AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of June , 2007 (the "Amendment") to the Deposit Agreement dated as of June
9,
2006 (the "Deposit Agreement"), among United Utilities plc (the "Company"),
incorporated under the laws of England, JPMorgan Chase Bank, N.A., as depositary
(the "Depositary"), and all Holders and beneficial owners from time to time
of
American Depositary Receipts ("Receipts") issued thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to Section 6.1 of the Deposit Agreement, the Company and the Depositary
desire to amend the terms of the Deposit Agreement and Receipts.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
2
ARTICLE
II
AMENDMENTS
TO FORM OF RECEIPT
SECTION
2.01. All
references in the Deposit Agreement and form of Receipt to the term "Deposit
Agreement" shall, as of the Effective Date (as herein defined), refer to the
Deposit Agreement, as amended by this Amendment.
SECTION
2.02. The
initial two paragraphs paragraph (11) of the Form of Receipt
are amended to read as follows:
The
Company publishes on its web site (xxx.xxxxxxxxxxxxxxx.xxx)
on an
ongoing basis, or otherwise furnishes the United States Securities and Exchange
Commission (the "Commission") with, certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934, as amended. To the extent furnished to the Commission,
such reports and documents may be inspected and copied at the public reference
facilities maintained by the Commission located at the date of the Deposit
Agreement at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
SECTION
2.03. The
form
of Receipt, as amended hereby, and revised to include any further
changes necessitated by the above amendments, shall be in the form set forth
as
Exhibit A hereto.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties.
The
Company represents and warrants
to, and agrees with, the Depositary and the Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and all other documentation executed and delivered by the Company in connection
therewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
and
3
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in England, neither of such
agreements need to be filed or recorded with any court or other authority in
England, nor does any stamp or similar tax need to be paid in England on or
in
respect of such agreements; and
(c)
All
of the information provided to the Depositary by the Company in connection
with
this Amendment is true, accurate and correct.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
of
the earlier of thirty days from the date notice hereof is first provided to
Holders or the date on which the Company files the Form 15F with the Commission
to become exempt from the continued reporting obligations under the Securities
Exchange Act of 1934, as amended in accordance with Rule 12g3-2(b) promulgated
thereunder (such latter date being the "Effective Date").
SECTION
4.02. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 5.8 of the Deposit Agreement, as amended hereby in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated
herein.
4
IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
|
By:
|
____________________________
|
|
|
Name:
|
||
|
|
Title:
|
|
|
|
||
|
JPMORGAN
CHASE BANK, N.A.
|
||
|
By:
|
____________________________
|
|
|
Name:
|
||
|
|
Title:
|
|
5
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
THE
AMENDMENT TO DEPOSIT AGREEMENT
|
No.
|
______________________
|
|
AMERICAN
DEPOSITARY
|
|
|
SHARES
|
|
|
(Each
American Depositary Share
|
|
|
represents
two (2) deposited
|
|
|
Shares)
|
JPMORGAN
CHASE BANK, N.A.
AMERICAN
DEPOSITARY RECEIPT
FOR
ORDINARY SHARES OF
(INCORPORATED
UNDER THE LAWS OF ENGLAND)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States of America, as depositary (hereinafter called the “Depositary”),
hereby certifies that ___________________, or registered assigns IS THE OWNER
OF
_____________ American Depositary Shares representing deposited Ordinary Shares
(herein called "Shares") of United Utilities PLC, incorporated under the laws
of
England (herein called the "Company"). At the date hereof, each American
Depositary Share represent two (2) Shares which are either deposited or subject
to deposit under the deposit agreement with the Custodian appointed thereunder
(herein called the “Custodian”).
THE
DEPOSITARY’S PRINCIPAL OFFICE IS: 4 NEW YORK PLAZA, NEW YORK, N.Y.
10004
1.
THE
DEPOSIT AGREEMENT.
This
American Depositary Receipt is one of an issue (herein called "Receipts"),
all
issued and to be issued upon the terms and conditions set forth in the amended
and restated deposit agreement, dated as of June 9, 2006 (as amended from time
to time, herein called the "Deposit Agreement"), by and among the Company,
the
Depositary, and all Owners and holders 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 holders of the Receipts and the rights
and
duties of the Depositary in respect of the Shares deposited thereunder and
any
and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property,
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Depositary's Principal Office in New York City
and
at the office of the Custodian.
1
The
statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are qualified by and subject to the
detailed provisions of the Deposit Agreement, to which reference is hereby
made.
Capitalized terms not defined herein shall have the meanings set forth in the
Deposit Agreement.
2.
SURRENDER
OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon
surrender at the Principal Office of the Depositary of this Receipt, and upon
payment of the fee of the Depositary provided in this Receipt, 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)
certificates in the name of the Owner hereof or as ordered by him, by
certificates properly endorsed or accompanied by proper instruments of transfer
to such Owner or as ordered by him or dematerialized securities through CRESTCo,
the Central Securities Depository for the United Kingdom securities market,
and
(b) any other securities, property and cash to which such Owner is then entitled
in respect of this Receipt to such Owner or as ordered by him. Such delivery
will be made at the option of the Owner hereof, either at the office of the
Custodian or at the Principal Office of the Depositary, provided that the
forwarding of certificates for Shares or other Deposited Securities for such
delivery at the Principal Office of the Depositary shall be at the risk and
expense of the Owner hereof. Notwithstanding any other provision of the Deposit
Agreement or this Receipt, the surrender of outstanding Receipts and withdrawal
of Deposited Securities may be suspended only for (i) temporary delays caused
by
closing the transfer books of the Depositary or the Company or the deposit
of
Shares in connection with voting at a shareholders' meeting, or the payment
of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating
to
the Receipts or to the withdrawal of the Deposited Securities.
3.
TRANSFERS,
SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The
transfer of this Receipt is registrable on the books of the Depositary at its
Principal 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 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 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.
2
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 are closed, or if any such action is deemed necessary or
advisable by (i) the Depositary or (ii) 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, subject, in
each case, subject to Article (22) 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. LIABILITY
OF OWNER FOR TAXES.
If
any
tax or other governmental charge shall become payable with respect to any
Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary.
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 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 hereof shall remain liable for any deficiency. Each Holder
of a Receipt or an interest therein agrees to indemnify the Depositary, the
Company, the Custodian and any of their respective directors, employees, agents
and affiliates against, and hold each of them harmless from, any claims by
any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
5. WARRANTIES
OF DEPOSITORS.
Every
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor are validly
issued, fully paid, nonassessable and free of any pre-emptive rights of the
holders of outstanding Shares and that the person making such deposit is duly
authorized so to do. Every such person shall also be deemed to represent that
the deposit of 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.
3
6.
FILING
PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any
person presenting Shares for deposit or any 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, 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 Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or distribution of rights
or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties made. No Share shall be accepted for deposit
unless accompanied by evidence satisfactory to the Depositary that any necessary
approval has been granted by any governmental body in England which is then
performing the function of the regulation of currency exchange.
7. CHARGES
OF DEPOSITARY.
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.
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.
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 regarding the Receipts or Deposited
Securities or a distribution of Receipts pursuant to Section 4.3 of the Deposit
Agreement), whichever applicable: (1) taxes and other governmental charges,
(2)
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 under the Deposit Agreement, (3) such cable, telex
and facsimile transmission expenses as are expressly provided in the Deposit
Agreement, (4) such expenses as are incurred by the Depositary in the conversion
of foreign currency pursuant to Section 4.5 of the Deposit Agreement, (5) a
fee
of $5.00 or less per 100 American Depositary Shares (or portion thereof) for
the
execution and delivery of Receipts pursuant to Sections 2.3, 4.3 or 4.4 of
the
Deposit Agreement, and the surrender of Receipts pursuant to Sections 2.5 or
6.2
of the Deposit Agreement, (6) 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 Sections 4.1 through 4.4
thereof, (7) a fee for the distribution of securities pursuant to Section 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) treating all such securities as if they were
Shares), but which securities are instead distributed by the Depositary to
Owners and (8) any other charge payable by any of the Depositary, any of the
Depositary'=s
agents,
including, without limitation, the custodian, or the agents of the
Depositary'=s
agents
in connection with the servicing of the Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the record date or dates
set by the Depositary and shall be payable at the sole discretion of the
Depositary by billing such Owners or by deducting such charge from one or more
cash dividends or other cash distributions).
4
The
Depositary, subject to Article (8) hereof, may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
8.
LOANS
AND PRE-RELEASE OF SHARES AND RECEIPTS.
Notwithstanding
Section 2.3 of the Deposit Agreement, the Depositary may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.2 of the Deposit
Agreement ("Pre-Release"). The Depositary may, pursuant to Section 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
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts are
to
be delivered that such person, or its customer, owns the Shares or Receipts to
be remitted, as the case may be, (b) at all times fully collateralized with
cash
or such other collateral as the Depositary deems appropriate, (c) terminable
by
the Depositary on not more than five (5) business days' notice, and (d) subject
to such further indemnities and credit regulations as the Depositary deems
appropriate. The number of American Depositary Shares which are 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 change or disregard such limit from
time to time as it deems appropriate.
The
Depositary may retain for its own account any compensation received by it in
connection with the foregoing.
9. TITLE
TO RECEIPTS.
It
is a
condition of this Receipt and every successive holder 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 by delivery with the same effect as in the case of a negotiable
instrument; 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 and for
all
other purposes.
10. VALIDITY
OF RECEIPT.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or
be
valid or obligatory for any purpose, unless this Receipt shall have been
executed by the Depositary by the manual or facsimile signature of a duly
authorized signatory 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.
5
11. REPORTS;
INSPECTION OF TRANSFER BOOKS.
The
Company publishes on its web site (xxx.xxxxxxxxxxxxxxx.xxx)
on an
ongoing basis, or otherwise furnishes the United States Securities and Exchange
Commission (the "Commission") with, certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934, as amended.
To
the
extent furnished to the Commission, such reports and documents may be inspected
and copied at the public reference facilities maintained by the Commission
located at the date of the Deposit Agreement at 000 X Xxxxxx, XX, Xxxxxxxxxx,
XX
00000.
The
Depositary will make available for inspection by Owners of Receipts at its
Principal Office any reports and communications, including any proxy soliciting
material, received from the Company which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request, send to the Owners of Receipts
copies of such reports furnished by the Company pursuant to the Deposit
Agreement.
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 of 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. DIVIDENDS
AND DISTRIBUTIONS.
Whenever
the Depositary shall receive any cash dividend or other cash distribution on
any
Deposited Securities, the Depositary shall, 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 shall distribute the amount thus received
(net
of the fees of the Depositary as provided in the Deposit Agreement, if
applicable) to the Owners of Receipts entitled thereto, provided, however,
that
in the event that the Company or the Depositary shall be required to withhold
and does withhold from such cash dividend or such other cash distribution in
respect of any Deposited Securities an amount on account of taxes, the amount
distributed to the Owners of the Receipts evidencing American Depositary Shares
representing such Deposited Securities shall be reduced accordingly.
Subject
to the provisions of Sections 4.11 and 5.9 of the Deposit Agreement, whenever
the Depositary shall receive any distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the Depositary
shall 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 opinion of the Depositary such distribution cannot
be
made proportionately among the Owners of Receipts entitled thereto, or if for
any other reason the Depositary deems such distribution not to be feasible,
the
Depositary may 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 Section 5.9 of the Deposit Agreement) shall be
distributed by the Depositary to the Owner of Receipts entitled thereto as
in
the case of a distribution received in cash.
6
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 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 Section 4.11 of the Deposit Agreement and
the
payment of the fees of the Depositary as provided in Section 5.9 of the Deposit
Agreement. 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 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.
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. CONVERSION
OF FOREIGN CURRENCY.
Whenever
the Depositary shall receive foreign currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, and if at the time of the receipt thereof the foreign currency so
received can in the judgment of the Depositary be converted on a reasonable
basis into Dollars and the resulting Dollars transferred to the United States,
the Depositary shall 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. 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 Section 5.9
of
the Deposit Agreement.
7
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.
If
at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary is not convertible on a reasonable basis into Dollars
transferable to the United States, or if any approval or license of any
government or agency thereof which is required for such conversion is denied
or
in the opinion of the Depositary is not obtainable, or if any such approval
or
license is not obtained within a reasonable period as determined by the
Depositary, the Depositary may distribute the foreign currency (or an
appropriate document evidencing the right to receive such foreign currency)
received by the Depositary to, or in its discretion may hold such foreign
currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some of the Owners entitled thereto, the Depositary may in
its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance of
the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of,
the
Owners entitled thereto.
14. RIGHTS.
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 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 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 deems appropriate.
8
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 Section 2.2
of
the Deposit Agreement, and shall, pursuant to Section 2.3 of the Deposit
Agreement, execute and deliver Receipts to such Owner.
If
the
Depositary determines in its discretion that it is not lawful and feasible
to
make such rights available to all or certain Owners, it may sell the rights,
warrants or other instruments in proportion to the number of American Depositary
Shares held by the Owners to whom it has determined it may not lawfully or
feasibly make such rights available, and allocate the net proceeds of such
sales
(net of the fees and expenses of the Depositary as provided in the Deposit
Agreement and all taxes and governmental charges payable in connection with
such
rights and subject to the terms and conditions of the Deposit Agreement) for
the
account of such Owners otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Owners because of exchange restrictions or the date
of
delivery of any Receipt or otherwise.
The
Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration
under
the Securities Act of 1933 with respect to a distribution to Owners or are
registered under the provisions of such Act. 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.
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. RECORD
DATES.
Whenever
any cash dividend or other cash distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be issued
with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by
each
American Depositary Share, or whenever the Depositary shall receive notice
of
any meeting of holders of Shares or other Deposited Securities, the Depositary
shall fix a record date (a) for the determination of the Owners of Receipts
who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof or (ii) entitled to give instructions for
the
exercise of voting rights at any such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of Shares, subject
to the provisions of the Deposit Agreement.
9
16. VOTING
OF DEPOSITED SECURITIES.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners of Receipts a notice, the
form of which notice shall be in the sole discretion of the Depositary, which
shall contain (a) such information as is contained in such notice of meeting,
(b) a statement that the Owners of Receipts as of the close of business on
a
specified record date will be entitled, subject to any applicable provision
of
English law and of the Articles of Association of the Company, to instruct
the
Depositary as to the exercise of the voting rights, pertaining to the amount
of
Shares or other Deposited Securities represented by their respective American
Depositary Shares and (c) a statement as to the manner in which such
instructions may be given. Upon the written request of an Owner of a Receipt
on
such record date, received on or before the date established by the Depositary
for such purpose (the "Instruction Date"), the Depositary shall endeavor,
insofar as practicable to vote or cause to be voted the amount of Shares or
other Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in
such
request. The Depositary shall not vote or attempt to exercise the right to
vote
that attaches to the Shares or other Deposited Securities, other than in
accordance with such instructions.
There
can
be no assurance that Owners generally or any Owner in particular will receive
the notice described in the preceding paragraph 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 the preceding
paragraph.
17. CHANGES
AFFECTING DEPOSITED SECURITIES.
In
circumstances where the provisions of Section 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 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 in Shares,
or call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities.
10
18. LIABILITY
OF THE COMPANY AND THE DEPOSITARY.
Neither
the Depositary nor the Company shall incur any liability to any Owner or holder
of any Receipt, if by reason of any provision of any present or future law,
rule
or regulation of the United States, United Kingdom or any other country, or
of
any governmental or regulatory authority or any securities exchange or market
or
automated quotation system, the provisions of or governing any Deposited
Securities, any present or future provision of the Company's charter, any act
of
God, war, terrorism or other circumstance beyond its control l, the Depositary
or the Company 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 or the Company incur any liability to any Owner or
holder 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 Sections
4.1, 4.2 or 4.3 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.4 of the Deposit Agreement, or for any other reason,
such
distribution or offering may not be made available to Owner 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 assumes any
obligation or shall be subject to any liability under the Deposit Agreement
to
Owners or holders of Receipts, except that they agree to perform their
obligations specifically set forth in the Deposit Agreement without gross
negligence or wilfull misconduct. 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 shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of
any
Deposited Securities or in respect of the Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability 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 shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or
holder of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary shall not be liable
for any acts or omission 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. 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 under certain circumstances against, and hold each of them
harmless from, any liability or expense (including, but Notwithstanding anything
to the contrary set forth in the Deposit Agreement or any Receipt, the
Depositary and its agents may fully respond to any and all demands or requests
for information maintained by or on its behalf in connection with the Deposit
Agreement, any Owner or holder, any Receipt or Receipts or otherwise related
hereto to the extent such information is requested or required by or pursuant
to
any lawful authority, including without limitation laws, rules, regulations,
administrative or judicial process, banking, securities or other regulators.
Neither the Company nor the Depositary nor any of their respective agents shall
be liable to Owners or beneficial owners of interests in American Depositary
Shares for any indirect, special, punitive or consequential damages. No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of the Deposit Agreement.
11
19. RESIGNATION
AND REMOVAL OF THE DEPOSITARY.
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of its election so to do delivered to the Company, such
resignation to 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 substitute or additional
custodian or custodians.
20. AMENDMENT.
The
form
of the Receipts and any provisions of the Deposit Agreement may at any time
and
from time to time be amended by agreement between the Company and the Depositary
in any respect which they may deem necessary or desirable. Any amendment which
shall impose or increase any fees or charges (other than taxes and other
governmental charges, 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 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. Any amendments or supplements which (i) are
reasonably necessary (as agreed by the Issuer and the Depositary) in order
for
(a) the American Depositary Shares to be registered on Form F-6 under the
Securities Act of 1933 or (b) the American Depositary Shares or Shares to be
traded solely in electronic book-entry form and (ii) do not in either such
case
impose or increase any fees or charges to be borne by Owners, shall be deemed
not to prejudice any substantial rights of Owners. Notwithstanding the
foregoing, if any governmental body or regulatory body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement or the Receipts to ensure compliance therewith, the Issuer and the
Depositary may amend or supplement the Deposit Agreement and the Receipts at
any
time in accordance with such changed laws, rules or regulations. Such amendment
or supplement to the Deposit Agreement in such circumstances may become
effective before a notice of such amendment or supplement is given to Owners
or
within any other period of time as required for compliance.
12
21. TERMINATION
OF DEPOSIT AGREEMENT.
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 60 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 60 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 Principal Office of the Depositary, (b) payment of the fee of
the
Depositary for the surrender of Receipts referred to in Section 2.5 of the
Deposit Agreement and (c) 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 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 six monthsr 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 under Sections 5.8 and 5.9 of the Deposit Agreement.
22. COMPLIANCE
WITH U.S. SECURITIES LAWS.
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 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.
13
23. DISCLOSURE
OF BENEFICIAL OWNERSHIP
To
the
extent that the provisions of or governing any Deposited Securities may require
disclosure of or impose limits on beneficial or other ownership of Deposited
Securities, other Shares and other securities and may provide for blocking
transfer, voting or other rights to enforce such disclosure or limits, Owners
and all persons holding Receipts agree to comply with all such disclosure
requirements and ownership limitations and to comply with any reasonable Company
instructions in respect thereof. The Company reserves the right to instruct
Owners to deliver their American Depositary Shares for cancellation and
withdrawal of the Deposited Securities so as to permit the Company to deal
directly with the Owner thereof as a holder of Shares and Owners agree to comply
with such instructions. The Depositary agrees to cooperate with the Company
in
its efforts to inform Owners of the Company's exercise of its rights under
this
paragraph and agrees to consult with, and provide reasonable assistance without
risk, liability or expense on the part of the Depositary, to the Company on
the
manner or manners in which it may enforce such rights with respect to any Owner.
14
