NATIONAL GRID PLC AND THE BANK OF NEW YORK As Depositary AND OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS Amended and Restated Deposit Agreement Dated as of August 1, 2005
EXHIBIT
2(a)
Β | Β | Β | Β | Β |
Β |
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY
RECEIPTS
RECEIPTS
Amended and Restated Deposit Agreement
Dated as of AugustΒ 1, 2005
Β | Β | Β | Β | Β |
Β |
Β
Β
AMENDED AND RESTATED DEPOSIT AGREEMENT
Β Β Β Β Β AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of AugustΒ 1, 2005, among NATIONAL GRID PLC
(F/K/A National Grid Transco plc F/K/A National Grid Group plc), a public limited company
incorporated under the laws of England and Wales ( herein called the Issuer), THE BANK OF NEW YORK,
a New York banking corporation (herein called the Depositary), and all Owners and Beneficial Owners
from time to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H :
Β Β Β Β Β WHEREAS, the Issuer and the Depositary entered into a deposit agreement dated as of November
21, 1995, as amended and restated as of OctoberΒ 6, 1999 (the βOriginal Deposit Agreementβ); and
Β Β Β Β Β WHEREAS, the Issuer, New National Grid plc and the Depositary entered into an amended and
restated deposit agreement dated as of JanuaryΒ 31, 2002 (the βAmended and Restated Deposit
Agreementβ) in connection with a Scheme of arrangement under SectionΒ 425 of the Companies of Act of
1985; and
Β Β Β Β Β WHEREAS, the Issuer and the Depositary now wish to amend and restate the Amended and Restated
Deposit Agreement in accordance with SectionΒ 6.1 of the Amended and Restated Deposit Agreement; and
Β Β Β Β Β WHEREAS, the Issuer desires to provide, as hereinafter set forth in this amended and restated
Deposit Agreement (the βDeposit Agreementβ), for the deposit of Shares (as hereinafter defined) of
the Issuer, from time to time with the Depositary or the Custodian, for the creation of American
Depositary Shares representing the Shares (as hereinafter defined) so deposited (subject to the
terms and conditions of this Deposit Agreement) and for the execution and delivery of American
Depositary Receipts evidencing the American Depositary Shares; and
Β
Β
Β Β Β Β Β WHEREAS, the American Depositary Receipts are to be substantially in the form of ExhibitΒ A
annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided
in this Deposit Agreement; and
Β Β Β Β Β NOW, THEREFORE, in consideration of the premises, it is agreed by and between the parties
hereto that the Amended and Restated Deposit Agreement shall be amended and restated in its
entirety as follows:
ARTICLE 1. DEFINITIONS.
Β Β Β Β Β The following definitions shall for all purposes, unless otherwise clearly indicated, apply to
the respective terms used in this Deposit Agreement:
Β Β Β Β Β SECTION 1.1.Β Β Β Β American Depositary Shares.
Β Β Β Β Β Β Β Β Β Β The term βAmerican Depositary Sharesβ shall mean the securities representing the interests in
the Deposited Securities and evidenced by the Receipts issued hereunder. Each American Depositary
Share shall represent the number of Shares specified in ExhibitΒ A hereto, until there shall occur a
distribution upon Deposited Securities covered by SectionΒ 4.3 or a change in Deposited Securities
covered by SectionΒ 4.8 with respect to which additional Receipts are not executed and delivered,
and thereafter American Depositary Shares shall evidence the amount of Shares or Deposited
Securities specified in such Sections.
Β Β Β Β Β SECTION 1.2.Β Β Β Β Article; Section.
Β Β Β Β Β Β Β Β Β Β Wherever references are made in this Deposit Agreement to an βArticleβ or βArticlesβ or to a
βSectionβ or βSectionsβ, such references shall mean an article or articles or a section or sections
of this Deposit Agreement, unless otherwise required by the context.
Β Β Β Β Β SECTION 1.3.Β Β Β Β Beneficial Owner.
Β Β Β Β Β Β Β Β Β Β The term βBeneficial Ownerβ shall mean each person owning from time to time any beneficial
interest in the American Depositary Shares evidenced by any Receipt.
Β
Β
Β Β Β Β Β SECTION 1.4.Β Β Β Β Commission.
Β Β Β Β Β Β Β Β Β Β The term βCommissionβ shall mean the Securities and Exchange Commission of the United States
or any successor governmental agency in the United States.
Β Β Β Β Β SECTION 1.5.Β Β Β Β Consultation.
Β Β Β Β Β Β Β Β Β Β The term βconsultationβ shall include within its meaning the good faith attempt by the
Depositary to discuss, if practicable, the relevant issue in a timely manner with a person employed
by the Issuer reasonably believed by the Depositary to be empowered by the Issuer to engage in such
discussion on behalf of the Issuer.
Β Β Β Β Β SECTION 1.6.Β Β Β Β Custodian.
Β Β Β Β Β Β Β Β Β Β The term βCustodianβ shall mean the London, England office of The Bank of New York, as agent
of the Depositary for the purposes of this Deposit Agreement, and any other firm or corporation
which may hereafter be appointed by the Depositary pursuant to the terms of SectionΒ 5.5, as
substitute or additional custodian or custodians hereunder, as the context shall require and shall
also mean all of them collectively.
Β Β Β Β Β SECTION 1.7.Β Β Β Β Deposit Agreement.
Β Β Β Β Β Β Β Β Β Β The term βDeposit Agreementβ shall mean this amended and restated Deposit Agreement, as the
same may be amended from time to time in accordance with the provisions hereof and all instruments
supplemental thereto.
Β Β Β Β Β SECTION 1.8.Β Β Β Β Depositary; Corporate Trust Office.
Β Β Β Β Β Β Β Β Β Β The term βDepositaryβ shall mean The Bank of New York, a New York banking corporation and any
successor as depositary hereunder. The term βCorporate Trust Officeβ, when used with respect to
the Depositary, shall mean the office of the Depositary which at the date of this Agreement is 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
Β Β Β Β Β SECTION 1.9.Β Β Β Β Deposited Securities.
Β Β Β Β Β Β Β Β Β Β The term βDeposited Securitiesβ 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 by the Depositary or the Custodian in respect
Β
Β
thereof and at such time held hereunder, subject as to cash to the provisions of SectionΒ 4.5.
Β Β Β Β Β SECTION 1.10.Β Β Β Dollars; Pounds; Xxxxx.
Β Β Β Β Β Β Β Β Β Β The term βDollarsβ or the symbol β$β shall mean United States dollars. The term βPoundsβ or
the symbol βΒ£β shall mean British pounds sterling and the term βxxxxxβ or βpβ shall mean British
xxxxx.
Β Β Β Β Β SECTION 1.11.Β Β Β Foreign Registrar.
Β Β Β Β Β Β Β Β Β Β The term βForeign Registrarβ shall mean the entity that presently carries out the duties of
registrar for the Shares or any successor as registrar for the Shares and any other appointed agent
of the Issuer for the transfer and registration of Shares.
Β Β Β Β Β SECTION 1.12.Β Β Β Issuer.
Β Β Β Β Β Β Β Β Β Β The term βIssuerβ shall mean National Grid plc, a public limited company incorporated under
the laws of England and Wales, and its successors.
Β Β Β Β Β SECTION 1.13.Β Β Β Owner.
Β Β Β Β Β Β Β Β Β Β The term βOwnerβ shall mean the person in whose name a Receipt is registered on the books of
the Depositary maintained for such purpose.
Β Β Β Β Β SECTION 1.14.Β Β Β Receipts.
Β Β Β Β Β Β Β Β Β Β The term βReceiptsβ shall mean the American Depositary Receipts issued hereunder evidencing
American Depositary Shares.
Β Β Β Β Β SECTION 1.15.Β Β Β Registrar.
Β Β Β Β Β Β Β Β Β Β The term βRegistrarβ shall mean any bank or trust company having an office in the Borough of
Manhattan, The City of New York, which shall be appointed to register Receipts and transfers of
Receipts as herein provided.
Β Β Β Β Β SECTION 1.16.Β Β Β Restricted Securities.
Β Β Β Β Β Β Β Β Β Β The term βRestricted Securitiesβ shall mean Shares, or Receipts representing such Shares,
which are acquired directly or indirectly from the Issuer or its affiliates (as defined in RuleΒ 144
under the Securities Act of 1933) in a transaction or
chain of transactions not involving any public offering or which are subject to resale
Β
Β
limitations under RegulationΒ D under that Act or both, or which are held by an officer, director
(or persons performing similar functions) or other affiliate of the Issuer, or which are subject to
other restrictions on sale or deposit under the laws of the United States or of England and Wales,
or under a shareholder agreement or the Memorandum and Articles of Association of the Issuer.
Β Β Β Β Β SECTION 1.17.Β Β Β Securities Act of 1933.
Β Β Β Β Β Β Β Β Β Β The term βSecurities Act of 1933β shall mean the United States Securities Act of 1933, as from
time to time amended.
Β Β Β Β Β SECTION 1.18.Β Β Β Shares.
Β Β Β Β Β Β Β Β Β Β The term βSharesβ shall mean ordinary shares in registered form of the Issuer, heretofore
validly issued and outstanding and fully paid, nonassessable or hereafter validly issued and
outstanding and fully paid and nonassessable or interim certificates representing such Shares.
ARTICLE 2. | Β | FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS. |
Β Β Β Β Β SECTION 2.1.Β Β Β Β Form and Transferability of Receipts.
Β Β Β Β Β Β Β Β Β Β Definitive Receipts shall be substantially in the form set forth in ExhibitΒ A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter
provided. No 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 and, if a Registrar
for the Receipts shall have been appointed, countersigned by the manual or facsimile signature of a
duly authorized officer of the Registrar. The Depositary shall maintain books on which each
Receipt so executed and delivered as hereinafter provided and the transfer of each such Receipt
shall be registered. Receipts 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.
Β
Β
Β Β Β Β Β Β Β Β Β Β 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 Deposit Agreement as may be
required by the Depositary or required to comply with any applicable law or regulations thereunder
or with the rules and regulations of any securities exchange upon which American Depositary Shares
may be listed or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject by reason of the date of
issuance of the underlying Deposited Securities or otherwise.
Β Β Β Β Β Β Β Β Β Β Title to a Receipt (and to the American Depositary Shares evidenced thereby), when properly
endorsed or accompanied by proper instruments of transfer, shall be transferable in accordance with
the terms of this Deposit Agreement 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 Owner thereof as the absolute owner
thereof for the purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for all other purposes
and neither the Depositary nor the Issuer shall have any obligation or be subject to any liability
under this Deposit Agreement to any Beneficial Owner of a Receipt unless such Beneficial Owner is
the Owner thereof.
Β Β Β Β Β SECTION 2.2.Β Β Β Β Deposit of Shares.
Β Β Β Β Β Β Β Β Β Β Subject to the terms and conditions of this Deposit Agreement, Shares or evidence of the right
to receive Shares may be deposited by delivery thereof to any Custodian hereunder, accompanied by
any appropriate instrument or instruments of transfer, or endorsement, in form satisfactory to the
Custodian, together with all such certifications as may be required by the Depositary or the
Custodian in accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to execute and deliver to, or upon
the written order of, the person or persons stated in such order, a Receipt or Receipts for the
number of American Depositary Shares representing such deposit. No Share shall be accepted for
deposit unless accompanied by evidence satisfactory to the Depositary that any necessary approval
has been granted by any governmental body in England and Wales which is then performing the
function of the regulation of currency exchange. If required by the Depositary, Shares presented
for deposit at any time, whether or not the transfer books of
Β
Β
the Issuer or the Foreign Registrar, if applicable, are closed, shall also be accompanied by
an agreement or assignment, or other instrument satisfactory to the Depositary, which will provide
for the prompt transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares are or have been
recorded may thereafter receive upon or in respect of such deposited Shares, or in lieu thereof,
such agreement of indemnity or other agreement as shall be satisfactory to the Depositary.
Β Β Β Β Β Β Β Β Β Β At the request and risk and expense of any person proposing to deposit Shares, and for the
account of such person, the Depositary may receive certificates for Shares to be deposited,
together with the other instruments herein specified, for the purpose of forwarding such Share
certificates to the Custodian for deposit hereunder.
Β Β Β Β Β Β Β Β Β Β Upon each delivery to a Custodian of a certificate or certificates for Shares to be deposited
hereunder, together with the other documents above specified, such Custodian shall, as soon as
transfer and recordation can be accomplished, present such certificate or certificates to the
Issuer or the Foreign Registrar, if applicable, for transfer and recordation of the Shares being
deposited in the name of the Depositary or its nominee or such Custodian or its nominee.
Β Β Β Β Β Β Β Β Β Β Deposited Securities shall be held by the Depositary or by a Custodian for the account and to
the order of the Depositary or at such other place or places as the Depositary shall determine.
Β Β Β Β Β SECTION 2.3.Β Β Β Β Execution and Delivery of Receipts.
Β Β Β Β Β Β Β Β Β Β Upon receipt by any Custodian of any deposit pursuant to SectionΒ 2.2 hereunder (and in
addition, if the transfer books of the Issuer or the Foreign Registrar, if applicable, are open,
the Depositary may in its sole discretion require a proper acknowledgment or other evidence from
the Issuer or the Foreign Registrar, if applicable that any Deposited Securities have been recorded
upon the books of the Issuer or the Foreign Registrar, as the case may be, in the name of the
Depositary or its nominee or such Custodian or its nominee), together with the other documents
required as above specified, such Custodian shall notify the Depositary of such deposit and the
person or persons to whom or upon whose written order a Receipt or Receipts are deliverable in
respect thereof and the number of American Depositary Shares to be evidenced thereby.
Β
Β
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 air courier, cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon the receipt of
Shares by the Depositary, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver at its Corporate Trust Office, to or upon the order of the
person or persons entitled thereto, a Receipt or Receipts, registered in the name or names and
evidencing any authorized number of American Depositary Shares requested by such person or persons,
but only upon payment to the Depositary of the fees of the Depositary for the execution and
delivery of such Receipt or Receipts as provided in SectionΒ 5.9, and of all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the Deposited
Securities.
Β Β Β Β Β SECTION 2.4.Β Β Β Β Transfer of Receipts; Combination and Split-up of Receipts.
Β Β Β Β Β Β Β Β Β Β The Depositary, subject to the terms and conditions of this Deposit Agreement, shall, without
unreasonable delay, register transfers of Receipts on its transfer books from time to time, upon
any surrender of a Receipt, by the Owner in person or by a duly authorized attorney, properly
endorsed or accompanied by proper instruments of transfer, and duly stamped as may be required by
the laws of the State of New York and of the United States of America. Thereupon the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto.
Β Β Β Β Β Β Β Β Β Β 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, 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.
Β Β Β Β Β Β Β Β Β Β The Depositary may appoint one or more co-transfer agents, and shall provide notice to the
Company of such appointment, for the purpose of effecting transfers, combinations and split-ups of
Receipts at designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance with applicable
laws and other requirements by Owners or
Β
Β
persons entitled to Receipts and will be entitled to protection and indemnity to the same
extent as the Depositary.
Β Β Β Β Β SECTION 2.5.Β Β Β Β Surrender of Receipts and Withdrawal of Shares.
Β Β Β Β Β Β Β Β Β Β Upon surrender at the Corporate Trust Office of the Depositary of a Receipt for the purpose of
withdrawal of the Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt, and upon payment of the fee of the Depositary for the surrender of Receipts as
provided in SectionΒ 5.9 and payment of all taxes and governmental charges payable in connection
with such surrender and withdrawal of the Deposited Securities, and subject to the terms and
conditions of this Deposit Agreement, the Owner of such Receipt shall be entitled to delivery, to
him or upon his order, of the amount of Deposited Securities at the time represented by the
American Depositary Shares evidenced by such Receipt. Delivery of such Deposited Securities may be
made by the delivery of (a)Β certificates in the name of such Owner or as ordered by him or by
certificates properly endorsed or accompanied by proper instruments of transfer to such Owner or as
ordered by him and (b)Β any other securities, property and cash to which such Owner is then entitled
in respect of such Receipts to such Owner or as ordered by him. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
Β Β Β Β Β Β Β Β Β Β A Receipt surrendered for such purposes may be required by the Depositary to be properly
endorsed in blank or accompanied by proper instruments of transfer in blank, and if the Depositary
so requires, the Owner 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 at the London, England office of such Custodian, subject to
SectionsΒ 2.6, 3.1 and 3.2 and to the other terms and conditions of this Deposit Agreement, to or
upon the written order of the person or persons designated in the order delivered to the Depositary
as above provided, the amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, except that the Depositary may make delivery to such person or persons
at the Corporate Trust Office of the Depositary of any dividends or distributions with respect to
the Deposited Securities represented by the American Depositary Shares evidenced by such Receipt,
or of any proceeds of sale of any dividends, distributions or rights, which may at the time be held
by the Depositary.
Β
Β
Β Β Β Β Β Β Β Β Β Β At the request, risk and expense of any Owner so surrendering a Receipt, and for the account
of such Owner, the Depositary shall direct the Custodian to forward any cash or other property
(other than rights) comprising, and forward a certificate or certificates and other proper
documents of title for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust Office of the
Depositary. Such direction shall be given by letter, first class airmail postage prepaid, or, at
the request, risk and expense of such Owner, by air courier, cable, telex or facsimile
transmission.
Β Β Β Β Β SECTION 2.6.Β Β Β Β Limitations on Execution and Delivery, Transfer and Surrender of
Receipts.
Β Β Β Β Β Β Β Β Β Β As a condition precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited Securities, the Depositary,
Custodian or Registrar may require payment from the depositor of Shares or the presentor of the
Receipt of a sum sufficient to reimburse it for any tax or other governmental charge and any stock
transfer or registration fee with respect thereto (including any such tax or charge and fee with
respect to Shares being deposited or withdrawn) and payment of any applicable fees as herein
provided, may require the production of proof satisfactory to it as to the identity and genuineness
of any signature and may also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without limitation, this
SectionΒ 2.6.
Β Β Β Β Β Β Β Β Β Β The delivery of Receipts against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the transfer of Receipts in particular instances may be
refused, or the registration of transfer of outstanding Receipts generally may be suspended, during
any period when the transfer books of the Depositary, the Issuer or the Foreign Registrar are
closed, or if any such action is deemed necessary or advisable by the Depositary or the Issuer at
any time or from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit Agreement, or for any other
reason, subject to the provisions of SectionΒ 7.7 hereof. Notwithstanding any other provision of
this Deposit Agreement or the Receipts, the surrender of outstanding Receipts and withdrawal of
Deposited Securities may not be suspended subject only to (i)Β temporary delays caused by closing
the transfer books of the Depositary, the Issuer or the Foreign Registrar or the
Β
Β
deposit of Shares in connection with voting at a shareholdersβ meeting, or the payment of
dividends, (ii)Β the payment of fees, taxes and similar charges, and (iii)Β compliance with any U.S.
or foreign laws or governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares required to be registered under the
provisions of the Securities Act of 1933, unless a registration statement is in effect as to such
Shares.
Β Β Β Β Β SECTION 2.7.Β Β Β Β Lost Receipts, etc.
Β Β Β Β Β Β Β Β Β Β In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary shall
execute and deliver a new Receipt of like tenor in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt. Before the Depositary shall execute and deliver a new Receipt in substitution for
a destroyed, lost or stolen Receipt, the Owner thereof shall have (a)Β 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)Β a sufficient indemnity bond and (b)Β satisfied any
other reasonable requirements imposed by the Depositary.
Β Β Β Β Β SECTION 2.8.Β Β Β Β Cancellation and Destruction of Surrendered Receipts.
Β Β Β Β Β Β Β Β Β Β All Receipts surrendered to the Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy Receipts so cancelled.
Β Β Β Β Β SECTION 2.9.Β Β Β Β Pre-Release of Receipts.
Β Β Β Β Β Β Β Β Β Β The Depositary may issue Receipts against the delivery by the Issuer (or any agent of the
Issuer recording Share ownership) of rights to receive Shares from the Issuer (or any such agent).
No such issue of Receipts will be deemed a βPre-Releaseβ that is subject to the restrictions of the
following paragraph.
Β Β Β Β Β Β Β Β Β Β Unless requested in writing by the Issuer to cease doing so, the Depositary may,
notwithstanding SectionΒ 2.3 hereof, execute and deliver Receipts prior to the receipt of Shares
pursuant to SectionΒ 2.2 (βPre-Releaseβ). The Depositary may, pursuant to SectionΒ 2.5, deliver
Shares upon the receipt and cancellation of Receipts which have been Pre-Released, whether or not
such cancellation is prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre- Released. The
Β
Β
Depositary may receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a)Β preceded or accompanied by a written representation and agreement from the
person to whom Receipts are to be delivered (the βPre-Releaseeβ) that the Pre- Releasee, or its
customer, (i)Β owns the shares or Receipts to be remitted, as the case may be, (ii)Β assigns all
beneficial rights, title and interest in such Shares or Receipts, as the case may be, to the
Depositary in its capacity as such and for the benefit of the Owners, and (iii)Β will not take any
action with respect to such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the Depositary, disposing of
such Shares or Receipts, as the case may be), other than in satisfaction of such Pre-Release, (b)
at all times fully collateralized with cash, U.S. government securities or such other collateral as
the Depositary determines, in good faith, will provide substantially similar liquidity and
security, (c)Β terminable by the Depositary on not more than five (5)Β business days notice, and (d)
subject to such further indemnities and credit regulations as the Depositary deems appropriate.
The number of Shares not deposited but represented by American Depositary Shares outstanding at any
time as a result of Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited hereunder; provided, however, that the Depositary reserves the right to disregard such
limit from time to time as it deems reasonably appropriate, and may, with the prior written consent
of the Issuer, change such limit for purposes of general application. The Depositary will also set
Dollar limits with respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems appropriate. For purposes
of enabling the Depositary to fulfill its obligations to the Owners under the Deposit Agreement,
the collateral referred to in clause (b)Β above shall be held by the Depositary as security for the
performance of the Pre-Releaseeβs obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releaseeβs obligation to deliver Shares or Receipts upon termination
of a Pre-Release transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
Β Β Β Β Β Β Β Β Β Β The Depositary may retain for its own account any compensation received by it in connection
with the foregoing.
Β Β Β Β Β SECTION 2.10.Β Β Β Direct Registration System.
Β Β Β Β Β Β Β Β Β Β (a)Β ADSs may be maintained by the Depositary in book-entry form known as the βDirect
Registration Systemβ (βDRSβ). Upon issuance of ADSs, the ADSs
Β
Β
of each Owner will be credited to the DRS account of each such Owner and in each such Ownerβs
name. Each Owner will be given the option of (i)Β receiving a certificate representing its ADSs,
(ii)Β transfering such ADSs to a broker designated by each and every person or entity in whose name
such ADSs are registered on the books of the Depositary or (iii)Β maintaining their ADSs in DRS.
Β Β Β Β Β Β Β Β Β Β (b)Β The Issuer understands that Profile is a required feature of DRS. Profile allows a
participant of The Depository Trust Company (βDTCβ) claiming to act on behalf of the Owner of ADSs,
to direct the Depositary to transfer to such DTC participant the ADSs designated by such DTC
participant without receipt by the Depositary of such prior written authorization from the Owner to
transfer such ADSs.
Β Β Β Β Β Β Β Β Β Β (c)Β The Issuer understands the Depositary will not verify, determine or otherwise ascertain
that the DTC participant which is claiming to be acting on behalf of an Owner is, in fact,
authorized to act on behalf of such Owner. The Issuer and each Owner agree that the Depositary
shall have no liability for relying upon and complying with directions from a DTC participant as
set forth above; and the Issuer shall indemnify and hold harmless the Depositary from and against
any liability, expense, damage, loss and judgment arising from or related to the foregoing
(including reasonable attorneys fees and expenses and expenses arising from or connected with the
enforcement of this provision). For the avoidance of doubt, (i)Β the Depositary shall be fully
protected by the foregoing limitation of liability and indemnification with respect to reliance
upon and compliance with instructions from the DTC participant even if the Depositaryβs reliance
on, and compliance with, such instructions is determined by a final, non-appealable order or
judgment of a court of competent jurisdiction to constitute negligence, willful misconduct, breach
of any duty owed by the Depositary to such Owner or violation of any law and (ii)Β the forgoing
shall not apply to the manner in which the Depositary carries out actual transfer of the ADSs which
are the subject of the DTC participantβs instruction, which transfer shall continue to be governed
by the other applicable terms of this Deposit Agreement. By way of example and not by way of
limitation, if a court determines that the transfer of ADSs pursuant to a DTC participantβs
instruction without
Β
Β
obtaining prior authorization from the Owner constitutes negligence, the Depositary will nevertheless be
protected under this subparagraph (c); on the other hand, in carrying out such instructions, if the
Depositary transfers ADSs from the wrong account or to the wrong DTC participant, the obligation to
indemnify the Depositary shall be determined in accordance with SectionsΒ 5.3 and 5.8 hereof.
ARTICLE 3. | Β | CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS. |
Β Β Β Β Β SECTION 3.1.Β Β Β Β Filing Proofs, Certificates and Other Information.
Β Β Β Β Β Β Β Β Β Β Any person presenting Shares for deposit or any Owner or Beneficial Owner of a Receipt may be
required from time to time to file with the Depositary or the Custodian such proof of citizenship
or residence, exchange control approval, proof of the nature of such personβs interest, proof of
compliance with all applicable laws and regulations and with the provisions of or governing the
Deposited Securities and the terms of this Deposit Agreement or such information relating to the
registration on the books of the Issuer or the Foreign Registrar, if applicable, to execute such
certificates and to make such representations and warranties, as the Issuer or the Depositary may
deem necessary or proper or as the Issuer may reasonably require by written request to the
Depositary or any Custodian. The Depositary may withhold the delivery or registration of transfer
of any Receipt or the distribution of any dividend or sale or distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or other information
is filed or such certificates are executed or such representations and warranties made. Each Owner
and Beneficial Owner agrees to provide any information requested by the Issuer or the Depositary
pursuant to this SectionΒ 3.1.
Β Β Β Β Β Β Β Β Β Β The Depositary shall provide the Issuer, upon the Issuerβs request and in a timely manner,
with copies of any information or other material which it receives pursuant to this SectionΒ 3.1.
Β Β Β Β Β SECTION 3.2.Β Β Β Β Liability of Owner for Taxes.
Β Β Β Β Β Β Β Β Β Β If any tax or other governmental charge shall become payable with respect to any Receipt or
any Deposited Securities represented by any Receipt, such tax or other governmental charge shall be
payable by the Owner or Beneficial Owner of such Receipt
Β
Β
to the Depositary. The Depositary may
refuse to effect any transfer of such Receipt
or any withdrawal of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other distributions, or
may sell for the account of the Owner or Beneficial Owner thereof any part or all of the Deposited
Securities represented by the American Depositary Shares evidenced by such Receipt, and may apply
such dividends or other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner or Beneficial Owner of such Receipt shall remain liable for
any deficiency.
Β Β Β Β Β SECTION 3.3.Β Β Β Β Warranties on Deposit of Shares.
Β Β Β Β Β Β Β Β Β Β Every person depositing Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares and each certificate therefor are validly issued, fully paid
and nonassessable and that the person making such deposit is duly authorized so to do. Every such
person shall also be deemed to represent that the deposit of such Shares and the sale of Receipts
evidencing American Depositary Shares representing such Shares by that person are not restricted
under the Securities Act of 1933. Such representations and warranties shall survive the deposit of
Shares and issuance of Receipts.
Β Β Β Β Β SECTION 3.4.Β Β Β Β Disclosure of Interests.
Β Β Β Β Β Β Β Β Β Β Notwithstanding any other provision of this Deposit Agreement, the Memorandum and Articles of
Association of the Issuer or applicable English law, each Owner and Beneficial Owner agrees to be
bound by and subject to applicable provisions of the U.K. Companies Act, 1985 and the Memorandum
and Articles of Association of the Issuer, summarized below, to the same extent as if such Owner
and Beneficial Owner held Shares directly. The Issuer has informed the Depositary that the
following information is accurate as the Depositary has made no independent investigation regarding
such information.
Β Β Β Β Β Β Β Β Β Β (a)Β Β Β Β A holder of Shares in the Issuer may lose the right to vote its Shares if it or any other
person appearing to be interested in shares held by it fails to comply within a prescribed period
of time with a request by the Issuer under the U.K. Companies Act, 1985 to give certain information
with respect to past or present ownership or interests in such Shares. In the case of holders of
more than 0.25% in
Β
Β
nominal amount of the share capital of the Issuer (or any class thereof), in
addition to disenfranchisement, the sanctions that may be applied by the Issuer include withholding
of the right to receive payment of dividends and other monies payable on, and restrictions on
transfers of the relevant Shares.
Β Β Β Β Β Β Β Β Β Β (b)Β Β Β Β SectionΒ 198 of the U.K. Companies Act, 1985 provides that a person (including a company
and other legal entities) that acquires an interest of 3Β percent or more of any class of shares
(including through American Depositary Receipts) comprised in an English public companyβs βrelevant
share capitalβ (i.e., the Issuerβs issued share capital carrying the right to vote in all
circumstances at a general meeting of the Issuer) is required to notify the company of its interest
within two business days following the day on which the obligation arises. After the 3Β percent
level is exceeded, similar notifications must be made in respect of increases or decreases through
a whole percentage point.
Β Β Β Β Β Β Β Β Β Β For purposes of such notification obligation, the interest of a person in shares means any
kind of interest in shares including interests in any shares (a)Β in which a spouse, or child or
stepchild under the age of 18, is interested, (b)Β in which a corporate body is interested and
either (i)Β that corporate body or its directors generally act in accordance with that personβs
directions or instructions or (ii)Β that person controls one-third or more of the voting power of
that corporate body or (c)Β in which another party is interested and the person and that other party
are parties to a βconcert partyβ agreement under SectionΒ 204 of the U.K. Companies Act, 1985. A
concert party agreement is one which provides for one or more parties to acquire interests in
shares of a particular company and imposes obligations or restrictions on any one of the parties as
to the use, retention or disposal of such interests acquired pursuant to such agreement and any
interest in the companyβs shares is in fact acquired by any of the parties pursuant to the
agreement. Certain interests (e.g., those held by certain investment fund managers) may be
disregarded for the purposes of calculating the 3Β percent threshold, but the obligations of
disclosure will still apply where such interests exceed 10Β percent or more of any class of the
companyβs relevant share capital and to increases or decreases through a whole percentage point
thereafter.
Β Β Β Β Β Β Β Β Β Β In addition, SectionΒ 212 of the U.K. Companies Act, 1985 provides that a public company may by
written notice require a person whom the company knows or has
Β
Β
reasonable cause to believe to be, or
to have been at any time during the three years immediately preceding the date on which the notice
is issued, interested in shares
consisting of the companyβs βrelevant share capitalβ to confirm that fact or to indicate
whether or not that is the case, and where such person holds or during the relevant time had held
an interest in such shares, to give such further information as may be required relating to such
interest and any other interest in the shares of which such person is aware.
Β Β Β Β Β Β Β Β Β Β Where notice is served by a company under the foregoing provisions on a person who is or was
interested in shares of the company and that person fails to give the company any information
required by the notice within the time specified in the notice, the company may apply to the
English court for an order directing that the shares in question be subject to restrictions
prohibiting, among other things, any transfer of those shares, the taking up of rights in respect
of such shares and, other than on liquidation, payments in respect of such shares.
Β Β Β Β Β Β Β Β Β Β A person who fails to fulfill the obligations imposed by SectionsΒ 198 and 212 of the U.K.
Companies Act, 1985 described above is subject to criminal penalties.
Β Β Β Β Β Β Β Β Β Β (c)Β Β Β Β The Depositary agrees to use reasonable efforts to forward to any Owners at the request of
the Issuer and at the Issuerβs expense, any request by the Issuer for information and to comply
with any instructions of the Issuer, to the extent reasonably practicable, given to effectuate the
foregoing restrictions. If the Issuer requests information from the Depositary or the Custodian,
as the registered owners of Shares, pursuant to the Memorandum and Articles of Association of the
Issuer or the U.K. Companies Act, 1985, the obligations of the Depositary or the Custodian, as the
case may be, shall be limited to disclosing to the Issuer such information relating to the Shares
in question as has in each case been recorded by it pursuant to the terms of this Deposit
Agreement.
ARTICLE 4. | Β | THE DEPOSITED SECURITIES. |
Β Β Β Β Β SECTION 4.1.Β Β Β Β Cash Distributions.
Β Β Β Β Β Β Β Β Β Β Whenever the Depositary shall receive any cash dividend or other cash distribution on any
Deposited Securities, the Depositary shall, subject to the provisions of SectionΒ 4.5, convert such
dividend or distribution into Dollars, if applicable, and shall
Β
Β
distribute the amount thus received
(net of the fees of the Depositary as provided in SectionΒ 5.9 hereof, if applicable) to the Owners
entitled thereto, in proportion to the number of American Depositary Shares representing such
Deposited Securities held by
them respectively; provided, however, that in the event that the Issuer or the Depositary
shall be required to withhold and does withhold from such cash dividend or such other cash
distribution an amount on account of taxes or other governmental charges, the amount distributed to
the Owner of the Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Owner a fraction of one cent. Any such
fractional amounts shall be rounded to the nearest whole cent and so distributed to Owners entitled
thereto. The Issuer or its agent will remit to the appropriate governmental agency in England and
Wales all amounts withheld and owing to such agency. The Depositary will forward to the Issuer or
its agent such information from its records as the Issuer may reasonably request to enable the
Issuer or its agent to file necessary reports with governmental agencies, and the Depositary or the
Issuer or its agent may file any such reports necessary to obtain benefits under the applicable tax
treaties for the Owners of Receipts.
Β Β Β Β Β SECTION 4.2.Β Β Β Β Distributions Other Than Cash, Shares or Rights.
Β Β Β Β Β Β Β Β Β Β Subject to the provisions of SectionsΒ 4.11 and 5.9, whenever the Depositary shall receive any
distribution other than a distribution described in SectionsΒ 4.1, 4.3 or 4.4, the Depositary shall
cause the securities or property received by it to be distributed to the Owners entitled thereto,
in proportion to the number of American Depositary Shares representing such Deposited Securities
held by them respectively, in any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution; provided, however, that if in the reasonable opinion of the
Depositary such distribution cannot be made proportionately among the Owners entitled thereto, or
if for any other reason (including, but not limited to, any requirement that the Issuer or the
Depositary withhold an amount on account of taxes or other governmental charges or that such
securities must be registered under the Securities Act of 1933 in order to be distributed to Owners
or Beneficial Owners) the Depositary deems such distribution not to be feasible, the Depositary
may, after notice to the Issuer adopt such method as it may deem equitable and practicable for the
purpose of effecting such distribution, including, but not limited to, the public or private sale
of the securities or property thus received, or
Β
Β
any part thereof, and the net proceeds of any such
sale (net of the fees of the Depositary as provided in SectionΒ 5.9) shall be distributed by the
Depositary to the Owners entitled thereto as in the case of a distribution received in cash
pursuant to SectionΒ 4.1.
Β Β Β Β Β SECTION 4.3.Β Β Β Β Distributions in Shares.
Β Β Β Β Β Β Β Β Β Β If any distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may, and shall if the Issuer shall so request, distribute
to the Owners of outstanding Receipts entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them respectively, additional
Receipts evidencing an aggregate number of American Depositary Shares representing the amount of
Shares received as such dividend or free distribution, subject to the terms and conditions of the
Deposit Agreement with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other governmental charge as
provided in SectionΒ 4.11 and the payment of fees of the Depositary as provided in SectionΒ 5.9. In
lieu of delivering Receipts for fractional American Depositary Shares in any such case, the
Depositary shall sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions described in Section
4.1. If additional Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited Securities
represented thereby.
Β Β Β Β Β SECTION 4.4.Β Β Β Β Rights.
Β Β Β Β Β Β Β Β Β Β In the event that the Issuer shall offer or cause to be offered to the holders of any
Deposited Securities any rights to subscribe for additional Shares or any rights of any other
nature, the Depositary, after consultation with the Issuer, shall have discretion as to the
procedure to be followed in making such rights available to any Owners or in disposing of such
rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the
terms of such rights offering or for any other reason, the Depositary may not either make such
rights available to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering
of any rights the Depositary determines in its discretion, after consultation with the Issuer, that
it is lawful and feasible to make such rights available to all Owners or to certain Owners but not
to other
Β
Β
Owners, the Depositary may distribute to any Owner to whom it determines the distribution
to be lawful and feasible, in proportion to the number of American Depositary Shares held by such
Owner, warrants or other instruments therefor in such form as it, after consultation with the
Issuer, deems appropriate.
Β Β Β Β Β Β Β Β Β Β In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts
requests the distribution of warrants or other instruments in order to exercise the rights
allocable to the American Depositary Shares of such Owner hereunder, the Depositary will make such
rights available to such Owner upon written notice from the Issuer to the Depositary that (a)Β the
Issuer has elected in its sole discretion to permit such rights to be exercised and (b)Β such Owner
has executed such documents as the Issuer has determined in its sole discretion are reasonably
required under applicable law.
Β Β Β Β Β Β Β Β Β Β If the Depositary has distributed warrants or other instruments for rights to all or certain
Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to
the Depositary from such Owner to exercise such rights, upon payment by such Owner to the
Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees of the Depositary and any
other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf
of such Owner, exercise the rights and purchase the Shares, and the Issuer shall cause the Shares
so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to SectionΒ 2.2 of this
Deposit Agreement, and shall, pursuant to SectionΒ 2.3 of this Deposit Agreement, execute and
deliver Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of
this section, such Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under such
laws.
Β Β Β Β Β Β Β Β Β Β If the Depositary determines in its discretion, after consultation with the Issuer, that it is
not lawful and feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American Depositary Shares
held by the Owners to whom it has determined it may not lawfully or feasibly make such rights
available, and allocate the net proceeds of such
Β
Β
sales (net of the fees of the Depositary as
provided in SectionΒ 5.9 and all taxes and governmental charges payable in connection with such
rights and subject to the terms and conditions of this Deposit Agreement) for the account of such
Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other
practical basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
Β Β Β Β Β Β Β Β Β Β The Depositary will not offer rights to Owners unless both the rights and the securities to
which such rights relate are either exempt from registration under the Securities Act of 1933 with
respect to a distribution to Owners or are registered under the provisions of such Act. Nothing in
this Deposit Agreement shall create, or be construed to create, any obligation on the part of the
Issuer to file a registration statement with respect to such rights or underlying securities or to
endeavor to have a registration statement declared effective. If an Owner of Receipts requests
distribution of warrants or other instruments, notwithstanding that there has been no such
registration under such Act, the Depositary shall not effect such distribution unless it has
received an opinion from recognized counsel in the United States for the Issuer upon which the
Depositary may rely that such distribution to such Owner is exempt from such registration.
Β Β Β Β Β Β Β Β Β Β The Depositary shall not be responsible for any failure to determine that it may be lawful or
feasible to make such rights available to Owners in general or any Owner in particular.
Β Β Β Β Β SECTION 4.5.Β Β Β Β Conversion of Foreign Currency.
Β Β Β Β Β Β Β Β Β Β 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 if
at the time of the receipt thereof the foreign currency so received can in the judgment of the
Depositary be converted on a reasonable basis into Dollars and the resulting Dollars transferred to
the United States, the Depositary shall convert or cause to be converted, by sale or in any other
manner that it may determine, such foreign currency into Dollars, and such Dollars shall be
distributed to the Owners entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for cancellation in whole or in
part depending on the terms of such warrants or other instruments. Such distribution may be
Β
Β
made upon an averaged or other practicable basis without regard to any distinctions among Owners on
account of exchange restrictions, the date of delivery of any Receipt or otherwise and shall be net
of any expenses of conversion into Dollars incurred by the Depositary as provided in SectionΒ 5.9.
Β Β Β Β Β Β Β Β Β Β If such conversion or distribution can be effected only with the approval or license of any
government or agency thereof, the Depositary shall file such application for
approval or license, if any, as it may deem desirable; provided, however, that the Issuer
shall not be obligated to make any such filings.
Β Β Β Β Β Β Β Β Β Β If at any time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary or the Custodian is not convertible on a reasonable basis into Dollars
transferable to the United States, or if any approval or license of any government or agency
thereof which is required for such conversion is denied or in the reasonable opinion of the
Depositary is not obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary, after consultation with the
Issuer, may distribute the foreign currency (or an appropriate document evidencing the right to
receive such foreign currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the respective accounts
of, the Owners entitled to receive the same.
Β Β Β Β Β Β Β Β Β Β If any such conversion of foreign currency, in whole or in part, cannot be effected for
distribution to some of the Owners entitled thereto, the Depositary may in its discretion make such
conversion and distribution in Dollars to the extent permissible to the Owners entitled thereto and
may distribute the balance of the foreign currency received by the Depositary to, or hold such
balance uninvested and without liability for interest thereon for the respective accounts of, the
Owners entitled thereto.
Β Β Β Β Β SECTION 4.6.Β Β Β Β Fixing of Record Date.
Β Β Β Β Β Β Β Β Β Β Whenever any cash dividend or other cash distribution shall become payable or any distribution
other than cash shall be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever for any reason the Depositary causes a change in the number of Shares that
are represented by each American Depositary Share, or whenever the Depositary shall receive notice
of any
Β
Β
meeting of holders of Shares or other Deposited Securities, the Depositary shall fix a
record date, which shall be as close as practicable to the date corresponding to the record date
fixed by the Issuer in respect of the Shares or other Deposited Securities, (a)Β for the
determination of the Owners who shall be (i)Β entitled to receive such dividend, distribution or
rights or the net proceeds of the sale thereof or (ii)Β entitled to give instructions for the
exercise of voting rights at any such meeting, or (b)Β on or after which each American Depositary
Share will represent the changed number of Shares. Subject to
the provisions of SectionsΒ 4.1 through 4.5 and to the other terms and conditions of this
Deposit Agreement, the Owners on such record date shall be entitled, as the case may be, to receive
the amount distributable by the Depositary with respect to such dividend or other distribution or
such rights or the net proceeds of sale thereof in proportion to the number of American Depositary
Shares held by them respectively and to give voting instructions and to act in respect of any other
such matter.
Β Β Β Β Β SECTION 4.7.Β Β Β Β Voting of Deposited Securities.
Β Β Β Β Β Β Β Β Β Β Subject to and in accordance with the Articles of Association of the Issuer, the Depositary
hereby irrevocably appoints (or, if the Deposited Securities are registered in the name of or held
by its nominee, shall procure that its nominee shall irrevocably appoint) each Owner for the time
being on the record date (the βVoting Record Dateβ) fixed by the Depositary in accordance with
SectionΒ 4.06 in respect of any meeting (including any adjourned meeting) at which holders of
Deposited Securities are entitled to vote as its proxy to attend, vote and speak at the relevant
meeting (or any adjournment thereof) as provided in the Articles of Association of the Issuer in
respect of the Deposited Securities represented by the American Depositary Shares evidenced by the
Receipts held by such Owner on the Voting Record Date, and by reason of that appointment in respect
of any such meeting each such Owner shall be constituted the agent of the Depositary to appoint (in
relation to those Deposited Securities) in the name of the Depositary either a person nominated by
the Depositary or any other person as proxy to attend, vote and speak as the Owner may instruct,
subject to and in accordance with the provisions of this Section and the Articles of Association of
the Issuer (and if the Deposited Securities are registered in the name of or held by the nominee of
the
Β
Β
Depositary, the Depositary shall procure that the nominee duly constitutes each such Owner as
its agent for that purpose). As soon as practicable after receipt of notice of any meeting at
which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall, in accordance with Section
4.06, fix the Voting Record Date in respect of such meeting or solicitation. The Depositary or, if
the Issuer so determines, the Issuer shall mail to
Owners of record on such Voting Record Date: (a)Β such information as is contained in such
notice of meeting or in the solicitation materials, (b)Β a Receipt proxy card in a form prepared by
the Depositary, after consultation with the Issuer, (c)Β a statement that each Owner of Record at
the close of business on the Voting Record Date will be entitled, subject to any applicable law,
the Issuerβs Articles of Association and the provisions of or governing the Deposited Securities,
either (i)Β to use such Receipt proxy card at that meeting as written evidence of the appointment of
that Owner in accordance with this Section in order to attend, vote and speak at such meeting
solely with respect to the Shares or other Deposited Securities represented by American Depositary
Shares evidenced by such Ownerβs Receipts or (ii)Β as the agent of the Depositary (or its nominee)
to appoint any other person as proxy solely with respect to the Shares or other Deposited
Securities represented by American Depositary Shares evidenced by such Ownerβs Receipts and (if the
Owner wishes) to instruct such person as to the exercise of the voting rights pertaining to them,
and (d)Β if the person nominated by the Depositary is to be appointed in that manner as proxy, a
brief statement as to the manner in which the Owner may give voting instructions to the person
nominated by the Depositary. Upon the written request of an Owner of record on the Voting Record
Date received on or before the date established by the Depositary for such purpose (the
βInstruction Dateβ), the Depositary shall endeavor, insofar as practicable and permitted under
applicable law, the provisions of the Issuerβs Articles of Association and the provisions of the
Deposited Securities, to cause to be voted the Deposited Securities in accordance with the
instructions set forth in such request.
Β
Β
Β Β Β Β Β Β Β Β Β Β Neither the Depositary nor the Custodian nor the nominee of either of them shall exercise any
discretion as to voting and neither the Depositary nor the Custodian nor the nominee of either of
them shall vote or attempt to exercise the right to vote the Shares or other Deposited Securities
represented by American Depositary Shares except pursuant to and in accordance with such written
instructions from Owners given in accordance with this SectionΒ 4.07. Shares or other Deposited
Securities represented by
American Depositary Shares for which no specific voting instructions are received by the
Depositary from the Owner shall not be voted by the Depositary or its nominee but may be directly
voted by Owners in attendance at meetings of shareholders, subject to, and in accordance with, the
provisions of this Section and the Issuerβs Articles of Association.
Β Β Β Β Β Β Β Β Β Β For the avoidance of doubt, the appointment pursuant to this Section of a proxy by an Owner
acting as agent of the Depositary (or its nominee) shall constitute the appointed person as a proxy
for the purposes of section 372 of the UK Companies Acx 0000 xnd of the Articles of Association of
the Issuer; whereas the appointment pursuant to this Section of an Owner as a proxy by the
Depositary (or its nominee) shall not constitute that Owner as such a proxy but shall instead
confer on that Owner the special rights and privileges accorded under the Issuerβs Articles of
Association to ADR Proxies (as defined in those Articles of Association).
Β Β Β Β Β Β Β Β Β Β Notwithstanding anything in this SectionΒ 4.7 or in SectionΒ 6.1 to the contrary, the Depositary
and the Issuer may modify, amend or adopt additional voting procedures at any time or from time to
time as they determine may be necessary or appropriate.
Β Β Β Β Β Β Β Β Β Β There can be no assurance that Owners generally or any Owner in particular will receive the
notice described in this SectionΒ 4.7 sufficiently prior to the Instruction Date to ensure that the
Depositary will vote the Shares or Deposited Securities in accordance with the provisions set forth
in this Section.
Β
Β
Β Β Β Β Β SECTION 4.8.Β Β Β Β Changes Affecting Deposited Securities.
Β Β Β Β Β Β Β Β Β Β In circumstances where the provisions of SectionΒ 4.3 do not apply, upon any change in nominal
value, change in par value, split-up, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of Deposited
Securities, shall be treated as new Deposited
Securities under this Deposit Agreement, and American Depositary Shares shall thenceforth
represent, in addition to the existing Deposited Securities, the new Deposited Securities so
received in exchange or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, and shall if the Issuer shall so request,
execute and deliver additional Receipts as in the case of a dividend in Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically describing such new
Deposited Securities.
Β Β Β Β Β SECTION 4.9.Β Β Β Β Reports.
Β Β Β Β Β Β Β Β Β Β The Depositary shall make available for inspection by Owners at its Corporate Trust Office any
reports and communications, including any proxy soliciting material, received from the Issuer which
are both (a)Β received by the Depositary as the holder of the Deposited Securities and (b)Β made
generally available to the holders of such Deposited Securities by the Issuer. The Depositary
shall also, upon written request, send to the Owners copies of such reports furnished by the Issuer
pursuant to SectionΒ 5.6.
Β Β Β Β Β SECTION 4.10.Β Β Β Β Lists of Owners.
Β Β Β Β Β Β Β Β Β Β Promptly upon request by the Issuer, the Depositary shall, at the expense of the Issuer,
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.
Β Β Β Β Β SECTION 4.11.Β Β Β Β Withholding.
Β Β Β Β Β Β Β Β Β Β In the event that the Depositary determines that any distribution in property (including
Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which
the Depositary is obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and
Β
Β
rights to subscribe therefor) in such
amounts and in such manner as the Depositary deems necessary and practicable to pay any such taxes
or charges and the Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto in proportion to the number of American
Depositary Shares held by them respectively.
ARTICLE 5. | Β | THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER. |
Β Β Β Β Β SECTION 5.1.Β Β Β Β Maintenance of Office and Transfer Books by the Depositary.
Β Β Β Β Β Β Β Β Β Β Until termination of this Deposit Agreement in accordance with its terms, the Depositary shall
maintain in the Borough of Manhattan, The City of New York, facilities for the execution and
delivery, registration, registration of transfers and surrender of Receipts in accordance with the
provisions of this Deposit Agreement.
Β Β Β Β Β Β Β Β Β Β The Depositary shall keep books for the registration of Receipts and transfers of Receipts
which at all reasonable times shall be open for inspection by the Owners, provided that such
inspection shall not be for the purpose of communicating with Owners in the interest of a business
or object other than the business of the Issuer or a matter related to this Deposit Agreement or
the Receipts.
Β Β Β Β Β Β Β Β Β Β The Depositary may close the transfer books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder after consultation with
to the extent practicable or at the request of the Issuer.
Β Β Β Β Β Β Β Β Β Β If any Receipts or the American Depositary Shares evidenced thereby are listed on one or more
stock exchanges in the United States, the Depositary shall act as Registrar or appoint a Registrar
or one or more co-registrars for registry of such Receipts in accordance with any requirements of
such exchange or exchanges.
Β Β Β Β Β SECTION 5.2.Β Β Β Β Prevention or Delay in Performance by the Depositary or the Issuer.
Β Β Β Β Β Β Β Β Β Β Neither the Depositary nor the Issuer nor any of their respective directors, employees, agents
or affiliates shall incur any liability to any Owner or Beneficial Owner of any Receipt, if by
reason of any provision of any present or future law or regulation of the United States or any
other country, or of any governmental or regulatory authority or
Β
Β
stock exchange, or by reason of
any provision, present or future, of the Memorandum and Articles of Association of the Issuer, or
by reason of any act of God or war or other circumstances beyond its control, the Depositary or the
Issuer or any of their respective directors, employees, agents or affiliates shall be prevented or
forbidden from, or be subject to any civil or criminal penalty on account of, doing or performing
any act or thing which by the terms of this Deposit Agreement it is provided shall be done or
performed; nor shall the Depositary or the Issuer or any of their respective directors,
employees, agents or affiliates incur any liability to any Owner or Beneficial Owner of any Receipt
by reason of any non- performance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of this Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in
this Deposit Agreement. Where, by the terms of a distribution pursuant to SectionsΒ 4.1, 4.2, or
4.3 of the Deposit Agreement, or an offering or distribution pursuant to SectionΒ 4.4 of the Deposit
Agreement, or for any other reason, such distribution or offering may not be made available to
Owners, and the Depositary may not dispose of such distribution or offering on behalf of such
Owners and make the net proceeds available to such Owners, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
Β Β Β Β Β SECTION 5.3.Β Β Β Β Obligations of the Depositary, the Custodian and the Issuer.
Β Β Β Β Β Β Β Β Β Β Neither the Issuer nor any of its directors, employees, agents or affiliates assume any
obligation nor shall any of them be subject to any liability under this Deposit Agreement to Owners
or Beneficial Owners of Receipts, except that the Issuer agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad faith.
Β Β Β Β Β Β Β Β Β Β The Depositary assumes no obligation nor shall it be subject to any liability under this
Deposit Agreement to any Owner or Beneficial Owners of any Receipt (including, without limitation,
liability with respect to the validity or worth of the Deposited Securities), except that it agrees
to perform its obligations specifically set forth in this Deposit Agreement without negligence or
bad faith.
Β Β Β Β Β Β Β Β Β Β Neither the Depositary nor the Issuer nor any of their respective directors, employees, agents
or affiliates 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
Β
Β
respect of the Receipts, which in
their respective reasonable opinions may involve them in expense or liability, unless indemnity
satisfactory to them against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Β Β Β Β Β Β Β Β Β Β Neither the Depositary nor the Issuer nor any of their respective directors, employees, agents
or affiliates shall be liable for any action or nonaction by any of them in reliance upon the
advice of or information from legal counsel, accountants, any person presenting Shares for deposit,
any Owner or any other person believed by any of them in good faith to be competent to give such
advice or information. Each of the Depositary, the Issuer and their respective directors,
employees, agents and affiliates may rely and shall be protected in acting upon any written notice,
request or direction or other document believed by such person to be genuine and to have been
signed or presented by the proper party or parties.
Β Β Β Β Β Β Β Β Β Β The Depositary 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 negligence or bad faith while it acted as Depositary.
Β Β Β Β Β Β Β Β Β Β The Depositary shall not be responsible for any failure to carry out any instructions to vote
any of the Deposited Securities, or for the manner in which any such vote is cast or the effect of
any such vote, provided that any such action or nonaction is in good faith.
Β Β Β Β Β Β Β Β Β Β No disclaimer of liability under the Securities Act of 1933 is intended by any provision of
this Deposit Agreement.
Β Β Β Β Β SECTION 5.4.Β Β Β Β Resignation and Removal of the Depositary.
Β Β Β Β Β Β Β Β Β Β The Depositary may at any time resign as Depositary hereunder by written notice of its
election so to do delivered to the Issuer, such resignation to take effect upon the appointment of
a successor depositary and its acceptance of such appointment as hereinafter provided.
Β
Β
Β Β Β Β Β Β Β Β Β Β The Depositary may at any time be removed by the Issuer by written notice of such removal
effective upon the appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
Β Β Β Β Β Β Β Β Β Β In case at any time the Depositary acting hereunder shall resign or be removed, the Issuer
shall use its best efforts to appoint a successor depositary, which shall be a bank or trust
company having an office in the Borough of Manhattan, The City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Issuer an instrument in writing
accepting its appointment hereunder, and thereupon such successor depositary, without any further
act or deed, shall become fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Issuer shall execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Deposited Securities to such successor, and shall deliver to such
successor a list of the Owners of all outstanding Receipts. Any such successor depositary shall
promptly mail notice of its appointment to the Owners.
Β Β Β Β Β Β Β Β Β Β 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.
Β Β Β Β Β SECTION 5.5.Β Β Β Β The Custodians.
Β Β Β Β Β Β Β Β Β Β The Custodian shall be subject at all times and in all respects to the directions of the
Depositary and shall be responsible solely to it. Any Custodian may resign and be discharged from
its duties hereunder by notice of such resignation delivered to the Depositary at least 30Β days
prior to the date on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after receiving such notice,
appoint a substitute custodian or custodians, each of which shall thereafter be a Custodian
hereunder. Whenever the Depositary in its discretion determines that it is in the best interest of
the Owners to do so, it may appoint substitute or additional custodian or custodians, which shall
thereafter be one of the Custodians hereunder. Upon demand of the Depositary any Custodian shall
deliver such of the Deposited Securities held by it as are requested of it to any other Custodian
or such substitute or additional custodian or custodians. Each such
Β
Β
substitute or additional
custodian shall deliver to the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the Depositary.
Β Β Β Β Β Β Β Β Β Β Upon the appointment of any successor depositary hereunder, each Custodian then acting
hereunder shall forthwith become, without any further act or writing, the agent hereunder of such
successor depositary and the appointment of such successor depositary shall in no way impair the
authority of each Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian or as required by the laws of England and
Wales, execute and deliver to such Custodian all such instruments as may be proper to give to such
Custodian full and complete power and authority as agent hereunder of such successor depositary.
Β Β Β Β Β SECTION 5.6.Β Β Β Β Notices and Reports.
Β Β Β Β Β Β Β Β Β Β On or before the first date on which the Issuer gives notice, by publication or otherwise, of
any meeting of holders of Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action in respect of any cash or other distributions or the
offering of any rights, the Issuer agrees to transmit to the Depositary and the Custodian a copy of
the notice thereof in the form given or to be given to holders of Shares or other Deposited
Securities.
Β Β Β Β Β Β Β Β Β Β The Issuer will arrange for the prompt transmittal by the Issuer to the Depositary and the
Custodian of such notices and any other reports and communications which are made generally
available by the Issuer to holders of its Shares. If requested in writing by the Issuer, the
Depositary will arrange for the mailing, at the Issuerβs expense, of copies of such notices,
reports and communications to all Owners. The Issuer will timely provide the Depositary with the
quantity of such notices, reports, and communications, as requested by the Depositary from time to
time, in order for the Depositary to effect such mailings.
Β Β Β Β Β SECTION 5.7.Β Β Β Β Distribution of Additional Shares, Rights, etc.
Β Β Β Β Β Β Β Β Β Β The Issuer agrees that in the event of any issuance or distribution of (1)Β additional Shares,
(2)Β rights to subscribe for Shares, (3)Β securities convertible into Shares, or (4)Β rights to
subscribe for such securities, (each a βDistributionβ) the Issuer will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Issuer,
Β
Β
which counsel shall be satisfactory
to the Depositary, stating whether or not the Distribution requires a Registration Statement under
the Securities Act of 1933 to be in effect prior to making such Distribution available to Owners
entitled thereto. If in the opinion of such counsel a Registration Statement is required, such
counsel shall furnish to
the Depositary a written opinion as to whether or not there is a Registration Statement in
effect which will cover such Distribution. Nothing in this SectionΒ 5.7 or elsewhere in this
Deposit Agreement shall create any obligation on the part of the Issuer to file a Registration
Statement in respect of any such securities or rights.
Β Β Β Β Β Β Β Β Β Β The Issuer agrees with the Depositary that neither the Issuer nor any company controlled by,
controlling or under common control with the Issuer will at any time deposit any Shares, either
originally issued or previously issued and reacquired by the Issuer or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the Securities Act of 1933. The
Depositary will comply with the reasonable instructions of the Issuer not to accept knowingly for
deposit hereunder any Shares identified in such instructions at such times and under such
circumstances as may be specified in such instructions in order to facilitate the Issuerβs
compliance with the securities laws of the United States.
Β Β Β Β Β SECTION 5.8.Β Β Β Β Indemnification.
Β Β Β Β Β Β Β Β Β Β The Issuer agrees to indemnify the Depositary, its directors, employees, agents and affiliates
and any Custodian against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel) which may arise out of
acts performed or omitted, in accordance with the provisions of this Deposit Agreement and of the
Receipts, as the same may be amended, modified or supplemented from time to time, (i)Β by either the
Depositary or a Custodian or their respective directors, employees, agents and affiliates, except
for any liability or expense arising out of the negligence or bad faith of either of them, or (ii)
by the Issuer or any of its directors, employees, agents and affiliates.
Β Β Β Β Β Β Β Β Β Β The indemnities contained in the preceding paragraph shall not extend to any liability or
expense which may arise out of any Pre-Release (as defined in SectionΒ 2.9) but only to the extent
that any such liability or expense arises in connection with (a)Β any United States Federal, state
or local income tax laws, or (b)Β the failure of the Depositary to deliver Deposited Securities when
required under the terms of SectionΒ 2.5
Β
Β
hereof. However, the indemnities contained in the
preceding paragraph shall apply to any liability or expense which may arise out of any misstatement
or alleged misstatement or omission or alleged omission in any registration statement, proxy
statement, prospectus (or placement memorandum), or preliminary prospectus (or preliminary
placement memorandum) relating to the offer of sale of American Depositary Shares, except to the extent
any such liability or expense arises out of (i)Β information relating to the Depositary or any
Custodian (other than the Issuer), as applicable, furnished in writing and not materially changed
or altered by the Issuer expressly for use in any of the foregoing documents, or, (ii)Β if such
information is provided, the failure to state a material fact necessary to make the information
provided not misleading.
Β Β Β Β Β Β Β Β Β Β The Depositary agrees to indemnify the Issuer, its directors, employees, agents and affiliates
and hold them harmless from any liability or expense which may arise out of acts performed or
omitted by the Depositary or its Custodian or their respective directors, employees, agents and
affiliates due to their negligence or bad faith.
Β Β Β Β Β Β Β Β Β Β If an action, proceeding (including, but not limited to, any governmental investigation, claim
or dispute (collectively, a βProceedingβ) in respect of which indemnity may be sought by either
party is brought or asserted against the other party, the party seeking indemnification (the
βIndemniteeβ) shall promptly (and in any event more than ten (10)Β days after receipt of notice of
such Proceeding) notify the party obligated to provide such indemnification (the βIndemnitorβ) of
such Proceeding. The failure of the Indemnitee to so notify the Indemnitor shall not impair the
Indemniteeβs ability to seek indemnification from the Indemnitor (but only for costs, expenses and
liabilities incurred after such notice) unless such failure adversely effects the Indemnitorβs
ability to adequately oppose or defend such Proceeding. Upon receipt of such notice from the
Indemnitee, the Indemnitor shall be entitled to participate in such Proceeding and, to the extent
that it shall so desire and provided no conflict of interest exists as specified in subparagraph
(b)Β below, to assume the defense thereof with counsel reasonably satisfactory to the Indemnitee
which may be counsel to the Indemnitor (in which case all attorneyβs fees and expenses shall be
borne by the Indemnitor and the Indemnitor shall in good faith defend the Indemnitee). The
Indemnitee shall have the right to employ separate counsel in any such Proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel shall be borne by the
Indemnitee unless (a)Β the Indemnitor agrees in writing to pay such fees and expenses, (b)Β the
Indemnitee shall have
Β
Β
reasonably and in good faith concluded that there is a conflict of interest
between the Indemnitor and the Indemnitee in the conduct of the defense of such action or (c)Β the
Indemnitor fails, within ten (10)Β days prior to the date the first response or appearance is
required to be made in such Proceeding, to assume the defense of such Proceeding with
counsel reasonably satisfactory to the Indemnitee. No compromise or settlement of such
Proceeding may be effected by either party without the other partyβs consent unless (i)Β there is no
finding or admission of any violation of law and no effect on any other claims that may be made
against such other party and (ii)Β the sole relief provided is monetary damages that are paid in
full by the party seeking the settlement. Neither party shall have any liability or obligation
with respect to any compromise or settlement effected without its consent, which shall not be
unreasonably withheld. The Indemnitor shall have no obligation to indemnify and hold harmless the
Indemnitee from any loss, expense or liability incurred by the Indemnitee as a result of a default
judgment entered against the Indemnitee unless such judgment was entered after the Indemnitor
agreed, in writing, to assume the defense of such Proceeding.
Β Β Β Β Β Β Β Β Β Β The obligations set forth in the SectionΒ 5.8 shall survive the termination of this Deposit
Agreement and the succession or substitution of any indemnified person.
Β Β Β Β Β SECTION 5.9.Β Β Β Β Charges of Depositary.
Β Β Β Β Β Β Β Β Β Β The Issuer agrees to pay the fees, reasonable expenses and out-of-pocket charges of the
Depositary and those of any Registrar only in accordance with agreements in writing entered into
between the Depositary and the Issuer from time to time. Any written agreement signed by the
Issuer and the Depositary relating to the Depositaryβs fees and expenses under this Deposit
Agreement shall be binding on the Issuer and the Depositary until it is expressly amended or
superseded by a subsequent written agreement, irrespective of whether such agreement was entered
into prior to, simultaneously with or subsequent to this Deposit Agreement, and notwithstanding any
provision of this Deposit Agreement that might be construed to be inconsistent with such agreement.
The Depositary shall present its statement for such charges and expenses to the Issuer once every
three months. The charges and expenses of the Custodian are for the sole account of the
Depositary.
Β Β Β Β Β Β Β Β Β Β The following charges shall be incurred by any party depositing or withdrawing Shares or by
any party surrendering Receipts or to whom Receipts are
Β
Β
issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Issuer or an exchange of stock
regarding the Receipts or Deposited Securities or a distribution of Receipts pursuant to Section
4.3), whichever applicable: (1)Β taxes and other governmental charges, (2)Β such registration fees as
may from time to time
be in effect for the registration of transfers of Shares generally on the Share register of
the Issuer or Foreign Registrar and 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,
(3)Β such cable, telex and facsimile transmission expenses as are expressly provided in this Deposit
Agreement, (4)Β such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to SectionΒ 4.5 (5)Β a fee of $5.00 or less per 100 American Depositary Shares (or
portion thereof) for the execution and delivery of Receipts pursuant to SectionΒ 2.3, 4.3 or 4.4,
and the surrender of Receipts pursuant to SectionΒ 2.5 or 6.2, (6)Β a fee of $.02 or less per
American Depositary Share (or portion thereof) for any cash distribution made pursuant to the
Deposit Agreement including, but not limited to, SectionsΒ 4.1 through 4.4 hereof, except for
distributions of cash dividends, and (7)Β a fee for the distribution of securities pursuant to
SectionΒ 4.2, such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause (7)Β treating all such securities as if they
were Shares), but which securities are instead distributed by the Depositary to Owners.
Β Β Β Β Β Β Β Β Β Β The Depositary, subject to SectionΒ 2.9 hereof, may own and deal in any class of securities of
the Issuer and its affiliates and in Receipts.
Β Β Β Β Β SECTION 5.10.Β Β Β Β Retention of Depositary Documents.
Β Β Β Β Β Β Β Β Β Β The Depositary is authorized to destroy those documents, records, bills and other data
compiled during the term of this Deposit Agreement at the times permitted by the laws or
regulations governing the Depositary unless the Issuer requests that such papers be retained for a
longer period or turned over to the Issuer or to a successor depositary.
Β
Β
Β Β Β Β Β SECTION 5.11.Β Β Β Exclusivity.
Β Β Β Β Β Β Β Β Β Β The Issuer agrees not to appoint any other depositary for issuance of American Depositary
Receipts so long as The Bank of New York is acting as Depositary hereunder.
Β Β Β Β Β SECTION 5.12.Β Β Β List of Restricted Securities Owners.
Β Β Β Β Β Β Β Β Β Β From time to time, the Issuer shall provide to the Depositary a list setting forth, to the
actual knowledge of the Issuer, those persons or entities who beneficially own Restricted
Securities and the Issuer shall update that list on a regular basis. The Issuer agrees to advise
in writing each of the persons or entities so listed that such Restricted Securities are ineligible
for deposit hereunder. The Depositary may rely on such a list or update but shall not be liable
for any action or omission made in reliance thereon.
ARTICLE 6. | Β | AMENDMENT AND TERMINATION. |
Β Β Β Β Β SECTION 6.1.Β Β Β Β Amendment.
Β Β Β Β Β Β Β Β Β Β The form of the Receipts and any provisions of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Issuer and the Depositary without the consent of
Owners or Beneficial Owners of Receipts in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees, cable, telex or facsimile transmission costs, delivery
costs or other such expenses), or which shall otherwise prejudice any substantial existing right of
Owners (other than the modification of voting procedures as provided in SectionΒ 4.7 hereof), shall,
however, not become effective as to outstanding Receipts until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding Receipts. Every Owner
at the time any amendment so becomes effective shall be deemed, by continuing to hold such Receipt,
to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby.
In no event shall any amendment impair the right of the Owner of any Receipt to surrender such
Receipt and receive therefor the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law.
Β
Β
Β Β Β Β Β SECTION 6.2.Β Β Β Β Termination.
Β Β Β Β Β Β Β Β Β Β The Depositary shall at any time at the direction of the Issuer terminate this Deposit
Agreement by mailing notice of such termination to the Owners of all Receipts then outstanding at
least 30Β days prior to the date fixed in such notice for such termination. The Depositary may
likewise terminate this Deposit Agreement by mailing
notice of such termination to the Issuer and the Owners of all Receipts then outstanding if at
any time 90Β days shall have expired after the Depositary shall have delivered to the Issuer a
written notice of its election to resign and a successor depositary shall not have been appointed
and accepted its appointment as provided in SectionΒ 5.4. On and after the date of termination, the
Owner of a Receipt will, upon (a)Β surrender of such Receipt at the Corporate Trust Office of the
Depositary, (b)Β payment of the fee of the Depositary for the surrender of Receipts referred to in
SectionΒ 2.5, and (c)Β payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt. If any Receipts shall remain outstanding
after the date of termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners thereof, and shall
not give any further notices or perform any further acts under this Deposit Agreement, except that
the Depositary shall continue to collect dividends and other distributions pertaining to Deposited
Securities, shall sell rights as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions received with respect
thereto and the net proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable taxes or governmental
charges). At any time after the expiration of one year from the date of termination, 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,
unsegregated and without liability for interest, for the pro rata benefit of the Owners of Receipts
which have not theretofore been surrendered, such Owners thereupon becoming general creditors of
the Depositary with respect to such net proceeds. After making such sale, the Depositary shall be
discharged from all obligations under this
Β
Β
Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in accordance with the
terms and conditions of this Deposit Agreement, and any applicable taxes or governmental charges).
Upon the termination of this Deposit Agreement, the Issuer shall be discharged from all obligations
under this Deposit Agreement except for its obligations to the Depositary under SectionsΒ 5.8
and 5.9 hereof.
ARTICLE 7. | Β | MISCELLANEOUS. |
Β Β Β Β Β SECTION 7.1.Β Β Β Β Counterparts.
Β Β Β Β Β Β Β Β Β Β This Deposit Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of such counterparts shall constitute one and the same instrument.
Copies of this Deposit Agreement shall be filed with the Depositary and the Custodians and shall be
open to inspection by any Beneficial Owner or Owner of a Receipt during business hours.
Β Β Β Β Β SECTION 7.2.Β Β Β Β No Third Party Beneficiaries.
Β Β Β Β Β Β Β Β Β Β This Deposit Agreement is for the exclusive benefit of the parties hereto and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any other person.
Β Β Β Β Β SECTION 7.3.Β Β Β Β Severability.
Β Β Β Β Β Β Β Β Β Β 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.
Β Β Β Β Β SECTION 7.4.Β Β Β Β Owners and Beneficial Owners as Parties; Binding Effect.
Β Β Β Β Β Β Β Β Β Β The Owners and Beneficial Owners of Receipts from time to time shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts
by acceptance thereof.
Β Β Β Β Β SECTION 7.5.Β Β Β Β Notices.
Β Β Β Β Β Β Β Β Β Β Any and all notices to be given to the Issuer shall be deemed to have been duly given if
personally delivered or sent by mail or cable, telex or facsimile transmission
Β
Β
confirmed by letter, addressed to National Grid plc, 00 Xxxxxxxxxx Xxxx, Xxxxxx XX0 0XX, Xxxxxx Xxxxxxx, Attention:
Company Secretary or any other place to which the Issuer may have transferred its principal office.
Β Β Β Β Β Β Β Β Β Β Any and all notices to be given to the Depositary shall be deemed to have been duly given if
in English and personally delivered or sent by mail or cable, telex or facsimile transmission
confirmed by letter, addressed to The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
Β Β Β Β Β Β Β Β Β Β Any and all notices to be given to any Owner shall be deemed to have been duly given if
personally delivered or sent by mail or cable, telex or facsimile transmission confirmed by letter,
addressed to such Owner at the address of such Owner as it appears on the transfer books for
Receipts of the Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at the address
designated in such request.
Β Β Β Β Β Β Β Β Β Β Delivery of a notice sent by mail or cable, telex or facsimile transmission shall be deemed to
be effected at the time when a duly addressed letter containing the same (or a confirmation thereof
in the case of a cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box. The Depositary or the Issuer may, however, act upon any cable, telex or
facsimile transmission received by it, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed by letter as aforesaid.
Β Β Β Β Β SECTION 7.6.Β Β Β Β Governing Law.
Β Β Β Β Β Β Β Β Β Β This Deposit Agreement and the Receipts shall be interpreted and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by the laws of the State of New
York. It is understood that, notwithstanding any present or future provision of the laws of the
State of New York, the rights of holders of Shares and other Deposited Securities and the
obligations and duties of the Issuer in respect of such holders, as such, shall be governed by the
laws of England and Wales (or, if applicable, such other law as may govern Deposited Securities).
Β
Β
Β Β Β Β Β SECTION 7.7.Β Β Β Β Compliance with U.S. Securities Laws.
Β Β Β Β Β Β Β Β Β Β Notwithstanding anything in this Deposit Agreement to the contrary, the Issuer and the
Depositary each agrees that it will not exercise any rights it has under this Deposit Agreement to
prevent the withdrawal or delivery of Deposited Securities in a
manner which would violate the U.S. securities laws, including, but not limited to, Section
I.A.(1) of the General Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
Β
Β
Β Β Β Β Β Β Β Β Β Β IN WITNESS WHEREOF NATIONAL GRID PLC and THE BANK OF NEW YORK have duly executed this
agreement as of the day and year first set forth above and all Owners and Beneficial Owners shall
become parties hereto upon acceptance by them of Receipts issued in accordance with the terms
hereof.
Β | Β | Β | Β | Β |
Β | NATIONAL GRID PLC Β |
Β | ||
Β | ||||
Β | By:Β Β | /s/ X.X. Xxxxx Β | Β | |
Β | Β | Name:Β Β | Β | Β |
Β | Β | Title:Β Β | Β | Β |
Β | ||||
Β | ||||
Β | THE BANK OF NEW YORK, Β Β Β as Depositary Β |
Β | ||
Β | ||||
Β | By:Β Β | /s/ Xxxx X. XxXxxxxxxx Β | Β | |
Β | Β | Name:Β Xxxx X. XxXxxxxxxxΒ | Β | |
Β | Β | Title:Β Vice President | Β | |
Β |
Β
Β
VOTING RIGHTS MAY BE RESTRICTED AS PROVIDED
IN PARAGRAPH 22 AND VOTING PROCEDURES MAY BE
MODIFIED WITHOUT NOTICE TO HOLDERS
AS PROVIDED IN PARAGRAPH 16.
IN PARAGRAPH 22 AND VOTING PROCEDURES MAY BE
MODIFIED WITHOUT NOTICE TO HOLDERS
AS PROVIDED IN PARAGRAPH 16.
ExhibitΒ A to Deposit Agreement
No.
Β | Β | Β |
Β
|
Β | AMERICAN DEPOSITARY SHARES |
Β
|
Β | (EachΒ Β Β AmericanΒ Β Β DepositaryΒ Β Β Share |
Β
|
Β | represents five (5)Β deposited Shares) |
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF THE
PAR VALUE OF 11 17/43 XXXXX EACH OF
NATIONAL GRID PLC
(F/K/A National Grid Transco plc
F/K/A National Grid Group plc)
(INCORPORATED UNDER THE LAWS OF ENGLAND AND WALES)
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF THE
PAR VALUE OF 11 17/43 XXXXX EACH OF
NATIONAL GRID PLC
(F/K/A National Grid Transco plc
F/K/A National Grid Group plc)
(INCORPORATED UNDER THE LAWS OF ENGLAND AND WALES)
Β Β Β Β Β The Bank of New York as depositary (hereinafter called the βDepositaryβ), hereby certifies
that Β Β Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β Β , or registered
assigns IS THE OWNER OF
AMERICAN DEPOSITARY SHARES
representing deposited Ordinary Shares (herein called βSharesβ) of National Grid plc (herein called
the βCompanyβ). At the date hereof, each American Depositary Share represents five (5)Β Shares
which are either deposited or subject to deposit under the deposit agreement at the London, England
office of The Bank of New York (herein called the βCustodianβ). The Depositaryβs Corporate Trust
Office is located at a different address than its principal executive office. Its Corporate Trust
Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive office
is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARYβS CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
Β
Β
1.Β Β Β Β Β | Β | THE DEPOSIT AGREEMENT. |
Β Β Β Β Β Β Β Β Β Β Β Β This American Depositary Receipt is one of an issue (herein called βReceiptsβ), all issued and
to be issued upon the terms and conditions set forth in the amended and restated deposit agreement,
dated as AugustΒ 1, 2005, (herein called the βDeposit Agreementβ), by and among the Company, the
Depositary, and all Owners and Beneficial Owners from time to time of Receipts issued thereunder,
each of whom by accepting a Receipt agrees to become a party thereto and become bound by all the
terms and conditions thereof. The Deposit Agreement sets forth the rights of Owners and Beneficial
Owners of the Receipts and the rights and duties of the Depositary in respect of the Shares
deposited thereunder and any and all other securities, property and cash from time to time received
in respect of such Shares and held thereunder (such Shares, securities, property, and cash are
herein called βDeposited Securitiesβ). Copies of the Deposit Agreement are on file at the
Depositaryβs Corporate Trust Office in New York City and at the office of the Custodian.
Β Β Β Β Β Β Β Β Β Β Β Β The statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are qualified by and subject to the detailed provisions of
the Deposit Agreement, to which reference is hereby made. Capitalized terms not defined herein
shall have the meanings set forth in the Deposit Agreement.
2.Β Β Β Β Β | Β | SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES. |
Β Β Β Β Β Β Β Β Β Β Β Β Upon surrender at the Corporate Trust Office of the Depositary of this Receipt, and upon
payment of the fee of the Depositary provided in this Receipt and payment of all taxes and
governmental charges payable in connection with such surrender and the withdrawal of Deposited
Securities, and subject to the terms and conditions of the Deposit Agreement, the Owner hereof is
entitled to delivery, to him or upon his order, of the amount of Deposited Securities at the time
represented by the American Depositary Shares for which this Receipt is issued. Delivery of such
Deposited Securities may be made by the delivery of (a)Β certificates in the name of the Owner
hereof or as ordered by him or by the delivery of certificates properly endorsed or accompanied by
proper instruments of transfer and (b)Β any other securities, property and cash to which such Owner
is then entitled in respect of this Receipt. Such delivery will be made without unreasonable
delay, at the option of the Owner hereof, either at the office of the Custodian or at the Corporate
Trust Office of the Depositary, provided that the forwarding of certificates for Shares or other
Deposited Securities for such delivery at the Corporate Trust Office of the Depositary shall be at
the risk and expense of the Owner hereof. Such direction shall be given by letter, first class
airmail postage prepaid, or, at the request, risk and expense of such Owner, by air courier, cable,
telex or facsimile transmission. Notwithstanding any other provision of the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited Securities may not
be suspended subject only to (i)Β temporary delays caused by closing the transfer
- 2 -
Β
books of the Depositary the Company or the Foreign Registrar or the deposit of Shares in connection with voting
at a shareholdersβ meeting, or the payment of dividends, (ii)Β the payment of fees, taxes and
similar charges, and (iii)Β compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
3.Β Β Β Β Β | Β | TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS. |
Β Β Β Β Β Β Β Β Β Β Β Β The transfer of this Receipt is registrable, without unreasonable delay, on the books of the
Depositary at its Corporate Trust Office by the Owner hereof in person or by a duly authorized
attorney, upon surrender of this Receipt properly endorsed for transfer or accompanied by proper
instruments of transfer and funds sufficient to pay any applicable transfer taxes and the expenses
of the Depositary and upon compliance with such regulations, if any, as the Depositary may
establish for such purpose. This Receipt may be split into other such Receipts, or may be combined
with other such Receipts into one Receipt, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination, or surrender of any
Receipt or withdrawal of any Deposited Securities, the Depositary, the Custodian or Registrar may
require payment from the presentor of the Receipt of a sum sufficient to reimburse it for any tax
or other governmental charge and any stock transfer or registration fee with respect thereto
(including any such tax or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as provided in this Receipt, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may also require
compliance with any regulations the Depositary may establish consistent with the provisions of the
Deposit Agreement or this Receipt.
Β Β Β Β Β Β Β Β Β Β Β Β The delivery of Receipts against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the transfer of Receipts in particular instances may be
refused, or the registration of transfer of outstanding Receipts generally may be suspended, during
any period when the transfer books of the Depositary, the Company or the Foreign Registrar are
closed, or if any such action is deemed necessary or advisable by the Depositary or the Company at
any time or from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit Agreement or this Receipt,
or for any other reason, subject to Article (22)Β hereof. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under the Deposit Agreement any Shares required
to be registered under the provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares.
4.Β Β Β Β Β | Β | LIABILITY OF OWNER FOR TAXES. |
Β Β Β Β Β Β Β Β Β Β Β Β If any tax or other governmental charge shall become payable with respect to any Receipt or
any Deposited Securities represented hereby, such tax or other governmental
- 3 -
Β
charge shall be payable
by the Owner or Beneficial Owner hereof to the Depositary. The Depositary may refuse to effect any
transfer of this Receipt or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Owner or Beneficial Owner
hereof any part or all of the Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge and the Owner or Beneficial Owner
hereof shall remain liable for any deficiency.
5.Β Β Β Β Β | Β | WARRANTIES OF DEPOSITORS. |
Β Β Β Β Β Β Β Β Β Β Β Β Every person depositing Shares hereunder shall be deemed thereby to represent and warrant that
such Shares and each certificate therefor are validly issued, fully paid and nonassessable, and
that the person making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that the deposit of such Shares and the sale of Receipts evidencing American
Depositary Shares representing such Shares by that person are not restricted under the Securities
Act of 1933. Such representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
6.Β Β Β Β Β | Β | FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION. |
Β Β Β Β Β Β Β Β Β Β Β Β Any person presenting Shares for deposit or any Owner or Beneficial Owner of a Receipt may be
required from time to time to file with the Depositary or the Custodian such proof of citizenship
or residence, exchange control approval, proof of the nature of such personβs interest, proof of
compliance with all applicable laws and regulations and with the provisions of or governing the
Deposited Securities and the terms of the Deposit Agreement or such information relating to the
registration on the books of the Company or the Foreign Registrar, if applicable, to execute such
certificates and to make such representations and warranties, as the Company or the Depositary may
deem necessary or proper or as the Company may reasonably require by written request to the
Depositary or any Custodian. The Depositary may withhold the delivery or registration of transfer
of any Receipt or the distribution of any dividend or sale or distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or other information
is filed or such certificates are executed or such representations and warranties made. Each Owner
and Beneficial Owner agrees to provide any information requested by the Company or the Depositary
pursuant to SectionΒ 3.1 of the Deposit Agreement. No Share shall be accepted for deposit unless
accompanied by evidence satisfactory to the Depositary that any necessary approval has been granted
by any governmental body in
England and Wales which is then performing the function of the regulation of currency
exchange.
- 4 -
Β
7.Β Β Β Β Β | Β | CHARGES OF DEPOSITARY. |
Β Β Β Β Β Β Β Β Β Β Β Β The Company agrees to pay the fees, reasonable expenses and out-of-pocket charges of the
Depositary and those of any Registrar only in accordance with agreements in writing entered into
between the Depositary and the Company from time to time. Any written agreement signed by the
Company and the Depositary relating to the Depositaryβs fees and expenses under the Deposit
Agreement shall be binding on the Company and the Depositary until it is expressly amended or
superseded by a subsequent written agreement, irrespective of whether such agreement was entered
into prior to, simultaneously with or subsequent to the Deposit Agreement, and notwithstanding any
provision of the Deposit Agreement that might be construed to be inconsistent with such agreement.
The Depositary shall present its statement for such charges and expenses to the Company once every
three months. The charges and expenses of the Custodian are for the sole account of the
Depositary.
Β Β Β Β Β Β Β Β Β Β Β Β The following charges shall be incurred by any party depositing or withdrawing Shares or by
any party surrendering Receipts or to whom Receipts are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or an exchange of
stock regarding the Receipts or Deposited Securities or a distribution of Receipts pursuant to
SectionΒ 4.3 of the Deposit Agreement), whichever applicable: (1)Β taxes and other governmental
charges, (2)Β 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 Foreign Registrar and
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, (3)Β such cable, telex and facsimile
transmission expenses as are expressly provided in the Deposit Agreement, (4)Β such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to SectionΒ 4.5 of the
Deposit Agreement, (5)Β a fee of $5.00 or less per 100 American Depositary Shares (or portion
thereof) for the execution and delivery of Receipts pursuant to SectionΒ 2.3, 4.3 or 4.4, and the
surrender of Receipts pursuant to SectionΒ 2.5 or 6.2 of the Deposit Agreement, (6)Β a fee of $.02 or
less per American Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement including, but not limited to SectionsΒ 4.1 through 4.4 thereof, except for
distributions of cash dividends, and (7)Β a fee for the distribution of securities pursuant to
SectionΒ 4.2 of the Deposit Agreement, such fee being in an amount equal to the fee for the
execution and delivery of American Depositary Shares referred to above which would have been
charged as a result of the deposit of such securities (for purposes of this clause (7)Β treating all
such securities as if they were Shares), but which securities are instead distributed by the
Depositary to Owners.
Β Β Β Β Β Β Β Β Β Β Β Β The Depositary, subject to Article (8)Β hereof, may own and deal in any class of securities of
the Company and its affiliates and in Receipts.
- 5 -
Β
8.Β Β Β Β Β | Β | PRE-RELEASE OF RECEIPTS. |
Β Β Β Β Β Β Β Β Β Β Β Β The Depositary may issue Receipts against the delivery by the Company (or any agent of the
Company recording Share ownership) of rights to receive Shares from the Company (or any such
agent). No such issue of Receipts will be deemed a βPre-Releaseβ. Unless requested in writing by
the Company to cease doing so, the Depositary may, notwithstanding SectionΒ 2.3 of the Deposit
Agreement, execute and deliver Receipts prior to the receipt of Shares pursuant to SectionΒ 2.2 of
the Deposit Agreement (βPre-Releaseβ). The Depositary may, pursuant to SectionΒ 2.5 of the Deposit
Agreement, deliver Shares upon the receipt and cancellation of Receipts which have been
Pre-Released, whether or not such cancellation is prior to the termination of such Pre-Release or
the Depositary knows that such Receipt has been Pre-Released. The Depositary may receive Receipts
in lieu of Shares in satisfactory of a Pre-Release. Each Pre-Release will be (a)Β preceded or
accompanied by a written representation and agreement from the person to whom Receipts are to be
delivered (the βPre-Releaseeβ) that the Pre-Releasee, or its customer, (i)Β owns the shares or
Receipts to be remitted, as the case may be, (ii)Β assigns all beneficial rights, title and interest
in such Shares or Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii)Β will not take any action with respect to such Shares or
Receipts, as the case may be, that is inconsistent with the transfer of beneficial ownership
(including, without the consent of the Depositary, disposing of such Shares or Receipts, as the
case may be), other than in satisfaction of such Pre-Release, (b)Β at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary determines, in
good faith, will provide substantially similar liquidity and security, (c)Β terminable by the
Depositary on not more than five (5)Β business days notice, and (d)Β subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The number of Shares not
deposited but represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares deposited under the
Deposit Agreement; provided, however, that the Depositary reserves the right to disregard such
limit from time to time as it deems reasonably appropriate, and may, with the prior written consent
of the Company, change such limit for purposes of general application. The Depositary will also
set Dollar limits with respect to Pre-Release transactions to be entered into under the Deposit
Agreement with any particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations to the Owners
under the Deposit Agreement, the collateral referred to in clause (b)Β above shall be held by the
Depositary as security for the performance of the Pre-Releaseeβs obligations to the Depositary in
connection with a Pre-Release transaction, including the Pre-Releaseeβs obligation to deliver
Shares or Receipts upon termination of a Pre-Release transaction (and shall not, for the avoidance
of doubt, constitute Deposited Securities hereunder).
Β Β Β Β Β Β Β Β Β Β Β Β The Depositary may retain for its own account any compensation received by it in connection
with the foregoing.
- 6 -
Β
9.Β Β Β Β Β | Β | TITLE TO RECEIPTS. |
Β Β Β Β Β Β Β Β Β Β Β Β It is a condition of this Receipt and every successive Beneficial Owner and Owner of this
Receipt by accepting or holding the same consents and agrees, that title to this Receipt when
properly endorsed or accompanied by proper instruments of transfer, is transferable in accordance
with the terms and conditions of the Deposit Agreement 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 person in whose name this
Receipt is registered on the books of the Depositary as the absolute owner hereof for the purpose
of determining the person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement or for all other purposes and neither the Depositary
nor the Company shall have any obligation or be subject to any liability under the Deposit
Agreement to any Beneficial Owner of a Receipt unless such Beneficial Owner is the Owner thereof.
10.Β Β Β Β Β | VALIDITY OF RECEIPT. |
Β Β Β Β Β Β Β Β Β Β Β Β This Receipt shall not be entitled to any benefits under the Deposit Agreement or be valid or
obligatory for any purpose, unless this Receipt shall have been executed by the Depositary by the
manual or facsimile signature of a duly authorized signatory of the Depositary and, if a Registrar
for the Receipts shall have been appointed, countersigned by the manual or facsimile signature of a
duly authorized officer of the Registrar.
11.Β Β Β Β Β | REPORTS; INSPECTION OF TRANSFER BOOKS. |
Β Β Β Β Β Β Β Β Β Β Β Β The Company is subject to the periodic reporting requirements of the Securities Exchange Act
of 1934 and, accordingly, files certain reports with the Securities and Exchange Commission
(hereinafter called the βCommissionβ).
Β Β Β Β Β Β Β Β Β Β Β Β Such reports and communications will be available for inspection and copying by Beneficial
Owners and Owners at the public reference facilities maintained by the Commission located at 000
Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
Β Β Β Β Β Β Β Β Β Β Β Β The Depositary will make available for inspection by Owners of Receipts at its Corporate Trust
Office any reports and communications, including any proxy soliciting material, received from the
Company which are both (a)Β received by the Depositary as the holder of the Deposited Securities and
(b)Β made generally available to the holders of such Deposited Securities by the Company. The
Depositary will also, upon written request, send to Owners of Receipts copies of such reports when
furnished by the Company pursuant to the Deposit Agreement.
Β Β Β Β Β Β Β Β Β Β Β Β The Depositary will keep books for the registration of Receipts and transfers of Receipts
which at all reasonable times shall be open for inspection by the Owners of
- 7 -
Β
Receipts provided that
such inspection shall not be for the purpose of communicating with Owners of Receipts in the
interest of a business or object other than the business of the Company or a matter related to the
Deposit Agreement or the Receipts.
12.Β Β Β Β Β | DIVIDENDS AND DISTRIBUTIONS. |
Β Β Β Β Β Β Β Β Β Β Β Β Whenever the Depositary receives any cash dividend or other cash distribution on any Deposited
Securities, the Depositary will, if at the time of receipt thereof any amounts received in a
foreign currency can in the judgment of the Depositary be converted on a reasonable basis into
United States dollars transferable to the United States, and subject to the Deposit Agreement,
convert such dividend or distribution into dollars and, if applicable, will distribute the amount
thus received (net of the fees of the Depositary as provided in SectionΒ 5.9 of the Deposit
Agreement) to the Owners of Receipts entitled thereto, provided, however, that in the event that
the Company or the Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on account of taxes or
other governmental charges, the amount distributed to the Owners of the Receipts evidencing
American Depositary Shares representing such Deposited Securities shall be reduced accordingly.
Β Β Β Β Β Β Β Β Β Β Β Β Subject to the provisions of SectionsΒ 4.11 and 5.9 of the Deposit Agreement, whenever the
Depositary receives any distribution other than a distribution described in SectionsΒ 4.1, 4.3 or
4.4 of the Deposit Agreement, the Depositary will cause the securities or property received by it
to be distributed to the Owners of Receipts entitled thereto, in any manner that the Depositary may
deem equitable and practicable for accomplishing such distribution; provided, however, that if in
the reasonable opinion of the Depositary such distribution cannot be made proportionately among the
Owners of Receipts entitled thereto, or if for any other reason (including, but not limited to, any
requirement that the Company or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the Securities Act of 1933 in
order to be distributed to Owners or Beneficial Owners) the Depositary deems such distribution not
to be feasible, the Depositary may, after notice to the Company, adopt such method as it may deem
equitable and practicable for the purpose of effecting such distribution, including, but not
limited to, the public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees of the Depositary as provided in
SectionΒ 5.9 of the Deposit Agreement) shall be distributed by the Depositary to the Owners of
Receipts entitled thereto as in the case of a distribution received in cash pursuant to SectionΒ 4.1
of the Deposit Agreement.
Β Β Β Β Β Β Β Β Β Β Β Β If any distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may, and shall if the Company shall so request,
distribute to the Owners of outstanding Receipts entitled thereto, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the amount
- 8 -
Β
of Shares received as such dividend or free distribution subject to the terms and conditions of the Deposit
Agreement with respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other governmental charge as
provided in SectionΒ 4.11 of the Deposit Agreement and the payment of the fees of the Depositary as
provided in SectionΒ 5.9 of the Deposit Agreement. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary will sell the amount of Shares
represented by the aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions set forth in the Deposit Agreement. If additional Receipts are not
so distributed, each American Depositary Share shall thenceforth also represent the additional
Shares distributed upon the Deposited Securities represented thereby.
Β Β Β Β Β Β Β Β Β Β Β Β In the event that the Depositary determines that any distribution in property (including
Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which
the Depositary is obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and rights to subscribe therefor) in such
amounts and in such manner as the Depositary deems necessary and practicable to pay any such taxes
or charges, and the Depositary shall distribute the net proceeds of any such sale after deduction
of such taxes or charges to the Owners of Receipts entitled thereto.
13.Β Β Β Β Β | CONVERSION OF FOREIGN CURRENCY. |
Β Β Β Β Β Β Β Β Β Β Β Β 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 if
at the time of the receipt thereof the foreign currency so received can in the judgment of the
Depositary be converted on a reasonable basis into Dollars and the resulting Dollars transferred to
the United States, the Depositary shall convert or cause to be converted, by sale or in any other
manner that it may determine, such foreign currency into Dollars, and such Dollars shall be
distributed to the Owners entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for cancellation in whole or in
part depending on the terms of such warrants or other instruments. Such distribution may be made
upon an averaged or other practicable basis without regard to any distinctions among Owners on
account of exchange restrictions, the date of delivery of any Receipt or otherwise and shall be net
of any expenses of conversion into Dollars incurred by the Depositary as provided in SectionΒ 5.9 of
the Deposit Agreement.
Β Β Β Β Β Β Β Β Β Β Β Β If such conversion or distribution can be effected only with the approval or license of any
government or agency thereof, the Depositary shall file such application for
approval or license, if any, as it may deem desirable; provided, however, that the Company
shall not be obligated to make any such filings.
- 9 -
Β
Β Β Β Β Β Β Β Β Β Β Β Β If at any time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary or the Custodian is not convertible on a reasonable basis into Dollars
transferable to the United States, or if any approval or license of any government or agency
thereof which is required for such conversion is denied or in the reasonable opinion of the
Depositary is not obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary, after consultation with the
Company, may distribute the foreign currency (or an appropriate document evidencing the right to
receive such foreign currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the respective accounts
of, the Owners entitled to receive the same.
Β Β Β Β Β Β Β Β Β Β Β Β If any such conversion of foreign currency, in whole or in part, cannot be effected for
distribution to some of the Owners entitled thereto, the Depositary may in its discretion make such
conversion and distribution in Dollars to the extent permissible to the Owners entitled thereto and
may distribute the balance of the foreign currency received by the Depositary to, or hold such
balance uninvested and without liability for interest thereon for the respective accounts of, the
Owners entitled thereto.
14.Β Β Β Β Β | RIGHTS. |
Β Β Β Β Β Β Β Β Β Β Β Β In the event that the Company shall offer or cause to be offered to the holders of any
Deposited Securities any rights to subscribe for additional Shares or any rights of any other
nature, the Depositary, after consultation with the Company, shall have discretion as to the
procedure to be followed in making such rights available to any Owners or in disposing of such
rights on behalf of any Owners and making the net proceeds available in Dollars to such Owners or,
if by the terms of such rights offering or, for any other reason, the Depositary may not either
make such rights available to any Owners or dispose of such rights and make the net proceeds
available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of
the offering of any rights the Depositary determines in its discretion, after consultation with the
Company, that it is lawful and feasible to make such rights available to all Owners or to certain
Owners but not to other Owners, the Depositary may distribute, to any Owner to whom it determines
the distribution to be lawful and feasible, in proportion to the number of American Depositary
Shares held by such Owner, warrants or other instruments therefor in such form as it, after
consultation with the Company, deems appropriate. The Depositary shall not be responsible for any
failure to determine that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
Β Β Β Β Β Β Β Β Β Β Β Β In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts
requests the distribution of warrants or other instruments in order to exercise the rights
allocable to the American Depositary Shares of such Owner hereunder, the Depositary will make such
rights available to such Owner upon written notice from the Company to the Depositary that (a)Β the
Company has elected in its sole discretion to
- 10 -
Β
permit such rights to be exercised and (b)Β such Owner
has executed such documents as the Company has determined in its sole discretion are reasonably
required under applicable law.
Β Β Β Β Β Β Β Β Β Β Β Β If the Depositary has distributed warrants or other instruments for rights to all or certain
Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to
the Depositary from such Owner to exercise such rights, upon payment by such Owner to the
Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees of the Depositary and any
other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf
of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares
so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to SectionΒ 2.2 of the
Deposit Agreement, and shall, pursuant to SectionΒ 2.3 of the Deposit Agreement, execute and deliver
Receipts to such Owner. In the case of a distribution pursuant to the second paragraph of this
Article, such Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under such
laws.
Β Β Β Β Β Β Β Β Β Β Β Β If the Depositary determines in its discretion, after consultation with the Company, that it
is not lawful and feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American Depositary Shares
held by the Owners to whom it has determined it may not lawfully or feasibly make such rights
available, and allocate the net proceeds of such sales (net of the fees of the Depositary as
provided in SectionΒ 5.9 of the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of this Deposit Agreement) for
the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon
an averaged or other practical basis without regard to any distinctions among such Owners because
of exchange restrictions or the date of delivery of any Receipt or otherwise.
Β Β Β Β Β Β Β Β Β Β Β Β The Depositary will not offer rights to Owners unless both the rights and the securities to
which such rights relate are either exempt from registration under the Securities Act of 1933 with
respect to a distribution to Owners or are registered under the provisions of such Act. Nothing in
the Deposit Agreement shall create, or be construed to create, any obligation on the part of the
Company to file a registration statement with respect to such rights or underlying securities or to
endeavor to have a registration
statement declared effective. If an Owner of Receipts requests distribution of warrants or
other instruments, notwithstanding that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Company upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration.
- 11 -
Β
Β Β Β Β Β Β Β Β Β Β Β Β The Depositary shall not be responsible for any failure to determine that it may be lawful or
feasible to make such rights available to Owners in general or any Owner in particular.
15.Β Β Β Β Β | RECORD DATES. |
Β Β Β Β Β Β Β Β Β Β Β Β Whenever any cash dividend or other cash distribution shall become payable or any distribution
other than cash shall be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever for any reason the Depositary causes a change in the number of Shares that
are represented by each American Depositary Share, or whenever the Depositary shall receive notice
of any meeting of holders of Shares or other Deposited Securities, the Depositary shall fix a
record date, which shall be as close as practicable to the date corresponding to the record date
fixed by the Company in respect of the Shares or other Deposited Securities, (a)Β for the
determination of the Owners of Receipts who shall be (i)Β entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii)Β entitled to give
instructions for the exercise of voting rights at any such meeting, or (b)Β on or after which each
American Depositary Share will represent the changed number of Shares, subject to the provisions of
the Deposit Agreement.
16.Β Β Β Β Β | VOTING OF DEPOSITED SECURITIES. |
Β Β Β Β Β Β Β Β Β Β Β Β Subject to and in accordance with the Articles of Association of the Company, the Depositary
hereby irrevocably appoints (or, if the Deposited Securities are registered in the name of or held
by its nominee, shall procure that its nominee shall irrevocably appoint) each Owner for the time
being on the record date (the βVoting Record Dateβ) fixed by the Depositary in accordance with
SectionΒ 4.06 of the Deposit Agreement in respect of any meeting (including any adjourned meeting)
at which holders of Deposited Securities are entitled to vote as its proxy to attend, vote and
speak at the relevant meeting (or any adjournment thereof) as provided in the Articles of
Association of the Company in respect of the Deposited Securities represented by the American
Depositary Shares evidenced by the Receipts held by such Owner on the Voting Record Date, and by
reason of that appointment in respect of any such meeting each such Owner shall be constituted the
agent of the Depositary to appoint (in relation to those Deposited Securities) in the name of the
Depositary either a person nominated by the Depositary or any other person as proxy to attend, vote
and speak as the Owner may instruct, subject to and in accordance with the provisions of Section
4.7 of the Deposit Agreement and the
Articles of Association of the Company (and if the Deposited Securities are registered in the
name of or held by the nominee of the Depositary, the Depositary shall procure that the nominee
duly constitutes each such Owner as its agent for that purpose). As soon as practicable after
receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote,
or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary
shall, in accordance with SectionΒ 4.06 of the Deposit Agreement, fix the Voting Record Date in
respect of such meeting or solicitation.
- 12 -
Β
The Depositary or, if the Company so determines, the
Company shall mail to Owners of record on such Voting Record Date: (a)Β such information as is
contained in such notice of meeting or in the solicitation materials, (b)Β a Receipt proxy card in a
form prepared by the Depositary, after consultation with the Company, (c)Β a statement that each
Owner of Record at the close of business on the Voting Record Date will be entitled, subject to any
applicable law, the Companyβs Articles of Association and the provisions of or governing the
Deposited Securities, either (i)Β to use such Receipt proxy card at that meeting as written evidence
of the appointment of that Owner in accordance with this Section in order to attend, vote and speak
at such meeting solely with respect to the Shares or other Deposited Securities represented by
American Depositary Shares evidenced by such Ownerβs Receipts or (ii)Β as the agent of the
Depositary (or its nominee) to appoint any other person as proxy solely with respect to the Shares
or other Deposited Securities represented by American Depositary Shares evidenced by such Ownerβs
Receipts and (if the Owner wishes) to instruct such person as to the exercise of the voting rights
pertaining to them, and (d)Β if the person nominated by the Depositary is to be appointed in that
manner as proxy, a brief statement as to the manner in which the Owner may give voting instructions
to the person nominated by the Depositary. Upon the written request of an Owner of record on the
Voting Record Date received on or before the date established by the Depositary for such purpose
(the βInstruction Dateβ), the Depositary shall endeavor, insofar as practicable and permitted under
applicable law, the provisions of the Companyβs Articles of Association and the provisions of the
Deposited Securities, to cause to be voted the Deposited Securities in accordance with the
instructions set forth in such request.
Β Β Β Β Β Β Β Β Β Β Β Β Neither the Depositary nor the Custodian nor the nominee of either of them shall exercise any
discretion as to voting and neither the Depositary nor the Custodian nor the nominee of either of
them shall vote or attempt to exercise the right to vote the Shares or other Deposited Securities
represented by American Depositary Shares except pursuant to and in accordance with such written
instructions from Owners given in accordance with SectionΒ 4.07 of the Deposit Agreement. Shares or
other Deposited Securities represented by American Depositary Shares for which no specific voting
instructions are received by the Depositary from the Owner shall not be voted by the Depositary or
its nominee but may be directly voted by Owners in attendance at meetings of shareholders, subject
to, and in accordance with, the provisions of SectionΒ 4.7 of the Deposit Agreement and the
Companyβs Articles of Association.
Β Β Β Β Β Β Β Β Β Β Β Β For the avoidance of doubt, the appointment pursuant to SectionΒ 4.7 of the Deposit Agreement
of a proxy by an Owner acting as agent of the Depositary (or its nominee) shall constitute the
appointed person as a proxy for the purposes of section 372 of the UK Companies Xxx 0000 and of the
Articles of Association of the Company; whereas the appointment pursuant to SectionΒ 4.7 of the
Deposit Agreement of an Owner as a proxy by the Depositary (or its nominee) shall not constitute
that Owner as such a proxy but shall instead confer on that Owner the special rights and privileges
accorded
- 13 -
Β
under the Companyβs Articles of Association to ADR Proxies (as defined in those Articles
of Association).
Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding anything in SectionΒ 4.7 or in SectionΒ 6.1 of the Deposit Agreement to the
contrary, the Depositary and the Company may modify, amend or adopt additional voting procedures at
any time or from time to time as they determine may be necessary or appropriate.
Β Β Β Β Β Β Β Β Β Β Β Β There can be no assurance that Owners generally or any Owner in particular will receive the
notice described in SectionΒ 4.7 of the Deposit Agreement sufficiently prior to the Instruction Date
to ensure that the Depositary will vote the Shares or Deposited Securities in accordance with the
provisions set forth in SectionΒ 4.7 of the Deposit Agreement.
17.Β Β Β Β Β | CHANGES AFFECTING DEPOSITED SECURITIES. |
Β Β Β Β Β Β Β Β Β Β Β Β In circumstances where the provisions of SectionΒ 4.3 of the Deposit Agreement do not apply,
upon any change in nominal value, change in par value, split-up, consolidation, or any other
reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation, or sale of assets affecting the Company or to which it is a party, any securities
which shall be received by the Depositary or a Custodian in exchange for or in conversion of or in
respect of Deposited Securities shall be treated as new Deposited Securities under the Deposit
Agreement, and American Depositary Shares shall thenceforth represent, in addition to the existing
Deposited Securities, the new Deposited Securities so received in exchange or conversion, unless
additional Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, and shall if the Company shall so request, execute and deliver additional Receipts
as in the case of a dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited Securities.
18.Β Β Β Β Β | LIABILITY OF THE COMPANY AND DEPOSITARY. |
Β Β Β Β Β Β Β Β Β Β Β Β Neither the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or Beneficial Owner of any Receipt, if
by reason of any provision of any present or future law of the United States or any other country,
or of any other governmental or regulatory authority, or by reason of any provision, present or
future, of the Memorandum and Articles of
Association of the Company, or by reason of any act of God or war or other circumstances
beyond its control, the Depositary or the Company or any of their respective directors, employees,
agents or affiliates shall be prevented or forbidden from or be subject to any civil or criminal
penalty on account of doing or performing any act or thing which by the terms of the Deposit
Agreement it is provided shall be done or performed; nor shall the Depositary, the Company or any
of their respective directors,
- 14 -
Β
employees, agents or affiliates incur any liability to any Owner or
Beneficial Owner of a Receipt by reason of any non- performance or delay, caused as aforesaid, in
the performance of any act or thing which by the terms of the Deposit Agreement it is provided
shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement. Where, by the terms of a distribution pursuant
to SectionsΒ 4.1, 4.2, or 4.3 of the Deposit Agreement, or an offering or distribution pursuant to
SectionΒ 4.4 of the Deposit Agreement, such distribution or offering may not be made available to
Owners of Receipts, and the Depositary may not dispose of such distribution or offering on behalf
of such Owners and make the net proceeds available to such Owners, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable, to lapse. Neither
the Company nor the Depositary, nor any of their respective directors, employees, agents or
affiliates assume any obligation nor shall any of them be subject to any liability under the
Deposit Agreement to Owners or Beneficial Owners of Receipts, except that they agree to perform
their obligations specifically set forth in the Deposit Agreement without negligence or bad faith.
The Depositary shall not be subject to any liability with respect to the validity or worth of the
Deposited Securities. Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates 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 their respective reasonable opinions may involve them in expense or
liability, unless indemnity satisfactory to it against all expense and liability shall be furnished
as often as may be required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company nor any of their respective directors, employees, agents or
affiliates shall be liable for any action or nonaction by any of them in reliance upon the advice
of or information from legal counsel, accountants, any person presenting Shares for deposit, any
Owner or Beneficial Owner of a Receipt, or any other person believed by any of them in good faith
to be competent to give such advice or information. Each of the Depositary, the Company and their
respective directors, employees, agents and affiliates may rely and shall be protected in acting
upon any written notice, request or direction or other document believed by such person to be
genuine and to have been signed or presented by the proper party or parties. The Depositary 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 a 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 negligence or bad
faith while it acted as Depositary. The Depositary shall not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such action or nonaction is
in good faith. The Company agrees to indemnify the Depositary, its directors, employees, agents
and affiliates and any Custodian against, and hold each of
- 15 -
Β
them harmless from, any liability or
expense (including, but not limited to, the reasonable fees and expenses of counsel) which may
arise out of acts performed or omitted, in accordance with the provisions of the Deposit Agreement
and of the Receipts, as the same may be amended, modified, or supplemented from time to time, (i)
by either the Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or bad faith of
either of them, or (ii)Β by the Company or any of its directors, employees, agents and affiliates.
No disclaimer of liability under the Securities Act of 1933 is intended by any provision of the
Deposit Agreement.
19.Β Β Β Β Β | RESIGNATION AND REMOVAL OF THE DEPOSITARY. |
Β Β Β Β Β Β Β Β Β Β Β Β The Depositary may at any time resign as Depositary hereunder by written notice of its
election so to do delivered to the Company, such resignation to take effect upon the appointment of
a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement.
The Depositary may at any time be removed by the Company by written notice of such removal,
effective upon the appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. Whenever the Depositary in its discretion determines that it is
in the best interest of the Owners of Receipts to do so, it may appoint a substitute or additional
custodian or custodians.
20.Β Β Β Β Β | AMENDMENT. |
Β Β Β Β Β Β Β Β Β Β Β Β The form of the Receipts and any provisions of the Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the Depositary without the consent of
Owners or Beneficial Owners of Receipts in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees, cable, telex or facsimile transmission costs, delivery
costs or other such expenses), or which shall otherwise prejudice any substantial existing right of
Owners (other than the modification of voting procedures as provided in paragraph 16 hereof) of
Receipts, shall, however, not become effective as to outstanding Receipts until the expiration of
thirty days after notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner of a Receipt at the time any amendment so becomes effective shall be deemed,
by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair the right of the
Owner of any Receipt to surrender such Receipt and
receive therefor the Deposited Securities represented thereby except in order to comply with
mandatory provisions of applicable law.
- 16 -
Β
21.Β Β Β Β Β | TERMINATION OF DEPOSIT AGREEMENT. |
Β Β Β Β Β Β Β Β Β Β Β Β The Depositary shall at any time at the direction of the Company terminate the Deposit
Agreement by mailing notice of such termination to the Owners of all Receipts then outstanding at
least 30Β days prior to the date fixed in such notice for such termination. The Depositary may
likewise terminate the Deposit Agreement by mailing notice of such termination to the Company and
the Owners of all Receipts then outstanding if at any time 30Β days shall have expired after the
Depositary shall have delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment as provided in the
Deposit Agreement. On and after the date of termination, the Owner of a Receipt, will upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)Β payment of the fee
of the Depositary for the surrender of Receipts referred to in SectionΒ 2.5 of the Deposit
Agreement, and (c)Β payment of any applicable taxes or governmental charges, will be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt. If any Receipts shall remain outstanding
after the date of termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners thereof, and shall
not give any further notices or perform any further acts under the Deposit Agreement, except that
the Depositary shall continue to collect dividends and other distributions pertaining to Deposited
Securities, shall sell rights as provided in the Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions received with respect
thereto and the net proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable taxes or governmental
charges). At any time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held under the Deposit Agreement and may
thereafter hold uninvested the net proceeds of any such sale, together with any other cash then
held by it thereunder, unsegregated and without liability for interest, for the pro rata benefit of
the Owners of Receipts which have not theretofore been surrendered, such Owners thereupon becoming
general creditors of the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement, except to account
for such net proceeds and other cash (after deducting, in each case, the fee of the Depositary for
the surrender of a Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable taxes or governmental
charges). Upon the termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the
Deposit Agreement except for its obligations to the Depositary with respect to
indemnification, charges, and expenses.
- 17 -
Β
22.Β Β Β Β Β | DISCLOSURE OF INTERESTS. |
Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding any other provision of the Deposit Agreement, the Memorandum and Articles of
Association of the Company or applicable English law, each Owner and Beneficial Owner agrees to be
bound by and subject to applicable provisions of the U.K. Companies Act, 1985 and the Memorandum
and Articles of Association of the Company, summarized below, to the same extent as if such Owner
and Beneficial Owner held Shares directly. The Company has informed the Depositary that the
following information is accurate as the Depositary has made no independent investigation regarding
such information.
Β Β Β Β Β Β Β Β Β Β Β Β (a)Β A holder of Shares in the Company may lose the right to vote its Shares if it or any other
person appearing to be interested in shares held by it fails to comply within a prescribed period
of time with a request by the Company under the U.K. Companies Act, 1985 to give certain
information with respect to past or present ownership or interests in such Shares. In the case of
holders of more than 0.25% in nominal amount of the share capital of the Company (or any class
thereof), in addition of disenfranchisement, the sanctions that may be applied by the Company
include withholding of the right to receive payment of dividends and other monies payable on, and
restrictions on transfers of the relevant Shares.
Β Β Β Β Β Β Β Β Β Β Β Β (b)Β SectionΒ 198 of the U.K. Companies Act, 1985 provides that a person (including a company
and other legal entities) that acquires an interest of 3Β percent or more of any class of shares
(including through American Depositary Receipts) comprised in an English public companyβs βrelevant
share capitalβ (i.e., the Companyβs issued share capital carrying the right to vote in all
circumstances at a general meeting of the Company) is required to notify the company of its
interest within two business days following the day on which the obligation arises. After the 3
percent level is exceeded, similar notifications must be made in respect of increases or decreases
through a whole percentage point.
Β Β Β Β Β Β Β Β Β Β Β Β For purposes of such notification obligation, the interest of a person in shares means any
kind of interest in shares including interests in any shares (a)Β in which a spouse, or child or
stepchild under the age of 18, is interested, (b)Β in which a corporate body is interested and
either (i)Β that corporate body or its directors generally act in accordance with that personβs
directions or instructions or (ii)Β that person controls one-third or more of the voting power of
that corporate body or (c)Β in which another party is interested and the person and that other party
are parties to a βconcert partyβ agreement under SectionΒ 204 of the U.K. Companies Act, 1985. A
concert party agreement is one which provides for one or more parties to acquire interests in
shares of a particular company and imposes obligations or restrictions on any one of the parties as
to the use, retention or disposal of
such interests acquired pursuant to such agreement and any interest in the companyβs shares is
in fact acquired by any of the parties pursuant to the agreement. Certain interests (e.g., those
held by certain investment fund managers) may
- 18 -
Β
be disregarded for the purposes of calculating the 3
percent threshold, but the obligations of disclosure will still apply where such interests exceed
10Β percent or more of any class of the companyβs relevant share capital and to increases or
decreases through a whole percentage point thereafter.
Β Β Β Β Β Β Β Β Β Β Β Β In addition, SectionΒ 212 of the U.K. Companies Act, 1985 provides that a public company may by
written notice require a person whom the company knows or has reasonable cause to believe to be, or
to have been at any time during the three years immediately preceding the date on which the notice
is issued, interested in shares consisting of the companyβs βrelevant share capitalβ to confirm
that fact or to indicate whether or not that is the case, and where such person holds or during the
relevant time had held an interest in such shares, to give such further information as may be
required relating to such interest and any other interest in the shares of which such person is
aware.
Β Β Β Β Β Β Β Β Β Β Β Β Where notice is served by a company under the foregoing provisions on a person who is or was
interested in shares of the company and that person fails to give the company any information
required by the notice within the time specified in the notice, the company may apply to the
English court for an order directing that the shares in question be subject to restrictions
prohibiting, among other things, any transfer of those shares, the taking up of rights in respect
of such shares and, other than on liquidation, payments in respect of such shares.
Β Β Β Β Β Β Β Β Β Β Β Β A person who fails to fulfill the obligations imposed by SectionsΒ 198 and 212 of the Companies
Act described above is subject to criminal penalties.
Β Β Β Β Β Β Β Β Β Β Β Β (c)Β The Depositary agrees to use reasonable efforts to forward to any Owners at the request of
the Company and at the Companyβs expense, any request by the Company for information and to comply
with any instructions of the Company, to the extent reasonably practicable, given to effectuate the
foregoing restrictions. If the Company requests information from the Depositary or the Custodian,
as the registered owners of Shares, pursuant to the Memorandum and Articles of Association of the
Company or the U.K. Companies Act, 1985, the obligations of the Depositary or the Custodian, as the
case may be, shall be limited to disclosing to the Company such information relating to the Shares
in question as has in each case been recorded by it pursuant to the terms of the Deposit Agreement.
23.Β Β Β Β Β | COMPLIANCE WITH U.S. SECURITIES LAWS. |
Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding anything in the Deposit Agreement or this Receipt to the contrary, the Company
and the Depositary each agrees that it will not exercise any rights it has under the Deposit
Agreement to prevent the withdrawal or delivery of Deposited
Securities in a manner which would violate the U.S. securities laws, including, but not
- 19 -
Β
limited to, SectionΒ I.A.(1) of the General Instructions to the Form F-6 Registration Statement, as
amended from time to time, under the Securities Act of 1933.
24.Β Β Β Β Β | DIRECT REGISTRATION SYSTEM. |
Β Β Β Β Β Β Β Β Β Β Β Β (a)Β ADSs may be maintained by the Depositary in book-entry form known as the βDirect
Registration Systemβ (βDRSβ). Upon issuance of ADSs, the ADSs of each Owner will be credited to
the DRS account of each such Owner and in each such Ownerβs name. Each Owner will be given the
option of (i)Β receiving a certificate representing its ADSs, (ii)Β transfering such ADSs to a broker
designated by each and every person or entity in whose name such ADSs are registered on the books
of the Depositary or (iii)Β maintaining their ADSs in DRS.
Β Β Β Β Β Β Β Β Β Β Β Β (b)Β The Company understands that Profile is a required feature of DRS. Profile allows a
participant of The Depository Trust Company (βDTCβ) claiming to act on behalf of the Owner of ADSs,
to direct the Depositary to transfer to such DTC participant the ADSs designated by such DTC
participant without receipt by the Depositary of such prior written authorization from the Owner to
transfer such ADSs.
Β Β Β Β Β Β Β Β Β Β Β Β (c)Β The Company understands the Depositary will not verify, determine or otherwise ascertain that
the DTC participant which is claiming to be acting on behalf of an Owner is, in fact, authorized to
act on behalf of such Owner. The Company and each Owner agree that the Depositary shall have no
liability for relying upon and complying with directions from a DTC participant as set forth above;
and the Company shall indemnify and hold harmless the Depositary from and against any liability,
expense, damage, loss and judgment arising from or related to the foregoing (including reasonable
attorneys fees and expenses and expenses arising from or connected with the enforcement of this
provision). For the avoidance of doubt, (i)Β the Depositary shall be fully protected by the
foregoing limitation of liability and indemnification with respect to reliance upon and compliance
with instructions from the DTC participant even if the Depositaryβs reliance on, and compliance
with, such instructions is determined by a final, non-appealable order or judgment of a court of
competent jurisdiction to constitute negligence, willful misconduct, breach of any duty owed by the
Depositary to such Owner or violation of any law and (ii)Β the forgoing shall not apply to the
manner in which the Depositary carries out actual transfer of the ADSs which are the subject of the
DTC participantβs instruction, which transfer shall continue to be governed by the other applicable
terms of this Deposit Agreement. By way of example and not by way of limitation, if a court
determines that the transfer of ADSs pursuant to a DTC participantβs instruction without obtaining
prior authorization from the Owner constitutes negligence, the Depositary will nevertheless be
protected under this subparagraph (c); on the other hand, in carrying out such instructions, if the
Depositary transfers ADSs from the wrong account or to the wrong DTC participant, the obligation to
indemnify the Depositary shall be determined in accordance
with SectionsΒ 5.3 and 5.8 of the Deposit Agreement.
- 20 -