Exhibit ___
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VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
(FORMERLY KNOWN AS VODAFONE GROUP PUBLIC LIMITED COMPANY)
AND
AIRTOUCH COMMUNICATIONS, INC.
AND
THE BANK OF NEW YORK
AS DEPOSITARY
AND
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
DATED AS OF OCTOBER 12, 1988
AS AMENDED AND RESTATED AS OF DECEMBER 26, 1989, AS
FURTHER AMENDED AND RESTATED AS OF SEPTEMBER 16, 1991 AND
AS FURTHER AMENDED AND RESTATED AS OF JUNE 30, 1999
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ARTICLE I. DEFINITIONS........................................................2
SECTION 1.01 AMERICAN DEPOSITARY SHARES.......................................2
SECTION 1.02 BENEFICIAL OWNER.................................................2
SECTION 1.03 COMMISSION.......................................................2
SECTION 1.04 CUSTODIAN........................................................2
SECTION 1.05 DELIVER; EXECUTE; REGISTER; SURRENDER; TRANSFER; CANCEL..........3
SECTION 1.06 DEPOSIT AGREEMENT................................................3
SECTION 1.07 DEPOSITARY.......................................................3
SECTION 1.08 DEPOSITED SECURITIES.............................................3
SECTION 1.09 DIRECT REGISTRATION RECEIPT......................................3
SECTION 1.10 DIRECT REGISTRATION SYSTEM.......................................3
SECTION 1.11 DOLLARS; US$; P; PENCE...........................................3
SECTION 1.12 FOREIGN REGISTRAR................................................4
SECTION 1.13 ISSUER...........................................................4
SECTION 1.14 OWNER............................................................4
SECTION 1.15 RECEIPT REGISTER.................................................4
SECTION 1.16 RECEIPTS.........................................................4
SECTION 1.17 REGISTRAR........................................................4
SECTION 1.18 SECURITIES ACT OF 1933...........................................4
SECTION 1.19 SHARES...........................................................4
SECTION 1.20 TAX TREATY PAYMENTS..............................................5
ARTICLE II. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS............................................5
SECTION 2.01 FORM AND TRANSFERABILITY OF RECEIPTS.............................5
SECTION 2.02 DEPOSIT OF SHARES................................................6
SECTION 2.03 EXECUTION AND DELIVERY OF RECEIPTS...............................7
SECTION 2.04 TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS.......8
SECTION 2.05 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES...................8
SECTION 2.06 LIMITATIONS ON EXECUTION, DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS......................................................9
SECTION 2.07 LOST RECEIPTS, ETC..............................................10
SECTION 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS............10
SECTION 2.09 PRE-RELEASE OF RECEIPTS.........................................11
ARTICLE III. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF
RECEIPTS.....................................................................12
SECTION 3.01 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION...............12
SECTION 3.02 LIABILITY OF OWNER FOR TAXES....................................12
SECTION 3.03 WARRANTIES ON DEPOSIT OF SHARES.................................13
SECTION 3.04 DISCLOSURE OF INTERESTS.........................................13
ARTICLE IV. THE DEPOSITED SECURITIES.........................................14
SECTION 4.01 CASH DISTRIBUTIONS..............................................14
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS.................14
SECTION 4.03 DISTRIBUTIONS IN SHARES.........................................15
SECTION 4.04 RIGHTS..........................................................15
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY..................................17
SECTION 4.06 FIXING OF RECORD DATE...........................................18
SECTION 4.07 VOTING OF DEPOSITED SECURITIES..................................18
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES..........................19
SECTION 4.09 REPORTS.........................................................20
SECTION 4.10 LISTS OF OWNERS.................................................20
SECTION 4.11 WITHHOLDING.....................................................20
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ARTICLE V. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.....................21
SECTION 5.01 MAINTENANCE OF OFFICE AND RECEIPT REGISTER BY THE
DEPOSITARY......................................................21
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY OR
THE ISSUER......................................................22
SECTION 5.03 OBLIGATIONS OF THE ISSUER, THE DEPOSITARY AND THE CUSTODIAN.....22
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY............................................23
SECTION 5.05 THE CUSTODIAN...................................................24
SECTION 5.06 NOTICES AND REPORTS.............................................24
SECTION 5.07 ISSUANCE OF ADDITIONAL SHARES, ETC..............................25
SECTION 5.08 INDEMNIFICATION.................................................25
SECTION 5.09 CHARGES OF DEPOSITARY...........................................26
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS...............................27
SECTION 5.11 COMPLIANCE WITH U.S. SECURITIES LAWS............................27
ARTICLE VI. AMENDMENT AND TERMINATION........................................27
SECTION 6.01 AMENDMENT.......................................................27
SECTION 6.02 TERMINATION.....................................................28
ARTICLE VII. MISCELLANEOUS...................................................28
SECTION 7.01 COUNTERPARTS....................................................28
SECTION 7.02 NO THIRD PARTY BENEFICIARIES....................................29
SECTION 7.03 SEVERABILITY....................................................29
SECTION 7.04 OWNERS AND BENEFICIAL OWNERS AS PARTIES; BINDING EFFECT.........29
SECTION 7.05 NOTICES.........................................................29
SECTION 7.06 GOVERNING LAW...................................................30
SECTION 7.07 AIRTOUCH AS A PARTY TO THE DEPOSIT AGREEMENT....................30
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DEPOSIT AGREEMENT dated as of October 12, 1988, as amended and
restated as of December 26, 1989, as further amended and restated as of
September 16, 1991 and as further amended and restated as of June 30, 1999 among
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY (formerly known as VODAFONE GROUP
PUBLIC LIMITED COMPANY), a corporation organized under the laws of England and
Wales (herein called the Issuer), AIRTOUCH COMMUNICATIONS, INC., a Delaware
corporation and a subsidiary of the Issuer ("AirTouch"), THE BANK OF NEW YORK, a
New York banking corporation, as depositary, and any successor depositary
hereunder (herein called the Depositary), and all Owners and Beneficial Owners
from time to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Issuer, the Depositary and the Owners of American
Depositary Receipts are parties to the Deposit Agreement dated as of October 12,
1988, as amended and restated as of December 26, 1989, and as further amended
and restated as of September 16, 1991;
WHEREAS, the Issuer and the Depositary may, pursuant to Section 6.01
of the Deposit Agreement, amend the Deposit Agreement and the Form of Receipt
appearing as Exhibit A to the Deposit Agreement, at any time and from time to
time by agreement between the Issuer and the Depositary in any respect which
they may deem necessary or desirable; and
WHEREAS, under Section 6.01 of the Deposit Agreement every Owner of a
Receipt at the time the amendment 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;
WHEREAS, this agreement amends and restates the existing deposit
agreement pursuant to Section 6.01 hereof; and
WHEREAS, the Issuer desires to provide, as hereinafter set forth in
this Amended and Restated Deposit Agreement, for the deposit of Ordinary Shares
(herein called Shares) of the Issuer from time to time with the Depositary or
with the London office of the Depositary (herein called the Custodian, which
term includes any successor custodian hereunder), as agent of the Depositary for
the purposes set forth in this Amended and Restated Deposit Agreement, for the
creation of American Depositary Shares representing the Shares so deposited and
for the execution and delivery of American Depositary Receipts in respect of the
American Depositary Shares; and
WHEREAS, the American Depositary Receipts issued in certificated form
are to be substantially in the form of Exhibit A annexed hereto, with
appropriate insertions, modifications and omissions, as hereinafter provided in
this Amended and Restated Deposit Agreement;
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NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE I.
DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent ten
Shares until the Depositary and the Issuer shall agree otherwise, or until there
shall occur a distribution upon Deposited Securities referred to in Section 4.03
or a change in Deposited Securities referred to in Section 4.08 with respect to
which additional Receipts are not executed and delivered, and thereafter
American Depositary Shares shall represent the interests in the amount of Shares
or Deposited Securities specified in such Sections.
SECTION 1.02 Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from time to
time any beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 1.03 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.04 Custodian.
The term "Custodian" shall mean the London office of the Depositary,
which at the date of this Agreement is at 46 Berkeley Street, London W1X 6AA, as
agent of the Depositary for the purposes of this Deposit Agreement, and any
other firm or corporation which may hereafter be appointed by the Depositary
pursuant to the terms of Section 5.05, as substitute or additional custodian or
custodians hereunder, as the context shall require and the term "Custodian"
shall also mean all of them, collectively.
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SECTION 1.05 Deliver; Execute; Register; Surrender; Transfer; Cancel.
The terms "deliver", "execute", "register", "surrender", "transfer" or
"cancel", when used with respect to Direct Registration Receipts, shall refer to
an entry or entries or an electronic transfer or transfers in the Direct
Registration System.
SECTION 1.06 Deposit Agreement.
The term "Deposit Agreement" shall mean this Amended and Restated
Deposit Agreement, as the same may be further amended from time to time in
accordance with the provisions hereof.
SECTION 1.07 Depositary.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation, and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary, which at the date of this Agreement is 101 Barclay
Street, New York, New York, 10286.
SECTION 1.08 Deposited Securities.
The term "Deposited Securities" as of any time shall mean all Shares
whether in registered form or in the form of share warrants to bearer (or
evidence of rights to receive Shares) at such time deposited or deemed to be
deposited under this Deposit Agreement and any and all other securities,
property and cash received by the Depositary or the Custodian in respect thereof
and at such time held hereunder, subject as to cash to the provisions of Section
4.05.
SECTION 1.09 Direct Registration Receipt.
The term "Direct Registration Receipt" shall mean a Receipt, the
ownership of which is recorded on the Direct Registration System.
SECTION 1.10 Direct Registration System
The term "Direct Registration System" shall mean the direct
registration system maintained by the Depositary, pursuant to which the
Depositary may record the ownership of uncertificated Receipts, which ownership
shall be evidenced by periodic statements issued by the Depositary to the
holders entitled thereto.
SECTION 1.11 Dollars; US$; p; pence.
The term "Dollars" or "US$" shall mean United States dollars. The term
"p" or "pence" shall mean United Kingdom pence.
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SECTION 1.12 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Issuer for the transfer and
registration of Shares.
SECTION 1.13 Issuer.
The term "Issuer" shall mean Vodafone AirTouch Public Limited Company
(formerly known as Vodafone Group Public Limited Company), incorporated under
the laws of England and Wales, and its successors.
SECTION 1.14 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the Receipt register of the Depositary maintained for such
purpose.
SECTION 1.15 Receipt Register.
The term "Receipt Register" shall mean the register maintained by the
Depositary for the registration of transfer, combination and split-up of
Receipts, and, in the case of Direct Registration Receipts, shall include the
Direct Registration System.
SECTION 1.16 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares. References to "Receipts" shall
include Direct Registration Receipts, unless the context otherwise requires.
SECTION 1.17 Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein provided.
SECTION 1.18 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.19 Shares.
The term "Shares" shall mean Ordinary Shares of US$0.10 each (par
value) of the Issuer, either in registered form or in the form of share warrants
to bearer, heretofore validly issued and outstanding and fully paid,
non-assessable and free of any pre-emption rights of the holders of outstanding
Shares or hereafter validly
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issued and outstanding and fully paid, non-assessable and free of any
pre-emption rights of the holders of outstanding Shares.
SECTION 1.20 Tax Treaty Payments.
The term "Tax Treaty Payments" shall mean a payment made pursuant to
an entitlement to receive from the U.K. Inland Revenue, in addition to any cash
dividend paid by the Issuer, an amount in the nature of a tax-refund or other
similar payment in respect of the tax credit on the dividend.
ARTICLE II.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.01 Form and Transferability of Receipts.
(a) Certificated Receipts. Receipts in certificated form shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Such receipt shall be executed by the Depositary by the
manual or facsimile signature of a duly authorized signatory of the Depositary
and, if a Registrar for the Receipts shall have been appointed, countersigned by
the manual or facsimile signature of a duly authorized officer of the Registrar.
No Receipt in certificated form shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt
shall have been so executed. The Depositary shall maintain a Receipt register on
which each Receipt so executed and delivered as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts in certificated form
bearing the facsimile signature of a duly authorized signatory of the Depositary
who was at any time a proper signatory of the Depositary shall bind the
Depositary, notwithstanding that such signatory has ceased to hold such office
prior to the execution of such Receipts by the Registrar and their delivery or
did not hold such office at the date of such Receipts.
The Receipts in certificated form may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement as may be required by
the Depositary for the purpose of fulfilling its obligations hereunder or as may
be required to comply with any applicable law or regulations thereunder or with
the rules and regulations of any securities exchange upon which Receipts may be
listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are subject
by reason of the date of issuance of the underlying Deposited Securities or
otherwise.
(b) Direct Registration Receipts. Notwithstanding anything in this
Deposit Agreement or in the Receipt to the contrary, American Depositary Shares
issued after the date of this Deposit Agreement shall be evidenced by Direct
Registration Receipts, unless certificated Receipts are specifically requested
by the
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Owner and for no additional fee. Owners shall be bound by the terms and
conditions of this Deposit Agreement and of the form of Receipt, regardless of
whether their Receipts are Direct Registration Receipts or certificated
Receipts.
(c) Transferability. Title to a Receipt (and to the American
Depositary Shares evidenced thereby), when properly endorsed (in the case of
Receipts in certificated form) or upon delivery to the Depositary of proper
instruments of transfer, shall be transferable by delivery with the same effect
as in the case of a negotiable instrument under the laws of the State of New
York; provided, however, that the Issuer and the Depositary, notwithstanding any
notice to the contrary, may treat the Owner thereof as the absolute owner
thereof for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes.
SECTION 2.02 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares
or evidence of rights to receive Shares may be deposited by delivery thereof to
any Custodian hereunder, and in the case of Shares in registered form,
accompanied by any appropriate instrument or instruments of transfer, or
endorsement, in form satisfactory to such Custodian, together with all such
certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement and, if the Depositary
requires, together with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order a Receipt or Receipts through the Direct Registration System (or, if
specifically requested, certificated Receipts) for the number of American
Depositary Shares representing such deposit. Shares in the form of share
warrants to bearer issued in exchange for common stock, par value US$0.01 per
share ("AirTouch Shares"), of AirTouch, pursuant to the Agreement and Plan of
Merger dated as of January 15, 1999, (the "Merger Agreement"), by and among
Vodafone Group Public Limited Company ("Vodafone"), AirTouch and Apollo Merger
Sub, Inc., shall be deposited under this Deposit Agreement in accordance with
procedures set forth in the Procedures Agreement attached as Exhibit B hereto,
dated as of June 30, 1999 (the "Procedures Agreement"), among the Issuer,
AirTouch, the Depositary and EquiServe Limited Partnership, as Exchange Agent.
No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that any necessary approval has been granted by
the governmental body in England, if any, which is then performing the function
of the regulation of currency exchange. If required by the Depositary, Shares
presented for deposit at any time, whether or not the transfer books of the
Issuer (or the Foreign Registrar, if applicable) are closed, shall also be
accompanied by an agreement or assignment, or other instrument satisfactory to
the Depositary, which will provide for the prompt transfer to the Custodian of
any dividend, or right to subscribe for additional Shares or to receive other
property which any person in whose name the Shares are or have been recorded may
thereafter receive upon or in respect of such deposited Shares, or in lieu
thereof,
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such agreement of indemnity or other agreement as shall be satisfactory to the
Depositary.
At the request, risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Issuer (or the
Foreign Registrar, if applicable) for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary or at such other place or
places as the Depositary shall determine.
SECTION 2.03 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02
hereunder (and in addition, if the transfer books of the Issuer or the Foreign
Registrar, if applicable, are open, the Depositary may require a proper
acknowledgment or other evidence from the Issuer that any Deposited Securities
have been recorded upon the books of the Issuer or the Foreign Registrar, if
applicable, in the name of the Depositary or its nominee or such Custodian or
its nominee), together with the other documents required as above specified,
such Custodian shall notify the Depositary of such deposit and the person or
persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares to
be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex,
facsimile or electronic transmission. Upon receiving such notice from such
Custodian, or upon the receipt of Shares by the Depositary, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver a Receipt or Receipts, at its Corporate Trust Office, to or upon the
order of the person or persons entitled thereto, registered in the name or names
and evidencing any authorized number of American Depositary Shares requested by
such person or persons, but only upon payment to the Depositary of the fee of
the Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.09, if any, and of all taxes and governmental charges and
fees payable in connection with such deposit and the transfer of the Deposited
Securities.
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SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers on the Receipt register, upon receipt at any
of its designated transfer offices of proper instruments of transfer or upon any
surrender of a Receipt, by the Owner in person or by duly authorized attorney,
properly endorsed or accompanied by proper instruments of transfer, and duly
stamped as may be required by the laws of the State of New York and of the
United States of America. Thereupon the Depositary shall execute and deliver a
new Receipt or Receipts to or upon the order of the person entitled thereto
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts replaced.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall, for the purpose of effecting a split-up or combination of such
Receipt or Receipts, execute and deliver a new Receipt or Receipts for any
authorized whole number of American Depositary Shares requested, representing
the same aggregate number of American Depositary Shares as the Receipt or
Receipts replaced. At the request of an Owner, the Depositary shall, for the
purpose of substituting a certificated Receipt with a Direct Registration
Receipt, or vice versa, execute and deliver a certificated Receipt or a Direct
Registration Receipt, as the case may be, for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as those evidenced by the certificated Receipt or Direct
Registration Receipt, as the case may be, substituted.
The Depositary may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Owners or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary.
SECTION 2.05 Surrender of Receipts and Withdrawal of Shares.
Upon receipt at the Corporate Trust Office of the Depositary of an
Owner's written order directing the Depositary to cause the Deposited Securities
represented by the American Depositary Shares evidenced by a Receipt to be
withdrawn and delivered to or upon the written order of the person or persons
designated in such order, and upon the surrender, if applicable, of such Receipt
for the purpose of withdrawal of the Deposited Securities represented thereby
and upon payment of the fee, if any, of the Depositary for the surrender of
Receipts as provided in Section 5.09 and payment of all taxes and governmental
charges payable in connection with such surrender and withdrawal of the
Deposited Securities, and subject to the terms and conditions of this Deposit
Agreement, the Owner of such Receipt shall be entitled to delivery, to him or
upon his order, of the Deposited Securities represented at that time by the
American Depositary Shares evidenced by
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such Receipt. Delivery of such Deposited Securities may be made by the delivery
of (a) certificates in the name of such Owner or as ordered by him or
certificates properly endorsed or accompanied by proper instruments of transfer
to such Owner or as ordered by him and (b) any other securities, property and
cash to which such Owner is then entitled in respect of such Receipts to such
Owner or as ordered by him. Such delivery shall be made, as hereinafter
provided, without unreasonable delay. Delivery of Deposited Securities
consisting of Shares shall be made by delivery of Shares in registered form
only. Accordingly, to the extent that any Deposited Securities to be delivered
to, or upon the order of, the person or persons designated in such order consist
of any Shares in the form of share warrants to bearer, the Depositary shall
follow the procedures set forth in the Procedures Agreement or as otherwise
agreed in writing between the Depositary and the Issuer.
A Receipt in certificated form surrendered for such purposes may be
required by the Depositary to be properly endorsed in blank or accompanied by
proper instruments of transfer in blank. Thereupon the Depositary shall direct
one (or more) of the Custodians to deliver at the principal London, England
office of such Custodian, subject to Sections 2.06, 3.01 and 3.02, and to the
other terms and conditions of this Deposit Agreement, to or upon the written
order of the person or persons designated in the order delivered to the
Depositary, as above provided, the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, except that the Depositary
may make delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or such
rights, which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so requesting a
withdrawal or surrendering a Receipt, and for the account of such Owner, the
Depositary shall direct the Custodian to forward any cash or other property
(other than rights) comprising, and forward a certificate or certificates and
other proper documents of title for, the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt to the Depositary for
delivery at the Corporate Trust Office of the Depositary. Such direction shall
be given by letter or, at the request, risk and expense of such Owner, by cable,
telex, facsimile or electronic transmission.
SECTION 2.06 Limitations on Execution, Delivery, Transfer and
Surrender of Receipts.
As a condition precedent to the execution, delivery, registration,
registration of transfer, split-up, combination or surrender of any Receipt, the
delivery of any distribution thereon, or the withdrawal of any Deposited
Securities, the Depositary, the Issuer or the Custodian may require payment from
the depositor of Shares or the presenter of the Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge (other than Relevant
Duties payable by the Issuer or
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AirTouch in accordance with Section 3.02) and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with respect
to Shares being deposited or withdrawn) and payment of any applicable fees as
herein provided, may require the production of proof satisfactory to it as to
the identity of such depositor or presenter and as to the genuineness of any
signature appearing on any instrument or document given in connection with such
presentation or deposit and may also require compliance with such reasonable
regulations, if any, as the Depositary may establish consistent with the
provisions of this Deposit Agreement including, without limitation, Section
5.11.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
Receipt register is closed, or if any such action is deemed necessary or
advisable by the Depositary or the Issuer at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement, or for any other
reason, subject to Section 5.11 of the Deposit Agreement. The surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Issuer 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. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares.
SECTION 2.07 Lost Receipts, etc.
In case any Receipt in certificated form shall be mutilated,
destroyed, lost or stolen, the Depositary shall, as the Owner may request, issue
a new Receipt through the Direct Registration System or execute and deliver a
new Receipt of like tenor, in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such
destroyed or lost or stolen Receipt, upon the Owner thereof filing with the
Depositary (a) a request for such execution and delivery before the Depositary
has notice that the Receipt has been acquired by a bona fide purchaser and (b) a
sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts in certificated
form so
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cancelled after holding cancelled Receipts for the period, if any, required by
any applicable law or regulation.
SECTION 2.09 Pre-Release of Receipts.
The Depositary may issue Receipts against the delivery by the Issuer
(or any agent of the Issuer recording Share ownership) of rights to receive
Shares from the Issuer (or any such agent). No such issue of Receipts will be
deemed a "Pre-Release" that is subject to the restrictions of the following
paragraph.
Unless requested in writing by the Issuer to cease doing so, the
Depositary may, notwithstanding Section 2.03 hereof, execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02
("Pre-Release"). The Depositary may, pursuant to Section 2.05, deliver Shares
upon the receipt and cancellation of Receipts which have been Pre-Released,
whether or not such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such Receipt has been Pre-Released. The Depositary
may receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation and
agreement from the person to whom Receipts are to be delivered (the
"Pre-Releasee") that the Pre-Releasee, or its customer, (i) owns the Shares or
Receipts to be remitted, as the case may be, (ii) assigns all beneficial rights,
title and interest in such Shares or Receipts, as the case may be, to the
Depositary in its capacity as such and for the benefit of the Owners, and (iii)
will not take any action with respect to such Shares or Receipts, as the case
may be, that is inconsistent with the transfer of beneficial ownership
(including, without the consent of the Depositary, disposing of such Shares or
Receipts, as the case may be), other than in satisfaction of such Pre-Release,
(b) at all times fully collateralized with cash, U.S. government securities or
such other collateral as the Depositary determines, in good faith, will provide
substantially similar liquidity and security, (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
number of Shares not deposited but represented by American Depositary Shares
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited hereunder; provided, however, that
the Depositary reserves the right to disregard such limit from time to time as
it deems reasonably appropriate, and may, with the prior written consent of the
Issuer, change such limit for purposes of general application. The Depositary
will also set Dollar limits with respect to Pre-Release transactions to be
entered into hereunder with any particular Pre-Releasee on a case-by-case basis
as the Depositary deems appropriate. For purposes of enabling the Depositary to
fulfill its obligations to the Owners under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
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The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
ARTICLE III.
CERTAIN OBLIGATIONS OF OWNERS
AND BENEFICIAL OWNERS OF RECEIPTS.
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial
Owner of a Receipt may be required from time to time to file with the Depositary
such proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Issuer (or the
Foreign Registrar, if applicable) of the Shares presented for deposit, to
execute such certificates and to make such representations and warranties, as
the Depositary may deem necessary or proper. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or 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.
SECTION 3.02 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented by any Receipt,
such tax or other governmental charge shall be payable by the Owner of such
Receipt to the Depositary; provided that to the extent that any United Kingdom
stamp duty, stamp duty reserve tax or other similar United Kingdom governmental
charge (or any interest or penalties thereon) (each, a "Relevant Duty") arises
in connection with (a) the deposit of Shares, whether in registered form or in
the form of share warrants to bearer (the "Exchange Shares"), in connection with
(i) the exchange of Receipts for AirTouch Shares pursuant to the Merger
Agreement or (ii) the execution and delivery of Receipts upon the exercise of
employee stock options over AirTouch Shares outstanding as of the Effective Time
(as defined in the Merger Agreement), into the facility created by this Deposit
Agreement, including but not limited to the agreement to transfer, the transfer
and the delivery of Exchange Shares, whether in registered form or in the form
of share warrants to bearer, to the Depositary, the Custodian or the nominee of
either of them and any issue of American Depositary Shares by the Depositary in
respect thereof or (b) the holding of Shares in the form of share warrants to
bearer, the transfer of Receipts representing Shares in the form of share
warrants to bearer or the exchange of Shares in the form of share warrants to
bearer for Shares in registered form by the Depositary, the Custodian or the
nominee of either of them, but only, in the case of this clause (b), to the
extent that such Relevant Duty arises out of, or is imposed as a consequence of,
the fact that Exchange Shares were deposited in the form of share warrants to
bearer as referred to in clause (a), such Relevant Duty shall be payable by the
Issuer or AirTouch and not by the Owner, and the Issuer and
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AirTouch shall be jointly and severally liable for such payment. The Depositary
may refuse to effect any transfer of such Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner thereof any part or all
of the Deposited Securities represented by 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,
and the Owner of such Receipt shall remain liable for any deficiency.
SECTION 3.03 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and any certificate
therefor are validly issued, fully paid, non-assessable and free of any
pre-emptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that the deposit of Shares and issuance of Receipts does not
violate the Securities Act of 1933. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts. With respect to the
deposit of Shares in connection with the exchange of Receipts for AirTouch
Shares pursuant to the Merger Agreement, the Issuer shall be deemed the person
depositing the Shares for purposes of this Section.
SECTION 3.04 Disclosure of Interests.
Notwithstanding any other provision of this Deposit Agreement, each
Owner and Beneficial Owner agrees to comply with requests from the Issuer which
are made under statutory provisions in the United Kingdom to provide information
as to the capacity in which such Owner or Beneficial Owner owns Receipts and
regarding the identity of any other person interested in such Receipts and the
nature of such interest and may, pursuant to such statutory provisions and any
provisions of the Articles of Association of the Issuer, forfeit the right to
vote and to direct the voting of, and be prohibited from transferring, Receipts
as to which compliance is not made, all as if such Receipts were to the extent
practicable the Shares represented by the American Depositary Shares evidenced
thereby. The Depositary agrees to use its reasonable efforts to comply with
written instructions received from the Issuer requesting that the Depositary
take the reasonable actions specified therein to obtain such information, except
when the Depositary is notified by the Issuer that such action is prohibited by
applicable law.
In addition, any Owner or Beneficial Owner who is or becomes directly
or indirectly interested (within the meaning of the Companies Act of 1985, as
amended from time to time (the "Companies Act")), in the issued ordinary share
capital of the Issuer equal to or in excess of the then "notifiable percentage"
(at the date hereof, three percent (3%)) or such other amount as may be required
by the Companies Act, or is aware that another person for whom it holds such
Receipts is so
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interested, must within two (2) business days (or such other period as may be
required by the Companies Act) after becoming so interested or so aware, and
thereafter upon any changes of at least one percent (1%) of the outstanding
Shares, notify the Issuer as required by the Companies Act.
If the Issuer requests information from the Depositary or the
Custodian, as the registered owners of Shares, pursuant to the Articles of
Association of the Issuer or the Companies Act, the obligations of the
Depositary or the Custodian, as the case may be, shall be limited to disclosing
to the Issuer such information relating to the Shares in question as has in each
case been recorded by it pursuant to the terms of this Deposit Agreement.
ARTICLE IV.
THE DEPOSITED SECURITIES.
SECTION 4.01 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution by the Issuer on any Deposited Securities, the Depositary shall,
subject to the provisions of Section 4.05, convert such dividend or distribution
into Dollars and shall distribute as promptly as practicable the amount thus
received to the Owners entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively; provided, however, that in the event that the Issuer or the
Depositary shall be required to withhold and does withhold from such cash
dividend or other cash distribution an amount on account of taxes or other
governmental charges and net of the Depositary's fee, if any, the amount
distributed to the Owner of American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Owner a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to the owners entitled
thereto. The Issuer or its agent will remit to the appropriate governmental
agency in the United Kingdom all amounts withheld and owing to such agency. The
Depositary will forward to the Issuer or its agent such information from its
records as the Issuer may reasonably request to enable the Issuer or its agent
to file necessary reports with governmental agencies, and either the Depositary
or the Issuer or its agent may file any such reports as may be necessary or
advisable to be filed to obtain benefits under the applicable tax treaties for
the Owners of Receipts.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11, whenever the Depositary
shall receive any distribution other than a distribution described in Section
4.01, 4.03 or 4.04, the Depositary shall cause the securities or property
received by it to be distributed to the Owners entitled thereto, in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by them respectively, in any manner that the Depositary may deem
equitable and practicable for
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accomplishing such distribution; provided, however, that if in the opinion of
the Depositary such distribution cannot be made proportionately among the Owners
entitled thereto, or if for any other reason (including, but not limited to, any
requirement that the Issuer or the Depositary withhold an amount on account of
taxes or other governmental charges or that such securities must be registered
under the Securities Act of 1933) the Depositary deems such distribution not to
be feasible, the Depositary may adopt such methods as it deems equitable and
practicable for the purpose of effecting such distribution, including public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale shall be distributed by the Depositary to
the Owners entitled thereto as in the case of a distribution received in cash in
accordance with Section 4.01.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in or free distribution of Shares, the Depositary shall, only if the
Issuer so requests, distribute to the Owners of outstanding Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the amount of Shares
received as such dividend or free distribution. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary may
sell the number of Shares represented by the aggregate of such fractions and
distribute the net proceeds as in the case of a cash distribution in accordance
with Section 4.01. If additional Receipts or cash in lieu thereof are not so
distributed, each American Depositary Share shall thenceforth also represent the
additional Shares distributed upon the Deposited Securities represented thereby,
and the Depositary shall give written notice to all Owners to such effect.
SECTION 4.04 Rights.
In the event that the Issuer shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall, after
consultation with the Issuer, have discretion as to the procedure to be followed
in making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any rights the
Depositary determines in its discretion that it is lawful and feasible to make
such rights available to all or certain Owners but not to other Owners, the
Depositary may distribute to any Owner to whom it determines the distribution to
be lawful and feasible, in proportion to the number of American Depositary
Shares held by such Owner, warrants or other instruments therefor in such form
as it deems appropriate.
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In circumstances in which rights would otherwise not be distributed,
if an Owner requests the distribution of warrants or other instruments in order
to exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will make such rights available to such Owner upon
written notice from the Issuer to the Depositary that (a) the Issuer has elected
in its sole discretion to permit such rights to be exercised and (b) such Owner
has executed such documents as the Issuer has determined in its sole discretion
are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Shares, and the Issuer shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of this Deposit Agreement, and shall,
pursuant to Section 2.03 of this Deposit Agreement, execute and deliver Receipts
to such Owner. In the case of a distribution pursuant to the second paragraph of
this section, such Receipts shall be legended in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful
and feasible to make such rights available to all or certain Owners, it may sell
the rights, warrants or other instruments in proportion to the number of
American Depositary Shares held by the Owners to whom it has determined it may
not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees and expenses of the Depositary and all
taxes and governmental charges payable in connection with such rights and
subject to the terms and conditions of this Deposit Agreement) for the account
of such Owners otherwise entitled to such rights, warrants or other instruments,
upon an averaged or other practical basis without regard to any distinctions
among such Owners because of exchange restrictions or the date of delivery of
any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
such Owners or are registered under the provisions of such Act; provided, that
nothing in this Deposit Agreement shall create any obligation on the part of the
Issuer to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no
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such registration under such Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Issuer upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall, as promptly as practicable, convert or
cause to be converted, by sale or in any other manner that it may determine,
such foreign currency into Dollars, and such Dollars (net of any conversion
expenses of the Depositary) shall be distributed to the Owners entitled thereto
or, if the Depositary shall have distributed any warrants or other instruments
which entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may reasonably deem
desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency without liability for interest thereon for the respective
accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the
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foreign currency received by the Depositary to, or hold such balance for the
respective accounts of, the Owners entitled thereto.
SECTION 4.06 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall 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, the Depositary shall fix a record date, after consultation with the
Issuer, if different from the record date applicable to the Shares or other
Deposited Securities, for the determination of the Owners who shall be entitled
to receive such dividend, distribution or rights, or the net proceeds of the
sale thereof, or to vote or to give instructions for the exercise of voting
rights at any such meeting, or for fixing the date on or after which each
American Depositary Share will represent the changed number of Shares, which
shall, to the extent practicable, be the same record date as that fixed by the
Issuer for the Deposited Securities. Subject to the provisions of Sections 4.01
through 4.05 and to the other terms and conditions of this Deposit Agreement,
the Owners on such record date shall be entitled to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively or to vote or
to give such voting instructions.
SECTION 4.07 Voting of Deposited Securities.
The Depositary or, if the Deposited Securities are registered in the
name of or held by its nominee, its nominee, subject to and in accordance with
the Articles of Association of the Issuer hereby irrevocably appoints each Owner
for the time being on the record date (the "Voting Record Date") fixed by the
Depositary in accordance with Section 4.06 in respect of any meeting (including
any adjourned meeting) at which holders of Deposited Securities are entitled to
vote as its proxy to attend, vote and speak at the relevant meeting (or any
adjournment thereof) in respect of the Deposited Securities represented by the
American Depositary Shares evidenced by the Receipts held by such Owner on the
Voting Record Date. In respect of any such meeting each such Owner may appoint
either a person nominated by the Depositary or any other person as its
substitute proxy to attend, vote and speak on behalf of the Owner subject to and
in accordance with the provisions of this Section and the Articles of
Association of the Issuer. 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, in accordance with Section 4.06, fix the Voting Record Date in
respect of such meeting or solicitation. The Depositary or, if the Issuer so
determines, the Issuer shall mail to Owners of record on such Voting Record
Date: (a) such information as is contained in such notice of meeting or in the
solicitation materials,
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(b) a Receipt proxy card in a form prepared by the Depositary, after
consultation with the Issuer, (c) a statement that each Owner of Record at the
close of business on the Voting Record Date will be entitled, subject to any
applicable law, the Issuer's Articles of Association and the provisions of or
governing the Deposited Securities, either (i) to use such Receipt proxy card in
order to attend, vote and speak at such meeting as the proxy of the Depositary
or its nominee solely with respect to the Shares or other Deposited Securities
represented by American Depositary Shares evidenced by such Owner's Receipts or
(ii) to appoint any other person as the substitute proxy of such Owner, solely
with respect to the Shares or other Deposited Securities represented by American
Depositary Shares evidenced by such Owner's Receipts or (iii) to appoint the
person nominated by the Depositary as the substitute proxy of such Owner and to
instruct such person nominated by the Depositary as to the exercise of the
voting rights pertaining to the Shares or other Deposited Securities represented
by American Depositary Shares evidenced by such Owner's Receipts, and (d) if the
person nominated by the Depositary is to be appointed by such Owner as its
substitute proxy, a brief statement as to the manner in which voting
instructions may be given to the person nominated by the Depositary. Upon the
written request of an Owner of record on the Voting 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, the
provisions of the Issuer's Articles of Association and the provisions of the
Deposited Securities, to cause to be voted the Deposited Securities in
accordance with the instructions set forth in such request.
Neither the Depositary nor the Custodian nor the nominee of either of
them shall exercise any discretion as to voting and neither the Depositary nor
the Custodian nor the nominee of either of them 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 Owners given in accordance with this Section 4.07.
Shares or other Deposited Securities represented by American Depositary Shares
for which no specific voting instructions are received by the Depositary from
the Owner shall not be voted by the Depositary or its nominee but may be
directly voted by Owners in attendance at meetings of shareholders as proxy for
the Depositary, subject to, and in accordance with, the provisions of this
Section and the Issuer's Articles of Association.
For purposes of this Section 4.07, "Owner" shall include any person
holding Receipts through the Vodafone AirTouch Plc Global BuyDIRECT plan and any
successor plan.
SECTION 4.08 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 do not apply,
upon any change in nominal value, par value, split-up, consolidation,
cancellation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer or to which it is a party, any securities which shall be
received by the Depositary or a
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Custodian in exchange for or in conversion of or in respect of Deposited
Securities shall be treated as new Deposited Securities under this Deposit
Agreement, and American Depositary Shares shall thenceforth represent, in
addition to existing Deposited Securities, the new Deposited Securities so
received in exchange or conversion, unless additional Receipts are delivered
pursuant to the following sentence. In any such case the Depositary shall, only
if the Issuer so requests, execute and deliver additional Receipts as in the
case of a distribution in Shares in accordance with Section 4.03, or call for
the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary, the Custodian or any agent 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 Issuer. The Depositary shall also send to the Owners
copies of such reports when furnished by the Issuer pursuant to Section 5.06.
The Issuer will make available at its registered office for inspection
by Owners without charge its register of directors, register of members, books
of minutes of general meetings and any other documents to the extent such
documents are available for inspection without charge by the members of the
Issuer pursuant to the United Kingdom Companies Act 1985 (the "Companies Act")
and the Articles of Association of the Issuer.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Issuer at any time or from time to time,
the Depositary shall, without expense to the Issuer (except as provided in
agreements in writing entered into between the Depositary and the Issuer from
time to time), furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names Receipts are registered on the Receipt register of the Depositary.
SECTION 4.11 Withholding.
In the event that the Depositary shall determine that any distribution
in property (including Shares and rights to subscribe therefor) is subject to
any tax or other governmental charge which the Depositary shall be obligated to
withhold, the Depositary may by public or private sale dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner as the Depositary shall deem necessary and
practicable to pay any such taxes or charges and the Depositary shall distribute
the net proceeds of any such sale after deduction of such taxes or charges to
the Owners entitled thereto as in the case of a cash distribution in accordance
with Section 4.01.
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For so long as any United States Owners are eligible to receive Tax
Treaty Payments, the Depositary undertakes to use reasonable efforts to comply
with arrangements made by the Issuer with the United Kingdom Inland Revenue
under which such Owners satisfying the applicable requirements may receive such
Tax Treaty Payments at the same time as and together with the associated cash
dividend, all as directed by the Issuer. The Issuer undertakes that, for so long
as the arrangements referred to in the immediately preceding sentence are in
effect, the Issuer shall pay any Tax Treaty Payment which may be payable by the
Issuer pursuant to such arrangements at the same time as and together with each
dividend paid by the Issuer on the Shares.
ARTICLE V.
THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
SECTION 5.01 Maintenance of Office and Receipt register by the
Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement. The Depositary or its agent agrees to register as a foreign
nominee for the purposes of this Agreement pursuant to English law.
The Depositary shall keep a Receipt register for the registration of
Receipts and transfers of Receipts which at all reasonable times shall be open
for inspection by the Owners, provided that such inspection shall not be for the
purpose of communicating with the Owners in the interest of a business or object
other than the business of the Issuer or a matter related to this Deposit
Agreement or the Receipts.
The Depositary may close the Receipt register, at any time or from
time to time, when deemed expedient by it (after notice to the Issuer) in
connection with the performance of its duties hereunder, or at the reasonable
request of the Issuer.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
The Issuer may inspect transfer and registration records of the
Depositary, take copies thereof and require the Depositary and any of its agents
to supply copies of such portions of such records as the Issuer may reasonably
request.
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SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Issuer.
Neither the Depositary nor the Issuer shall incur any liability to any
Owner or Beneficial Owner of any Receipt, if, by reason of any provision of any
present or future law, or by reason of any present or future provision of the
Articles of Association of the Issuer, or by reason of any act of God or war or
other circumstances beyond its control, the Depositary or the Issuer shall be
prevented or forbidden from doing or performing any act or thing which by the
terms of this Deposit Agreement it is provided shall be done or performed; nor
shall the Depositary or the Issuer incur any liability to any Owner or
Beneficial Owner by reason of any non-performance or delay, caused as aforesaid,
in the performance of any act or thing which by the terms of this Deposit
Agreement it is provided shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in this Deposit
Agreement. Where, by the terms of a distribution pursuant to Section 4.01, 4.02,
or 4.03 of the Deposit Agreement, or an offering or distribution pursuant to
Section 4.04 of the Deposit Agreement, or for any other reason, such
distribution or offering may not practicably be made available to Owners, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
SECTION 5.03 Obligations of the Issuer, the Depositary and the Custodian.
The Issuer assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Owners or Beneficial Owners of
Receipts, except that it shall perform its obligations specifically set forth in
this Deposit Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owners or Beneficial Owners of
Receipts (including, without limitation, liability with respect to the validity
or worth of the Deposited Securities), except that it shall perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither the Depositary nor the Issuer shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
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Neither the Depositary nor the Issuer shall be liable for any action
or inaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or
Beneficial Owner of a Receipt, or any other person believed by it in good faith
to be competent to give such advice or information.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or effect of any such vote, provided that any such
action or inaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04 Resignation and Removal of the Depositary; Appointment of
Successor Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Issuer, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Issuer by written
notice of such removal effective upon the appointment of a successor depositary
and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Issuer shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Issuer an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Issuer shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
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.
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SECTION 5.05 The Custodian.
The Depositary has appointed the principal London office of the
Depositary as custodian and agent of the Depositary for the purposes of this
Deposit Agreement. The Custodian in acting hereunder shall be subject at all
times and in all respects to the directions of the Depositary and shall be
responsible solely to it. Any Custodian may resign and be discharged from its
duties hereunder by notice of such resignation delivered to the Depositary at
least 30 days prior to the date on which such resignation is to become
effective. If upon such resignation there shall be no Custodian acting
hereunder, the Depositary shall, promptly after receiving such notice, appoint a
substitute custodian or custodians, each of which shall thereafter be a
Custodian hereunder. Whenever the Depositary in its discretion determines that
it is in the best interest of the Owners to do so, it may appoint a substitute
or additional custodian or custodians, which shall thereafter be one of the
Custodians hereunder. Upon demand of the Depositary any Custodian shall deliver
such of the Deposited Securities held by it as are requested of it to any other
Custodian or such substitute or additional custodian or custodians. Each such
substitute or additional custodian shall deliver to the Depositary, forthwith
upon its appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
Immediately upon any appointment of a successor Custodian, the
Depositary shall give written notice to all Owners to such effect.
SECTION 5.06 Notices and Reports.
On or before the first date on which the Issuer gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Issuer shall transmit to the Depositary and any Custodian a copy of
the notice thereof in the form given or to be given to holders of Shares or
other Deposited Securities.
The Issuer will arrange for the prompt transmittal by the Issuer to
the Depositary and the Custodian of such notices and any other reports and
communications which are made generally available by the Issuer to holders of
its Shares. If requested in writing by the Issuer, the Depositary will arrange,
as promptly as practicable, for the mailing of copies of such notices, reports
and communications
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to all Owners. The Issuer will timely provide the Depositary with the quantity
of such notices, reports, and communications as requested by the Depositary from
time to time, in order for the Depositary to effect such mailings.
SECTION 5.07 Issuance of Additional Shares, etc.
The Issuer agrees that it will take all steps reasonably necessary to
ensure that no violation by the Issuer of the Securities Act of 1933 will result
from any issuance of (1) additional shares, (2) rights to subscribe for Shares,
(3) securities convertible into or exchangeable for Shares or (4) rights to
subscribe for such securities.
The Issuer agrees with the Depositary that neither the Issuer nor any
company controlled by, controlling or under common control with the Issuer will
at any time deposit any Shares either upon original issue or upon sale of Shares
previously issued and reacquired by the Issuer or any such officiate, unless a
registration statement is in effect as to such Shares under the Securities Act
of 1933.
SECTION 5.08 Indemnification.
The Issuer agrees to indemnify the Depositary and the Custodian
against, and hold each of them harmless from, any liability or expense
(including fees and expenses of counsel), other than any loss, liability, or
expense covered by the terms of Section 3 of the Procedures Agreement, which may
arise out of acts performed or omitted in respect of this Deposit Agreement and
of the Receipts, as the same may be amended, modified or supplemented from time
to time, (i) by either the Depositary or a Custodian, except for any liability
or expense arising out of the negligence or bad faith of either of them, or (ii)
by the Issuer or any of its agents.
The indemnities contained in the preceding paragraph shall not extend
to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09) of a Receipt or Receipts in accordance
with Section 2.09 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.09;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not be the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or sale
of American Depositary Shares, except to the extent any such liability or
expense arises out of (i) information relating to the Depositary or any
Custodian (other than the Company), as applicable, furnished in writing and not
materially changed or altered by the Company expressly for use in any of the
foregoing documents, or, (ii) if such information is provided, the failure to
state a material fact necessary to make the information provided not misleading.
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The Depositary agrees to indemnify the Issuer and hold it harmless
from any liability or expense (including fees and expenses of counsel) incurred
by it as a result of the negligence or bad faith of the Depositary or the
Custodian in connection with acts performed or omitted by the Depositary or the
Custodian pursuant to this Deposit Agreement or any agreement in furtherance of
or in connection with this Deposit Agreement, other than any loss, liability or
expense covered by the terms of Section 3 of the Procedures Agreement.
The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
person indemnified hereby.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of a commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights under this Section 5.08) and shall consult in good
faith with the indemnifying person as to the conduct of the defense of such
action or claim, which shall be reasonable in the circumstances. No indemnified
person shall compromise or settle any action or claim without the consent of the
indemnifying person.
SECTION 5.09 Charges of Depositary.
The Issuer will pay those charges of the Depositary and those of any
Registrar, co-transfer agent or co-registrar not payable by the Owners or
Beneficial Owners plus reasonable out-of-pocket expenses such as printing,
translation, stationery, postage, insurance, cables, etc., incurred by the
Depositary in the exercise of its duties and obligations under the Deposit
Agreement, in accordance with written agreements entered into between the
Depositary and the Issuer from time to time. Any other fees, expenses or charges
of the Depositary hereunder will only be paid by the Issuer in accordance with
agreements in writing entered into between the Depositary and the Issuer from
time to time. Except as may be otherwise agreed in writing between the Issuer
and the Depositary, the Issuer shall not pay or be liable for (1) the fees, if
any, of the Depositary for the execution and delivery of Receipts pursuant to
Section 2.03, the surrender of Receipts pursuant to Section 2.05, and the making
of distributions pursuant to Sections 4.01 through 4.04, (2) taxes and other
governmental charges (other than Relevant Duties pursuant to Section 3.02), (3)
such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the share register of the
Issuer (or any appointed agent of the Issuer for transfer and registration of
Shares) and accordingly applicable to transfers of Shares to the name of the
Depositary or its nominee or Custodian or its nominee on the making of deposits
hereunder, (4) such cable, telex or facsimile transmission and delivery expenses
as are expressly provided in this Deposit Agreement to be at the expense of
persons depositing Shares or Owners, and (5) such expenses as are incurred by
the Depositary in the conversion of foreign currency pursuant to Section 4.05.
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The Depositary shall present its statement for such charges and expenses to the
Issuer once every three months or as otherwise agreed between the Issuer and the
Depositary. The charges and expenses of any Custodian are for the sole account
of the Depositary. The Depositary shall charge any party to whom Receipts are
issued or who surrenders Receipts a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the issuance or surrender,
respectively, of a Receipt.
The Depositary, subject to Section 2.09 hereof, may own and deal in
any class of securities of the Issuer and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless such
papers are required to be retained in connection with the performance of written
agreements entered into between the Issuer and the Depositary from time to time
or unless the Issuer requests that such papers be retained for a longer period
or turned over to the Issuer or to a successor depositary.
SECTION 5.11 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary,
the Issuer and the Depositary each agrees that it will not exercise any rights
it has under the Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the United States
securities laws including but not limited to, Section IA(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
ARTICLE VI.
AMENDMENT AND TERMINATION.
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement between the Issuer
and the Depositary in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than
taxes and other governmental charges), or which shall otherwise prejudice any
substantial existing right of Owners, shall not, however, become effective as to
outstanding Receipts until the expiration of three months after notice of such
amendment shall have been given to the Owners of outstanding Receipts. Every
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 or Receipt as amended thereby. In no event shall
any amendment impair the right of
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any Owner to surrender his Receipt and receive therefor the Deposited Securities
represented thereby.
SECTION 6.02 Termination.
The Depositary shall at any time at the direction of the Issuer
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of such termination to the Issuer and the
Owners of all Receipts then outstanding, if at any time 90 days shall have
expired after the Depositary shall have delivered to the Issuer and the Owners
of Receipts then outstanding a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.04. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary. At any time
after the expiration of six months from the date of termination, the Depositary
may sell the Deposited Securities then held hereunder and may thereafter (so
long as it may lawfully do so) hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and other
cash. Upon the termination of this Deposit Agreement, the Issuer shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE VII.
MISCELLANEOUS.
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any Owner or Beneficial Owner of a Receipt during business hours.
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SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
SECTION 7.03 Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04 Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners of Receipts from time to time shall
be parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.05 Notices.
Any and all notices to be given to the Issuer or AirTouch shall be
deemed to have been duly given if personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed to Vodafone
AirTouch Public Limited Company, The Courtyard, 2-4 London Road, Newbury,
Berkshire RG14 1JX, Attention: Company Secretary, or any other place to which
the Issuer may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to The Bank of New York,
101 Barclay Street, New York, New York 10286, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the Receipt register of the Depositary,
or, if such Owner shall have filed with the Depositary a written request that
notices intended for such Owner be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The
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Depositary, AirTouch or the Issuer may, however, act upon any cable, telex or
facsimile transmission received by it, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York.
SECTION 7.07 AirTouch as a Party to the Deposit Agreement
AirTouch is a party to this Deposit Agreement solely for the purpose
of fulfilling its obligations in connection with Section 3.02.
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IN WITNESS WHEREOF, VODAFONE AIRTOUCH PUBLIC LIMITED
COMPANY, AIRTOUCH COMMUNICATIONS, INC. and THE BANK OF NEW YORK have
duly executed this agreement as of the day and year first above set
forth and all Owners shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof.
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
By:____________________________________
AIRTOUCH COMMUNICATIONS, INC.
By:____________________________________
THE BANK OF NEW YORK
By:____________________________________
Name:
Title:
- 31 -
Exhibit A to Deposit Agreement
No.
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents ten deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF
PAR VALUE OF US$.10 EACH OF
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
(formerly known as VODAFONE GROUP PUBLIC LIMITED COMPANY)
(INCORPORATED UNDER THE LAWS OF ENGLAND AND WALES)
The Bank of New York as depositary (hereinafter called the "Depositary"), hereby
certifies that _____________________________________________________, or
registered assigns IS THE OWNER OF _______________________________
AMERICAN DEPOSITARY SHARES
representing deposited Ordinary Shares, par value US$.10 each (herein called
"Shares") of Vodafone AirTouch Public Limited Company (formerly known as
Vodafone Group Public Limited Company) incorporated under the laws of England
and Wales (herein called the "Issuer"). At the date hereof, each American
Depositary Share represents ten Ordinary Shares which are either deposited or
subject to deposit under the Deposit Agreement at the principal London office of
the Depositary (herein called the "Custodian"). The Depositary's Corporate Trust
Office is located at a different address than its principal executive office.
Its Corporate Trust Office is located at 101 Barclay Street, New York, N.Y.
10286, and its principal executive office is located at One Wall Street, New
York, N.Y. 10286.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286
1. THE AMENDED AND RESTATED DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the Deposit Agreement dated as of October 12, 1988 as amended and restated
December 26, 1989, as further amended and restated as of September 16, 1991, and
as further amended and restated as of June 30, 1999 (herein called the "Deposit
Agreement"), by and among the Issuer, AirTouch Communications, Inc., a Delaware
corporation and a subsidiary of the Issuer ("AirTouch"), the Depositary, and all
Owners and Beneficial Owners 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 of Owners and Beneficial Owners of the Receipts 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 Depositary's Corporate Trust Office in New York
City and at the 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 provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms not defined herein shall have the meanings set
forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon receipt at the Corporate Trust Office of the Depositary of an Owner's
written order directing the Depositary to cause the Deposited Securities
represented by the American Depositary Shares evidenced by a Receipt to be
withdrawn and delivered to or upon the written order of the person or persons
designated in such order, and upon the surrender, if applicable, of such Receipt
for the purpose of withdrawal of the Deposited Securities represented thereby
and upon payment of the fee, if any, of the Depositary for the surrender of
Receipts as provided in Section 5.09 of the Deposit Agreement and payment of all
taxes and governmental charges payable in connection with such surrender and
withdrawal of the Deposited Securities, and subject to the terms and conditions
of the Deposit Agreement, the Owner of such Receipt shall be entitled to
delivery, to him or upon his order, of the Deposited Securities represented at
that time by the American Depositary Shares evidenced by such Receipt. Delivery
of such Deposited Securities may be made by the delivery of (a) certificates in
the name of such Owner or as ordered by him or certificates properly endorsed or
accompanied by proper instruments of transfer to such Owner or as ordered by him
and (b) any other securities, property and cash to which such Owner is then
entitled in respect of such Receipts to such Owner or as ordered by him. Such
delivery shall be made, as hereinafter provided, without unreasonable delay.
Delivery of Deposited Securities consisting of Shares shall be made by delivery
of Shares in registered form only. Accordingly, to the extent that any Deposited
Securities to be delivered to, or upon the order of, the person or persons
designated in such order consist of any Shares in the form of share warrants to
bearer, the Depositary shall follow the procedures set forth in the Procedures
Agreement or as otherwise agreed in writing between the Depositary and the
Issuer.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the fees and expenses of the Depositary
and upon compliance with such regulations, if any, as the Depositary may
establish for such purpose. This Receipt may be split into other such Receipts,
or may be combined with other such Receipts into one Receipt, representing the
same aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution, delivery, registration
of transfer, split-up, combination, or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, the Issuer or the Custodian may
require payment from the depositor of Shares or the presenter of the Receipt of
a sum sufficient to reimburse it for any tax or other governmental charge (other
than Relevant Duties payable by the Issuer or AirTouch in accordance with
Section 3.02 of the Deposit Agreement) and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with respect
to Shares being deposited or withdrawn) and payment of any applicable fees as
provided in this Receipt, may require the production of proof satisfactory to it
as to the identity of such depositor or presenter and as to the genuineness of
any signature appearing on any instrument or document given in connection with
such deposit or presentation and may also require compliance with such
reasonable regulations, if any, as the Depositary may establish consistent with
the provisions of the Deposit Agreement or this Receipt including, without
limitation, Article (23) of this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
Receipt register is closed, or if any such action is deemed necessary or
advisable by the Depositary or the Issuer at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of the Deposit Agreement or this Receipt, or
for any other reason subject to Article (23) hereof. The surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Issuer 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. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the Deposit Agreement any
Shares required to be registered under the provisions of the Securities Act of
1933, unless a registration statement is in effect as to such Shares.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary;
provided, that to the extent that any United Kingdom stamp duty, stamp duty
reserve tax or other similar United Kingdom governmental charge (or any interest
or penalties thereon) (each, a "Relevant Duty") arises in connection with (a)
the deposit of Shares, whether in registered form or in the form of share
warrants to bearer (the "Exchange Shares"), in connection with (i) the exchange
of Receipts for common stock, par value US$0.01 per share, ("AirTouch Shares")
of AirTouch pursuant to the Agreement and Plan of Merger, dated as of January
15, 1999 (the "Merger Agreement"), by and among Vodafone Group Public Limited
Company, AirTouch and Apollo Merger Sub, Inc. or (ii) the execution and delivery
of Receipts upon the exercise of employee stock options over AirTouch Shares
outstanding as of the Effective Time (as defined in the Merger Agreement), into
the facility created by the Deposit Agreement, including but not limited to the
agreement to transfer, the transfer and the delivery of Exchange Shares, whether
in registered form or in the form of share warrants to bearer, to the
Depositary, the Custodian or the nominee of either of them and any issue of
American Depositary Shares by the Depositary in respect thereof or (b) the
holding of Shares in the form of share warrants to bearer, the transfer of
Receipts representing Shares in the form of share warrants to bearer or the
exchange of Shares in the form of share warrants to bearer for Shares in
registered form by the Depositary, the Custodian or the nominee of either of
them, but only, in the case of this clause (b), to the extent that such Relevant
Duty arises out of, or is imposed as a consequence of, the fact that Exchange
Shares were deposited in the form of share warrants to bearer as referred to in
clause (a), such Relevant Duty shall be payable by the Issuer and AirTouch and
not by the Owner and the Issuer and AirTouch shall be jointly and severally
liable for such payment. The Depositary may refuse to effect any transfer of
this Receipt or any withdrawal of Deposited Securities represented by the
American Depositary Shares evidenced hereby until such payment is made, and may
withhold any dividends or other distributions, or may sell for the account of
the Owner hereof any part or all of the Deposited Securities represented by
American Depositary Shares evidenced by this 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 and the Owner hereof shall remain liable
for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and any certificate
therefor are validly issued, fully paid, non-assessable and free of any
pre-emptive rights of the holders of outstanding Shares, that the person making
such deposit is duly authorized so to do, and that such deposit and any issuance
of Receipts therefor will not violate the Securities Act
of 1933. Such representations and warranties shall survive the deposit of Shares
and issuance of Receipts. With respect to the deposit of Shares in connection
with the exchange of Receipts for AirTouch Shares pursuant to the Merger
Agreement, the Issuer shall be deemed the person depositing the Shares for
purposes of Section 3.03 of the Deposit Agreement.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
may be required from time to time to file with the Depositary such proof of
citizenship or residence, exchange control approval, or such information
relating to the registration on the books of the Issuer or the Foreign
Registrar, if applicable, of the Shares presented for deposit, to execute such
certificates and to make such representations and warranties, as the Depositary
may deem necessary or proper. The Depositary may withhold the delivery or
registration of transfer of any Receipt or the distribution of any dividend or
sale or 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. No Share
shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary that any necessary approval has been granted by any governmental body
in England which is then performing the function of regulation of the currency
exchange.
7. DISCLOSURE OF INTERESTS.
Notwithstanding any other provision of this Receipt, the Owner and
Beneficial Owner hereof agrees to comply with requests from the Issuer which are
made under statutory provisions in the United Kingdom to provide information as
to the capacity in which such Owner or Beneficial Owner owns this Receipt and
regarding the identity of any other person interested in this Receipt and the
nature of such interest and may, pursuant to such statutory provisions and any
provisions of the Articles of Association of the Issuer, forfeit the right to
vote and to direct the voting of, and be prohibited from transferring, this
Receipt if compliance is not made, all as if this Receipt were to the extent
practicable the Shares represented hereby. The Depositary agrees to use its
reasonable efforts to comply with any instructions received from the Issuer
requesting that the Depositary take the reasonable actions specified therein to
obtain such information, except when the Depositary is notified by the Issuer
that such action is prohibited by applicable law.
In addition, any Owner or Beneficial Owner who is or becomes directly or
indirectly interested (within the meaning of the Companies Act of 1985, as
amended from time to time (the "Companies Act")), in the issued ordinary share
capital of the Issuer equal to or in excess of the then "notifiable percentage"
(at the date hereof, three percent (3%)) or such other amount as may be required
by the Companies Act, or is aware that another person for whom it holds such
Receipts is so interested, must within two (2) business days (or such other
period as may be required by the Companies Act) after becoming so interested or
so aware, and thereafter upon any changes of at least one
percent (1%) of the outstanding Shares, notify the Issuer as required by the
Companies Act.
If the Issuer requests information from the Depositary or the Custodian, as
the registered owners of Shares, pursuant to the Articles of Association of the
Issuer or the Companies Act, the obligations of the Depositary or the Custodian,
as the case may be, shall be limited to disclosing to the Issuer such
information relating to the Shares in question as has in each case been recorded
by it pursuant to the terms of the Deposit Agreement.
8. CHARGES OF DEPOSITARY.
The Issuer will pay those charges of the Depositary and those of any
Registrar, co-transfer agent or co-registrar not payable by the Owners or
Beneficial Owners plus reasonable out-of-pocket expenses such as printing,
translation, stationery, postage, insurance, cables, etc., incurred by the
Depositary in the exercise of its duties and obligations under the Deposit
Agreement, in accordance with written agreements entered into between the
Depositary and the Issuer from time to time. Any other fees, expenses or charges
of the Depositary under the Deposit Agreement will only be paid by the Issuer in
accordance with agreements in writing entered into between the Depositary and
the Issuer from time to time. Except as may be otherwise agreed in writing
between the Issuer and the Depositary, the Issuer shall not pay or be liable for
(1) the fees, if any, of the Depositary for the execution and delivery of
Receipts pursuant to Section 2.03 of the Deposit Agreement, the surrender of
Receipts pursuant to Section 2.05 of the Deposit Agreement, and the making of
distributions pursuant to Sections 4.01 through 4.04 of the Deposit Agreement,
(2) taxes and other governmental charges (other than Relevant Duties pursuant to
Section 3.02 of the Deposit Agreement), (3) such registration fees as may from
time to time be in effect for the registration of transfers of Shares generally
on the share register of the Issuer (or any appointed agent of the Issuer for
transfer and registration of Shares) and accordingly applicable to transfers of
Shares to the name of the Depositary or its nominee or Custodian or its nominee
on the making of deposits under the Deposit Agreement, (4) such cable, telex or
facsimile transmission and delivery expenses as are expressly provided in the
Deposit Agreement to be at the expense of persons depositing Shares or Owners,
and (5) such expenses as are incurred by the Depositary in the conversion of
foreign currency pursuant to Section 4.05 of the Deposit Agreement. The
Depositary shall present its statement for such charges and expenses to the
Issuer once every three months or as otherwise agreed between the Issuer and the
Depositary. The charges and expenses of any Custodian are for the sole account
of the Depositary. The Depositary shall charge any party to whom Receipts are
issued or who surrenders Receipts a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the issuance or surrender,
respectively, of a Receipt.
The Depositary, subject to Article (9) hereof, may own and deal in any
class of securities of the Issuer and its affiliates and in Receipts.
9. PRE-RELEASE OF RECEIPTS.
The Depositary may issue Receipts against the delivery by the Issuer (or
any agent of the Issuer recording Share ownership) of rights to receive Shares
from the Issuer (or any such agent). No such issue of Receipts will be deemed a
"Pre-Release" that is subject to the restrictions of the following paragraph.
Unless requested in writing by the Issuer to cease doing so, the Depositary
may, notwithstanding Section 2.03 of the Deposit Agreement, execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02 of the Deposit
Agreement ("Pre-Release"). The Depositary may, pursuant to Section 2.05 of the
Deposit Agreement, deliver Shares upon the receipt and cancellation of Receipts
which have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in satisfaction of such Pre-Release, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (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 number of Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited under the Deposit Agreement; provided, however, that the Depositary
reserves the right to disregard such limit from time to time as it deems
reasonably appropriate, and may, with the prior written consent of the Issuer,
change such limit for purposes of general application. The Depositary will also
set Dollar limits with respect to Pre-Release transactions to be entered into
under the Deposit Agreement with any particular Pre-Releasee on a case-by-case
basis as the Depositary deems appropriate. For purposes of enabling the
Depositary to fulfill its obligations to the Owners under the Deposit Agreement,
the collateral referred to in clause (b) above shall be held by the Depositary
as security for the performance of the Pre-Releasee's obligations to the
Depositary in connection with a Pre-Release transaction, including the
Pre-Releasee's obligation to deliver Shares or Receipts upon termination of a
Pre-Release transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities under the Deposit Agreement).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
10. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and Beneficial
Owner of this Receipt by accepting or holding the same consents and agrees, that
title to this Receipt, when properly endorsed or accompanied by proper
instruments of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument under the laws of the State of New York;
provided, however, that the Issuer 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 distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes.
11. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory and, if a Registrar shall have been appointed, by the
manual or facsimile signature of a duly authorized officer of the Registrar.
12. REPORTS; INSPECTION OF RECEIPT REGISTER.
The Issuer currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under the Securities Exchange Act of 1934.
Such reports and communications will be available for inspection and copying by
Owners and Beneficial Owners at the public reference facilities maintained by
the Commission located at 450 Fifth Street, N.W., Washington, D.C. 20549.
The Depositary will make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary, the Custodian or any of its or their agents as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Issuer. The Depositary will also send to Owners
copies of such reports when furnished by the Issuer pursuant to the Deposit
Agreement.
The Issuer will make available at its registered office for inspection by
Owners without charge its register of directors, register of members, books of
minutes of general meetings and any other documents to the extent such documents
are available for inspection without charge by the members of the Issuer
pursuant to the United Kingdom Companies Act 1985 (the "Companies Act") and the
Articles of Association of the Issuer.
The Depositary will keep a Receipt register for the registration of
Receipts and transfers of Receipts which at all reasonable times shall be open
for inspection by the Owners, provided that such inspection shall not be for the
purpose of communicating
with the Owners in the interest of a business or object other than the business
of the Issuer or a matter related to the Deposit Agreement or the Receipts.
13. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution by the Issuer on any Deposited Securities, the Depositary shall,
subject to the provisions of Section 4.05 of the Deposit Agreement, convert such
dividend or distribution into Dollars and shall distribute as promptly as
practicable the amount thus received to the Owners entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; provided, however, that in the
event that the Issuer or the Depositary shall be required to withhold and does
withhold from such cash dividend or other cash distribution an amount on account
of taxes or other governmental charges and net of the Depositary's fee, if any,
the amount distributed to the Owner of American Depositary Shares representing
such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Section 4.11 of the Deposit Agreement,
whenever the Depositary shall receive any distribution other than a distribution
described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement, the Depositary
shall cause the securities or property received by it to be distributed to the
Owners entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively, in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution; provided, however, that if in the opinion of the Depositary
such distribution cannot be made proportionately among the Owners entitled
thereto, or if for any other reason (including, but not limited to, any
requirement that the Issuer or the Depositary withhold an amount on account of
taxes or other governmental charges or that such securities must be registered
under the Securities Act of 1933) the Depositary deems such distribution not to
be feasible, the Depositary may adopt such methods as it deems equitable and
practicable for the purpose of effecting such distribution, including public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale shall be distributed by the Depositary to
the Owners entitled thereto as in the case of a distribution received in cash in
accordance with Section 4.01 of the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend in
or free distribution of Shares, the Depositary shall, only if the Issuer so
requests, distribute to the Owners of outstanding Receipts entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the amount of Shares
received as such dividend or free distribution. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary may
sell the number of Shares represented by the aggregate of such fractions and
distribute the net proceeds as in the case of a cash distribution in accordance
with Section 4.01 of the Deposit Agreement. If additional Receipts or cash in
lieu thereof are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby, and the
Depositary shall give written notice to all Owners to such effect.
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 charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency, by way of dividends
or other distributions or the net proceeds from the sale of securities, property
or rights, and if at the time of the receipt thereof the foreign currency so
received can in the judgment of the Depositary be converted on a reasonable
basis into Dollars and the resulting Dollars transferred to the United States,
the Depositary shall, as promptly as practicable, convert or cause to be
converted, by sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars (net of any conversion expenses of the
Depositary) shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may reasonably deem
desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency without liability for interest thereon for the respective
accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot
be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to
the Owners entitled thereto and may distribute the balance of the foreign
currency received by the Depositary to, or hold such balance for the respective
accounts of, the Owners entitled thereto.
15. RIGHTS.
In the event that the Issuer shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall, after
consultation with the Issuer, have discretion as to the procedure to be followed
in making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any rights the
Depositary determines in its discretion that it is lawful and feasible to make
such rights available to all or certain Owners but not to other Owners, the
Depositary may distribute to any Owner to whom it determines the distribution to
be lawful and feasible, in proportion to the number of American Depositary
Shares held by such Owner, warrants or other instruments therefor in such form
as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable to the American Depositary Shares of such Owner
under the Deposit Agreement, the Depositary will make such rights available to
such Owner upon written notice from the Issuer to the Depositary that (a) the
Issuer has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Issuer has determined in
its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Issuer shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of
the Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this Article 15, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation and
transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary and all taxes and
governmental charges payable in connection with such rights and subject to the
terms and conditions of the Deposit Agreement) for the account of such Owners
otherwise entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any distinctions among such
Owners because of exchange restrictions or the date of delivery of any Receipt
or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to such Owners
or are registered under the provisions of such Act; provided, that nothing in
the Deposit Agreement shall create any obligation on the part of the Issuer to
file a registration statement with respect to such rights or underlying
securities or to endeavor to have such a registration statement declared
effective. If an Owner of Receipts requests the distribution of warrants or
other instruments, notwithstanding that there has been no such registration
under such Act, the Depositary shall not effect such distribution unless it has
received an opinion from recognized counsel in the United States for the Issuer
upon which the Depositary may rely that such distribution to such Owner is
exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
16. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall 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, the Depositary
will fix a record date, after consultation with the Issuer if different from the
record date applicable to the Shares or other Deposited Securities, for the
determination of the Owners who will be entitled to receive such dividend,
distribution or rights, or the net proceeds of the sale thereof, or to vote or
to give instructions for the exercise of voting rights at any such meeting, or
for fixing the date on or after which each American Depositary Share will
represent the changed number of Shares which shall, to the extent practicable,
be the same date as is fixed by the Issuer for the Deposited Securities.
17. VOTING OF DEPOSITED SECURITIES.
The Depositary or, if the Deposited Securities are registered in the name
of or held by its nominee, its nominee, subject to and in accordance with the
Articles of Association of the Issuer hereby irrevocably appoints each Owner for
the time being on the record date (the "Voting Record Date") fixed by the
Depositary in accordance with Section 4.06 of the Deposit Agreement in respect
of any meeting (including any adjourned meeting) at which holders of Deposited
Securities are entitled to vote as its proxy to attend, vote and speak at the
relevant meeting (or any adjournment thereof) in respect of the Deposited
Securities represented by the American Depositary Shares evidenced by the
Receipts held by such Owner on the Voting Record Date. In respect of any such
meeting each such Owner may appoint either a person nominated by the Depositary
or any other person as its substitute proxy to attend, vote and speak on behalf
of the Owner subject to and in accordance with the provisions of Section 4.07 of
the Deposit Agreement and the Articles of Association of the Issuer. 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, in
accordance with Section 4.06 of the Deposit Agreement, fix the Voting Record
Date in respect of such meeting or solicitation. The Depositary or, if the
Issuer so determines, the Issuer shall mail to Owners of record on such Voting
Record Date: (a) such information as is contained in such notice of meeting or
in the solicitation materials, (b) a Receipt proxy card in a form prepared by
the Depositary, after consultation with the Issuer, (c) a statement that each
Owner of Record at the close of business on the Voting Record Date will be
entitled, subject to any applicable law, the Issuer's Articles of Association
and the provisions of or governing the Deposited Securities, either (i) to use
such Receipt proxy card in order to attend, vote and speak at such meeting as
the proxy of the Depositary or its nominee solely with respect to the Shares or
other Deposited Securities represented by American Depositary Shares evidenced
by such Owner's Receipts or (ii) to appoint any other person as the substitute
proxy of such Owner, solely with respect to the Shares or other Deposited
Securities represented by American Depositary Shares evidenced by such Owner's
Receipts or (iii) to appoint the person nominated by the Depositary as the
substitute proxy of such Owner and to instruct such person nominated by the
Depositary as to the exercise of the voting rights pertaining to the Shares or
other Deposited Securities represented by American Depositary Shares evidenced
by such Owner's Receipts, and (d) if the person nominated by the Depositary is
to be appointed by such Owner as its substitute proxy, a brief statement as to
the manner in which voting instructions may be given to the person nominated by
the Depositary. Upon the written request of an Owner of record on the Voting
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, the provisions of the Issuer's Articles of
Association and the provisions of the Deposited Securities, to cause to be voted
the Deposited Securities in accordance with the instructions set forth in such
request.
Neither the Depositary nor the Custodian nor the nominee of either of them
shall exercise any discretion as to voting and neither the Depositary nor the
Custodian nor the nominee of either of them 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 Owners given in accordance with Section 4.07 of the
Deposit Agreement. Shares or other Deposited Securities represented by American
Depositary Shares for which no specific voting instructions are received by the
Depositary from the Owner shall not be voted by the Depositary or its nominee
but may be directly voted by Owners in attendance at meetings of shareholders as
proxy for the Depositary, subject to, and in accordance with, the provisions of
Section 4.07 of the Deposit Agreement and the Issuer's Articles of Association.
For purposes of Section 4.07 of the Deposit Agreement and this Article
(17), "Owner" shall include any person holding Receipts through the Vodafone
AirTouch Plc Global BuyDIRECT plan and any successor plan.
18. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, cancellation, or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation, or sale of assets affecting the Issuer 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 in respect of Deposited Securities shall be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent the new Deposited Securities so
received in exchange or conversion, unless additional Receipts are delivered
pursuant to the following sentence. In any such case the Depositary shall, only
if the Issuer so requests, execute and deliver additional Receipts as in the
case of a distribution in Shares in accordance with Section 4.03 of the Deposit
Agreement or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities.
19. LIABILITY OF THE ISSUER AND DEPOSITARY.
Neither the Depositary nor the Issuer shall incur any liability to any
Owner or Beneficial Owner of any Receipt, if by reason of any provision of any
present or future law or by reason of any present or future provision of the
Articles of Association of the Issuer, or by reason of any act of God or war or
other circumstances beyond its control, the Depositary or the Issuer shall be
prevented or forbidden from doing or performing any act or thing which by the
terms of the Deposit Agreement it is provided shall be done or performed; nor
shall the Depositary or the Issuer incur any liability to any Owner or
Beneficial Owner of a Receipt by reason of any non-performance or delay, caused
aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement. Where, by the terms of a
distribution pursuant to Sections 4.01 (Cash Distributions), 4.02 (Distributions
Other Than Cash, Shares or Rights) or 4.03 (Distributions in Shares) of the
Deposit Agreement, or an offering or distribution pursuant to Section 4.04
(Rights) of the Deposit Agreement, or for any other reason, such distribution or
offering may not practicably be made available to Owners, and the Depositary may
not dispose of such distribution or offering on behalf of such Owners and make
the net proceeds available to such Owners, then the Depositary shall not make
such distribution or offering, and shall allow any rights, if applicable, to
lapse. Neither the Issuer nor the Depositary assumes any obligation or shall be
subject to any liability under the Deposit Agreement to Owners or Beneficial
Owners of Receipts (including without limitation liability with respect to the
validity or worth of the Deposited Securities), except that they have agreed to
perform their respective obligations specifically set forth in the Deposit
Agreement without negligence or bad faith. Neither the Depositary nor the Issuer
shall be under any obligation to appear in, prosecute or defend any action, suit
or other proceeding in respect of any Deposited Securities or in respect of the
Receipts, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. Neither the Depositary nor the Issuer shall be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Owner or Beneficial Owner of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or inaction is in good faith. The Issuer agrees to indemnify the
Depositary and the Custodian against, and hold each of them harmless from, any
liability or expense (including fees and expenses of counsel), other than any
loss, liability, or expense covered by the terms of Section 3 of the Procedures
Agreement, which may arise out of acts performed or omitted in respect of the
Deposit Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian,
except for any liability or expense arising out of the negligence or bad faith
of either of them, or (ii) by the Issuer or any of its agents.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09 of the Deposit Agreement) of a Receipt
or Receipts in accordance with Section 2.09 of the Deposit Agreement and which
would not otherwise have arisen had such Receipt or Receipts not been the
subject of a Pre-Release pursuant to Section 2.09 of the Deposit Agreement;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not be the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or
omission or alleged omission in any registration statement, proxy statement,
prospectus (or placement memorandum), or preliminary prospectus (or preliminary
placement memorandum) relating to the offer or sale of American Depositary
Shares, except to the extent any such liability or expense arises out of (i)
information relating to the Depositary or any Custodian (other than the
Company), as applicable, furnished in writing and not materially changed or
altered by the Company expressly for use in any of the foregoing documents, or,
(ii) if such information is provided, the failure to state a material fact
necessary to make the information provided not misleading. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision of the
Deposit Agreement.
Any person seeking indemnification under the Deposit Agreement (an
"indemnified person") shall notify the person from whom it is seeking
indemnification (the "indemnifying person") of a commencement of any
indemnifiable action or claim promptly after such indemnified person becomes
aware of such commencement (provided that the failure to make such notification
shall not affect such indemnified person's rights under Section 5.08 of the
Deposit Agreement) and shall consult in good faith with the indemnifying person
as to the conduct of the defense of such action or claim, which shall be
reasonable in the circumstances. No indemnified person shall compromise or
settle any action or claim without the consent of the indemnifying person.
20. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
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 Issuer,
such resignation to take effect 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 Issuer by written notice of such
removal, effective upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. Whenever
the Depositary in its discretion determines that it is in the best interest of
the Owners to do so, it may appoint a substitute or additional Custodian.
21. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may at
any time and from time to time be amended by agreement between the Issuer and
the Depositary in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges), or which shall otherwise prejudice any
substantial existing right of Owners, shall not, however, become effective as to
outstanding Receipts until the expiration of three months after notice of such
amendment shall have been given to the Owners of outstanding Receipts. Every
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 Owner of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby.
22. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary will at any time at the direction of the Issuer terminate
the Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Issuer and the Owners of
all Receipts then outstanding, if at any time 90 days shall have expired after
the Depositary shall have delivered to the Issuer and the Owners of Receipts
then outstanding a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment as
provided in the Deposit Agreement. If any Receipts shall remain outstanding
after the date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners 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 and other property as provided in the
Deposit Agreement, and shall continue to deliver Deposited Securities, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary. At any time after the expiration of six
months from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may thereafter (so long as
it may lawfully do so) hold uninvested the proceeds of any such sale, together
with any other cash then held by it thereunder, unsegregated and without
liability for interest, for the pro rata benefit of the Owners which have not
theretofore been surrendered such Owners thereupon becoming general creditors of
the Depositary with respect to such net proceeds. After making such sale, the
Depositary will be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash. Upon the termination of
the Deposit Agreement, the Issuer shall be discharged from all obligations under
the Deposit Agreement except for its obligations of the Depositary with respect
to indemnification, charges and expenses.
23. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding any provisions in this Receipt or the Deposit Agreement to
the contrary, the Issuer and the Depositary have each agreed that it will not
exercise any rights it has under the Deposit Agreement to prevent the withdrawal
or delivery of Deposited Securities in a manner which would violate the United
States securities laws including but not limited to Section IA(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time under the Securities Act of 1933.