AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT No. 2 dated as of , 2020 (the "Amendment") to the Deposit
Agreement, dated as of March 19, 2002, as amended and supplemented by Supplemental Agreement No. 1, dated February 26, 2008 (the "Deposit Agreement"), by and among (i)
Marks and Spencer Group p.l.c., a company
incorporated and existing under the laws of England and Wales (the "Company"), (ii) Deutsche Bank Trust Company Americas, an indirect wholly owned subsidiary of Deutsche Bank A.G., acting in its capacity as depositary (the "Depositary"), and (iii)
all Holders from time to time of American Depositary Receipts issued thereunder.
WHEREAS, the Company and the Depositary executed the Deposit Agreement for the purposes set forth therein; and
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company and the Depositary desire to amend certain terms of
the Deposit Agreement and Receipts.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Depositary hereby agree to amend the Deposit Agreement and the Receipts, effective as of the date described in Section 4.01 hereof (the "Effective Date"), as
follows:
SECTION 1.01. Definitions.
Unless otherwise defined in this Amendment, all capitalized terms used, but not otherwise defined, herein shall have the meaning given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT AND RECEIPTS
SECTION 2.01. All references in the Deposit Agreement and the Receipts to the
term "Deposit Agreement" shall, as of the Effective Date (as herein defined), refer to the Deposit Agreement, as amended by this Amendment.
SECTION 2.02. Section 5.09 of the Deposit Agreement shall be amended to include
the following paragraph following the heading:
“The Company, the Holders, owners of Receipts, and persons depositing Shares or surrendering American
Depositary Shares 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 (7) of the
Receipt and Exhibit B to the Deposit Agreement. 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
owners of Receipts, only in the manner contemplated
in Section 6.01. The Depositary shall provide, without charge, a copy of its latest fee schedule to anyone upon request.”
SECTION 2.03. The form of Receipt, and all outstanding Receipts, is amended by
replacing the second sentence of Article 7 with the following
“The Depositary will also charge to any Holder of ADSs, (i) a fee not in excess of U.S.$5.00 per 100 ADSs held (or portion
thereof) for the distribution of cash proceeds, including cash dividends or sale of rights and other entitlements, not made pursuant to a cancellation or withdrawal, and (ii) a fee not in excess of U.S.$5.00 per 100 ADSs (or portion thereof) issued
upon the exercise of rights.”
SECTION 2.04. Article 7 of the form of Receipt, and all outstanding Receipts, is
amended to include the following after the second sentence thereof:
“The Depositary will charge 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. The Depositary may, for the operation and maintenance costs in administering the American Depositary Shares, charge any Holder an annual fee
not in excess of U.S.$5.00 per 100 American Depositary Shares (or portion thereof), such fee to be assessed against Holders of record as of 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.”
SECTION 2.05. The table included in Exhibit B to the Deposit Agreement showing
the charges of the Depositary shall be amended to read as follows:
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Delivery of Receipts against deposits of Shares
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$5.00 per 100 American Depositary Shares or portion thereof
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Person to whom Receipts are delivered
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Withdrawal of Deposited Securities against surrender of Receipts
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$5.00 per 100 American Depositary Shares or portion thereof
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Persons surrendering Receipts
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Distribution of cash proceeds to any Holder of American Depositary Shares
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$5.00 per 100 American Depositary Shares or portion thereof
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Person to whom cash proceeds are delivered
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Distribution of stock dividends or other free distributions of stock, bonus distributions, stock splits or other
distributions (except where converted to cash)
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$5.00 per 100 American Depositary Share or fraction thereof
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Person to whom ADSs are issued or to whom distribution is made
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An annual fee of up to $5.00 per 100 American Depositary Shares or portion thereof, such fee to be assessed against
Holders of record as of 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.
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Holders of record as of the date or dates set by the Depositary as it sees fit.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties
of the Company. The Company represents and warrants to, and agrees with, the Depositary and the Holders and beneficial owners, that this Amendment, when executed and delivered by the Company, and the Deposit Agreement, as amended by
this Amendment, will be duly and validly authorized, executed and delivered by the Company, and each constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms,
subject to applicable bankruptcy, insolvency, fraudulent transfer, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
SECTION 3.02. Representations and Warranties
of the Depositary. The Depositary represents and warrants to the Company that this Amendment, when executed and delivered by the Depositary, and the Deposit Agreement, as amended by this Amendment, will be duly and validly
authorized, executed and delivered by the Depositary, and each constitutes the legal, valid and binding obligation of the Depositary, enforceable against the Depositary in accordance with its respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
SECTION 4.01. Effective Date. This Amendment is dated as of the date set forth above but the provisions of Sections 2.02, 2.03, 2.04 and 2.05 hereof shall not become effective as to any outstanding Receipts until 30 days after notice
hereof shall have been given to the Holders of such outstanding Receipts. After the Effective Date, each Holder shall be deemed, by continuing to hold Receipts, to have consented and agreed to this Amendment and to be subject to and bound by all
of the terms and conditions of the Deposit Agreement, as amended by this Amendment.
SECTION 4.02. Outstanding Receipts.
Receipts issued prior to the date hereof, which do not reflect the changes to the form of Receipt effected hereby, do not need to be called in for
exchange and may remain outstanding until such time as the Holders thereof choose to surrender them for any reason under the Deposit Agreement,
as amended by this Amendment. The Depositary is authorized and directed to take any and all actions deemed necessary to effect the foregoing. Holders and beneficial owners of American Depositary Shares issued pursuant to the Deposit Agreement
issued prior to the date hereof and outstanding as of the date hereof, shall, from and after the date hereof, be deemed Holders and beneficial owners of American Depositary Shares issued pursuant and be subject to all of the terms and conditions of
the Deposit Agreement, as amended by this Amendment, in all respects.
SECTION 4.03. Indemnification.
The parties hereto accept and shall be entitled to the benefits of the indemnification provisions of Section 5.08, as amended by this Amendment, of the Deposit Agreement in connection with any and all liability it or they may incur as a result of
the terms of this Amendment and the transactions contemplated herein.
SECTION 4.04. Governing Law. This Amendment and the right and obligations of the parties hereunder shall be construed in accordance with and governed by New York law.
SECTION 4.05. Counterparts. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Depositary have caused this Amendment to be executed by
representatives hereunto duly authorized as of the date set forth above.
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MARKS AND SPENCER GROUP P.L.C.
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By:
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Name:
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Title:
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as the Depositary
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES OF 25 PENCE EACH
of
MARKS AND SPENCER GROUP P.L.C.
(Incorporated under the
laws of England and Wales)
DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation and an indirect wholly-owned subsidiary of Deutsche Bank AG, as depositary (the
“Depositary”), hereby certifies that _______ is the registered owner (a “Holder”) of _____________ American Depositary Shares (“ADSs”), each (subject to paragraph 13) representing two Ordinary Shares of 25 pence each (including the rights to receive
Shares described in paragraph 1, “Shares” and, together with any other securities, cash or property from time to time held by the Depositary in respect or in lieu of deposited Shares, the “Deposited Property”), of Marks and Spencer Group p.l.c. (the
“Company”), a company organized under the laws of England and Wales, deposited with the Custodian (the “Custodian”) under the Deposit Agreement dated as of March 19, 2002 (as amended from time to time, the “Deposit Agreement”) among the Company, the
Depositary and all Holders and Beneficial Owners from time to time of American Depositary Receipts issued thereunder (“ADRs”), each of whom, by accepting an ADR, agrees to become a party thereto and to be bound by all of the terms and conditions
thereof and hereof.
The Deposit Agreement and this ADR (which includes the provisions set forth on the reverse hereof) shall be governed by and construed in accordance with the laws
of the State of New York. The terms and conditions of the Deposit Agreement are hereby incorporated by reference.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph 4, the Depositary may so issue ADRs for delivery at
the Transfer Office (defined in paragraph 3) only against deposit with the Custodian of: (a) Shares in form satisfactory to the Custodian; (b) rights to receive
Shares from the Company or any registrar, transfer agent, clearing agent or other entity recording Share ownership or transactions; or, (c) unless requested in writing by the Company to cease doing so at least two business days in advance of the
proposed deposit, other rights to receive Shares (until such Shares are actually deposited pursuant to (a) or (b) above, “Pre-released ADRs”), only if (1) Pre-released ADRs are fully collateralized (marked to market daily) with cash or U.S.
government securities held by the Depositary for the benefit of Holders (but such collateral shall not constitute Deposited Property), (ii) each recipient of Pre-released ADRs represents and agrees in writing with the Depositary that such recipient
or its customer (A) beneficially owns such shares, (B) assigns all beneficial right, title and interest therein to the Depositary for the benefit of the Holders, (C) holds such Shares for the account of the Depositary and (D) will deliver such Shares
to the Custodian as soon as practicable and promptly upon demand therefor but in no event more than five days after demand therefor and (iii) all Pre-released ADRs evidence not more than 30% of all ADSs (excluding those evidenced by Pre-released
ADRs). The Depositary may retain for its own account any earnings on collateral for Pre-released ADRs and its charges for issuance thereof. At the request, risk and expense of the person depositing Shares, the Depositary may accept deposits for
forwarding to the Custodian and may deliver ADRs at a place other than its office. Every person depositing Shares under the Deposit Agreement represents and warrants that such Shares are validly issued and outstanding, fully paid, nonassessable and
free of pre-emptive rights, that the person making such deposit is duly authorized to do so and that such Shares (A) are not “restricted securities” as such term is defined in Rule 144 under the Securities Act of 1933 unless at the time of deposit
they may be freely transferred after giving effect to the applicable holding period in accordance with Rule 144 and may otherwise be offered and sold freely in the United States or (B) have been registered under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and issuance of ADRs. The Depositary will not knowingly accept for deposit under the Deposit Agreement any Shares required to be registered under the Securities Act of 1933 and not
so registered; the Depositary may refuse to accept for such deposit any Shares identified by the Company in order to facilitate the Company’s compliance with such Act.
(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 charges of the Depositary for the making of withdrawals and cancellation of Receipts (as set forth in paragraph 7 hereof and in Section 5.09 and Exhibit A of
the Deposit Agreement) and (ii) all fees, taxes and governmental charges payable in connection with such surrender and withdrawal, and, subject to the terms and conditions of the Deposit Agreement, the Company’s Memorandum and Articles of
Association, Section 2.06 of the Deposit Agreement, paragraph 18 of this Receipt and the provisions of or governing the Deposited Securities and other applicable laws, the Holder of the American Depositary Shares evidenced hereby is entitled to
delivery, to him or upon his order, of the Deposited Securities represented by the ADS so surrendered. Such Deposited Securities may be delivered in certificated form or by electronic delivery. ADS may be surrendered for the purpose of withdrawing
Deposited Securities by delivery of a Receipt evidencing such ADS (if held in registered form) or by book-entry delivery of such ADS to the
Depositary. The Depositary will not deliver Deposited Securities except upon surrender of ADSs in accordance with this paragraph 2.
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 Memorandum and Articles of Association, and to the provisions of or governing the Deposited Securities and 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 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 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.
The Depositary may, in its discretion, refuse to accept for surrender a number of American Depositary Shares 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 American Depositary Shares 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 withheld) 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.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a designated transfer office in the Borough of Manhattan, The City of New York (the “Transfer Office”), (a) a
register (the “ADR Register”) for the registration, registration of transfer, combination and split-up of ADRs, which at all reasonable times will be open for inspection by Holders and the Company for the purpose of communicating with Holders in
the interest of the business of the Company or a matter relating to the Deposit Agreement and (b) facilities for the delivery and receipt of ADRs. Title to this ADR (and to the Deposited Property represented by the ADSs
evidenced hereby), when properly endorsed or accompanied by proper instruments of transfer and duly stamped as may be required by applicable law, is transferable
by delivery with the same effect as in the case of negotiable instruments under the laws of the State of New York; provided that the Depositary, notwithstanding any notice to the contrary, may treat the person in whose name this ADR is registered on
the ADR Register as the absolute owner hereof for all purposes. Subject to paragraphs 4 and 5, this ADR is transferable on the ADR Register and may be split into other ADRs or combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by duly authorized attorney upon surrender of this ADR at the Transfer Office properly endorsed or accompanied by proper instruments of transfer and duly stamped as may be required by applicable law;
provided that the Depositary may close the ADR Register at any time or from time to time when deemed reasonably expedient by it or requested by the Company.
(4) Certain Limitations. Prior to the issue, registration, registration of transfer, split-up or combination of any ADR, the delivery of any distribution in respect thereof, or,
subject to the last sentence of paragraph 2, the withdrawal of any Deposited Property, and from time to time in the case of clause (b)(ii) of this paragraph 4, the Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge, (ii) any stock transfer or registration fees in effect for the registration of transfers of Shares or other Deposited Property upon any applicable register and (iii) any
applicable charges as provided in paragraph 7 of this ADR; (b) the production of proof satisfactory to it of (i) the identity and genuineness of any signature and (ii) such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any securities, compliance with applicable law, regulations, provisions of or governing Deposited Property and terms of the Deposit Agreement and this ADR, as it may deem
necessary or proper, and (c) compliance with such regulations as the Depositary may establish consistent with the Deposit Agreement. The issuance of ADRs, the acceptance of deposits of Shares, the registration, registration of transfer, split-up
or combination of ADRs or, subject to the last sentence of paragraph 2, the withdrawal of Deposited Property may be suspended, generally or in particular instances, when the ADR Register or any register for Deposited Property is closed or when any
such action is deemed advisable by the Depositary or the Company.
(5) Taxes; Withholding. If any tax or other governmental charge shall become payable by or on behalf of the Custodian or the Depositary with respect to this ADR, any Deposited
Property represented by the ADSs evidenced hereby or any distribution thereon, such tax or other governmental charge shall be paid by the Holder hereof to the Depositary. The Depositary shall, in accordance with applicable law, use commercially
reasonable efforts to assist ADR Holders in the mitigation or reduction of any withholding tax imposed with respect to any ADR. The Depositary may refuse to effect any registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph 2, any withdrawal of such Deposited Property until such payment is made. The Depositary may also deduct from any distributions on or in respect of Deposited Property, or may sell by public or private sale
for the account of the Holder hereof any part or all of such Deposited Property (after attempting by reasonable means to notify the Holder hereof prior to such sale), and may apply such deduction or the proceeds of any such sale in payment of such
tax or other governmental charge, the Holder
hereof remaining liable for any deficiency, and, if appropriate, shall reduce the number of ADSs evidenced hereby to reflect any such sales of Shares and shall
distribute the net proceeds of any such sale or the balance of any such property after deduction of such tax or other governmental charge to the Holder hereof. In connection with any distribution to Holders, the Company will remit to the appropriate
governmental authority or agency all amounts (if any) required to be withheld and owing to such authority or agency by the Company; and the Depositary and the Custodian will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the Depositary or the Custodian. If the Depositary determines that any distribution in property other than cash (including Shares or rights) on Deposited Property is subject to
any tax that the Depositary or the Custodian is obligated to withhold, the Depositary may dispose of all or a portion of such property in such amounts and in such manner as the Depositary deems necessary and practicable to pay such taxes, by public
or private sale, and the Depositary shall distribute the net proceeds of any such sale or the balance of any such property after deduction of such taxes to the Holders entitled thereto.
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.
(6) Disclosure of Interests. To the extent that the provisions of or law governing any Deposited Property may require disclosure of or impose limits on beneficial or other
ownership of Deposited Property, other Shares and other securities and may provide for blocking transfer, voting or other rights to enforce such disclosure or limits, Holders and all persons holding ADRs agree to comply with all such disclosure
requirements and ownership limitations and to cooperate with the Depositary in the Depositary's compliance with any Company instructions in respect thereof, and the Depositary will use reasonable efforts to comply with such Company instructions.
Notwithstanding any other provision of the Deposit Agreement or this ADR, each Holder agrees to provide such information as the Company may
request in a disclosure notice (a “Disclosure Notice”) given pursuant to s.793 of the Companies Act 2006 or any other legislation replacing or amending or supplementing the requirements of that section or the Company’s Articles of Association within
the time period specified in such Disclosure Notice. Each Holder acknowledges that it understands that failure to comply with a Disclosure Notice may result in the imposition of sanctions against the holder of the Shares in respect of which the
non-complying person is or was, or appears to be or has been, interested as provided in s.795 of the said Companies Act or any such replacement, amendment or successor and the Company’s Articles of Association which currently include the withdrawal
of the voting rights of such Shares. In addition, each Holder agrees to comply with the provisions of the Disclosure Rules and Transparency Rules of the UK Financial Services Authority (the “FSA”) implementing certain provisions of the European
Union Transparency Directive (2004/109/EC) (as amended from time to time and including any statutory modification or re-enactment thereof, the “Disclosure Rules”) with regard to the notification to the Company of interests in Shares, which
currently provide, inter alia, that any Holder who directly or indirectly controls the exercise of “voting rights”
(within the meaning of the Disclosure Rules) in relation to 3% or more of the outstanding Shares, or is aware that another person for whom it holds such ADRs so controls such voting rights, must within two trading days after becoming so interested or
so aware (and thereafter in certain circumstances upon any change to the particulars previously notified) notify the Company and the FSA as required by the Disclosure Rules.
(7) Charges of Depositary. The Depositary will charge each person to whom Receipts are delivered against deposits of Shares, and each person surrendering Receipts for withdrawal of
Deposited Securities, U.S.$5.00 per 100 ADSs (or portion thereof evidenced by the Receipts delivered or surrendered. The Depositary will also charge to any Holder of ADSs, (i) a fee not in excess of U.S.$5.00 per 100
ADSs held (or portion thereof) for the distribution of cash proceeds, including cash dividends or sale of rights and other entitlements, not made pursuant to a cancellation or withdrawal, and (ii) a fee not in excess of U.S.$5.00 per 100 ADSs (or
portion thereof) issued upon the exercise of rights. The Depositary will charge 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. The Depositary may, for the operation and maintenance costs in administering the American Depositary Shares, charge any Holder an annual fee not in excess of U.S.$5.00 per 100 American
Depositary Shares (or portion thereof), such fee to be assessed against Holders of record as of 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. Except as agreed upon in writing by the Company and the Depositary, the Company shall not pay or be liable for any charges of the Depositary or any
out-of-pocket expenses incurred in the ordinary course by the Depositary in connection with it serving as Depositary under the Deposit Agreement; provided that the Company agrees to pay out-of-pocket expenses so incurred by the Depositary, the
Custodian or either’s agents for postage, insurance of Shares or Receipts while in transit, stationary, the printing of the Receipts and cable, telex and facsimile transmission (to the extent persons depositing Shares or Holders withdrawing Shares
are not required to pay such cable, telex or facsimiles transmission expenses under the Deposit Agreement). Any out-of-pocket expenses of the Depositary, the Custodian or either's agents under the Deposit Agreement not incurred in the ordinary
course will be paid by the Company after consultation and agreement, prior to the incurrence thereof, between the Depositary and the Company as to the amount and nature of such expenses. Stock transfer or other taxes and other governmental charges
are payable by persons or Holders depositing Shares. Persons depositing Shares or Holders withdrawing Shares shall pay (i) such registration fees as may from time to time be in effect for the registration of transfers of Shares generally on the
Share register of the Company (or the appointed agent of the Company for transfer and registration of Shares) and accordingly applicable to transfers of Shares to the name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals hereunder and (ii) such cable, telex and facsimile transmission expenses as are expressly provided in the Deposit Agreement to be at the expense of the persons depositing Shares or Holders delivering Shares,
Receipts or Deposited Securities. Such expenses as are incurred by the Depositary in the conversion of foreign
currency shall be paid out of such foreign currency. The provisions in respect of these charges may be changed in the manner indicated on the reverse hereof.
(8) Available Information. The Deposit Agreement, the provisions of or governing Deposited Property and any written communications from the Company that are both received by the
Custodian or its nominee as a holder of Deposited Property and made generally available to the holders of Deposited Property, are available for inspection by Holders at the offices of the Depositary and the Custodian and at the Transfer Office. At
the written request of the Company, the Depositary will mail copies of such communications (or English translations or summaries thereof) to Holders when furnished by the Company. Marks and Spencer Group p.l.c. furnishes the Commission with
certain public reports and documents required by foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Such public reports and documents are made available on and may be inspected
and copied from the Company's website in accordance with Rule 12g3-2(f) under the Exchange Act.
(9) Execution. This ADR shall not be valid for any purpose unless executed by the Depositary by the manual or facsimile signature of a duly authorized officer of the Depositary.
Dated:
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Depositary
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By:
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Authorized Officer
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The Depositary’s principal executive office is located at 60 Wall Street, 27th Floor, New York, New York 10005.
[FORM OF REVERSE OF RECEIPT]
(10) Distributions on Deposited Property. Subject to paragraphs 4 and 5 and any restrictions imposed by United Kingdom or other applicable law, regulation or applicable permit, to
the extent practicable, the Depositary will promptly distribute by mail to each Holder entitled thereto on the record date set by the Depositary therefor at such Holder's address shown on the ADR Register, in proportion to the number of Deposited
Property (on which the following distributions on Deposited Property are received by the Custodian) represented by ADSs evidenced by such Holder’s ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting from a cash dividend or other
cash distribution or the net proceeds of sales of any other distribution or portion thereof authorized in this paragraph 10 (“Cash”), on an averaged or other practicable basis, subject to (i) appropriate adjustments for taxes withheld, (ii) such
distribution being impermissible or impracticable with respect to certain Holders, and (iii) deduction of the Depositary’s fees and expenses in (1) converting any foreign currency to U.S. dollars by sale or in such other manner as the Depositary
may determine to the extent that it determines that such conversion may be made on a reasonable basis, (2) transferring foreign currency or U.S. dollars to the United States by such means as the Depositary may determine to the extent that it
determines that such transfer may be made on a reasonable basis, (3) obtaining any approval or license of any governmental authority required for such conversion or transfer, which is obtainable at a reasonable cost and within a reasonable time and
(4) making any sale by public or private means in any commercially reasonable manner. If the Depositary determines that any foreign currency received by it cannot be converted on a reasonable basis and transferred to the United States, the
Depositary may distribute the foreign currency received by it or, at its sole discretion, hold such foreign currency, uninvested and without liability for interest thereon. The Depositary shall distribute only such amount as can be distributed
without distributing to any Holder a fraction of one cent. Any such fractional amount shall be rounded to the nearest whole cent and so distributed to Beneficial Owners entitled thereto. 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. 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, (b) Shares. (i) Additional ADRs evidencing whole ADSs representing any Shares available to the Depositary resulting from a dividend or
free distribution on Deposited Property consisting of Shares (a “Share Distribution”) and (ii) U.S. dollars available to it resulting from the net proceeds of sales of Shares received in a Share Distribution, which Shares would give rise to
fractional ADSs if additional ADRs were issued therefor, as in the case of Cash, (c) Rights. (i) Warrants or other instruments in the good faith discretion of the Depositary representing rights to acquire additional ADRs in respect of any rights to
subscribe for additional Shares or rights of any nature available to the Depositary as a result of a distribution on Deposited Property (“Rights”), to the extent that the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company has no obligation to so furnish such evidence), or (ii) to the extent the Company does not so furnish such evidence and sales of Rights are practicable, any U.S. dollars
available to the
Depositary from the net proceeds of sales of Rights as in the case of Cash, or (iii) to the extent the Company does not so furnish such evidence and such sales
cannot practicably be accomplished by reason of the non-transferability of the Rights, limited markets therefor, their short duration or otherwise, nothing (and any Rights may lapse), (d) Other Distributions. (i) Securities or property available to
the Depositary resulting from any distribution on Deposited Property other than Cash, Share Distributions and Rights (“Other Distributions”), by any means that the Depositary may deem, after consultation with the Company to the extent practicable,
lawful, equitable and practicable, or (ii) to the extent the Depositary deems, after consultation with the Company to the extent practicable, distribution of such securities or property not to be lawful, equitable or practicable, any U.S. dollars
available to the Depositary from the net proceeds of sales of Other Distributions as in the case of Cash. Such U.S. dollars available will be distributed by checks drawn on a bank in the United States for whole dollars and cents. Notwithstanding
anything herein to the contrary, the Company shall have no obligation to either (i) register any ADSs, Shares, Rights or other securities described in this paragraph 10 under the Securities Act of 1933 or (ii) take other actions to permit the
distribution of such ADSs, Shares, Rights or other securities in accordance with applicable U.S. securities laws.
(11) Record Dates. The Depositary shall, after consultation with the Company if reasonably practicable, fix a record date (which shall be as near as practicable to any corresponding
record date set by the Company with respect to the Shares) for the determination of the Holders who shall be entitled to receive any distribution on or in respect of Deposited Property, to give instructions for the exercise of any voting rights, to
receive any notice or to act in respect of other matters and only such Holders shall be so entitled.
(12) 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. 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 21 Business Days prior to the date of such vote or meeting), 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 ordinary, regular mail delivery or by electronic transmission (if 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 proxies; (b) a statement that the Holders as of the ADS Record Date will be entitled,
subject to any applicable law, the provisions of the Deposit Agreement, the Company’s Memorandum and Articles of Association and the provisions of or law 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 ADSs; and (c) a brief statement as to the manner in which such
instructions may be given. Upon the timely receipt of written instructions of a Holder of ADSs on the ADS Record Date, the Depositary shall endeavor, insofar as practicable and permitted under applicable law and the provisions of the Company’s
Memorandum and Articles of Association and the provisions of the
Deposit Agreement, to vote or cause the Custodian to vote the Shares and/or other Deposited Securities represented by ADSs held by such Holder 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.
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. Shares or other Deposited Securities represented by ADSs for which no
specific voting instructions are received by the Depositary from the Holder shall not be voted except as aforesaid.
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 in sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.
Notwithstanding the above, and in accordance with Section 4.07 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.
(13) Changes Affecting Deposited Property. Subject to paragraphs 4 and 5, the Depositary may, in its discretion, after consultation with the Company if reasonably practicable, amend
this ADR or distribute additional or amended ADRs (with or without calling this ADR for exchange) or cash, securities or property on the record date set by the Depositary therefor to
reflect any change in par value, split-up, consolidation, cancellation or other reclassification of Deposited Property, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property available to the Depositary in respect of Deposited Property from (and the Depositary is hereby authorized to surrender any Deposited Property to any person and to sell by
public or private sale any property received in connection with) any recapitalization, reorganization, merger, consolidation, liquidation, receivership, bankruptcy or sale of all or substantially all the assets of the Company, and to the extent the
Depositary does not so amend this ADR or make a distribution to Holders to reflect any of the foregoing, or the net proceeds thereof, whatever cash, securities or property results from any of the foregoing shall constitute Deposited Property and each
ADS evidenced by this ADR shall automatically represent its pro rata interest in the Deposited Property as then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of them shall: (a) incur no liability (i) if law, regulation, the provisions of or governing any Deposited
Property, act of God, war or other circumstance beyond its control shall prevent, delay or subject to any civil or criminal penalty any act which the Deposit Agreement or this ADR provides shall be done or performed by it, or (ii) by reason of any
exercise or failure to exercise any discretion given it in the Deposit Agreement or this ADR; (b) assume no liability except to perform its obligations (other than those directly related to the handling of Deposited Property and Cash) to the extent
they are specifically set forth in this ADR and the Deposit Agreement without gross negligence or bad faith; (c) assume no liability except to perform its obligations directly related to the handling of Deposited Property and Cash to the extent
they are specifically set forth in this ADR and the Deposit Agreement without negligence or bad faith; (d) in the case of the Depositary and its agents hereunder, be under no obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Property or this ADR; (e) in the case of the Company and its agents hereunder, be under no obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Property
or this ADR, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense (including fees and disbursements of counsel) and liability be furnished as often as may be required; or (f) not be
liable for any action or inaction by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Holder, or any other person believed by it in good faith to be competent to give
such advice or information. The Depositary, the company and the respective agents of each of them may rely and shall be protected in acting upon any written notice, request, direction or other document believed by them to be genuine and to have
been signed or presented by the proper party or parties. The Depositary and its agents will not be responsible for any failure to carry out any instructions to vote any of the Deposited Property, for the manner in which any such vote is cast or
for the effect of any such vote. The Depositary and its agents may own and deal in any class of securities of the Company and its affiliates and in ADRs. The Company has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company against losses incurred by the Company under certain circumstances. No disclaimer of liability under the Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary. The Depositary may at any time resign as Depositary by written notice of its election to do so delivered to the Company, or be
removed as Depositary by the Company by written notice of such removal delivered to the Depositary; such resignation or removal shall take effect upon the
appointment of and acceptance by a successor depositary. The Depositary may, upon written request or written approval of the Company, at any time appoint substitute or additional Custodians and the term “Custodian” refers to each Custodian or all
Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph 2, the ADRs and the Deposit Agreement may be amended by the Company and the Depositary without the consent of the Holders
in any respect, provided that any amendment that imposes or increases any fees or charges (other than stock transfer or other taxes and other governmental charges, transfer or registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or that shall otherwise prejudice any substantial existing right of Holders, shall become effective 30 days after notice of such amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be deemed, by continuing to hold such ADR, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any amendment
impair the right of the Holder of any ADR to surrender such ADR and receive the Deposited Property represented thereby, except in order to comply with mandatory provisions of applicable law.
(17) Termination. The Depositary may, and shall at any time at the written direction of the Company, terminate the Deposit Agreement and this ADR by mailing notice of such
termination to the Holders at least 30 days prior to the date fixed in such notice for such termination. After the date so fixed for termination, the Depositary and its agents will perform no further acts under the Deposit Agreement and this ADR,
except to advise Holders of such termination, receive and hold (or sell) distributions on Deposited Property and deliver Deposited Property being withdrawn. As soon as practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Property and shall thereafter (as long as it may lawfully do so) hold in a segregated account the net proceeds of such sales, together with any other cash then held by it under the Deposit
Agreement, without liability for interest, in trust for the pro rata benefit of the Holders of ADRs not therefore surrendered. After making such sale, the Depositary shall be discharged from all obligations in respect of the Deposit Agreement and
this ADR, except to account for such net proceeds and other cash. After the date so fixed for termination, the Company shall be discharged from all obligations under the Deposit Agreement except for its obligations to the Depositary and its
agents.
(18) Restrictions upon Ownership. So long as the Company’s Articles of Associations (i) limit the number of Shares in which any holder of Shares may be interested or (ii) authorize
the Company to take certain actions (including disenfranchisement and withholding of dividends) in respect of Shares held by a person who does not respond properly to a notice from the Company requiring details of his interest in those Shares,
notwithstanding any contrary provision of the Deposit Agreement, each Holder agrees that such limitations shall be applicable to and enforceable by the Company against such Holder and such Holder’s ADRs as if they were, to the extent practicable,
the Shares represented thereby and the Depositary agrees to use its reasonable efforts to comply with any written instructions received from the Company requesting that the Depositary take the reasonable actions specified therein to apply and
enforce
such limitations (including disenfranchisement and disposal) against specified Holders (other than The Depository Trust Company (“DTC”) or its nominees), provided
that the Company shall indemnify the Depositary and hold it harmless from any expense or liability incurred in complying with such instructions. The Depositary shall not be required to take any actions with respect to DTC or its nominees other than
the providing of notice and the forwarding of information and requests thereto.