than cash, or any
rights to be issued with respect to the Deposited Securities, or whenever for
any reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever the
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<PAGE>
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 for the determination of the Holders of
Receipts who shall be entitled to receive such dividend, distribution rights or
the net proceeds of the sale thereof, to give instructions for the exercise of
voting rights at any such meeting, or to give or withhold such consent, or to
receive such notice or solicitation or to otherwise take action, or to exercise
the rights of Holders with respect to such changed number of Shares represented
by each American Depositary Share. Subject to the provisions of Sections 4.02
through 4.06 of the Deposit Agreement and to the other terms and conditions of
this Receipt and the Deposit Agreement, the Holders of Receipts at the close of
business on such record date shall be entitled to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution of such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively, or to give
such voting instructions, to receive such notice or solicitation, or otherwise
take action.
(16) VOTING OF DEPOSITED SECURITIES. As soon as practicable
after receipt of notice of any meeting at which the holders of Shares are
entitled to vote, or of solicitation of consents or proxies from holders of
Shares or other Deposited Securities, the Depositary shall fix a record date in
respect of such meeting for the giving of instructions for voting or such
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<PAGE>
consent or proxy and shall, if requested in writing by the Company and at the
Company's expense, mail to Holders of American Depositary Shares evidenced by
Receipts a notice which shall contain: (a) a summary of such information as is
contained in such notice of meeting, (b) a statement that the Holders at the
close of business on the specified record date will be entitled, subject to any
applicable law, the Company's Memorandum and Articles of Association and the
provisions of or governing Deposited Securities (which provisions, if any, shall
be summarized in pertinent part), 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. Upon the written request of a Holder of American
Depositary Shares evidenced by a Receipt on such record date received on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor, insofar as practicable and permitted under applicable law and
the provisions of the Company's Memorandum and Articles of Association and the
provisions of the Deposited Securities, to vote or cause the Custodian to vote
the shares and/or other Deposited Securities represented by American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request.
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<PAGE>
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 or attempt to exercise the right to vote the Shares
or other Deposited Securities represented by American Depositary Shares except
pursuant to and in accordance with such written instructions from Holders.
Shares or other Deposited Securities represented by American Depositary Shares
for which no specific voting instructions are received by the Depositary from
the Holder shall not be voted.
(17) CHANGES AFFECTING DEPOSITED SECURITIES. Upon any change
in nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement or
otherwise in respect of, such Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and the Receipts shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of an opinion of counsel to the Company satisfactory to
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<PAGE>
the Depositary that such distributions are not in violation of any applicable
laws or regulations, execute and deliver additional Receipts as in the case of a
stock dividend on the Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts, in either case, as well as in the event of
newly deposited shares, with necessary modifications to the form of Receipt
contained in this Exhibit A to the Deposit Agreement, specifically describe such
new Deposited Securities or corporate change. The Company agrees to, jointly
with the Depositary, amend the Registration Statement on Form F-6 as filed with
the Commission to permit the issuance of such new Receipts. Notwithstanding the
foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, and with the Company's
approval, shall if the Company requests, subject to receipt of an opinion of
Company's counsel satisfactory to the Depositary that such action is not in
violation of any applicable laws or regulations, sell such securities at public
or private sale, at such place or places and upon such terms as it may deem
proper and may allocate the net proceeds of such sales for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.02 of the Deposit
Agreement. The Depositary shall not be responsible for (i) any failure to
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<PAGE>
determine that it may be lawful or feasible to make such securities available to
Holders in general or any Holder or Holders in particular, or (ii) any foreign
exchange exposure or loss incurred in connection with such sale, or (iii) any
liability to the purchaser of such securities.
(18) LIABILITY OF THE COMPANY AND THE DEPOSITARY. None of the
Depositary, its controlling persons or its agents nor the Company, its
controlling persons nor its agents, if any, will incur any liability to any
Holder or other person if, by reason of any present or future law, the
Memorandum and Articles of Association of the Company, the provisions of or
governing any Deposited Security, act of God, war or other circumstance beyond
its control, the Depositary, its agents or the Company or its agents shall be
prevented, delayed or forbidden from doing or performing any act or thing which
by the terms of the Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement. Each of the Depositary, its
controlling persons and its agents, the Company, its controlling persons and its
agents assumes no obligation and shall be subject to no liability under the
Deposit Agreement or this Receipt to Holders or other persons, except to perform
such obligations as are specifically set forth and undertaken by it to perform
in the Deposit Agreement in good faith and using its reasonable judgment. The
Depositary, and the Company undertake to perform such duties and only such
duties as are specifically set
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<PAGE>
forth in the Deposit Agreement, and no implied covenants or obligations will be
read into the Deposit Agreement against the Depositary or the Company or their
respective agents. None of the Depositary, its controlling persons or its agents
nor the Company its controlling persons or its agents will be (a) under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or this Receipt that in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it in its sole discretion against all expense and liability be furnished as
often as may be required or (b) liable for any action or inaction by it or them
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder or any other person
believed by it or them in good faith to be competent to give such advice or
information. The Depositary, its controlling persons and its agents and the
Company its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request, direction or other document believed
by them in good faith to be genuine and to have been signed or presented by the
proper party or parties. Subject to the provisions of this paragraph (18), the
Depositary and its agents will not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, for the manner in which
any such vote is cast or for the effect of any such vote. The Depositary may own
and deal in
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<PAGE>
any class of securities of the Company and its affiliates and in Receipts.
(19) RESIGNATION AND REMOVAL OF THE DEPOSITARY; THE CUSTODIAN.
The Depositary may at any time resign as Depositary under the Deposit Agreement
by written notice of its election so to do delivered to the Company, such
resignation to be effective on the earlier of (i) the 60th day after delivery
thereof to the Company, or (ii) upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of such
removal which notice shall be effective on the earlier of (i) the 60th day after
delivery thereof to the Depositary, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may appoint substitute or additional custodians and
the term "CUSTODIAN" refers to each Custodian or all Custodians as the context
requires.
(20) AMENDMENT. The form of the Receipts in respect of the
Shares and any provisions of the Deposit Agreement may at any time and from time
to time be amended by written agreement between the Company and the Depositary
in any respect which they may deem necessary or desirable without the consent of
the Holders. Any amendment which shall impose or increase any fees or charges
(other than the charges of the Depositary for deposits, custody, transfer and
registration fees, fees in
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connection with foreign exchange control regulations, and taxes and other
governmental charges), or which shall otherwise prejudice any substantial
existing right of Holders or Beneficial Owners, shall not, however, become
effective as to outstanding Receipts until the expiration of 60 days after
notice of such amendment 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
Americas Depositary Shares to be registered on Form F-6 under the Securities Act
or (b) the American Depositary Shares or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders or Beneficial Owners. Every Holder
and Beneficial Owner at the time any amendment 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 to surrender such
Receipt and receive therefor the Deposited Securities represented thereby,
except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment of the Deposit Agreement to
ensure compliance therewith, the Company and the Depositary may amend the
Deposit
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<PAGE>
Agreement and the Receipt at any time in accordance with such changed rules.
Amendment to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment is given to Holders or within any other period
of time as required for compliance.
(21) TERMINATION. The Depositary shall, at any time at the
written direction of the Company, terminate the Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. If 60
days shall have expired after (i) the Depositary shall have delivered to the
Company a written notice of its election to resign, or (ii) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Article (19) hereof and
Section 5.04 of the Deposit Agreement, the Depositary may terminate the Deposit
Agreement by mailing notice of such termination to the Holders of all Receipts
then outstanding at least 30 days prior to the date fixed for such termination.
On and after the date of termination of the Deposit Agreement, the Holder will,
upon surrender of such Receipt at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of Receipts
referred to in Article (2) hereof and Section 2.05 of the Deposit Agreement and
subject to the conditions and restrictions therein set forth, and upon payment
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<PAGE>
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
of the Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of Receipts, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and ocher distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in Section 2.05 of the Deposit Agreement,
together with any dividends or ocher distributions received with respect thereto
and the net proceeds of the sale of any rights or ocher property, in exchange
for Receipts surrendered to the Depositary (after deducting, or charging, as the
case may be, in each case the charges of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder in accordance with the terms
and conditions of the Deposit Agreement and any applicable 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 than held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash
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<PAGE>
then held by it hereunder, in an unsegregated escrow account, without liability
for interest for the pro rata benefit of the Holders of Receipts whose Receipts
have not theretofore been surrendered. After making such sale, the Depositary
shall be discharged from all obligations under the Deposit Agreement with
respect to the Receipts and the Shares, Deposited Securities and American
Depositary Shares, except to account for such net proceeds and other cash (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement as to Receipts, the Company shall be
discharged from all obligations under the Deposit Agreement as to the Receipts
and the Shares, Deposited Securities and American Depositary Shares except for
its obligations to the Depositary under Articles (10) hereof, and Sections 5.08
and 5.09 of the Deposit Agreement.
(22) COMPLIANCE WITH U.S. SECURITIES LAWS. Notwithstanding any
provisions of 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 this Receipt 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 Section I A(1) of the
General Instructions to the Form F-6
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<PAGE>
Registration Statement, as amended from time to time, under the Securities Act
of 1933.
(23) CERTAIN RIGHTS OF THE DEPOSITARY; LIMITATIONS. Subject to
the further terms and provisions of this Article (23), the Depositary and its
agents, on their own behalf, may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Depositary may issue Receipts
against evidence of rights from the Company to receive Shares from the Company,
any agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares furnished on behalf of the holder
thereof. In its capacity as Depositary, the Depositary shall not lend Shares or
Receipts; PROVIDED, HOWEVER, that the Depositary may (i) issue Receipts prior to
the receipt of Shares pursuant to Section 2.02 of the Deposit Agreement and (ii)
deliver Shares prior to the receipt and cancellation of Receipts pursuant to
Section 2.05 of the Deposit Agreement, including Receipts which were issued
under (i) above but for which Shares may not have been received (each such
transaction a "Pre-Release Transaction"). The Depositary may receive Receipts in
lieu of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. Each such Pre-Release Transaction will be (a) accompanied by or subject
to a written agreement whereby the person or entity (the "Applicant") to whom
Receipts or Shares are
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to be delivered (w) represents that at the time of the Pre-Release Transaction
the Applicant or its customer owns the Shares or Receipts that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or Receipts in its records and
to hold such Shares or Receipts in trust for the Depositary until such Shares or
Receipts are delivered to the Depositary or the Custodian, (y) unconditionally
guarantees to deliver to the Depositary or the Custodian, as applicable, such
Shares or Receipts and (z) agrees to any additional restrictions or requirements
that the Depositary deems appropriate, (b) at all times fully collateralized
with cash, United States government securities or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of Receipts and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the Receipts outstanding
(without giving effect to Receipts outstanding under (i) above), PROVIDED,
HOWEVER, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary may also set
limits with respect to the number of Receipts and Shares involved in Pre-Release
Transactions with any one person on a case by case basis as it deems
appropriate. The Depositary may retain for its own account
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<PAGE>
any compensation received by it in conjunction with the foregoing. Collateral
provided pursuant to (b) above, but not earnings thereon, shall be for the
benefit of the Holder.
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<PAGE>
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s),
assign(s) and transfer(s) unto __________________ whose taxpayer
identification number is __________________ and whose address including
postal zip code is ___________________, the within Receipt and all rights
thereunder, hereby irrevocably constituting and appointing ______________
attorney-in-fact to transfer said Receipt on the books of the
Depositary with full power of substitution in the premises.
Dated: Name:
------------------ ---------------------
By:
-----------------------
Title:
--------------------
NOTICE: The signature of
the Holder to this
assignment must correspond
with the name as written
upon the face of the within
instrument in every
particular, without
alteration or enlargement
or any change whatsoever.
SIGNATURE GUARANTEED
----------------------------------
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