AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1, dated
as
of , 2007 (the "Amendment"), to the Deposit Agreement dated as of November
8,
2001 (as amended hereby, the "Deposit Agreement"), among BT Group plc,
incorporated under the laws of England and Wales (the "Company"), JPMorgan
Chase
Bank, N.A., as depositary (the "Depositary"), and all holders 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 6.01 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.
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT AND RECEIPT
SECTION
2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall,
as of
the Effective Date (as herein defined), refer to the Deposit Agreement, dated
as
of November 8, 2001 as further amended by this Amendment.
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SECTION
2.02. Paragraph
6 of the form of face of the Receipt is amended by inserting the following
immediately after the initial sentence thereof:
In
connection with any cash dividend or other cash distribution under the Deposit
Agreement, the Depositary may charge a fee of US$0.02 or less per American
Depositary Share (or portion thereof), such amount to be deducted from the
net
amount distributed to Holders entitled thereto.
SECTION
2.03. The
form
of Receipt, reflecting the amendments set forth in Section 2.02
hereof and corresponding changes, is amended and restated to read as 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, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit
Agreement as amended hereby 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
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, neither
of such agreements need to be filed or recorded with any court or other
authority in England or Wales, nor does any stamp or similar tax or governmental
charge need to be paid in England or Wales on or in respect of such
agreements.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective thirty
days after notice hereof has been given to the Holders in the manner required
by
the Deposit Agreement (the "Effective Date").
2
SECTION
4.02. Outstanding
Receipts.
Receipts issued prior or subsequent to the Effective Date, do not need to be
called in for exchange and may remain outstanding until such time as the Holders
thereof choose to surrender them for any reason under the Deposit Agreement.
The
Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing.
SECTION
4.03. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 5.08 of the Deposit Agreement in connection with any
and
all liability it or they may incur as a result of the terms of this Amendment
and the transactions contemplated herein.
SECTION
4.04. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which taken together shall constitute one
instrument.
3
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.
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By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A.
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By:
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Name:
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Title:
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4
EXHIBIT
A
ANNEXED
TO AND INCORPORATED
IN
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
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*
NUMBER *
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*
DEPOSITARY SHARES *
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES OF
(Incorporated
under the laws of England and Wales)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as Depositary (herein called the "Depositary"), hereby certifies
that __________________ is the owner of ____________ American Depositary Shares
("American Depositary Shares"), representing deposited Ordinary Shares of 0.1
xxxxx each ("Shares") of BT Group plc, a company incorporated in England and
Wales (the "Company"). At the date hereof, each American Depositary Share
represents ten (10) Shares (or evidence of rights to receive such Shares)
deposited under the Deposit Agreement (hereinafter defined) at the principal
London office of the Depositary (the "Custodian").
(1)
The
Deposit Agreement.
This
American Depositary Receipt is one of an issue (the "Receipts"), all issued
and
to be issued upon the terms and conditions set forth in the Deposit Agreement
dated as of November 8, 2001 (as amended from time to time, the "Deposit
Agreement") by and among the Company, the Depositary and all holders ("Holders")
from time to time of Receipts issued thereunder, each of whom by accepting
a
Receipt agrees to become a party thereto and becomes bound by all the terms
and
provisions thereof, hereof and of the Shares. The Deposit Agreement sets forth
the rights of Holders of the Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder, any Shares referred
to
in the second sentence of Section 2.09 thereof and any and all other securities,
property and cash from time to time received at any time in respect of such
Shares and held thereunder by or on behalf of the Depositary (such Shares,
securities, property and cash are herein called "Deposited Securities"). Copies
of the Deposit Agreement, the Shares and the Company's Memorandum and Articles
of Association (herein called the "Articles") are on file at the office of
the
Depositary for the administration of its American depositary receipt business
(herein called the "Depositary's Office"), the office of the Custodian and
at
any other designated transfer office. The statements made on the face and the
reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement, as well as the Shares and the Articles, and are qualified by and
subject to the detailed provisions thereof, to which reference is hereby made.
The Depositary makes no representation or warranty as to the validity or worth
of the Deposited Securities.
1
(2)
Surrender
of Receipts and Withdrawal of Shares.
Upon
surrender at the Depositary's Office of this Receipt, and upon payment of the
fee of the Depositary provided for in paragraph (7) on the face of this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Articles,
the Shares and the other Deposited Securities, the Holder hereof is entitled
to
the delivery, to or upon the written order of such Holder, of the Deposited
Securities at the time represented by the American Depositary Shares evidenced
by this Receipt. Delivery of such Deposited Securities may be made by the
delivery of certificates in the name of the Holder hereof or as ordered by
such
Holder or by the delivery of certificates properly endorsed or accompanied
by
proper instruments of transfer. Notwithstanding any provision of this Receipt
or
the Deposit Agreement to the contrary, the Depositary may restrict withdrawals
of Deposited Securities only for the reasons set forth in General Instruction
I.A.(1) of Form F-6 under the Securities Act of 1933. By ordering delivery
of
certificates in the name of any person, the Holder hereof will warrant that
such
person agrees to be bound by all of the terms and conditions of the Articles
(such warranty surviving the delivery of the Deposited Securities pursuant
to
this paragraph). Such delivery will be made, subject to the Deposit Agreement
and the Articles, without unreasonable delay at the London office of the
Custodian or, at the request of the Holder hereof, the Depositary shall direct
the Custodian to forward such Deposited Securities and proper documents of
title
therefor for delivery at the Depositary's Office; provided
that the
forwarding of Shares or other Deposited Securities for such delivery at the
Depositary's Office shall be at the risk and expense of the Holder hereof.
(3)
Transfers,
Split-ups and Combinations; Limitations.
This
Receipt is transferable on the books of the Depositary by the Holder hereof
in
person or by duly authorized attorney, upon surrender of this Receipt at any
designated transfer office properly endorsed or accompanied by proper
instruments of transfer and duly stamped as may be required by applicable law;
provided,
that
the Depositary may close the transfer books (a) after consultation with the
Company at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties under the Deposit Agreement or
(b)
at the request of the Company. Except as set forth above, this Receipt may
be
split into other Receipts or may be combined with other 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, registration of transfer, split-up, combination
or
surrender of any Receipt or, subject to the third sentence of paragraph (2),
transfer and withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment of a sum sufficient to reimburse it for any
tax, duty or other governmental charge (including, without limitation, amounts
in respect of any applicable stamp taxes) payable with respect thereto, any
share transfer or registration fees in effect for the registration or
registration of transfers of Shares generally on the share register of the
Company; (ii) payment of any applicable fees as provided in paragraph (7) on
the
face of this Receipt; (iii) the production of proof satisfactory to it as to
the
identity and genuineness of any signature; and (iv) compliance with such
regulations, if any, as the Depositary may establish consistent with the
provisions of the Deposit Agreement.
2
The
Depositary may refuse to deliver Deposited Securities or Receipts, register
the
transfer of any Receipt, or make any distribution of, or related to, Deposited
Securities until it has received such proof of citizenship, residence, exchange
control approval, legal or beneficial ownership or other information as it
may
deem necessary or proper or as the Company may require by written request to
the
Depositary or the Custodian. The delivery of Receipts against deposits of Shares
generally may be suspended, or the delivery of Receipts against deposits of
particular Shares may be withheld, or the registration of transfer or surrender
of Receipts in particular instances may be refused, or the registration of
transfer or surrender of outstanding Receipts generally may be suspended, during
any period when the Receipt Register or the Share register of the Company (or
the appointed agent of the Company for transfer and registration of Shares,
which may but need not be Lloyds Bank Plc (the "Share Register") 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 the
Articles, relevant law, any government or governmental body or commission or
any
securities exchange on which the Receipts or Shares are listed, or because
of
any provision of this Receipt or the Deposit Agreement. Without limitation
of
the foregoing the Depositary will not knowingly accept for deposit under the
Deposit Agreement any Shares that (a) if sold by the holder thereof in the
United States (as defined in Regulation S under the Securities Act of 1933)
would be subject to the registration provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares or such sale
would be exempt from such registration provisions, (b) if sold by the holder
thereof in Canada, would require the filing of a prospectus in respect thereof
with the appropriate securities regulatory authorities in Canada, unless
receipts for such prospectus have been issued by such authorities and are in
effect as to such Shares, or (c) would thereby infringe any provisions of the
Articles.
The
Depositary will comply with written instructions of the Company not to accept
for deposit under the Deposit Agreement 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 Company's compliance with the
securities laws of the United States and Canada.
Neither
the Depositary nor the Custodian will lend Shares or other Deposited Securities
held under the Deposit Agreement. Unless requested in writing by the Company
to
cease doing so at least two business days in advance of the proposed deposit,
the Depositary may (but is not required to) issue from time to time Receipts
prior to the delivery to it or the Custodian for deposit, pursuant to Section
2.02 of the Deposit Agreement, of the Shares in respect of which such Receipts
are issued (each such issue being herein called a "Pre-release"). The Depositary
will not make a Pre-release of any Receipts (each a "Pre-released Receipt")
unless (a) such Pre-released Receipts are at all times fully collateralized
(such collateral marked to market daily) with cash or U.S. government securities
held by the Depositary for the benefit of Holders and beneficial owners until
the Shares represented by such Pre-released Receipts are deposited, (b) the
applicant for such Pre-released Receipts represents in writing that it was
the
beneficial owner of such Shares before the issuance of such Pre-released
Receipts, assigns all beneficial right, title and interest in such Shares to
the
Depositary for the benefit of the Holders and undertakes to hold such Shares
for
the account of the Depositary in its capacity as such and for the benefit of
the
Holders and beneficial owners until delivery upon the Depositary's request
and
(c) the aggregate of all Pre-released Receipts at any time outstanding shall
not, without the prior written consent of the Company (which consent may be
withheld in the absolute discretion of the Company), represent more than 30%
of
Shares actually deposited. The collateral referred to in clause (a) above shall
be held by the Depositary in trust for the benefit of Holders of Receipts as
security for the performance of the obligations to deliver Shares set forth
in
clause (b) above (and shall not, for the avoidance of doubt, constitute
Deposited Securities). The Depositary may, however, retain for its own account
any earnings on such collateral and any other compensation received by it in
connection with the issuance of Pre-released Receipts.
3
(4)
Liability
of Holder for Taxes.
If any
tax, duty or other governmental charge (including, without limitation, any
stamp
taxes) shall become payable by the Custodian or the Depositary with respect
to
this Receipt or any Deposited Securities underlying this receipt such tax or
other governmental charge shall be payable by the Holder hereof, who shall
pay
the amount thereof to the Depositary. The Depositary may refuse to effect any
registration of transfer, split-up or combination of this Receipt or any
transfer and withdrawal of Deposited Securities underlying this Receipt until
such payment is made, and may withhold or deduct from any cash dividends or
other cash distributions constituting Deposited Securities underlying this
Receipt, or may sell for the account of the Holder hereof any part or all of
the
other Deposited Securities underlying this Receipt, and may apply such cash
or
the proceeds of any such sale in payment of any such tax, duty or other
governmental charge or expense (and any taxes and expenses arising or incurred
as a result of effecting any such sale), the Holder hereof remaining liable
for
any deficiency.
(5)
Warranties
by Depositor.
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 and outstanding, fully paid, and that the person making such deposit
is
duly authorized so to do. In addition, such person shall be deemed to represent
that such Shares are not liable to disenfranchisement or disposal by the Company
pursuant to the Articles. All such representations and warranties shall survive
the deposit of Shares and issuance of Receipts therefor.
(6)
Charges
of Depositary.
The
Depositary may charge any party to whom Receipts are issued or who surrenders
Receipts against delivery of Deposited Securities a fee of five U.S. dollars
(US$5.00) or less per 100 American Depositary Shares (or portion thereof) for
the issuance or surrender, respectively, of a Receipt. In connection with any
cash dividend or other cash distribution under the Deposit Agreement, the
Depositary may charge a fee of US$0.02 or less per American Depositary Share
(or
portion thereof), such amount to be deducted from the net amount distributed
to
Holders entitled thereto. The Company or the Depositary will pay, in accordance
with Section 5.09 of the Deposit Agreement, all other charges and expenses
of
the Depositary and those of any Receipt Registrar, co-transfer agent and
co-registrar, with the exception of (i) taxes and other governmental charges
(including, without limitation, any amounts in respect of any applicable stamp
taxes), (ii) share transfer and registration fees on deposits of Shares and
withdrawals of Deposited Securities, (iii) such cable, telex, facsimile and
electronic transmission and delivery charges as are expressly provided in the
Deposit Agreement to be at the expense of persons depositing Shares or Holders
of Receipts, and (iv) such expenses as are incurred by the Depositary in the
conversion of foreign currency into U.S. or Canadian dollars (which are
reimbursable out of such foreign currency).
4
(7)
Title
to Receipts.
It is a
condition of this Receipt, and every successive Holder hereof by accepting
or
holding this Receipt consents and agrees, that title to this Receipt (and to
the
Deposited Securities related thereto), when properly endorsed or accompanied
by
proper instruments of transfer, is, subject to the provisions of the Deposit
Agreement, the Articles and this Receipt, transferable by delivery with the
same
effect as in the case of a negotiable instrument; provided,
however,
that
the Company and the Depositary, notwithstanding any notice to the contrary,
may
treat the person in whose name this Receipt is registered on the books of the
Depositary as the absolute owner hereof for the purpose of determining the
person entitled to any distribution of dividends or other distributions or
to
any notice provided for in the Deposit Agreement and for all other purposes.
(8)
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 executed by the Depositary by the
manual signature of a duly authorized officer or, if a Receipt Registrar or
co-registrar for the Receipts shall have been appointed, by the manual signature
of a duly authorized signatory of such Receipt Registrar or such co-registrar.
(9)
Disclosure
of Beneficial Ownership.
Notwithstanding any other provision of this Receipt or the Deposit Agreement,
each Holder agrees to comply with requests from the Company, pursuant to the
Articles or the U.K. Companies Acts 1985 to 1989 (or any statutory modification
or re-enactment thereof) (the "Companies Act"), to provide information as to
the
capacity in which such Holder owns Receipts, the identity of any other person
interested (as defined in the Articles or the Companies Act) in such Receipts
and the nature and extent of such interest
and any other information required by such request. Each Holder acknowledges
that failure to comply with such a request may result, inter alia,
in the
withdrawal of the voting rights of the Shares underlying such Holder's Receipts.
Each Holder agrees to comply with the provisions of the Articles and of the
Companies Act with regard to notification to the Company of interests in Shares,
which include provisions relating to disclosure of interests in the Company's
ordinary share capital in excess of the percentage(s) of such capital provided
for in the Articles and/or the Companies Act (at the date hereof, 3 percent).
5
(10)
Available
Information.
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and accordingly will file certain reports with the
Commission. Such reports and other information may be inspected and copied
at
the public reference facilities maintained by the Commission located at the
date
hereof at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 or its authorized
information vendors, as the case may be.
Dated:
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JPMORGAN
CHASE BANK, N.A.,
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as
Depositary and Registrar
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By:
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Authorized
Officer
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Dated:
The
address of the Depositary's Office is 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
6
[FORM
OF
REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE
DEPOSIT AGREEMENT
(1)
Dividends
and Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution by the Company in respect of 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 U.S. dollars transferable to the United States or, as
the
case may be, Canada, and subject to the provisions of the Deposit Agreement,
convert such dividend or distribution into U.S. dollars and distribute promptly,
by check drawn on a bank in the United States, the amount thus received to
the
Holders entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them, respectively;
provided,
however,
that
the amount distributed will be reduced by any amounts required to be withheld
by
the Company or the Depositary on account of taxes and any fees and expenses
of
the Depositary. If in the judgment of the Depositary any amount received in
foreign currency may not be converted on a reasonable basis into U.S. dollars
transferable to the United States, or, as the case may be, Canada, or may not
be
so convertible for all of the Holders entitled thereto, the Depositary may
in
its discretion make such conversion, if any, and distribution in U.S. dollars
to
the extent permissible to the Holders entitled thereto and may distribute the
balance of the foreign currency received and not so convertible by the
Depositary to, or hold such balance (without liability for interest thereon)
for
the account of, the Holders entitled thereto for whom such conversion and
distribution is not practicable. If in the opinion of the Depositary any
distribution other than cash or Shares upon any Deposited Securities cannot
be
made proportionately among the Holders entitled thereto, or if for any other
reason (including any securities law requirement or requirement that the Company
or the Depositary withhold an amount on account of taxes) 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 the sale (at public or private sale) of the securities
or property thus received, or any part thereof, and the net proceeds of any
such
sale will be distributed by the Depositary to the Holders entitled thereto
as in
the case of a distribution received in cash. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Depositary may with the Company's approval, and will if the Company shall
so
request, distribute to the Holders of outstanding Receipts entitled thereto,
in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them, respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the number of Shares
received as such dividend or distribution. 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 of such sale as in the case of a distribution
received in cash to the Holders entitled thereto. 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 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, after
consultation with the Company, have discretion as to the procedure to be
followed in making such rights available to the Holders of Receipts or in
disposing of such rights on behalf of such Holders and making the net proceeds
available as in the case of a distribution received in cash to such Holders;
provided,
however,
that
the Depositary will, if requested by the Company, either (a) make such rights
available to Holders by means of warrants or otherwise, if lawful and feasible
by such means, or (b) if making such rights available is not lawful or not
feasible by such means, or if the rights represented by such warrants or other
instruments are not exercised and appear to be about to lapse, sell such rights
or warrants or other instruments at public or private sale, at such place or
places and upon such terms as the Depositary may deem proper, and allocate
the
proceeds of such sales for account of the Holders otherwise entitled thereto
upon an averaged or other practicable basis without regard to any distinctions
among such Holders on account of exchange restrictions, the date of delivery
of
any Receipts or Receipts under the Deposit Agreement or otherwise and distribute
the net proceeds thereof as in the case of a distribution received in cash.
7
Notwithstanding
the foregoing provisions of this paragraph (1), in the case of Holders who
are
registered on the books of the Depositary with an address in Canada ("Canadian
Holders") and who have not filed the election referred to below, references
in
this paragraph (1) to "U.S. dollars" shall mean and be deemed to refer to
Canadian dollars. Canadian Holders may file with the Depositary an election,
in
form and substance satisfactory to the Depositary, entitling them to receive
any
cash dividends or other cash distributions in U.S. dollars, provided that in
order to take effect such election must be duly completed and received by the
Depositary not less than 30 days before the record date of any such
distribution.
(2)
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 the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary will, after consultation with the Company, fix a
record date which date shall, to the extent practicable, be the same as the
record date fixed by the Company, for the determination of the Holders who
shall
be entitled to receive such dividend, distribution or rights, or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting, subject to the provisions of the Deposit Agreement.
(3)
Voting
of Deposited Securities.
Upon
receipt of notice of any meeting or solicitations of consents or proxies of
holders of Shares or other Deposited Securities, the Depositary shall as soon
as
practicable thereafter and, to the extent permitted by law, mail to the Holders
a notice which will contain (a) such information (or a summary thereof) as
is
contained in such notice of meeting or in such solicitation materials, if any,
(b) a statement that the Holders at the close of business on a specified record
date will be entitled, subject to any applicable provisions of law and of the
Articles, and of the Deposited Securities, to instruct the Depositary as to
the
exercise of voting rights, if any, pertaining to the amount of Deposited
Securities represented by the American Depositary Shares evidenced by their
respective Receipts, and (c) a brief statement as to the manner in which such
instructions may be given, including an express indication that instructions
may
be given to the Depositary to give a discretionary proxy to a person or persons
designated by the Company. Upon the written request of a Holder of a Receipt
on
such record date, received on or before the date established by the Depositary
for such purpose, the Depositary shall endeavor in so far 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 such instructions. The Depositary agrees not to vote the amount
of Deposited Securities represented by the American Depositary Shares evidenced
by a Receipt unless it receives instructions from the Holder of such Receipt.
In
accordance with the Articles and English law, failure by a Holder, or a person
holding an interest in Shares through a Holder, to comply with the Company's
request for information of the nature referred to in paragraph 9 on the face
of
this Receipt may result, inter alia,
in
withdrawal of the voting rights of the Shares underlying the Receipts held
by
that Holder and thus of the rights described in this paragraph to direct the
voting of Deposited Securities underlying such Receipts.
8
(4)
Changes
Affecting Deposited Securities.
Upon
any 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 the 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 right to receive 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 with the approval of the Company, and shall if the Company shall
so request, execute and deliver additional Receipts as in the case of a dividend
of Shares, or call for the surrender of outstanding Receipts to be exchanged
for
new Receipts specifically describing such new Deposited Securities.
(5)
Reports;
Inspection of Transfer Books.
The
Depositary will make available for inspection by Holders at the Depositary's
Office or at any other designated transfer office any reports and communications
received from the Company which are both (a) received by the Depositary or
its
nominee as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also send to Holders copies of such reports when furnished
by
the Company as provided in the Deposit Agreement. The Depositary will keep
books
at its transfer office in New York City for the registration of Receipts and
their transfer which at all reasonable times will be open for inspection by
the
Holders and the Company; provided
that
such inspection shall not be for the purpose of communicating with Holders
in
the interest of a business or object other than the business of the Company
or a
matter related to the Deposit Agreement, the Receipts, the Shares or the
Articles.
(6)
Withholding.
Notwithstanding any other provision of the Deposit Agreement, if the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax which the Depositary is obligated
to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in
such
manner as the Depositary deems necessary and practicable to pay such taxes,
by
public or private sale, and the Depositary shall distribute the net proceeds
of
any such sale or the balance of any such property after deduction of such taxes
to the Holders entitled thereto.
9
(7)
Liability
of the Depositary and the Company.
None of
the Depositary, the Company, or any director of the Company (herein called
a
Director) shall incur any liability to any Holder of this Receipt if, by reason
of any provision of any present or future law of any country or of any
governmental authority, or by reason of any provision, present or future, of
the
Articles or the Deposited Securities, or by reason of any act of God or war
or
other circumstance beyond its control, the Depositary or the Company shall
be
prevented or forbidden from or delayed in doing or performing any act or thing
which by the terms of the Deposit Agreement it is provided shall be done or
performed. None of the Depositary, the Company or any Director assumes any
obligation or shall be subject to any liability under the Deposit Agreement
to
Holders, except that each of them agrees to use its reasonable efforts exercised
in good faith in the performance of such duties as are specifically set forth
in
the Deposit Agreement. None of the Depositary, the Company or any Director
shall
be under any obligation to appear in, prosecute or defend any action, suit
or
other proceeding in respect of any Deposited Securities or in respect of the
Receipts, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished
as
often as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. None of the Depositary, the Company or any
Director shall be liable for any action or non-action by it in reliance upon
the
advice of or information from legal counsel, accountants, any governmental
authority, any person presenting Shares for deposit, any Holder, or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary will 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 non-action is in good faith. Subject to the Articles and the
Deposit Agreement, the Depositary may own and deal in any class of securities
of
the Company and its affiliates and in Receipts. The Company has agreed to
indemnify the Depositary and its nominee, the Custodian, the Receipt Registrar
and any co-transfer agent or co-registrar (each called herein an "indemnified
party") under certain circumstances. Each indemnified party entitled to
indemnity pursuant to the Deposit Agreement agrees to indemnify the Company
under certain circumstances.
(8)
Resignation
and Removal of Depositary; Substitution of Custodian.
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of its election so to do delivered to the 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 as Depositary 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.
The
Depositary may at any time appoint a substitute custodian and the term
"Custodian" shall refer to such substitute.
(9)
Amendment
of Deposit Agreement and Receipts.
The
Receipts and the Deposit Agreement may at any time and from time to time be
amended by agreement among the Company and the Depositary. Any amendment that
shall impose or increase any fees or charges (other than the fees of the
Depositary for the execution and delivery or the cancellation of Receipts and
taxes or other governmental charges), or that shall otherwise prejudice any
substantial existing right of Holders of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of 30 days after
notice of such amendment shall have been given to the Holders of outstanding
Receipts; provided
that any
amendments which (i) are reasonably necessary (as agreed by the Company and
the
Depositary) in order for 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 Holders, shall be deemed not
to
prejudice any substantial rights of Holders. Every Holder of a Receipt at the
time any such amendment so becomes effective, if such Holder shall have been
given such notice, shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement
or
the Receipt as amended thereby. In no event shall any amendment impair the
right
of the Holder hereof to surrender this Receipt and receive therefor the
Deposited Securities represented hereby.
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(10)
Termination
of Deposit Agreement.
The
Depositary will at any time at the direction of the Company terminate the
Deposit Agreement by mailing notice of such termination to the Holders of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. If any Receipts shall remain outstanding after
the
date of termination, the Depositary thereafter will discontinue the registration
of transfers of Receipts, will suspend the distribution of dividends to the
Holders thereof, and will not give any further notices or perform any further
acts under the Deposit Agreement, except the collection of dividends and other
distributions pertaining to Deposited Securities, the sale of rights and the
delivery of Deposited Securities, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale
of
any rights or other property, in exchange for Receipts surrendered to the
Depositary. At any time after the expiration of two years from the date of
termination, the Depositary may sell the Deposited Securities then held under
the Deposit Agreement and may thereafter hold in a segregated account the net
proceeds of any such sale, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, in trust for the
pro rata
benefit
of the Holders of Receipts not theretofore surrendered. Thereafter the
Depositary shall be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash.
(11)
French
Language Receipts.
So
long
as there is a co-transfer agent in Canada, Receipts shall be available in an
English language version and (at designated transfer offices in Canada only)
a
French language version. If French language Receipts are to be available, all
Receipts issued to persons having a registered address in the Province of Quebec
shall be issued at designated transfer offices in Canada in the French language
version, unless the co-transfer agent issuing such Receipt is otherwise
instructed in writing by the Holder to whom the Receipt is to be issued.
Receipts in the French language version will not be issued or accepted for
any
purpose (including transfers, combinations and split-ups) by the Depositary
except at designated transfer offices in Canada. An English language version
of
the Receipt may be exchanged for a French language version of the Receipt
evidencing the same number of American Depositary Shares, and vice versa, upon
surrender at any designated transfer office in Canada. In the event of any
conflict between the English language version and the French language version
of
any provision of the Receipts, the English language version of such provision
shall be controlling. By accepting this Receipt, the Holder hereof accepts
that
the Deposit Agreement, the Shares and the Articles and all related agreements
and documents be in the English language only.
(12) Certain
Definitions.
Terms
used in this Receipt which are not otherwise defined shall have the respective
meanings ascribed to them in the Deposit Agreement.
(13)
Headings.
Headings contained herein are included for convenience only and are not to
be
used in construing or interpreting any provision hereof.
(14)
Governing
Law.
The
Deposit Agreement and this Receipt shall be interpreted and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed
by
the laws of the State of New York.
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