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DEPOSIT AGREEMENT
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by and among
MURRAY & ROBERTS HOLDINGS LIMITED
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of [ ], 2010
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [ ], 2010, by and among (i) Murray & Roberts
Holdings Limited, a company incorporated under the laws of the Republic of South
Africa, and its successors (the "Company"), (ii) Deutsche Bank Trust Company
Americas, an indirect wholly owned subsidiary of Deutsche Bank A.G., acting in
its capacity as depositary, and any successor depositary hereunder (the
"Depositary"), and (iii) all Holders and Beneficial Owners of American
Depositary Shares evidenced by American Depositary Receipts issued hereunder
(all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company desires to establish an ADR facility with the
Depositary to provide for the deposit of the Shares and the creation of American
Depositary Shares representing the Shares so deposited;
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in this Deposit Agreement;
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are to
be substantially in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement; and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement, the execution and delivery of this Deposit
Agreement on behalf of the Company, and the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1 "Affiliate" shall have the meaning assigned to such term by
the Commission under Regulation C promulgated under the Securities Act.
SECTION 1.2 "Agent" shall mean such entity or entities as the Depositary
may appoint under Section 7.10, including the Custodian or any successor or
addition thereto.
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SECTION 1.3 "American Depositary Share(s)" and "ADS(s)" shall mean the
securities represented by the rights and interests in the Deposited Securities
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of this Deposit Agreement and evidenced by the American Depositary
Receipts issued hereunder. Each American Depositary Share shall represent the
right to receive one Share, until there shall occur a distribution upon
Deposited Securities referred to in Section 4.2 or a change in Deposited
Securities referred to in Section 4.9 with respect to which additional American
Depositary Receipts are not executed and delivered, and thereafter each American
Depositary Share shall represent the Shares or Deposited Securities specified in
such Sections.
SECTION 1.4 "ADS Record Date" shall have the meaning given to such term
in Section 4.7.
SECTION 1.5 "Beneficial Owner" shall mean as to any ADS, any person or
entity having a beneficial interest in any ADSs. A Beneficial Owner need not be
the Holder of the ADR evidencing such ADSs. A Beneficial Owner may exercise any
rights or receive any benefits hereunder solely through the Holder of the ADR(s)
evidencing the ADSs in which such Beneficial Owner has an interest.
SECTION 1.6 "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not (a) a day on which banking institutions in the
Borough of Manhattan, The City of New York are authorized or obligated by law or
executive order to close and (b) a day on which the market(s) in which Receipts
are traded are closed.
SECTION 1.7 "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.8 "Company" shall mean Murray & Roberts Holdings Limited, a
company incorporated and existing under the laws of the Republic of South
Africa, and its successors.
SECTION 1.9 "Custodian" shall mean, as of the date hereof, Computershare
Custodial Services Ltd., having its principal office at 13th Floor, 70 Marshall
Street, Johannesburg 2001, Republic of South Africa, as the custodian for the
purposes of this Deposit Agreement, and any other firm or corporation which may
hereinafter be appointed by the Depositary pursuant to the terms of Section 5.5
as a successor or an additional custodian or custodians hereunder, as the
context shall require. The term "Custodian" shall mean all custodians,
collectively.
SECTION 1.10 "Deliver" and "Delivery" shall mean, when used in respect of
American Depositary Shares, Receipts, Deposited Securities and Shares, the
physical delivery of the certificate representing such security, or the
electronic delivery of such security by means of book-entry transfer, as
appropriate, including, without limitation, through DRS/Profile. With respect to
DRS/Profile ADRs, the terms "execute", "issue", "register", "surrender",
"transfer" or "cancel" refer to applicable entries or movements to or within
DRS/Profile.
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SECTION 1.11 "Deposit Agreement" shall mean this Deposit Agreement and
all exhibits hereto, as the same may from time to time be amended and
supplemented in accordance with the terms hereof.
SECTION 1.12 "Depositary" shall mean Deutsche Bank Trust Company
Americas, an indirect wholly owned subsidiary of Deutsche Bank A.G., in its
capacity as depositary under the terms of this Deposit Agreement, and any
successor depositary hereunder.
SECTION 1.13 "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received or deemed to be
received by the Depositary or the Custodian in respect thereof and held
hereunder, subject, in the case of cash, to the provisions of Section 4.6. The
collateral delivered in connection with Pre-Release Transactions described in
Section 2.10 hereof shall not constitute Deposited Securities.
SECTION 1.14 "Dollars" and "$" shall refer to the lawful currency of the
United States.
SECTION 1.15 "DRS/Profile" shall mean the system for the uncertificated
registration of ownership of securities pursuant to which ownership of ADSs is
maintained on the books of the Depositary without the issuance of a physical
certificate and transfer instructions may be given to allow for the automated
transfer of ownership between the books of DTC and the Depositary. Ownership of
ADSs held in DRS/Profile are evidenced by periodic statements issued by the
Depositary to the Holders entitled thereto.
SECTION 1.16 "DTC" shall mean The Depository Trust Company, the central
book-entry clearinghouse and settlement system for securities traded in the
United States, and any successor thereto. Participants within DTC are
hereinafter referred to as "DTC Participants".
SECTION 1.17 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.18 "Foreign Currency" shall mean any currency other than
Dollars.
SECTION 1.19 "Foreign Registrar" shall mean the entity, if any, that
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.20 "Holder" shall mean the person in whose name a Receipt is
registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. A Holder shall
be deemed to have all requisite authority to act on behalf of those Beneficial
Owners of the ADRs registered in such Holder's name.
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SECTION 1.21 "Indemnified Person" and "Indemnifying Person" shall have
the meaning set forth in Section 5.8. hereof.
SECTION 1.22 "Pre-Release Transaction" shall have the meaning set forth
in Section 2.10 hereof.
SECTION 1.23 "Principal Office" when used with respect to the Depositary,
shall mean the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of this Deposit Agreement, is located at 60 Wall Street, New York, New York
10005, U.S.A.
SECTION 1.24 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"
shall mean the certificate(s) or DRS/Profile statements issued by the Depositary
evidencing the American Depositary Shares issued under the terms of this Deposit
Agreement, as such Receipts may be amended from time to time in accordance with
the provisions of this Deposit Agreement. References to Receipts shall include
physical certificated Receipts as well as ADSs issued through DRS/Profile,
unless the context otherwise requires.
SECTION 1.25 "Registrar" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary to register ownership of Receipts and
transfer of Receipts as herein provided, shall include any co-registrar
appointed by the Depositary for such purposes. Registrars (other than the
Depositary) may be removed and substitutes appointed by the Depositary.
SECTION 1.26 "Restricted Securities" shall mean Shares, or American
Depositary Shares representing such Shares, which (i) have been acquired
directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and
subject to resale limitations under the Securities Act or the rules issued
thereunder, or (ii) are held by an officer or director (or persons performing
similar functions) or other Affiliate of the Company, or (iii) are subject to
other restrictions on sale or deposit under the laws of the United States, the
Republic of South Africa, or under a shareholders' agreement or the Company's
Articles of Association or under the regulations of an applicable securities
exchange unless, in each case, such Shares are being sold to persons other than
an Affiliate of the Company in a transaction (x) covered by an effective resale
registration statement or (y) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares are not, when held by
such person, Restricted Securities.
SECTION 1.27 "Securities Act" shall mean the United States Securities Act
of 1933, as from time to time amended.
SECTION 1.28 "Shares" shall mean ordinary shares in registered form of
the Company, heretofore validly issued and outstanding and fully paid or
hereafter validly issued and outstanding and fully paid. References to Shares
shall include evidence of rights to receive Shares, whether or not stated in the
particular instance; provided, however, that in no event shall Shares include
evidence of rights to receive Shares with respect to which the full purchase
price
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has not been paid or Shares as to which pre-emptive rights have theretofore not
been validly waived or exercised; provided further, however, that, if there
shall occur any change in par value, split-up, consolidation, exchange,
reclassification, conversion or any other event described in Section 4.9, in
respect of the Shares of the Company, the term "Shares" shall thereafter, to the
extent permitted by law, represent the successor securities resulting from such
change in par value, split-up, consolidation, exchange, conversion,
reclassification or event.
SECTION 1.29 "United States" or "U.S." shall mean the United States of
America.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as exclusive depositary for the Deposited Securities and hereby
authorizes and directs the Depositary to act in accordance with the terms set
forth in this Deposit Agreement. Each Holder and each Beneficial Owner, upon
acceptance of any ADSs (or any interest therein) issued in accordance with the
terms of this Deposit Agreement, shall be deemed for all purposes to (a) be a
party to and bound by the terms of this Deposit Agreement and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in this Deposit Agreement,
to adopt any and all procedures necessary to comply with applicable law and to
take such action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement (the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof).
SECTION 2.2 Form and Transferability of Receipts.
(a) Definitive Receipts 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. Receipts may be issued in
denominations of any number of American Depositary Shares. No definitive Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose, unless such Receipt shall have been executed by the
Depositary by the manual or facsimile signature of a duly authorized signatory
of the Depositary. The Depositary shall maintain books on which each Receipt so
executed and delivered, in the case of definitive Receipts, and each Receipt
issued through the DRS/Profile, in either case as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts in certificated form
bearing the manual or 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 and delivery of such Receipts by the Registrar or
did not hold such office on the date of issuance of such Receipts.
In addition to the foregoing, the Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications not
inconsistent with the provisions of this
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Deposit Agreement as may be reasonably required by the Depositary and the
Company in order to comply with any applicable law or regulations or with the
rules and regulations of any securities exchange or market upon which American
Depositary Shares may be listed, traded or quoted 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.
Notwithstanding anything in this Deposit Agreement or in the Receipt to the
contrary, to the extent available by the Depositary, American Depositary Shares
shall be evidenced by Receipts issued through DRS/Profile unless certificated
Receipts are specifically requested by the Holder. Holders and Beneficial 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 certificated or issued
through DRS/Profile.
(b) Subject to the limitations contained herein and in the form of
Receipt, title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed (in the case of certificated Receipts) 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
Depositary, notwithstanding any notice to the contrary, may treat the Holder
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes and neither
the Depositary nor the Company will have any obligation or be subject to any
liability under the Deposit Agreement to any holder of a Receipt, unless such
holder is the Holder thereof.
SECTION 2.3 Deposits. (a) Subject to the terms and conditions of this
Deposit Agreement and applicable law, Shares or evidence of rights to receive
Shares (other than Restricted Securities) may be deposited by any person
(including the Depositary in its individual capacity but subject, however, in
the case of the Company or any Affiliate of the Company, to Section 5.7 hereof)
at any time, whether or not the transfer books of the Company or the Foreign
Registrar, if any, are closed, by Delivery of the Shares to the Custodian. Every
deposit of Shares shall be accompanied by the following: (A)(i) in the case of
Shares issued in registered form, appropriate instruments of transfer or
endorsement, in a form satisfactory to the Custodian, (ii) in the case of Shares
issued in bearer form, such Shares or the certificates representing such Shares
and (iii) in the case of Shares delivered by book-entry transfer, confirmation
of such book-entry transfer to the Custodian or that irrevocable instructions
have been given to cause such Shares to be so transferred, (B) such
certifications and payments (including, without limitation, the Depositary's
fees and related charges) and evidence of such payments (including, without
limitation, stamping or otherwise marking such Shares by way of receipt) as may
be required by the Depositary or the Custodian in accordance with the provisions
of this Deposit Agreement, (C) if the Depositary so requires, 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 for the
number of American Depositary Shares representing the Shares so deposited,
(D) evidence satisfactory to the Depositary (which may include an opinion of
counsel reasonably satisfactory to the Depositary provided at the cost of the
person seeking to deposit Shares) that all conditions
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to such deposit have been met and all necessary approvals have been granted by,
and there has been compliance with the rules and regulations of, any applicable
governmental agency in the Republic of South Africa, and (E) if the Depositary
so requires, (i) an agreement, assignment or instrument satisfactory to the
Depositary or the Custodian which provides for the prompt transfer by any person
in whose name the Shares are or have been recorded to the Custodian of any
distribution, or right to subscribe for additional Shares or to receive other
property in respect of any such deposited Shares or, in lieu thereof, such
indemnity or other agreement as shall be satisfactory to the Depositary or the
Custodian and (ii) if the Shares are registered in the name of the person on
whose behalf they are presented for deposit, a proxy or proxies entitling the
Custodian to exercise voting rights in respect of the Shares for any and all
purposes until the Shares so deposited are registered in the name of the
Depositary, the Custodian or any nominee. No Share shall be accepted for deposit
unless accompanied by confirmation or such additional evidence, if any is
required by the Depositary, that is reasonably satisfactory to the Depositary or
the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under the laws and regulations of the Republic of
South Africa and any necessary approval has been granted by any governmental
body in the Republic of South Africa, if any, which is then performing the
function of the regulator of currency exchange. The Depositary may issue
Receipts against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. 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, unless a registration
statement is in effect as to such Shares. The Depositary will use commercially
reasonable efforts to comply with reasonable written instructions of the Company
that the Depositary shall not accept for deposit hereunder any Shares
specifically identified in such instructions at such times and under such
circumstances as may reasonably be specified in such instructions in order to
facilitate the Company's compliance with the securities laws in the United
States.
(b) As soon as practicable after receipt of any permitted deposit
hereunder and compliance with the provisions of this Deposit Agreement, the
Custodian shall present the Shares so deposited, together with the appropriate
instrument or instruments of transfer or endorsement, duly stamped, to the
Foreign Registrar for transfer and registration of the Shares (as soon as
transfer and registration can be accomplished and at the expense of the person
for whom the deposit is made) in the name of the Depositary, the Custodian or a
nominee of either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee, in
each case for the account of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
(c) In the event any Shares are deposited which entitle the holders
thereof to receive a per-share distribution or other entitlement in an amount
different from the Shares then on deposit, the Depositary is authorized to take
any and all actions as may be necessary (including, without limitation, making
the necessary notations on Receipts) to give effect to the issuance of such ADSs
and to ensure that such ADSs are not fungible with other ADSs issued hereunder
until such time as the entitlement of the Shares represented by such
non-fungible ADSs equals that of the Shares represented by ADSs prior to the
original such deposit. The Company agrees to
8
give timely written notice to the Depositary if any Shares issued or to be
issued contain rights different from those of any other Shares theretofore
issued and shall assist the Depositary with the establishment of procedures
enabling the identification of such non-fungible Shares upon Delivery to the
Custodian.
SECTION 2.4 Execution and Delivery of Receipts. After the deposit of any
Shares pursuant to Section 2.3, the 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, first class airmail postage prepaid, or, at the request, risk
and expense of the person making the deposit, by cable, telex, SWIFT, facsimile
or electronic transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement (including, without limitation,
the payment of the fees, expenses, taxes and other charges owing hereunder),
shall issue the ADSs representing the Shares so deposited to or upon the order
of the person or persons named in the notice delivered to the Depositary and
shall execute and deliver a Receipt registered in the name or names requested by
such person or persons evidencing in the aggregate the number of American
Depositary Shares to which such person or persons are entitled. Nothing herein
shall prohibit any Pre-Release Transaction upon the terms set forth in this
Deposit Agreement.
SECTION 2.5 Transfer of Receipts; Combination and Split-up of Receipts.
(a) Transfer. The Depositary, or, if a Registrar (other than the
Depositary) for the Receipts shall have been appointed, the Registrar, subject
to the terms and conditions of this Deposit Agreement, shall register transfers
of Receipts on its books, upon surrender at the Principal Office of the
Depositary of a Receipt by the Holder thereof in person or by duly authorized
attorney, properly endorsed in the case of a certificated Receipt or accompanied
by, or in the case of DRS/Profile Receipts receipt by the Depositary of, proper
instruments of transfer (including signature guarantees in accordance with
standard industry practice) and duly stamped as may be required by the laws of
the State of New York and of the United States and any other applicable law.
Subject to the terms and conditions of this Deposit Agreement, including payment
of the applicable fees and charges of the Depositary set forth in Section 5.9
hereof and Article (9) of the Receipt, the Depositary shall execute a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of American Depositary
Shares as those evidenced by the Receipts surrendered.
(b) Combination & Split Up. The Depositary, subject to the terms and
conditions of this Deposit Agreement shall, upon surrender of a Receipt or
Receipts for the purpose of effecting a split-up or combination of such Receipt
or Receipts and upon payment to the Depositary of the applicable fees and
charges set forth in Section 5.9 hereof and Article (9) of the Receipt, execute
and deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
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(c) Co-Transfer Agents. The Depositary may appoint one or more co-transfer
agents for the purpose of effecting transfers, combinations and split-ups of
Receipts at designated transfer offices on behalf of the Depositary. In carrying
out its functions, a co-transfer agent may require evidence of authority and
compliance with applicable laws and other requirements by Holders or persons
entitled to such Receipts and will be entitled to protection and indemnity, in
each case to the same extent as the Depositary. Such co-transfer agents may be
removed and substitutes appointed by the Depositary. Each co-transfer agent
appointed under this Section 2.5 (other than the Depositary) shall give notice
in writing to the Depositary accepting such appointment and agreeing to be bound
by the applicable terms of this Deposit Agreement.
(d) At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated Receipt with a Receipt issued through DRS/Profile,
or vice versa, execute and deliver a certificated Receipt or DRS/Profile
statement, 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 DRS/Profile statement,
as the case may be, substituted.
SECTION 2.6 Surrender of Receipts and Withdrawal of Deposited
Securities. Upon surrender, at the Principal Office of the Depositary, of
American Depositary Shares for the purpose of withdrawal of the Deposited
Securities represented thereby, and upon payment of (i) the fees and charges of
the Depositary for the making of withdrawals of Deposited Securities and
cancellation of Receipts (as set forth in Section 5.9 hereof and Article (9) of
the Receipt and (ii) all applicable taxes and/or governmental charges payable in
connection with such surrender and withdrawal, and subject to the terms and
conditions of this Deposit Agreement, the Company's Articles of Association,
Section 7.8 hereof and any other provisions of or governing the Deposited
Securities and other applicable laws, the Holder shall be entitled to Delivery,
to him or upon his order, of the Deposited Securities at the time represented by
the American Depositary Shares so surrendered. American Depositary Shares may be
surrendered for the purpose of withdrawing Deposited Securities by delivery of a
Receipt evidencing such American Depositary Shares (if held in certificated
form) or by book-entry delivery of such American Depositary Shares to the
Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) at the designated office of the Custodian or through a book
entry delivery of the Shares (in either case, subject to Sections 2.7, 3.1, 3.2,
5.9, and to the other terms and conditions of this Deposit Agreement, to the
Company's Articles of Association, to the provisions of or governing the
Deposited Securities and to applicable laws, now or hereafter in effect) to or
upon the written order of the person or persons designated in the order
delivered to the Depositary as provided above, the Deposited Securities
represented by such American Depositary Shares, together with any
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certificate or other proper documents of or relating to title of the Deposited
Securities as may be legally required, as the case may be, to or for the account
of such person.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares representing a number other than a whole
number of Shares. In the case of surrender of a Receipt evidencing a number of
American Depositary Shares representing other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares to be
Delivered in accordance with the terms hereof, and shall, at the discretion of
the Depositary, either (i) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing American Depositary Shares representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the Receipt surrendered and remit the proceeds of such
sale (net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and governmental charges) to the person surrendering
the Receipt.
At the request, risk and expense of any Holder so surrendering a Receipt,
and for the account of such Holder, the Depositary shall direct the Custodian to
forward (to the extent permitted by law) any cash or other property (other than
securities) held in respect of, and any certificate or certificates and other
proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, electronic or facsimile transmission. Upon receipt by the
Depositary, the Depositary may make delivery to such person or persons entitled
thereto at the Principal Office of the Depositary of any dividends or cash
distributions with respect to the Deposited Securities represented by such
American Depositary Shares, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
SECTION 2.7 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and
delivery, registration, registration of transfer, split-up, subdivision
combination or surrender of any Receipt, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any share transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 hereof and Article (9) of the Receipt,
(ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section 3.1
hereof and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of Receipts or American Depositary Shares
or to the withdrawal or delivery of Deposited Securities and (B) such reasonable
regulations as the Depositary may establish consistent with the provisions of
this Deposit Agreement and applicable law.
11
(b) Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be suspended, or
the issuance of ADSs against the deposit of particular Shares may be withheld,
or the registration of transfer of Receipts in particular instances may be
refused, or the registration of transfers of Receipts generally may be
suspended, during any period when the transfer books of the Depositary are
closed or if any such action is deemed necessary or advisable by the Depositary
or the Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange on which the Receipts or Shares are listed, or under any
provision of this Deposit Agreement or provisions of, or governing, the
Deposited Securities, or any meeting of shareholders of the Company or for any
other reason, subject, in all cases, to Section 7.8 hereof.
SECTION 2.8 Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, unless the Depositary has notice that such ADR has
been acquired by a bona fide purchaser, subject to Section 5.9 hereof, the
Depositary shall execute and deliver a new Receipt (which, in the discretion of
the Depositary may be issued through DRS/Profile unless specifically requested
otherwise) in exchange and substitution for such mutilated Receipt upon
cancellation thereof, or in lieu of and in substitution for such destroyed, lost
or stolen Receipt. Before the Depositary shall execute and deliver a new Receipt
in substitution for a destroyed, lost or stolen Receipt, the Holder thereof
shall have (a) filed with the Depositary (i) a request for such execution and
delivery before the Depositary has notice that the Receipt has been acquired by
a bona fide purchaser and (ii) a sufficient indemnity bond in form and amount
acceptable to the Depositary and (b) satisfied any other reasonable requirements
imposed by the Depositary.
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy Receipts so
cancelled in accordance with its customary practices. Cancelled Receipts shall
not be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose.
SECTION 2.10 Pre-Release. Subject to the further terms and provisions of
this Section 2.10, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not
lend Shares, ADSs or other deposited property; provided, however, that the
Depositary reserves the right, unless otherwise instructed by the Company (i) to
issue ADSs prior to the receipt of Shares (each such transaction a "Pre-Release
Transaction") as provided below and (ii) to deliver Shares upon the receipt and
cancellation of ADSs that were issued in a Pre-Release Transaction, but for
which Shares may not yet have been received. The Depositary may receive ADSs in
lieu of Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or Shares
are to be delivered (1) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (2) assigns all
beneficial right, title and interest in and to such Shares to the
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Depositary, in its capacity as such and agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such Shares or ADSs are delivered to the
Depositary or the Custodian, (3) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs, (4) will not
take any action with respect to such Shares that is inconsistent with the
transfer of beneficial ownership other than to deliver such Shares to the
Depositary in its capacity as such and (5) agrees to any additional restrictions
or requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States government securities or such other
collateral as the Depositary deems appropriate, (c) terminable by the Depositary
on not more than five (5) business days' notice and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to disregard such limit from time to time
as it deems appropriate and may, with the written consent of the Company, change
such limit for the purposes of general application. The Depositary may also set
limits with respect to the number of ADSs and Shares involved in Pre-Release
Transactions with any one person on a case by case basis as it deems
appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary or the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of this Deposit Agreement and the provisions of, or governing, the Deposited
Securities or other information; to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation, in all cases as the Depositary may deem reasonably necessary or
proper or as the Company may reasonably require by written request to the
Depositary consistent with its obligations hereunder. The Depositary and the
Registrar, as applicable, may withhold the execution or delivery or registration
of transfer of any Receipt or the distribution or sale of any dividend or
distribution of rights or of the proceeds thereof, or to the extent not limited
by the terms of Section 7.8 hereof, the delivery of any Deposited Securities,
until such proof or other information is filed or such certifications are
executed, or such representations and warranties are made, or such other
documentation or information provided, in each case to the Depositary's and the
Company's satisfaction. The Depositary shall from time to time on the written
request advise the Company of the availability of any such proofs, certificates
or other information and shall, at
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the Company's sole expense, provide or otherwise make available copies thereof
to the Company upon written request thereof by the Company, unless such
disclosure is prohibited by law. Each Holder and Beneficial Owner agrees to
provide any information requested by the Company or the Depositary pursuant to
this paragraph. Nothing herein shall obligate the Depositary to (i) obtain any
information for the Company if not provided by the Holders or Beneficial Owners
or (ii) verify or vouch for the accuracy of the information so provided by the
Holders or Beneficial Owners.
SECTION 3.2 Liability for Taxes and Other Charges. If any present or
future tax or other governmental charge shall become payable by the Depositary
or the Custodian with respect to any Shares, Deposited Securities, Receipts or
ADSs, such tax or other governmental charge shall be payable by the Holders and
Beneficial Owners to the Depositary and such Holders and Beneficial Owners shall
be deemed liable therefor. The Company, the Custodian and/or the Depositary may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of a Holder and/or Beneficial Owner any
or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, with the Holder and the Beneficial Owner remaining fully liable for
any deficiency. In addition to any other remedies available to it, the
Depositary and the Custodian may refuse the deposit of Shares, and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer,
split-up or combination of ADRs and (subject to Section 7.8) the withdrawal of
Deposited Securities, until payment in full of such tax, charge, penalty or
interest is received. Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Company, the Custodian, and each of their respective agents,
officers, directors, employees and Affiliates for, and to hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner. The obligations of Holders and Beneficial Owners of
Receipts under this Section 3.2 shall survive any transfer of Receipts, any
surrender of Receipts and withdrawal of Deposited Securities, or the termination
of this Deposit Agreement.
SECTION 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid and were legally obtained by such
person, (ii) all preemptive (and similar) rights, if any, with respect to such
Shares have been validly waived or exercised, (iii) the person making such
deposit is duly authorized so to do, (iv) the Shares presented for deposit are
free and clear of any lien, encumbrance, security interest, charge, mortgage or
adverse claim, and are not, and the American Depositary Shares issuable upon
such deposit will not be, Restricted Securities and (v) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of American Depositary Shares in respect
thereof and the transfer of such American Depositary Shares. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
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SECTION 3.4 Compliance with Information Requests. Notwithstanding any
other provision of this Deposit Agreement, the Articles of Association of the
Company and applicable law, each Holder and Beneficial Owner agrees to (a)
provide such information as the Company or the Depositary may request pursuant
to law (including, without limitation, relevant South African law, any
applicable law of the United States, the Articles of Association of the Company,
any resolutions of the Company's Board of Directors adopted pursuant to such
Articles of Association, the requirements of any markets or exchanges upon which
the Shares, ADSs or Receipts are listed or traded, or to any requirements of any
electronic book-entry system by which the ADSs or Receipts may be transferred,
and (b) be bound by and subject to applicable provisions of the laws of the
Republic of South Africa, the Articles of Association of the Company and the
requirements of any markets or exchanges upon which the ADSs, Receipts or Shares
are listed or traded, or pursuant to any requirements of any electronic
book-entry system by which the ADSs, Receipts or Shares may be transferred, to
the same extent as if such Holder and Beneficial Owner held Shares directly, in
each case irrespective of whether or not they are Holders or Beneficial Owners
at the time such request is made. The Depositary agrees to use its reasonable
efforts to forward upon the request of the Company, and at the Company's
expense, any such request from the Company to the Holders and to forward to the
Company any such responses to such requests received by the Depositary.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Shares, rights, securities or other entitlements under the terms hereof, the
Depositary will, if at the time of receipt thereof any amounts received in a
Foreign Currency can in the judgment of the Depositary (pursuant to Section 4.6
hereof) be converted on a practicable basis into Dollars transferable to the
United States, promptly convert or cause to be converted such cash dividend,
distribution or proceeds into Dollars (on the terms described in Section 4.6)
and will distribute promptly the amount thus received (net of (a) the applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes and
governmental charges) to the Holders of record as of the ADS Record Date in
proportion to the number of American Depositary Shares held by such Holders
respectively as of the ADS Record Date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder a
fraction of one cent. Any such fractional amounts shall be rounded to the
nearest whole cent and so distributed to Holders entitled thereto. Holders and
Beneficial Owners understand that in converting Foreign Currency, amounts
received on conversion are calculated at a rate which exceeds three or four
decimal places (the number of decimal places used by the Depositary to report
distribution rates). The excess amount may be retained by the Depositary as an
additional cost of conversion, irrespective of any other fees and expenses
payable or owing hereunder and shall not be subject to escheatment. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the
15
American Depositary Shares representing such Deposited Securities shall be
reduced accordingly. Such withheld amounts shall be forwarded by the Company,
the Custodian or the Depositary to the relevant governmental authority. Evidence
of payment thereof by the Company shall be forwarded by the Company to the
Depositary upon request. The Depositary will forward to the Company or its agent
such information from its records as the Company may reasonably request to
enable the Company or its agent to file necessary reports with governmental
agencies, such reports necessary to obtain benefits under the applicable tax
treaties for the Holders and Beneficial Owners of Receipts.
SECTION 4.2 Distribution in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
any of their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.7 and shall, subject to Section 5.9 hereof, either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and/or governmental charges), or (ii) if additional American Depositary
Shares are not so distributed, each American Depositary Share issued and
outstanding after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and governmental charges). In lieu of delivering fractional American
Depositary Shares, the Depositary shall sell the number of Shares represented by
the aggregate of such fractions and distribute the proceeds upon the terms
described in Section 4.1. The Depositary may withhold any such distribution of
Receipts if it has not received satisfactory assurances from the Company
(including an opinion of counsel to the Company furnished at the expense of the
Company) that such distribution does not require registration under the
Securities Act or is exempt from registration under the provisions of the
Securities Act. To the extent such distribution may be withheld, the Depositary
may dispose of all or a portion of such distribution in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable, and the Depositary shall distribute the net proceeds of any
such sale (after deduction of applicable (a) taxes and/or governmental charges
and (b) fees and charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms described in Section 4.1.
SECTION 4.3 Elective Distributions in Cash or Shares. Whenever the
Company intends to distribute a dividend payable at the election of the holders
of Shares in cash or in additional Shares, the Company shall give notice thereof
to the Depositary at least 30 days prior (unless after consultation the Company
and the Depositary agree otherwise) to the proposed distribution stating whether
or not it wishes such elective distribution to be made available to Holders.
Upon receipt of notice indicating that the Company wishes such elective
distribution to be made available to Holders, the Depositary shall consult with
the Company to determine, and
16
the Company shall assist the Depositary in its determination, whether it is
lawful and reasonably practicable to make such elective distribution available
to the Holders. The Depositary shall make such elective distribution available
to Holders only if (i) the Company shall have timely requested that the elective
distribution is available to Holders of ADRs, (ii) the Depositary shall have
determined that such distribution is reasonably practicable and (iii) the
Depositary shall have received satisfactory documentation within the terms of
Section 5.7 including, without limitation, any legal opinions of counsel in any
applicable jurisdiction that the Depositary in its reasonable discretion may
request, at the expense of the Company. If the above conditions are not
satisfied, the Depositary shall, to the extent permitted by law, distribute to
the Holders, on the basis of the same determination as is made in the local
market in respect of the Shares for which no election is made, either (x) cash
upon the terms described in Section 4.1 or (y) additional ADSs representing such
additional Shares upon the terms described in Section 4.2. If the above
conditions are satisfied, the Depositary shall, in consultation with the
Company, establish an ADS Record Date (on the terms described in Section 4.7)
and establish procedures to enable Holders to elect the receipt of the proposed
dividend in cash or in additional ADSs. The Company shall assist the Depositary
in establishing such procedures to the extent necessary. Subject to Section 5.9
hereof, if a Holder elects to receive the proposed dividend (x) in cash, the
dividend shall be distributed upon the terms described in Section 4.1, or (y) in
ADSs, the dividend shall be distributed upon the terms described in Section 4.2.
Nothing herein shall obligate the Depositary to make available to Holders a
method to receive the elective dividend in Shares (rather than ADSs). There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
SECTION 4.4 Distribution of Rights to Purchase Shares.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
least 45 days prior (unless after consultation the Company and the Depositary
agree otherwise) to the proposed distribution stating whether or not it wishes
such rights to be made available to Holders. Upon receipt of a notice indicating
that the Company wishes such rights to be made available to Holders, the
Depositary shall consult with the Company to determine, and the Company shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7, and (iii) the Depositary shall
have determined that such distribution of rights is lawful and reasonably
practicable. In the event any of the conditions set forth above are not
satisfied, the Depositary shall proceed with the sale of the rights as
contemplated in Section 4.4(b) below or, if timing or market conditions may not
permit, do nothing thereby allowing such rights to lapse. In the event all
conditions set forth above are satisfied, the Depositary, in consultation with
the Company, shall establish an ADS Record Date (upon the terms described in
Section 4.7) and establish procedures (x) to distribute such rights (by means of
warrants or otherwise) and (y) to enable the Holders to exercise the rights
(upon payment of applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes and other
17
governmental charges). Nothing herein shall obligate the Depositary to make
available to the Holders a method to exercise such rights to subscribe for
Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines it is
not lawful or reasonably practicable to make the rights available to Holders, or
(iii) any rights made available are not exercised and appear to be about to
lapse, the Depositary shall determine whether it is lawful and reasonably
practicable to sell such rights, in a riskless principal capacity or otherwise,
at such place and upon such terms (including public or private sale) as it may
deem proper. The Company shall assist the Depositary to the extent necessary to
determine such legality and practicability. The Depositary shall, upon such
sale, convert and distribute proceeds of such sale (net of applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes and
governmental charges) upon the terms set forth in Section 4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act and/or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (and/or such other applicable law) covering such offering is in
effect or (ii) unless the Company furnishes to the Depositary at the Company's
own expense opinion(s) of counsel to the Company in the United States and
counsel to the Company in any other applicable country in which rights would be
distributed, in each case satisfactory to the Depositary, to the effect that the
offering and sale of such securities to Holders and Beneficial Owners are exempt
from, or do not require registration under, the provisions of the Securities Act
or any other applicable laws. In the event that the Company, the Depositary or
the Custodian shall be required to withhold and does withhold from any
distribution of property (including rights) an amount on account of taxes or
other governmental charges, the amount distributed to the Holders shall be
reduced accordingly. In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner,
18
including by public or private sale, as the Depositary deems necessary and
practicable to pay any such taxes and charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or be able to exercise such rights.
Nothing herein shall obligate the Company to file any registration statement in
respect of any rights or Shares or other securities to be acquired upon the
exercise of such rights.
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give notice thereof to the Depositary at least 30 days
prior (unless after consultation the Company and the Depositary agree otherwise)
to the proposed distribution and shall indicate whether or not it wishes such
distribution to be made to Holders. Upon receipt of a notice indicating that the
Company wishes such distribution be made to Holders, the Depositary shall
determine whether such distribution to Holders is lawful and practicable. The
Depositary shall not make such distribution unless (i) the Company shall have
timely requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received satisfactory documentation within the terms of
Section 5.7, and (iii) the Depositary shall have determined that such
distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record as of the ADS Record Date, in
proportion to the number of ADSs held by such Holders respectively and in such
manner as the Depositary may deem practicable for accomplishing such
distribution (i) upon receipt of payment or net of the applicable fees and
charges of, and expenses incurred by, the Depositary, and (ii) net of any taxes
and other governmental charges withheld. The Depositary may dispose of all or a
portion of the property so distributed and deposited, in such amounts and in
such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable or feasible, the Depositary shall
endeavor to sell or cause such property to be sold in a public or private sale,
at such place or places and upon such terms as it may deem proper and shall
distribute the net proceeds, if any, of such sale received by the Depositary
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and governmental charges) to the Holders as of the ADS
Record Date upon the terms of Section 4.1. If the Depositary is unable to sell
such
19
property, the Depositary may dispose of such property in any way it deems
reasonably practicable under the circumstances for nominal or no consideration
and Holders and Beneficial Owners shall have no rights thereto or arising
therefrom.
SECTION 4.6 Conversion of Foreign Currency. Whenever the Depositary or
the Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, and in the judgment of the Depositary such Foreign Currency can at such
time be converted on a practicable basis (by sale or in any other manner that it
may determine in accordance with applicable law) into Dollars transferable to
the United States and distributable to the Holders entitled thereto, the
Depositary shall promptly convert or cause to be converted, by sale or in any
other manner that it may determine, such Foreign Currency into Dollars, and
shall promptly distribute such Dollars (net of any fees, expenses, taxes and
other governmental charges incurred in the process of such conversion) in
accordance with the terms of the applicable sections of this Deposit Agreement.
If the Depositary shall have distributed warrants or other instruments that
entitle the holders thereof to such Dollars, the Depositary shall distribute
such Dollars to the holders of such warrants and/or instruments upon surrender
thereof for cancellation, in either case without liability for interest thereon.
Such distribution may be made upon an averaged or other practicable basis
without regard to any distinctions among Holders on account of exchange
restrictions, the date of delivery of any Receipt or otherwise.
Holders understand that in converting Foreign Currency, amounts received on
conversion are calculated at a rate which may exceed the number of decimal
places used by the Depositary to report distribution rates (which in any case
will not be less than two decimal places). Any excess amount may be retained by
the Depositary as an additional cost of conversion, irrespective of any other
fees and expenses payable or owing hereunder and shall not be subject to
escheatment.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary may file such
application for approval or license, if any, as it may deem necessary,
practicable and at nominal cost and expense. Nothing herein shall obligate the
Depositary to file or cause to be filed, or to seek effectiveness of any such
application or license.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practical or lawful, or if
any approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied, or not
obtainable at a reasonable cost, within a reasonable period or otherwise sought,
the Depositary shall, in its sole discretion but subject to applicable laws and
regulations, either (i) distribute the Foreign Currency (or an appropriate
document evidencing the right to receive such Foreign Currency) received by the
Depositary to the Holders entitled to receive such Foreign Currency, or (ii)
hold such Foreign Currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the same.
20
SECTION 4.7 Fixing of Record Date. Whenever necessary in connection with
any distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of or solicitation of holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the fulfillment of its obligations
under this Deposit Agreement, the Depositary shall, in consultation with the
Company, fix a record date (the "ADS Record Date"), as close as practicable to
the record date fixed by the Company with respect to the Shares (if applicable),
for the determination of the Holders who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, or to give or withhold such consent, or to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each American
Depositary Share, or for any other reason. Subject to applicable law and the
provisions of Section 4.1 through 4.6 and to the other terms and conditions of
this Deposit Agreement, only the Holders of record at the close of business in
New York on such ADS Record Date shall be entitled to receive such distribution,
to give such voting instructions, to receive such notice or solicitation, or
otherwise take action.
SECTION 4.8 Voting of Deposited Securities. Subject to the next
sentence, as soon as practicable after receipt of notice of any meeting at which
the holders of Shares are entitled to vote, or of solicitation of consents or
proxies from holders of Shares or other Deposited Securities, the Depositary
shall fix the ADS Record Date in respect of such meeting or solicitation of
consent or proxy in accordance with Section 4.7. The Depositary shall, if
requested by the Company in writing in a timely manner (the Depositary having no
obligation to take any further action if the request shall not have been
received by the Depositary at least 30 days prior to the date of such vote or
meeting) and at the Company's expense, unless otherwise agreed in writing by the
Company and the Depositary and provided no U.S. legal prohibitions exist, mail
by regular, ordinary mail delivery (or by electronic mail or as otherwise may be
agreed between the Company and the Depositary in writing from time to time) or
otherwise distribute to Holders as of the ADS Record Date: (a) such notice of
meeting or solicitation of consent or proxy; (b) a statement that the Holders at
the close of business on the ADS Record Date will be entitled, subject to any
applicable law, the Company's Articles of Association and the provisions of or
governing the Deposited Securities (which provisions, if any, shall be
summarized in pertinent part by the Company), to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Shares or other
Deposited Securities represented by such Holder's American Depositary Shares;
and (c) a brief statement as to the manner in which such instructions may be
given or in which voting instructions may be deemed to have been given in
accordance with this Section 4.8. Voting instructions may be given only in
respect of a number of American Depositary Shares representing an integral
number of Shares or other Deposited Securities. Upon the timely receipt of
written instructions of a Holder on the ADS Record Date of voting instructions
in the manner specified by the Depositary, the Depositary shall endeavor,
insofar as practicable and permitted under applicable law, the provisions of
this Deposit Agreement, the Company's Articles of Association and the provisions
of or governing the Deposited Securities, to vote or cause the Custodian to vote
the Shares and/or other Deposited Securities (in person or
21
by proxy) represented by American Depositary Shares evidenced by such Receipt in
accordance with such voting instructions.
In the event that the Depositary (i) timely receives voting instructions
from a Holder which fail to specify the manner in which the Depositary is to
vote the Deposited Securities represented by such Holder's ADSs or (ii) if no
instructions are received in a timely manner by the Depositary from a Holder
with respect to any of the Deposited Securities represented by the ADSs
evidenced by such Holder's ADRs on or before the ADS Record Date established by
the Depositary for such purpose, the Depositary shall (unless otherwise
specified in the notice distributed to Holders) deem such Holder to have
instructed the Depositary to give a discretionary proxy to a person designated
by the Company with respect to such Deposited Securities and the Depositary
shall give a discretionary proxy to a person designated by the Company to vote
such Deposited Securities, provided, however, that no such instruction shall be
deemed given and no such discretionary proxy shall be given with respect to any
matter as to which the Company informs the Depositary (and the Company agrees to
provide such information as promptly as practicable in writing, if applicable)
that (x) the Company does not wish to give such proxy, (y) the Company is aware
or should reasonably be aware that substantial opposition exists from Holders
against the outcome for which the person designated by the Company would
otherwise vote or (z) the outcome for which the person designated by the Company
would otherwise vote would materially and adversely affect the rights of holders
of Shares, provided, further, that the Company will have no liability to any
Holder or Beneficial Owner resulting from such notification.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of for purposes of establishing a quorum or otherwise, the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with such written instructions from Holders, including the
deemed instruction to the Depositary to give a discretionary proxy to a person
designated by the Company.
Notwithstanding the above, save for applicable provisions of South African
law, the Depositary shall, if so requested in writing by the Company, represent
all Deposited Securities (provided voting instructions have been received in
respect of such Deposited Securities from Holders as of the ADS Record Date) for
the purpose of establishing quorum at a meeting of shareholders, and in
accordance with the terms of Section 5.3, the Depositary shall not be liable for
any failure to carry out any instructions to vote any of the Deposited
Securities or the manner in which such vote is cast or the effect of any such
vote.
There can be no assurance that Holders or Beneficial Owners generally or
any Holder or Beneficial Owner in particular will receive the notice described
above with sufficient time to enable the Holder to return voting instructions to
the Depositary in a timely manner.
SECTION 4.9 Changes Affecting Deposited Securities. Upon any change in
par value, split-up, subdivision, cancellation, consolidation or any other
reclassification of Deposited
22
Securities, or upon any recapitalization, reorganization, merger, amalgamation
or consolidation or sale of assets affecting the Company or to which it is
otherwise a party, any securities which shall be received by the Depositary or
the Custodian in exchange for, or in conversion of or replacement or otherwise
in respect of, such Deposited Securities shall, to the extent permitted by law,
be treated as new Deposited Securities under this Deposit Agreement, and the
Receipts shall, subject to the provisions of this Deposit Agreement and
applicable law, evidence American Depositary Shares representing the right to
receive such additional securities. The Company shall provide notice of such
event to the Depositary and shall consult with the Depositary prior to the
Depositary taking any action hereunder. The Depositary may, with the Company's
approval, and shall, if the Company shall so request, subject to the terms of
the Deposit Agreement and receipt of an opinion of counsel to the Company,
furnished at the expense of the Company, satisfactory to the Depositary that
such distributions are not in violation of any applicable laws or regulations,
execute and deliver additional Receipts as in the case of a share dividend on
the Shares, or call for the surrender of outstanding Receipts to be exchanged
for new Receipts, in either case, as well as in the event of newly deposited
Shares, with necessary modifications to the form of Receipt contained in Exhibit
A hereto, specifically describing such new Deposited Securities and/or corporate
change. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of Receipts. Notwithstanding the foregoing, in the
event that any security so received may not be lawfully distributed to some or
all Holders, the Depositary may, with the Company's approval, and shall, if the
Company requests, subject to receipt of an opinion of counsel to the Company,
furnished at the expense of the Company, satisfactory to the Depositary that
such action is not in violation of any applicable laws or regulations, sell such
securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of (a) fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and governmental charges) for the account of the Holders otherwise
entitled to such securities upon an averaged or other practicable basis without
regard to any distinctions among such Holders and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to Section 4.1. Except as set forth in Section 5.8, the Depositary
shall not (i) be responsible for any failure to determine whether it may be
lawful or feasible to make such securities available to Holders in general or to
any Holder in particular, (ii) be responsible for any foreign exchange exposure
or loss incurred in connection with such sale, or (iii) have any liability to
the purchaser of such securities.
SECTION 4.10 Available Information. As of the date of the Deposit
Agreement, the Company publishes information in English required to maintain the
exemption from registration under Rule 12g3-2(b) under the Exchange Act on its
Internet Web site (www.murrob.com) or through an electronic information delivery
system generally available to the public in its primary trading market. Should
the Company become subject to the periodic reporting or other informational
requirements under the Exchange Act, it will be required in accordance therewith
to file reports and other information with the Commission. The Depositary does
not assume any duty to determine if the Company is complying with the current
requirements of Rule 12g3-2(b) under the Exchange Act or to take any action if
the Company is not complying with those requirements.
23
The Company agrees to promptly notify the Depositary in the event that the
Company is no longer eligible for its exemption under Rule 12g3-2(b).
SECTION 4.11 Reports. The Depositary shall make available during normal
business hour on any Business Day for inspection by Holders at its Principal
Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company. The Company agrees to provide to the Depositary, at
the Company's expense, all documents that it provides to the Custodian. The
Depositary shall, at the expense of the Company, unless otherwise agreed in
writing by the Company and the Depositary and in accordance with Section 5.6,
also mail by regular, ordinary mail delivery or by electronic transmission (if
agreed by the Company and the Depositary) and unless otherwise agreed in writing
by the Company and the Depositary, to Holders copies of such reports when
furnished by the Company pursuant to Section 5.6.
SECTION 4.12 List of Holders. Promptly upon written request by the
Company, the Depositary shall, at the expense of the Company, 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
books of the Depositary.
SECTION 4.13 Taxation; Withholding. The Depositary will, and will
instruct the Custodian to, forward to the Company or its agents such information
from its records as the Company may reasonably request to enable the Company or
its agents to file necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may, but
shall not be obligated to, file such reports as are necessary to reduce or
eliminate applicable taxes on dividends and on other distributions in respect of
Deposited Securities under applicable tax treaties or laws for the Holders and
Beneficial Owners. Holders and Beneficial Owners of American Depositary Shares
may be required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide
any other information or documents, as the Depositary or the Custodian may deem
necessary or proper to fulfill the Depositary's or the Custodian's obligations
under applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective officers,
directors, employees, agents and Affiliates against, and hold each of them
harmless from, any claims by any governmental authority with respect to taxes,
additions to tax, penalties or interest arising out of any refund of taxes,
reduced rate of withholding at source or other tax benefit obtained.
The Company shall remit to the appropriate governmental authority or agency
any amounts required to be withheld by the Company and owing to such
governmental authority or agency. Upon any such withholding, the Company shall
remit to the Depositary information about such taxes and/or governmental charges
withheld or paid, and, if so requested, the tax receipt (or other proof of
payment to the applicable governmental authority) therefor, in each case, in a
form reasonably satisfactory to the Depositary. The Depositary shall, to the
extent
24
required by U.S. law, report to Holders: (i) any taxes withheld by it; (ii) any
taxes withheld by the Custodian, subject to information being provided to the
Depositary by the Custodian; and (iii) any taxes withheld by the Company,
subject to information being provided to the Depositary by the Company. The
Depositary and the Custodian shall not be required to provide the Holders with
any evidence of the remittance by the Company (or its agents) of any taxes
withheld, or of the payment of taxes by the Company, except to the extent the
evidence is provided by the Company to the Depositary. Neither the Depositary,
the Custodian nor the Company shall be liable for the failure by any Holder or
Beneficial Owner to obtain the benefits of credits on the basis of non-U.S. tax
paid against such Holder's or Beneficial Owner's income tax liability.
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 shall withhold the amount required to be withheld and 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 such taxes and charges and
the Depositary shall distribute the net proceeds of any such sale after
deduction of such taxes and charges to the Holders entitled thereto in
proportion to the number of American Depositary Shares held by them
respectively.
The Depositary is under no obligation to provide the Holders and Beneficial
Owners with any information about the tax status of the Company. The Depositary
shall not incur any liability for any tax consequences that may be incurred by
Holders and Beneficial Owners on account of their ownership of the American
Depositary Shares, including without limitation, tax consequences resulting from
the Company (or any of its subsidiaries) being treated as a "Passive Foreign
Investment Company" (as defined in the U.S. Internal Revenue Code and the
regulations issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Depositary or if a Registrar for the Receipts shall have been appointed, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
and the delivery and withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Depositary or the Registrar as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary's or the
Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts in the interest of a business or object other than the business of the
Company or other than a matter related to this Deposit Agreement or the
Receipts.
25
The Depositary or the Registrar, as applicable, may close the transfer
books with respect to the Receipts, at any time or from time to time, when
deemed necessary or advisable by it in connection with the performance of its
duties hereunder, or at the reasonable written request of the Company, subject
in either case to Section 7.8 hereof.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or appoint a Registrar or
one or more co-registrars for registration of Receipts and transfers,
combinations and split-ups, and to countersign such Receipts in accordance with
any requirements of such exchanges or systems. Such Registrar or co-registrars
may be removed and a substitute or substitutes appointed by the Depositary.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more securities exchanges, markets or automated quotation
systems, (i) the Depositary shall be entitled to, and shall, take or refrain
from taking such action(s) as it may deem necessary or appropriate to comply
with the requirements of such securities exchange(s), market(s) or automated
quotation system(s) applicable to it, notwithstanding any other provision of
this Deposit Agreement; and (ii) upon the reasonable request of the Depositary,
the Company shall provide the Depositary such information and assistance as may
be reasonably necessary for the Depositary to comply with such requirements, to
the extent that the Company may lawfully do so.
SECTION 5.2 Exoneration. Neither the Depositary, the Custodian or the
Company shall be obligated to do or perform any act which is inconsistent with
the provisions of this Deposit Agreement or shall incur any liability (i) if the
Depositary, the Custodian or the Company or their respective controlling persons
or agents shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and any Receipt,
by reason of any provision of any present or future law or regulation of the
United States or any state thereof, the Republic of South Africa or any other
country, or of any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future, of the Company's
Articles of Association or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement or
in the Company's Articles of Association or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the Custodian or
the Company or their respective controlling persons or agents in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for the inability by a Holder
or Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited
26
Securities but is not, under the terms of this Deposit Agreement, made available
to Holders of American Depositary Shares or (v) for any special, consequential,
indirect or punitive damages for any breach of the terms of this Deposit
Agreement or otherwise.
The Depositary, its controlling persons, its agents, the Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request, opinion or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.3 Standard of Care. The Company and the Depositary and their
respective agents assume no obligation and shall not be subject to any liability
under this Deposit Agreement or any Receipts to any Holder(s) or Beneficial
Owner(s) or other persons (except for the Company's and the Depositary's
obligations specifically set forth in Section 5.8), provided, that the Company
and the Depositary and their respective agents agree to perform their respective
obligations specifically set forth in this Deposit Agreement or the applicable
ADRs without gross negligence or willful misconduct.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses (including fees and disbursements of
counsel) and liabilities be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
In no event shall the Depositary or any of its directors, officers,
employees, agents (including, without limitation, its Agents) and/or Affiliates,
or any of them, be liable for any indirect, special, punitive or consequential
damages to the Company, Holders, Beneficial Owners or any other person.
Neither the Depositary, the Company, nor any of their respective agents
shall be liable in the event that there is a failure to carry out any Holders
instructions in relation to the voting of any of the Deposited Securities, or
for the manner in which any vote is cast (provided that any such action or
omission is in good faith) or the effects of any vote. The Depositary shall not
incur any liability for any failure to determine that any distribution or action
may be lawful or reasonably practicable, for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated with
acquiring an interest in the Deposited Securities, for the validity or worth of
the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness of
any third party, for allowing any rights to lapse upon the terms of this Deposit
Agreement or for the failure or timeliness of
27
any notice from the Company, or for any action or non action by it in reliance
upon the opinion, advice of or information from legal counsel, accountants, any
person representing Shares for deposit, any Holder or any other person believed
by it in good faith to be competent to give such advice or information. The
Depositary and its agents shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without gross negligence or willful misconduct while it acted as
Depositary.
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 90th day after delivery
thereof to the Company (whereupon the Depositary shall, in the event no
successor depositary has been appointed by the Company, be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) upon the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided, save that, any amounts, fees, costs or expenses owed to
the Depositary hereunder or in accordance with any other agreements otherwise
agreed in writing between the Company and the Depositary from time to time shall
be paid to the Depositary prior to such resignation.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the later of (i) the 90th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2 hereof), or (ii) upon
the appointment by the Company of a successor depositary and its acceptance of
such appointment as hereinafter provided, save that, any amounts, fees, costs or
expenses owed to the Depositary hereunder or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such removal.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its reasonable 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. The Company shall give notice to the
Depositary of the appointment of a successor depositary not more than 90 days
after delivery by the Depositary of written notice of resignation or by the
Company of removal, each as provided in this section. In the event that a
successor depositary is not appointed or notice of the appointment of a
successor depositary is not provided by the Company in accordance with the
preceding sentence, the Depositary shall be entitled to take the actions
contemplated in Section 6.2 hereof. Every successor depositary shall be required
by the Company to execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor. The predecessor depositary, upon payment of
all sums due to it and on the written request of the Company, shall (i) execute
and deliver an instrument transferring to such successor all rights and powers
of such predecessor
28
hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodian. The Custodian or its successors in acting
hereunder shall be subject at all times and in all respects to the direction of
the Depositary for the Deposited Securities for which the Custodian acts as
custodian and shall be responsible solely to it. If any Custodian resigns or is
discharged from its duties hereunder with respect to any Deposited Securities
and no other Custodian has previously been appointed hereunder, the Depositary
shall promptly appoint a substitute custodian. The Depositary shall require such
resigning or discharged Custodian to deliver the Deposited Securities held by
it, together with all such records maintained by it as Custodian with respect to
such Deposited Securities as the Depositary may request, to the Custodian
designated by the Depositary. Whenever the Depositary determines, in its
discretion, that it is appropriate to do so, it may appoint an additional entity
to act as Custodian with respect to any Deposited Securities, or discharge the
Custodian with respect to any Deposited Securities and appoint a substitute
custodian, which shall thereafter be Custodian hereunder with respect to the
Deposited Securities. After any such change, the Depositary shall give notice
thereof in writing to all Holders.
Upon the appointment of any successor depositary, any Custodian then acting
hereunder shall, unless otherwise instructed by the Depositary, continue to be
the Custodian of the Deposited Securities without any further act or writing and
shall be subject to the direction of the successor depositary. 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 to act on
the direction of such successor depositary.
SECTION 5.6 Notices and Reports. On or before the first date on which
the Company gives notice, by publication or otherwise, of any meeting of holders
of Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in
English but otherwise in the form given or to be given to holders of Shares or
other Deposited Securities. The Company shall also furnish to the Custodian and
the Depositary a summary, in English, of any applicable provisions or proposed
provisions of the Company's Articles of Association that may be relevant or
pertain to such notice of meeting or be the subject of a vote thereat.
29
The Company will also transmit or make available to the Depositary (a)
English language versions of the other notices, reports and communications which
are made generally available by the Company to holders of its Shares or other
Deposited Securities and (b) English language versions of the Company's annual
and other reports prepared in accordance with the applicable requirements of the
Commission under Rule 12g3-2(b). The Depositary shall arrange, at the request of
the Company and at the Company's expense, for the mailing of copies thereof to
all Holders, or by any other means as agreed between the Company and the
Depositary (at the Company's expense, unless otherwise agreed in writing by the
Company and the Depositary) or make such notices, reports and other
communications available for inspection by all Holders, provided, that, the
Depositary shall have received evidence sufficiently satisfactory to it,
including in the form of an opinion of local and/or U.S. counsel or counsel of
other applicable jurisdiction, furnished at the expense of the Company, as the
Depositary reasonably requests, that the distribution of such notices, reports
and any such other communications to Holders from time to time is valid and does
not or will not infringe any local, U.S. or other applicable jurisdiction
regulatory restrictions or requirements if so distributed and made available to
Holders. The Company 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. The Company
has delivered to the Depositary and the Custodian a copy of the Company's
Articles of Association along with the provisions of or governing the Shares and
any other Deposited Securities issued by the Company or any Affiliate of the
Company, in connection with the Shares, in each case along with a certified
English translation thereof (if not in English), and promptly upon any amendment
thereto or change therein, the Company shall deliver to the Depositary and the
Custodian a copy of such amendment thereto or change therein (along with a
certified English translation thereof (if not in English)). The Depositary may
rely upon such copy for all purposes of this Deposit Agreement.
The Depositary will make available a copy of any such notices, reports or
communications issued by the Company and delivered to the Depositary for
inspection by the Holders of the Receipts evidencing the American Depositary
Shares representing such Shares governed by such provisions at the Depositary's
Principal Office, at the office of the Custodian and at any other designated
transfer office.
SECTION 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger, subdivision,
amalgamation or consolidation or transfer of assets or (viii) any
reclassification, recapitalization, reorganization, merger, amalgamation,
consolidation or sale of assets which affects the Deposited Securities, it will
obtain U.S. legal advice and take all steps necessary to ensure that the
application of the proposed transaction to Holders and Beneficial Owners does
not violate the registration provisions of the Securities Act, or any other
applicable laws (including, without limitation, the Investment Company Act of
1940, as amended, the
30
Exchange Act or the securities laws of the states of the United States). In
support of the foregoing, the Company will furnish to the Depositary, at its own
expense (a) a written opinion of U.S. counsel (reasonably satisfactory to the
Depositary) stating whether or not application of such transaction to Holders
and Beneficial Owners (1) requires a registration statement under the Securities
Act to be in effect or is exempt from the registration requirements of the
Securities Act and/or (2) dealing with such other reasonable issues requested by
the Depositary and (b) an opinion of counsel in the Republic of South Africa
(reasonably satisfactory to the Depositary) stating that (1) making the
transaction available to Holders and Beneficial Owners does not violate the laws
or regulations of the Republic of South Africa and (2) all requisite regulatory
consents and approvals have been obtained in the Republic of South Africa. If
the filing of a registration statement is required, the Depositary shall not
have any obligation to proceed with the transaction unless it shall have
received evidence reasonably satisfactory to it that such registration statement
has been declared effective and that such distribution is in accordance with all
applicable laws or regulations. If, being advised by counsel, the Company
determines that a transaction is required to be registered under the Securities
Act, the Company will either (i) register such transaction to the extent
necessary, (ii) alter the terms of the transaction to avoid the registration
requirements of the Securities Act or (iii) direct the Depositary to take
specific measures, in each case as contemplated in this Deposit Agreement, to
prevent such transaction from violating the registration requirements of the
Securities Act.
The Company agrees with the Depositary that neither the Company nor any of
its Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act or have been registered under the Securities Act (and such registration
statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
SECTION 5.8 Indemnification. The Company agrees to indemnify the
Depositary, any Custodian and each of their respective directors, officers,
employees, agents and Affiliates against, and hold each of them harmless from,
any losses, liabilities, taxes, costs, claims, judgments, proceedings, actions,
demands and any charges or expenses of any kind whatsoever (including, but not
limited to, reasonable attorney's fees and expenses and irrevocable value added
tax and any similar tax charged or otherwise imposed in respect thereof)
(collectively referred to as "Losses") which the Depositary or any agent thereof
may incur or which may be made against it as a result of or in connection with
its appointment or the exercise of its powers and duties under this Agreement or
that may arise (a) out of or in connection with any offer, issuance, sale,
resale, transfer, deposit or withdrawal of Receipts, American Depositary Shares,
the Shares, or other Deposited Securities, as the case may be, except to the
extent that any of such Losses arises out of (i) information concerning the
Depositary or Custodian provided
31
by either of them, or (ii) the gross negligence, bad faith or willful misconduct
of the Depositary or the Custodian, (b) out of or in connection with any
offering documents in respect thereof or (c) out of or in connection with acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with this Deposit Agreement, the Receipts, the American Depositary
Shares, the Shares, or any Deposited Securities, in any such case (i) by the
Depositary, the Custodian or any of their respective directors, officers,
employees, agents and Affiliates, except to the extent any such Losses directly
arises out of the gross negligence, bad faith or willful misconduct of any of
them, or (ii) by the Company or any of its directors, officers, employees,
agents and Affiliates. The indemnities contained in this paragraph shall not
extend to any Loss that arises out of information (or omissions from such
information) relating to the Indemnified Persons, furnished in writing to the
Company by such Indemnified Person expressly for use in any registration
statement, prospectus or proxy statement under the Securities Act.
The Depositary agrees to indemnify the Company, its directors, officers,
employees, agents and Affiliates against and hold each of them harmless from any
Losses which may arise out of acts performed or omitted to be performed by the
Depositary or its directors, employees, agents and Affiliates, Custodian or
Registrar due to their gross negligence, bad faith or willful misconduct.
Any person seeking indemnification hereunder (an "Indemnified Person")
shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of the commencement of any indemnifiable action or claim
promptly after such Indemnified Person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
Indemnified Person's rights to indemnification except to the extent the
Indemnifying Person is materially prejudiced by such failure) and shall consult
in good faith with the Indemnifying Person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable under the circumstances. No Indemnified Person shall
compromise or settle any action or claim that may give rise to an indemnity
hereunder without the consent of the Indemnifying Person, which consent shall
not be unreasonably withheld.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
SECTION 5.9 Fees and Charges of Depositary. The Company, the Holders,
the Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively as provided for under Article (9) of the Receipt. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
32
The Depositary and the Company may reach separate agreement in relation to
the payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
by both parties in the performance of its obligations hereunder and in respect
of the costs and expenses of the Depositary in respect of any notices required
to be given to the Holders in accordance with Section 6.1 hereof.
In connection with any payment by the Company to the Depositary:
(i) all fees, taxes, duties, charges, costs and expenses which are payable by
the Company shall be paid or be procured to be paid by the Company (and any
such amounts which are paid by the Depositary shall be reimbursed to the
Depositary by the Company promptly upon demand therefor); and
(ii) such payment shall be subject to all necessary South African exchange
control and other consents and approvals having been obtained. The Company
undertakes to use its reasonable endeavours to obtain all necessary
approvals that are required to be obtained by it in this connection.
The Company agrees to promptly pay to the Depositary such other expenses,
fees and charges and to reimburse the Depositary for such out-of-pocket expenses
as the Depositary and the Company may agree to from time to time. Responsibility
for payment of such charges may at any time and from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed from
time to time, in the discretion of the Depositary, the Depositary shall present
its statement for such expenses and fees or charges to the Company upon receipt
or payment of any relevant invoice by the Depositary, once every three months,
semiannually or annually.
All payments by the Company to the Depositary under this Section 5.9 shall
be paid without set-off or counterclaim, and free and clear of and without
deduction or withholding for or on account of, any present or future taxes,
levies, imports, duties, fees, assessments or other charges of whatever nature,
imposed by law, rule, regulation, court, tribunal or by any department, agency
or other political subdivision or taxing authority thereof or therein, and all
interest, penalties or similar liabilities with respect thereto.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
SECTION 5.10 Restricted Securities Owners. The Company agrees to advise
in writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder and, to the extent practicable, shall require each of such
persons to represent in writing that such person will not deposit Restricted
Securities hereunder. The Company shall inform Holders and Beneficial
33
Owners and the Depositary of any other limitations on ownership of Shares that
the Holders and Beneficial Owners may be subject to by reason of the number of
American Depositary Shares held under the Articles of Incorporation of the
Company or applicable South African law, as such restrictions may be in force
from time to time.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement. Subject to the terms and conditions of
this Section 6.1 and applicable law, the Receipts outstanding at any time, the
provisions of this Deposit Agreement and the form of Receipt attached hereto and
to be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than charges in connection
with foreign exchange control regulations, and taxes and other governmental
charges, delivery and other such expenses), or which shall otherwise materially
prejudice any substantial existing right of Holders or Beneficial Owners, shall
not, however, become effective as to outstanding Receipts until 30 days after
notice of such amendment or supplement shall have been given to the Holders of
outstanding Receipts. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the American Depositary Shares to be registered on
Form F-6 under the Securities Act or (b) the American Depositary Shares or the
Shares to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by Holders,
shall be deemed not to materially prejudice any substantial rights of Holders or
Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment
or supplement so becomes effective shall be deemed, by continuing to hold such
American Depositary Share or Shares, to consent and agree to such amendment or
supplement and to be bound by the Deposit Agreement as amended and supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require amendment or supplement
of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the Receipt at any
time in accordance with such changed laws, rules or regulations. Such amendment
or supplement to the Deposit Agreement in such circumstances may become
effective before a notice of such amendment or supplement is given to Holders or
within any other period of time as required for compliance with such laws, rules
or regulations.
SECTION 6.2 Termination. The Depositary shall, at any time at the
written direction of the Company (unless otherwise agreed in writing by the
Company and the Depositary), terminate this Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 90
days prior to the date fixed in such notice for
34
such termination, provided that, the Depositary shall be reimbursed for any
amounts, fees, costs or expenses owed to it in accordance with the terms of this
Deposit Agreement and in accordance with any other agreements as otherwise
agreed in writing between the Company and the Depositary from time to time,
before such termination shall take effect. If 90 days shall have expired after
(i) the Depositary shall have delivered to the Company a written notice of its
election to resign, or (ii) the Company shall have delivered to the Depositary a
written notice of the removal of the Depositary, and in either case a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.4, the Depositary may terminate this Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed for such termination. On
and after the date of termination of this Deposit Agreement, the Holder will,
upon surrender of such Receipt at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of Receipts
referred to in Section 2.6 and subject to the conditions and restrictions
therein set forth, and upon payment of any applicable taxes and/or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by such Receipt. If any Receipts shall remain
outstanding after the date of termination of this Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights or other property as provided in this Deposit Agreement, and
shall continue to deliver Deposited Securities, subject to the conditions and
restrictions set forth in Section 2.6, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes and/or governmental charges or
assessments). At any time after the expiration of six months from the date of
termination of this Deposit Agreement, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders of Receipts whose Receipts have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement with respect to the Receipts
and the Shares, Deposited Securities and American Depositary Shares, except to
account for such net proceeds and other cash (after deducting, or charging, as
the case may be, in each case, the charges of the Depositary for the surrender
of a Receipt, any expenses for the account of the Holder in accordance with the
terms and conditions of this Deposit Agreement and any applicable taxes and/or
governmental charges or assessments). Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary hereunder. The
obligations under the terms of the Deposit Agreement and Receipts of Holders and
Beneficial Owners of ADSs outstanding as of the effective date of any
termination shall survive such effective date of termination and shall be
discharged only when the applicable ADSs are presented by their Holders to the
Depositary for cancellation under the terms of the Deposit Agreement and the
35
Holders have each satisfied any and all of their obligations hereunder
(including, but not limited to, any payment and/or reimbursement obligations
which relate to prior to the effective date of termination but which payment
and/or reimbursement is claimed after such effective date of termination).
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 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 together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
SECTION 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties hereto nor establish a fiduciary
or similar relationship among the parties. The parties hereto acknowledge and
agree that (i) the Depositary and its Affiliates may at any time have multiple
banking relationships with the Company and its Affiliates, (ii) the Depositary
and its Affiliates may be engaged at any time in transactions in which parties
adverse to the Company or the Holders or Beneficial Owners may have interests
and (iii) nothing contained in this Agreement shall (a) preclude the Depositary
or any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, or (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or relationships.
SECTION 7.3 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 7.4 Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and Beneficial Owners from time to time of American Depositary
Shares shall be parties to the Deposit Agreement and shall be bound by all of
the terms and conditions hereof and of any Receipt by acceptance hereof or any
beneficial interest therein.
SECTION 7.5 Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex, facsimile transmission or electronic transmission,
confirmed by letter, addressed to Murray & Roberts Holdings Limited, Douglas
Roberts Centre, 22 Skeen Boulevard, Bedfordview; 2007, Republic of South Africa,
Attention: Company Secretary, or to any other address which the Company may
specify in writing to the Depositary.
36
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex, facsimile transmission or by electronic transmission (if agreed by the
Company and the Depositary), at the Company's expense, unless otherwise agreed
in writing between the Company and the Depositary, confirmed by letter,
addressed to Deutsche Bank Trust Company Americas, 60 Wall Street, New York, New
York 10005, USA Attention: ADR Department, telephone: (001) 212 602-1044,
facsimile: (001) 212 797 0327 or to any other address which the Depositary may
specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex, facsimile
transmission or by electronic transmission (if agreed by the Company and the
Depositary), at the Company's expense, unless otherwise agreed in writing
between the Company and the Depositary, addressed to such Holder at the address
of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address specified in such request. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex, facsimile
or electronic transmission shall be deemed to be effective at the time when a
duly addressed letter containing the same (or a confirmation thereof in the case
of a cable, telex, facsimile or electronic transmission) is deposited, postage
prepaid, in a post-office letter box or delivered to an air courier service. The
Depositary or the Company may, however, act upon any cable, telex, facsimile or
electronic transmission received by it from the other or from any Holder,
notwithstanding that such cable, telex, facsimile or electronic transmission
shall not subsequently be confirmed by letter as aforesaid, as the case may be.
SECTION 7.6 Governing Law and Jurisdiction. This Deposit Agreement and
the Receipts shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York. Except as set forth in the following paragraph of this
Section 7.6, the Company and the Depositary agree that the federal or state
courts in the City of New York shall have jurisdiction to hear and determine any
suit, action or proceeding and to settle any dispute between them that may arise
out of or in connection with this Deposit Agreement and, for such purposes, each
irrevocably submits to the non-exclusive jurisdiction of such courts. The
Company hereby irrevocably designates, appoints and empowers the Depositary
Management Corporation (the "Agent") now at 570 Lexington Avenue, 44th Floor,
New York, New York 10022 ((212) 319-7600), as its authorized agent to receive
and accept for and on its behalf, and on behalf of its properties, assets and
revenues, service by mail of any and all legal process, summons, notices and
documents that may be served in any suit, action or proceeding brought against
the Company in any federal or state court as described in the preceding sentence
or in the next paragraph of this Section 7.6. If for any reason the Agent shall
cease to be available to act as such, the Company agrees to designate a new
agent in the City of New York on the terms and for the purposes of this Section
37
7.6 reasonably satisfactory to the Depositary. The Company further hereby
irrevocably consents and agrees to the service of any and all legal process,
summons, notices and documents in any suit, action or proceeding against the
Company, by service by mail of a copy thereof upon the Agent (whether or not the
appointment of such Agent shall for any reason prove to be ineffective or such
Agent shall fail to accept or acknowledge such service), with a copy mailed to
the Company by registered or certified air mail, postage prepaid, to its address
provided in Section 7.5 hereof. The Company agrees that the failure of the Agent
to give any notice of such service to it shall not impair or affect in any way
the validity of such service or any judgment rendered in any action or
proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any state or federal court of the United States,
and the Depositary or the Company have any claim, for indemnification or
otherwise, against each other arising out of the subject matter of such suit,
action or proceeding, then the Company and the Depositary may pursue such claim
against each other in the state or federal court in the United States in which
such suit, action, or proceeding is pending, and for such purposes, the Company
and the Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in the manner
set forth in the preceding paragraph shall be effective service upon it for any
suit, action or proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT,
EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS) HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE
DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY).
The provisions of this Section 7.6 shall survive any termination of this
Deposit Agreement, in whole or in part.
SECTION 7.7 Assignment. Subject to the provisions of Section 5.4 hereof,
this Deposit Agreement may not be assigned by either the Company or the
Depositary.
38
SECTION 7.8 Compliance with U.S. Securities Laws. Notwithstanding anything
in this Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
SECTION 7.9 Titles; References. All references in this Deposit Agreement to
exhibits, articles, sections, subsections, and other subdivisions refer to the
exhibits, articles, sections, subsections and other subdivisions of this Deposit
Agreement unless expressly provided otherwise. The words "this Deposit
Agreement", "herein", "hereof", "hereby", "hereunder", and words of similar
import refer to the Deposit Agreement as a whole as in effect between the
Company, the Depositary and the Holders and Beneficial Owners of ADSs and not to
any particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement. References herein
to the laws of South Africa shall include references to the laws, rules and
regulations of South Africa and any and all communities, provinces and states
thereof.
SECTION 7.10 Agents. The Depositary shall be entitled, in its sole but
reasonable discretion, to appoint one or more agents of which it shall have
control for the purpose, inter alia, of making distributions to the Holders or
otherwise carrying out its obligations under this Agreement.
39
IN WITNESS WHEREOF, MURRAY & ROBERTS HOLDINGS LIMITED and DEUTSCHE
BANK TRUST COMPANY AMERICAS have duly executed this Deposit Agreement as of the
day and year first above set forth and all Holders and Beneficial Owners shall
become parties hereto upon acceptance by them of American Depositary Shares
evidenced by Receipts issued in accordance with the terms hereof.
MURRAY & ROBERTS HOLDINGS LIMITED
By:
-----------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
40
Number CUSIP
American Depositary Shares (Each
American Depositary Share
representing ___ Fully Paid Ordinary
Shares)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
Of
MURRAY & ROBERTS HOLDINGS LIMITED
(Incorporated under the laws of the Republic of South Africa)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary (herein called the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, including evidence of rights to receive such ordinary shares, (the
"Shares") of Murray & Roberts Holdings Limited (the "Company"), a company
incorporated under the laws of the Republic of South Africa (the "Company"). As
of the date of the Deposit Agreement (hereinafter referred to), each ADS
represents one Share deposited under the Deposit Agreement with the Custodian
which at the date of execution of the Deposit Agreement is the Johannesburg
office of Computershare Custodial Services Ltd. (the "Custodian"). The ratio of
Depositary Shares to Shares is subject to subsequent amendment as provided in
Article IV of the Deposit Agreement. The Depositary's Principal Office is
located at 60 Wall Street, New York, New York 10005, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("Receipts"), all issued and to be issued
upon the terms and conditions set forth in the Deposit Agreement, dated as of
[o], 2010 (as amended from time to time, the "Deposit Agreement"), by and among
the Company, the Depositary, and all Holders and Beneficial Owners from time to
time of Receipts issued thereunder, each of whom by accepting a Receipt agrees
to become a party thereto and becomes bound by all the terms and conditions
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thereof. The Deposit Agreement sets forth the rights and obligations of Holders
and Beneficial Owners of 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, other securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Principal Office of the Depositary and the Custodian.
Each owner and each Beneficial Owner, upon acceptance of any ADSs (or any
interest therein) issued in accordance with the terms and conditions of the
Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of the Deposit Agreement and applicable ADR(s), and (b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and applicable ADR(s), to adopt any and all procedures necessary to
comply with applicable law and to take such action as the Depositary in its sole
discretion may deem necessary or appropriate to carry out the purposes of the
Deposit Agreement and the applicable ADR(s), the taking of such actions to be
the conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Company's Articles of
Association (as in effect on the date of the Deposit Agreement) and are
qualified by and subject to the detailed provisions of the Deposit Agreement, to
which reference is hereby made. All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements for
the acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held through
DTC must rely on the procedures of DTC and the DTC Participants to exercise and
be entitled to any rights attributable to such ADSs. The Receipt evidencing the
ADSs held through DTC will be registered in the name of a nominee of DTC. So
long as the ADSs are held through DTC or unless otherwise required by law,
ownership of beneficial interests in the Receipt registered in the name of DTC
(or its nominee) will be shown on, and transfers of such ownership will be
effected only through, records maintained by (i) DTC (or its nominee), or (ii)
DTC Participants (or their nominees).
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the fees and charges of the Depositary for the
making of withdrawals and cancellation of Receipts (as set forth in Article (9)
hereof or in Section 5.9 of the Deposit Agreement) and (ii) all applicable taxes
and/or governmental charges payable in connection with such surrender and
withdrawal, and, subject to the terms and conditions of the Deposit Agreement,
the Company's Articles of Association, Section 7.8 of the Deposit Agreement,
Article (22) of this Receipt and the provisions of or governing the Deposited
Securities and other applicable laws, the Holder hereof is entitled to Delivery,
to him or upon his order, of the Deposited Securities represented by the ADS so
surrendered. Subject to the last sentence of this paragraph, such Deposited
Securities may be delivered in certificated form or by electronic delivery. ADS
may be surrendered for the
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purpose of withdrawing Deposited Securities by delivery of a Receipt evidencing
such ADS (if held in certificated form) or by book-entry delivery of such ADS to
the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) at the designated office of the Custodian (subject to the
terms and conditions of the Deposit Agreement, to the Company's Articles of
Association, and to the provisions of or governing the Deposited Securities and
applicable laws, now or hereafter in effect) or through a book entry Delivery of
the Shares, to or upon the written order of the person or persons designated in
the order delivered to the Depositary as provided above, the Deposited
Securities represented by such ADSs, together with any certificate or other
proper documents of or relating to title for the Deposited Securities or
evidence of the electronic transfer thereof (if available) as the case may be to
or for the account of such person.
The Depositary may, in its discretion, refuse to accept for surrender a
number of ADSs representing a number of Shares other than a whole number of
Shares. In the case of surrender of a Receipt evidencing a number of ADSs
representing other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be Delivered in
accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing ADSs representing any remaining fractional Share, or
(ii) sell or cause to be sold the fractional Shares represented by the Receipt
so surrendered and remit the proceeds thereof (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes and
governmental charges) to the person surrendering the Receipt. At the request,
risk and expense of any Holder so surrendering a Receipt, and for the account of
such Holder, the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any cash or other property (other than securities) held in
respect of, and any certificate or certificates and other proper documents of or
relating to title to, the Deposited Securities represented by such Receipt to
the Depositary for delivery at the Principal Office of the Depositary, and for
further delivery to such Holder. Such direction shall be given by letter or, at
the request, risk and expense of such Holder, by cable, telex or facsimile
transmission. Upon receipt by the Depositary, the Depositary may make delivery
to such person or persons at the Principal Office of the Depositary of any
dividends or distributions with respect to the Deposited Securities represented
by such Receipt, or of any proceeds of sale of any dividends, distributions or
rights, which may at the time be held by the Depositary.
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the
terms and conditions of the Deposit Agreement, the Registrar shall register
transfers of Receipts on its books, upon surrender at the Principal Office of
the Depositary of a Receipt by the Holder thereof in person or by duly
authorized attorney, properly endorsed (in the case of a certificated Receipt)
or accompanied by proper instruments of transfer (including signature guarantees
in accordance with standard industry practice) and duly stamped as may be
required by the laws of the State of
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New York and of the United States of America, the Republic of South Africa and
of any other applicable jurisdiction. Subject to the terms and conditions of the
Deposit Agreement, including payment of the applicable fees and charges of the
Depositary, the Depositary shall execute a new Receipt or Receipts (and if
necessary, cause the Registrar to countersign such Receipt(s)) and deliver the
same to or upon the order of the person entitled to such Receipts evidencing the
same aggregate number of ADSs as those evidenced by the Receipts surrendered.
Upon surrender of a Receipt or Receipts for the purpose of effecting a split-up
or combination of such Receipt or Receipts upon payment of the applicable fees
and charges of the Depositary, and subject to the terms and conditions of the
Deposit Agreement, the Depositary shall execute and deliver a new Receipt or
Receipts for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as the Receipt or Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
subdivision combination or surrender of any Receipt, the delivery of any
distribution thereon or withdrawal of any Deposited Securities, the Depositary
or the Custodian may require (i) payment from the depositor of Shares or
presenter of the Receipt of a sum sufficient to reimburse it for any tax or
other governmental charge and any share transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges of
the Depositary as provided in the Deposit Agreement and in this Receipt, (ii)
the production of proof satisfactory to it as to the identity and genuineness of
any signature or any other matters and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts and
ADSs or to the withdrawal of Deposited Securities, (B) the memorandum and
articles of association of the Company and (C) any reasonable regulations
promulgated by the Depositary or the Company consistent with the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange upon which the
Receipts or Shares are listed, or under any provision of the Deposit Agreement
or provisions of, or governing, the Deposited Securities or any meeting of
shareholders of the Company or for any other reason, subject in all cases to
Article (22) hereof. Notwithstanding any provision of the Deposit Agreement or
this Receipt to the contrary, the Holders of Receipts are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities at any time subject only
to (i) temporary delays caused by closing the transfer books of the Depositary
or the Company or the deposit of Shares in connection with voting at a
shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 (as such
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General Instructions may be amended from time to time). Without limitation of
the foregoing, the Depositary shall not knowingly accept for deposit under the
Deposit Agreement any Shares or other Deposited Securities required to be
registered under the provisions of the U.S. Securities Act, unless a
registration statement is in effect as to such Shares.
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to the laws of the Republic of South Africa and any stock
exchange on which the Shares are, or will be registered, traded or listed, the
Company's Articles of Association, which are made to provide information as to
the capacity in which such Holder or Beneficial Owner owns ADSs and regarding
the identity of any other person interested in such ADSs and the nature of such
interest and various other matters whether or not they are Holders and/or
Beneficial Owner at the time of such request. The Depositary agrees to use
reasonable efforts to forward any such requests to the Holders and to forward to
the Company any such responses to such requests received by the Depositary.
(6) Liability of Holder for Taxes, Duties and Other Charges. If any tax or
other governmental charge shall become payable by the Depositary or the
Custodian with respect to any Shares, Deposited Securities, Receipts or ADSs,
such tax, or other governmental charge shall be payable by the Holders and
Beneficial Owners to the Depositary and such Holders and Beneficial Owners shall
be deemed liable therefor. The Company, the Custodian and/or the Depositary may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of the Holder and/or Beneficial Owner
any or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, with the Holder and the Beneficial Owner hereof remaining fully
liable for any deficiency. In addition to any other remedies available to it,
the Depositary and the Custodian may refuse the deposit of Shares, and the
Depositary may refuse to issue ADSs, to deliver ADSs, register the transfer,
split-up or combination of ADRs and (subject to Article (22) hereof) the
withdrawal of Deposited Securities, until payment in full of such tax, charge,
penalty or interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian and each of their
respective agents, officers, directors, employees and Affiliates for, and hold
each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
Holders understand that in converting Foreign Currency, amounts received on
conversion are calculated at a rate which may exceed the number of decimal
places used by the Depositary to report distribution rates (which in any case
will not be less than two decimal places). Any excess amount may be retained by
the Depositary as an additional cost of conversion, irrespective of any other
fees and expenses payable or owing hereunder and shall not be subject to
escheatment.
(7) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such
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Shares (and the certificates therefor) are duly authorized, validly issued,
fully paid and were legally obtained by such person, (ii) all preemptive (and
similar) rights, if any, with respect to such Shares, have been validly waived
or exercised, (iii) the person making such deposit is duly authorized so to do,
(iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim and are not,
and the ADSs issuable upon such deposit will not be, Restricted Securities and
(v) the Shares presented for deposit have not been stripped of any rights or
entitlements. Such representations and warranties shall survive the deposit and
withdrawal of Shares and the issuance, cancellation and transfer of ADSs. If any
such representations or warranties are false in any way, the Company and
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
(8) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and the terms of the Deposit
Agreement and the provisions of, or governing, the Deposited Securities or other
information as the Depositary deems necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. Subject to Article (22) hereof and the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable,
may withhold the delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed, or such certifications are executed, or such
representations and warranties made, or such information and documentation are
provided.
(9) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement, unless
otherwise agreed in writing by the Company and the Depositary; provided,
however, that no fees shall be payable upon distribution of cash dividends so
long as the charging of such fee is prohibited by the exchange, if any, upon
which the ADSs are listed:
(i) to any person to whom ADSs are issued or to any person to whom a
distribution is made in respect of ADS distributions pursuant to stock
dividends or other free distributions of stock, bonus distributions, stock
splits or other distributions (except where converted to cash), a fee not
in excess of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so issued under
the terms of the Deposit Agreement to be determined by the Depositary;
(ii) to any person surrendering ADSs for cancellation and withdrawal
of Deposited Securities including, inter alia, cash distributions made
pursuant to a cancellation or withdrawal, a fee not in excess of U.S. $
5.00 per 100 ADSs (or fraction thereof) so surrendered;
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(iii) to any holder of ADSs (including, without limitation, Holders),
a fee not in excess of U.S. $ 2.00 per 100 ADSs held for the distribution
of cash proceeds, including cash dividends or sale of rights and other
entitlements, not made pursuant to a cancellation or withdrawal;
(iv) to any holder of ADSs (including, without limitation, Holders),
a fee not in excess of U.S. $ 5.00 per 100 ADSs (or portion thereof) issued
upon the exercise of rights; and
(v) for the operation and maintenance costs in administering the
ADSs an annual fee of U.S. $ 2.00 per 100 ADSs.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for
the registration of Shares or other Deposited Securities with the Foreign
Registrar and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
(iii) such cable, telex, facsimile and electronic transmission and
delivery expenses as are expressly provided in the Deposit Agreement to be
at the expense of the person depositing or withdrawing Shares or Holders
and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of Foreign Currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and other
regulatory requirements applicable to Shares, Deposited Securities, ADSs
and ADRs;
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities, including any fees of a central
depository for securities in the local market, where applicable; and
(vii) any additional fees, charges, costs or expenses that may be
incurred from time to time by the Depositary and/or any of the Depositary's
agents, including the Custodian, and/or agents of the Depositary's agents
in connection with the servicing of Shares, Deposited Securities and/or
American Depositary Shares (such fees, charges, costs or expenses to be
assessed against Holders of record as at the date or dates set by the
Depositary as it sees fit and collected at the sole discretion of the
Depositary by billing such Holders for such fee or by deducting such fee
from one or more cash dividends or other cash distributions).
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the
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Depositary and Company but, in the case of fees and charges payable by Holders
or Beneficial Owners, only in the manner contemplated by Article (20) of this
Receipt.
(10) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) is
transferable by delivery of the Receipt, provided it has been properly endorsed
or accompanied by proper instruments of transfer, such Receipt being a
certificated security under the laws of the State of New York. Notwithstanding
any notice to the contrary, the Depositary may deem and treat the Holder of this
Receipt (that is, the person in whose name this Receipt is registered on the
books of the Depositary) as the absolute owner hereof for all purposes. The
Depositary shall have no obligation or be subject to any liability under the
Deposit Agreement or this Receipt to any holder of this Receipt or any
Beneficial Owner unless such holder is the Holder of this Receipt registered on
the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(11) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or enforceable for any purpose,
unless this Receipt has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) if a Registrar
for the Receipts shall have been appointed, countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar and (iv)
registered in the books maintained by the Depositary or the Registrar, as
applicable, for the issuance and transfer of Receipts. Receipts bearing the
facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly-authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the execution and delivery of such Receipt by the Depositary or did not
hold such office on the date of issuance of such Receipts.
(12) Available Information; Reports; Inspection of Transfer Books. As of
the date of the Deposit Agreement, the Company publishes information in English
required to maintain the exemption from registration under Rule 12g3-2(b) under
the Exchange Act on its Internet Web site (www.murrob.com) or through an
electronic information delivery system generally available to the public in its
primary trading market. Should the Company become subject to the periodic
reporting or other informational requirements under the Exchange Act, it will be
required in accordance therewith to file reports and other information with the
U.S. Securities and Exchange Commission. The Depositary does not assume any duty
to determine if the Company is complying with the current requirements of Rule
12g3-2(b) under the Exchange Act or to take any action if the Company is not
complying with those requirements.
The Depositary shall make available during normal business hours on any
Business Day for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited
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Securities and (b) made generally available to the holders of such Deposited
Securities by the Company.
The Depositary or the Registrar, as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary's or the
Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the Receipts.
The Depositary or the Registrar, as applicable, may close the transfer
books with respect to the Receipts, at any time or from time to time, when
deemed necessary or advisable by it in good faith in connection with the
performance of its duties hereunder, or at the reasonable written request of the
Company subject, in all cases, to Article (22) hereof.
Dated: DEUTSCHE BANK TRUST
COMPANY AMERICAS, as Depositary
By:
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Vice President
The address of the Principal Office of the Depositary is 60 Wall Street,
New York, New York 10005, U.S.A.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a Foreign Currency can, in the judgment of the
Depositary (upon the terms of the Deposit Agreement), be converted on a
practicable basis, into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars and will distribute promptly the amount thus received (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes and
governmental charges withheld) to the Holders of record as of the ADS Record
Date in proportion to the number of ADSs representing such Deposited Securities
held by such Holders respectively as of the ADS Record Date. The Depositary
shall distribute only such amount, however, as can be distributed without
attributing to any Holder a fraction of one cent. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto. If the Company, the Custodian or the Depositary is required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes, duties or
other governmental charges, the amount distributed to Holders on the ADSs
representing such Deposited Securities shall be reduced accordingly. Such
withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Any Foreign Currency received
by the Depositary shall be converted upon the terms and conditions set forth in
the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall or cause such Shares to
be deposited with the Custodian and registered, as the case may be, in the name
of the Depositary, the Custodian or their nominees. Upon receipt of confirmation
of such deposit, the Depositary shall, subject to and in accordance with the
Deposit Agreement, establish the ADS Record Date and either (i) distribute to
the Holders as of the ADS Record Date in proportion to the number of ADSs held
as of the ADS Record Date, additional ADSs, which represent in aggregate the
number of Shares received as such dividend, or free distribution, subject to the
terms of the Deposit Agreement (including, without limitation, the applicable
fees and charges of, and expenses incurred by, the Depositary, and taxes), or
(ii) if additional ADSs are not so distributed, each ADS issued and outstanding
after the ADS Record Date shall, to the extent permissible by law, thenceforth
also represent rights and interests in the additional Shares distributed upon
the Deposited Securities represented thereby (net of the applicable fees and
charges of, and the expenses incurred by, the Depositary, and taxes and
governmental charges). In lieu of delivering fractional ADSs, the Depositary
shall sell the number of Shares represented by the aggregate of such fractions
and distribute the proceeds upon the terms set forth in the Deposit Agreement.
In the event that (x) the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to
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withhold, or, (y) if the Company, in the fulfillment of its obligations under
the Deposit Agreement, has either (a) furnished an opinion of U.S. counsel
determining that Shares must be registered under the Securities Act or other
laws in order to be distributed to Holders (and no such registration statement
has been declared effective), or (b) fails to timely deliver the documentation
contemplated in the Deposit Agreement, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable, and the Depositary shall distribute
the net proceeds of any such sale (after deduction of taxes and/or governmental
charges and fees and charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Depositary shall, upon provision of all
documentation required under the Deposit Agreement, (including, without
limitation, any legal opinions the Depositary may reasonably request, to be
furnished at the expense of the Company) determine whether such distribution is
lawful and reasonably practicable. If so, the Depositary shall, subject to the
terms and conditions of the Deposit Agreement, establish an ADS Record Date
according to Article (14) hereof and establish procedures to enable the Holder
hereof to elect to receive the proposed distribution in cash or in additional
ADSs. If a Holder elects to receive the distribution in cash, the dividend shall
be distributed as in the case of a distribution in cash. If the Holder hereof
elects to receive the distribution in additional ADSs, the distribution shall be
distributed as in the case of a distribution in Shares upon the terms described
in the Deposit Agreement. If such elective distribution is not lawful or
reasonably practicable or if the Depositary did not receive satisfactory
documentation set forth in the Deposit Agreement, the Depositary shall, to the
extent permitted by law, distribute to Holders, on the basis of the same
determination as is made in the Republic of South Africa in respect of the
Shares for which no election is made, either (x) cash or (y) additional ADSs
representing such additional Shares, in each case, upon the terms described in
the Deposit Agreement. Nothing herein shall obligate the Depositary to make
available to the Holder hereof a method to receive the elective distribution in
Shares (rather than ADSs). There can be no assurance that the Holder hereof will
be given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
Upon receipt by the Depositary of a notice indicating that the Company
wishes rights to subscribe for additional Shares to be made available to
Holders, the Company shall determine whether it is lawful and reasonably
practicable to make such rights available to the Holders. The Depositary shall
make such rights available to any Holders only if the Company shall have timely
requested that such rights be made available to Holders, the Depositary shall
have received the documentation required by the Deposit Agreement, and the
Depositary shall have determined that such distribution of rights is lawful and
reasonably practicable. If such conditions are not satisfied, the Depositary
shall sell the rights as described below. In the event all conditions set forth
above are satisfied, the Depositary shall, in consultation with the Company,
establish an ADS Record Date and establish procedures (x) to distribute such
rights (by means of warrants or
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otherwise) and (y) to enable the Holders to exercise the rights (upon payment of
the applicable fees and charges of, and expenses incurred by, the Depositary and
taxes and other governmental charges). Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise such rights to subscribe for Shares (rather than ADSs). If
(i) the Company does not timely request the Depositary to make the rights
available to Holders or if the Company requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive the documentation
required by the Deposit Agreement or determines it is not lawful or reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall determine whether it is lawful and reasonably practicable to sell such
rights, in a riskless principal capacity or otherwise, at such place and upon
such terms (including public and/or private sale) as it may deem proper. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of applicable fees and charges of, and expenses incurred by, the Depositary
and taxes and governmental charges) upon the terms hereof and in the Deposit
Agreement. If the Depositary is unable to make any rights available to Holders
or to arrange for the sale of the rights upon the terms described above, the
Depositary shall allow such rights to lapse. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or
practicable to make such rights available to Holders in general or any Holders
in particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or exercise, or (iii) the content of any materials forwarded to
the Holders on behalf of the Company in connection with the rights distribution.
Notwithstanding anything herein to the contrary, if registration (under the
Securities Act and/or any other applicable law) of the rights or the securities
to which any rights relate may be required in order for the Company to offer
such rights or such securities to Holders and to sell the securities represented
by such rights, the Depositary will not distribute such rights to the Holders
(i) unless and until a registration statement under the Securities Act (and/or
such other applicable law) covering such offering is in effect or (ii) unless
the Company furnishes to the Depositary opinion(s) of counsel for the Company in
the United States and counsel to the Company in any other applicable country in
which rights would be distributed, in each case satisfactorily to the
Depositary, to the effect that the offering and sale of such securities to
Holders and Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws. In the
event that the Company, the Depositary or the Custodian shall be required to
withhold and does withhold from any distribution of property (including rights)
an amount on account of taxes or other governmental charges, the amount
distributed to the Holders shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes and charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein shall obligate the Company to file any registration
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statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
Upon receipt of a notice regarding property other than cash, Shares or
rights to purchase additional Shares, to be made to Holders, the Depositary
shall determine whether such distribution to Holders is lawful and practicable.
The Depositary shall not make such distribution unless (i) the Company shall
have timely requested the Depositary to make such distribution to Holders, (ii)
the Depositary shall have received the documentation required by the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution
is lawful and reasonably practicable. Upon satisfaction of such conditions, the
Depositary shall distribute the property so received to the Holders of record as
of the ADS Record Date, in proportion to the number of ADSs held by such Holders
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes and governmental charges withheld. The Depositary may
dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem proper and shall distribute the
proceeds of such sale received by the Depositary (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes and
governmental charges) to the Holders upon the terms hereof and of the Deposit
Agreement. If the Depositary is unable to sell such property, the Depositary may
dispose of such property in any way it deems reasonably practicable under the
circumstances.
(14) Fixing of Record Date. Whenever necessary in connection with any
distribution (whether in cash, Shares, rights or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of holders of Shares or other Deposited Securities, or
whenever the Depositary shall find it necessary or convenient in connection with
the fulfillment of its obligations under the Deposit Agreement, the Depositary
shall fix, in consultation with the Company, a record date ("ADS Record Date")
as close as practicable to the record date fixed by the Company with respect to
the Shares (if applicable) for the determination of the Holders who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, or to give or withhold such consent, or to
receive such notice or solicitation or to otherwise take action, or to exercise
the rights of Holders with respect to such changed number of Shares represented
by each ADS or for any other reason. Subject to applicable law and the terms and
conditions of this Receipt and the Deposit Agreement, only the Holders of record
at the close of business in New York on such ADS Record Date shall be entitled
to receive such distributions, to give such voting instructions, to receive such
notice or solicitation, or otherwise take action.
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(15) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Shares are entitled to vote, or
of solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such
meeting or solicitation of such consent or proxy in accordance with Section 4.7
of the Deposit Agreement. The Depositary shall, if requested by the Company in
writing in a timely manner (the Depositary having no obligation to take any
further action if the request shall not have been received by the Depositary at
least 30 days prior to the date of such vote or meeting), at the Company's
expense and provided no U.S. legal prohibitions exist, mail by ordinary, regular
mail delivery or by electronic transmission (or as otherwise agreed by the
Company and the Depositary), unless otherwise agreed in writing by the Company
and the Depositary, to Holders as of the ADS Record Date: (a) such notice of
meeting or solicitation of consent or proxy; (b) a statement that the Holders at
the close of business on the ADS Record Date will be entitled, subject to any
applicable law, the provisions of the Deposit Agreement, the Company's Articles
of Association and the provisions of or governing Deposited Securities (which
provisions, if any, shall be summarized in pertinent part by the Company), to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Shares or other Deposited Securities represented by such
Holder's ADSs; and (c) a brief statement as to the manner in which such
instructions may be given or in which voting instructions may be deemed to have
been given in accordance with Section 5.8 of the Deposit Agreement. Upon the
timely receipt of written instructions of a Holder on the ADS Record Date, the
Depositary shall endeavor, insofar as practicable and permitted under applicable
law and the provisions of the Company's Articles of Association and the
provisions of the Deposited Securities, to vote or cause the Custodian to vote
the Shares and/or other Deposited Securities represented by ADSs evidenced by
such Receipt in accordance with such instructions.
In the event that the Depositary i) timely receives voting instructions
from a Holder which fail to specify the manner in which the Depositary is to
vote the Deposited Securities represented by such Holder's ADSs or ii) if no
instructions are received by the Depositary from a Holder with respect to any of
the Deposited Securities represented by the ADSs evidenced by such Holder's ADRs
on or before the ADS Record Date established by the Depositary for such purpose,
the Depositary shall (unless otherwise specified in the notice distributed to
Holders) deem such Holder to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided,
however, that no such instruction shall be deemed given and no such
discretionary proxy shall be given with respect to any matter as to which the
Company informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing, if applicable) that (x) the
Company does not wish to give such proxy, (y) the Company is aware or should
reasonably be aware that substantial opposition exists from Holders against the
outcome for which the person designated by the Company would otherwise vote or
(z) the outcome for which the person designated by the Company would otherwise
vote would materially and adversely affect the rights of holders of Shares,
provided, further, that the Company will have no liability to any Holder or
Beneficial Owner resulting from such notification.
A-14
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise the Shares or other
Deposited Securities represented by ADSs except pursuant to and in accordance
with such written instructions from Holders including the deemed instruction to
the Depositary to give a discretionary proxy to a person designated by the
Company. Shares or other Deposited Securities represented by ADSs for which no
specific and timely voting instructions are received by the Depositary from the
Holder shall not be voted.
There can be no assurance that Holders or Beneficial Owners generally or
any Holder or Beneficial Owner in particular will receive the notice described
above with sufficient time to enable the Holder to return voting instructions to
the Depositary in a timely manner.
Notwithstanding the above, the Depositary shall, if so requested in writing
by the Company, represent all Deposited Securities (provided voting instructions
have been received in respect of such Deposited Securities from Holders as of
the ADS Record Date) for the purpose of establishing quorum at a meeting of
shareholders, and in accordance with Section 5.3 of the Deposit Agreement, the
Depositary shall not be liable for any failure to carry out any instructions to
vote any of the Deposited Securities, or for the manner in which such vote is
cast or the effect of any such vote.
(16) Changes Affecting Deposited Securities. Upon any change in par value,
split-up, subdivision, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation or sale of assets affecting the Company or to
which it otherwise is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement or
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the Receipts shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Company shall provide notice of such event to
the Depositary and shall consult with the Depositary prior to the Depositary
taking any action hereunder. The Depositary may, with the Company's approval,
and shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a share
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to this form of Receipt
specifically describing such new Deposited Securities and/or corporate change.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall if the Company requests, subject to receipt of
satisfactory legal documentation contemplated in the Deposit Agreement, sell
such securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of fees and charges of, and expenses incurred by, the Depositary and taxes and
governmental charges) for the account of the Holders otherwise entitled to such
securities and distribute the net proceeds so allocated to the extent
practicable as
A-15
in the case of a distribution received in cash pursuant to the Deposit
Agreement. Except as set out in Section 5.8 of the Deposit Agreement, the
Depositary shall not (i) be responsible for any failure to determine whether it
may be lawful or feasible to make such securities available to Holders in
general or any Holder in particular, (ii) be responsible for any foreign
exchange exposure or loss incurred in connection with such sale, or (iii) have
any liability to the purchaser of such securities.
(17) Exoneration. Neither the Depositary, the Custodian or the Company
shall be obligated to do or perform any act which is inconsistent with the
provisions of the Deposit Agreement or shall incur any liability (i) if the
Depositary, the Custodian or the Company or their respective controlling persons
or agents shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States or any state thereof, the Republic of South Africa or any
other country, or of any other governmental authority or regulatory authority or
stock exchange, or on account of the possible criminal or civil penalties or
restraints or by reason of any provision, present or future of the Company's
Articles of Association or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control, (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in the Deposit Agreement or
in the Company's Articles of Association or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the Custodian or
the Company or their respective controlling persons or agents in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for any inability by a Holder
or Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of the Deposit Agreement, made available to Holders of ADS or
(v) for any special, consequential, indirect or punitive damages for any breach
of the terms of the Deposit Agreement. The Holders and Beneficial Owners shall
indemnify the Depositary, the Company, the Custodian and any of their respective
officers, directors, employees, agents and Affiliates against, and hold each of
them harmless from, any claims by any governmental authority with respect to
taxes, additions to tax, penalties or interest arising out of any refund of
taxes, reduced rate of withholding at source or other tax benefit obtained. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request, opinion or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement.
(18) Standard of Care. The Company and the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons (except for the Company's and the
A-16
Depositary's obligations specifically set forth in Section 5.8 of the Deposit
Agreement), provided, that the Company and the Depositary and their respective
agents agree to perform their respective obligations specifically set forth in
the Deposit Agreement without gross negligence or willful misconduct. The
Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any vote is cast (provided that any such action or omission is in good faith) or
the effect of any vote. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of the Deposit Agreement or for the failure
or timeliness of any notice from the Company. The Depositary is under no
obligation to provide the Holders and Beneficial Owners with any information
about the tax status of the Company. The Depositary shall not incur any
liability for any tax consequences that may be incurred by Holders and
Beneficial Owners on account of their ownership of the American Depositary
Shares, including without limitation, tax consequences resulting from the
Company (or any of its subsidiaries) being treated as a "Passive Foreign
Investment Company" (as defined in the U.S. Internal Revenue Code and the
regulations issued thereunder) or otherwise. In no event shall the Depositary or
any of its directors, officers, employees, agents (including, without
limitation, its Agents) and/or Affiliates, or any of them, be liable for any
indirect, special, punitive or consequential damages to the Company, Holders,
Beneficial Owners or any other person.
(19) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement, save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such resignation. The
Company shall use reasonable efforts to appoint such successor depositary, and
give notice to the Depositary of such appointment, not more than 90 days after
delivery by the Depositary of written notice of resignation as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal which notice shall be effective on the later of
(i) the 90th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement save that, any amounts, fees, costs or
expenses owed to the Depositary under the Deposit Agreement or in accordance
with any other agreements otherwise agreed in writing between the Company and
the Depositary from time to time shall be paid to the Depositary prior to such
removal. In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its
A-17
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor. The predecessor depositary, upon
payment of all sums due it and on the written request of the Company, shall (i)
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder (other than as contemplated in the Deposit
Agreement), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders. Any corporation into or with which the
Depositary may be merged or consolidated shall be the successor of the
Depositary without the execution or filing of any document or any further act.
(20) Amendment/Supplement. Subject to the terms and conditions of this
Article (20), and applicable law, this Receipt and any provisions of the Deposit
Agreement may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the consent of the Holders or
Beneficial Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding Receipts until 30 days after notice of such
amendment or supplement shall have been given to the Holders of outstanding
Receipts. The parties hereto agree that any amendments or supplements which (i)
are reasonably necessary (as agreed by the Company and the Depositary) in order
for (a) the ADSs to be registered on Form F-6 under the Securities Act or (b)
the ADSs or Shares to be traded solely in electronic book-entry form and (ii) do
not in either such case impose or increase any fees or charges to be borne by
Holders, shall be deemed not to materially prejudice any substantial rights of
Holders or Beneficial Owners. Every Holder and Beneficial Owner at the time any
amendment or supplement so becomes effective shall be deemed, by continuing to
hold such ADS, to consent and agree to such amendment or supplement and to be
bound by the Deposit Agreement as amended or supplemented thereby. In no event
shall any amendment or supplement impair the right of the Holder to surrender
such Receipt and receive therefor the Deposited Securities represented thereby,
except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement the Deposit Agreement and the Receipt at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance with such laws, or rules or
regulations.
(21) Termination. The Depositary shall, at any time at the written
direction of the Company (unless otherwise agreed in writing by the Company and
the Depositary), terminate the
A-18
Deposit Agreement by mailing notice of such termination to the Holders of all
Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the terms
of the Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time to
time, before such termination shall take effect. If 90 days shall have expired
after (i) the Depositary shall have delivered to the Company a written notice of
its election to resign, or (ii) the Company shall have delivered to the
Depositary a written notice of the removal of the Depositary, and in either case
a successor depositary shall not have been appointed and accepted its
appointment as provided herein and in the Deposit Agreement, the Depositary may
terminate the Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed for such termination. On and after the date of termination of the Deposit
Agreement, the Holder will, upon surrender of such Holder's Receipt at the
Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the surrender of Receipts referred to in Article (2) hereof and
in the Deposit Agreement and subject to the conditions and restrictions therein
set forth, and upon payment of any applicable taxes and/or governmental charges,
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of the Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of Receipts, and the Depositary
shall suspend the distribution of dividends to the Holders thereof, and shall
not give any further notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in the Deposit
Agreement, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes and/or governmental charges or assessments). At any time
after the expiration of six months from the date of termination of the Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders of
Receipts whose Receipts have not theretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations under the Deposit
Agreement with respect to the Receipts and the Shares, Deposited Securities and
ADSs, except to account for such net proceeds and other cash (after deducting,
or charging, as the case may be, in each case the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes and/or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement. The obligations under the terms of the Deposit Agreement and Receipts
of Holders and Beneficial Owners of ADSs outstanding as of the effective date of
any termination shall survive such effective date of termination and shall be
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discharged only when the applicable ADSs are presented by their Holders to the
Depositary for cancellation under the terms of the Deposit Agreement and the
Holders have each satisfied any and all of their obligations hereunder
(including, but not limited to, any payment and/or reimbursement obligations
which relate to prior to the effective date of termination but which payment
and/or reimbursement is claimed after such effective date of termination).
(22) Compliance with U.S. Securities Laws; Regulatory Compliance.
Notwithstanding any provisions in this Receipt or the Deposit Agreement to the
contrary, the withdrawal or delivery of Deposited Securities will not be
suspended by the Company or the Depositary except as would be permitted by
Instruction I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act.
(23) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this Article (23), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
of the Company and its affiliates and in ADSs. The Depositary may issue ADSs
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares furnished on behalf of the holder thereof. In its
capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided,
however, that the Depositary may, unless instructed by the Company (i) issue
ADSs prior to the receipt of Shares pursuant to Section 2.3 of the Deposit
Agreement and (ii) deliver Shares prior to the receipt and cancellation of ADSs
pursuant to Section 2.6 of the Deposit Agreement, including ADSs which were
issued under (i) above but for which Shares may not have been received (each
such transaction a "Pre-Release Transaction"). The Depositary may receive ADSs
in lieu of Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) accompanied by or subject
to a written agreement whereby the person or entity (the "Applicant") to whom
ADSs or Shares are to be delivered (1) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(2) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (3)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (4) agrees to any additional restrictions or
requirements that the Depositary deems appropriate; (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate; (c) terminable by the Depositary on not more
than five (5) business days' notice; and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The Depositary will
limit the number of ADSs and Shares involved in such Pre-Release Transactions at
any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate and may, with the written consent of the Company,
change such limit for the purposes of general application. The Depositary may
also set limits with respect to the number of ADSs and Shares involved in
Pre-Release Transactions with any one person on a case by case basis as it deems
A-20
appropriate. The Depositary may retain for its own account any compensation
received by it in conjunction with the foregoing. Collateral provided pursuant
to (b) above, but not earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
(24) Ownership Restrictions. Holders and Beneficial Owners shall comply
with any limitations on ownership of Shares under the Articles of Incorporation
of the Company or applicable South African law as if they held the number of
Shares their ADSs represent. The Company shall inform the Holders, Beneficial
Owners and the Depositary of any such ownership restrictions in place from time
to time.
(25) Waiver. EACH PARTY TO THE DEPOSIT AGREEMENT INCLUDING, FOR AVOIDANCE
OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS)
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING
AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs,
THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE
BREACH HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY
OTHER THEORY).
A-21
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated: Name:
---------------------------------------
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an
attorney, executor, administrator, trustee or
guardian, the person executing the
endorsement must give his/her full title in
such capacity and proper evidence of
authority to act in such capacity, if not on
file with the Depositary, must be forwarded
with this Receipt.
SIGNATURE GUARANTEED
- ----------------------------
A-22
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.....................................................3
SECTION 1.1 "Affiliate"................................................3
SECTION 1.2 "Agent"....................................................3
SECTION 1.3 "American Depositary Share(s)" and "ADS(s)"................3
SECTION 1.4 "ADS Record Date"..........................................3
SECTION 1.5 "Beneficial Owner".........................................4
SECTION 1.6 "Business Day".............................................4
SECTION 1.7 "Commission"...............................................4
SECTION 1.8 "Company"..................................................4
SECTION 1.9 "Custodian"................................................4
SECTION 1.10 "Deliver" and "Delivery"...................................4
SECTION 1.11 "Deposit Agreement"........................................5
SECTION 1.12 "Depositary"...............................................5
SECTION 1.13 "Deposited Securities".....................................5
SECTION 1.14 "Dollars" and "$"..........................................5
SECTION 1.15 "DRS/Profile"..............................................5
SECTION 1.16 "DTC"......................................................5
SECTION 1.17 "Exchange Act".............................................5
SECTION 1.18 "Foreign Currency".........................................5
SECTION 1.19 "Foreign Registrar"........................................6
SECTION 1.20 "Holder"...................................................6
SECTION 1.21 "Indemnified Person" and "Indemnifying Person".............6
SECTION 1.22 "Pre-Release"..............................................6
SECTION 1.23 "Principal Office".........................................6
SECTION 1.24 "Receipt(s)"; "American Depositary Receipt(s)" and
"ADR(s)"..................................................6
SECTION 1.25 "Registrar"................................................7
SECTION 1.26 "Restricted Securities"....................................7
SECTION 1.27 "Securities Act"...........................................8
SECTION 1.28 "Shares"...................................................8
SECTION 1.29 "United States" or "U.S."..................................8
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF
SHARES; EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS..........................................8
SECTION 2.1 Appointment of Depositary..................................8
SECTION 2.2 Form and Transferability of Receipts.......................9
SECTION 2.3 Deposits..................................................11
SECTION 2.4 Execution and Delivery of Receipts........................13
(i)
Page
SECTION 2.5 Transfer of Receipts; Combination and Split-up of
Receipts.................................................15
SECTION 2.6 Surrender of Receipts and Withdrawal of Deposited
Securities...............................................16
SECTION 2.7 Limitations on Execution and Delivery, Transfer, etc.
of Receipts; Suspension of Delivery, Transfer, etc.......19
SECTION 2.8 Lost Receipts, etc........................................20
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records...................................21
SECTION 2.10 Pre-Release...............................................21
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS
OF RECEIPTS...................................................22
SECTION 3.1 Proofs, Certificates and Other Information................22
SECTION 3.2 Liability for Taxes and Other Charges.....................23
SECTION 3.3 Representations and Warranties on Deposit of Shares.......24
SECTION 3.4 Compliance with Information Requests......................25
ARTICLE IV THE DEPOSITED SECURITIES.......................................25
SECTION 4.1 Cash Distributions........................................25
SECTION 4.2 Distribution in Shares....................................26
SECTION 4.3 Elective Distributions in Cash or Shares..................28
SECTION 4.4 Distribution of Rights to Purchase Shares.................29
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares..........................................32
SECTION 4.6 Conversion of Foreign Currency............................34
SECTION 4.7 Fixing of Record Date.....................................36
SECTION 4.8 Voting of Deposited Securities............................37
SECTION 4.9 Changes Affecting Deposited Securities....................38
SECTION 4.10 Available Information.....................................40
SECTION 4.11 Reports...................................................40
SECTION 4.12 List of Holders...........................................40
SECTION 4.13 Taxation/Withholding......................................40
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY..................42
SECTION 5.1 Maintenance of Office and Transfer Books by the
Registrar................................................42
SECTION 5.2 Exoneration...............................................43
SECTION 5.3 Standard of Care..........................................45
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary.....................................46
SECTION 5.5 The Custodian.............................................48
SECTION 5.6 Notices and Reports.......................................49
SECTION 5.7 Issuance of Additional Shares, ADSs etc...................50
SECTION 5.8 Indemnification...........................................52
SECTION 5.9 Fees and Charges of Depositary............................53
SECTION 5.10 Restricted Securities Owners..............................55
(ii)
Page
ARTICLE VI AMENDMENT AND TERMINATION......................................56
SECTION 6.1 Amendment/Supplement......................................56
SECTION 6.2 Termination...............................................57
ARTICLE VII MISCELLANEOUS..................................................59
SECTION 7.1 Counterparts..............................................59
SECTION 7.2 No Third-Party Beneficiaries..............................59
SECTION 7.3 Severability..............................................60
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect..60
SECTION 7.5 Notices...................................................60
SECTION 7.6 Governing Law and Jurisdiction............................62
SECTION 7.7 Assignment................................................64
SECTION 7.8 Agents....................................................64
SECTION 7.9 Exclusivity...............................................64
SECTION 7.10 Compliance with U.S. Securities Laws......................64
SECTION 7.11 Titles....................................................64
EXHIBIT A Form of Receipt...................................................A-1
(iii)