AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1, dated
as
of November 20, 2007 (the “Amendment”), to the Deposit Agreement dated as of
October 20, 2004 (as so amended hereby, the "Deposit Agreement"), among Meldex
International plc (fka BioProgress plc), a company incorporated in 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
issued thereunder ("ADRs")
evidencing American Depositary Shares ("ADSs")
representing deposited Shares.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
the Company has or intends to file a Form 15F with the Securities and Exchange
Commission in order to deregister and terminate its reporting obligations with
respect to its ordinary shares and ADRs under the Securities Exchange Act of
1934, as amended;
WHEREAS,
the Company desires to amend the Deposit Agreement and the Form of ADR annexed
to the Deposit Agreement as Exhibit A thereto (the "form of ADR") to reflect
such change; and
WHEREAS,
pursuant to paragraph (16) of the form of ADR, the Company and the Depositary
deem it necessary and desirable to amend the Deposit Agreement and the form
of
ADR for the purposes set forth herein;
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement and form of ADR 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 FORM OF ADR
SECTION
2.01. All
references in the Deposit Agreement to the terms "Deposit Agreement" and "form
of ADR" shall, as of the Effective Date (as herein defined), refer to the
Deposit Agreement and form of ADR as further amended by this
Amendment.
SECTION
2.02. All
references in the Deposit Agreement and form of ADR to the Depositary shall
be
references to JPMorgan Chase Bank, N.A, a national banking association organized
under the laws of the United States.
SECTION
2.03. All
references in the Deposit Agreement and form of ADR to the Company shall be
references to Meldex International plc, as successor in interest to BioProgress
plc.
SECTION
2.04. Section
17(b) of the Deposit Agreement is amended to read as follows:
Meldex
International plc
15-17
Cambridge Science Xxxx
Xxxxxx
Xxxx
Xxxxxxxxx
XX0 0XX
Xxxxxx
Xxxxxxx
Attention:
Xxxxxxx Xxxxxxxxxx, Chief Executive Officer
Facsimile:
000 00 0000 394251
With
a
courtesy copy to:
Lovells
LLP
Xxxxxxxx
Xxxxx, Xxxxxxx Xxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
Attention: Xxxxxxxxx
Xxxxxxx
Facsimile:
011 44 20 7296 2001
SECTION
2.05. The
agent
for service of process set forth in Section 19 of the Deposit Agreement is
amended to reflect the following;
DEXO,
LLC
and BioTec Films, LLC, or any of them
0000
Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx
Xxxx, Xxxxxx 00000
Attention:
Xxx Xxxxxxx, Financial Controller
Facsimile:
(000) 000-0000
SECTION
2.06. All
references in the form of ADR to the terms "Deposit Agreement" and "form of
ADR"
shall, as of the Effective Date (as herein defined), refer to the Deposit
Agreement and form of ADR as amended hereby.
SECTION
2.07. The
first
two sentences of paragraph (7) of the reverse of the form of
ADR
are amended to read as follows:
The
Company shall publish on its web site (xxx.xxxxxxxxxxxxxxxxxxx.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 Exchange
Act. 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 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01. Representations
and Warranties.
The
Company represents and warrants
to, and agrees with, the Depositary and 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 the United Kingdom, nor does any stamp or similar tax or
governmental charge need to be paid in the United Kingdom 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 as
the
open of business New York time on the date hereof(the “Effective
Date”).
SECTION
4.02. Outstanding
ADRs.
ADRs
issued prior or subsequent to the Effective Date, which do not reflect the
changes to the form of ADR effected hereby, do not need to be called in for
exchange and may remain outstanding until such time as the Holders thereof
choose to surrender them for any reason under the Deposit Agreement. The
Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing. From and after the date hereof, the
amendments to the Deposit Agreement effected hereby shall be binding on all
Holders issued and outstanding as of the date hereof and on all Holders issued
after the date hereof. The form of ADR as amended hereby is set forth in Exhibit
A hereto.
SECTION
4.03. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 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 and
the
same instrument.
SECTION
4.05. Governing
Law. This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be wholly performed in
the
State of New York.
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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MELDEX
INTERNATIONAL PLC
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| By: | ||
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Name: Xxxxxxx Xxxxxxxxxx |
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| Title: Chief Executive Officer | ||
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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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EXHIBIT
A
ANNEXED
TO AND INCORPORATED
IN
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
|
___
Number
|
No. of ADSs: |
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Each
ADS represents
10
Shares
CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
MELDEX
INTERNATIONAL PLC
(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 hereunder (the "Depositary"), hereby certifies
that
is the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing ten
ordinary shares (including the rights to receive Shares described in paragraph
(1), "Shares" and, together with any other securities, cash or property from
time to time held by the Depositary in respect or in lieu of deposited Shares,
the "Deposited Securities"), of BioProgress plc, a public limited company
organized under the laws of England and Wales (the "Company"), deposited under
the Deposit Agreement dated as of October 20, 2004 (as amended from time to
time, the "Deposit Agreement") among the Company, the Depositary and all Holders
from time to time of American Depositary Receipts issued thereunder ("ADRs"),
each of whom by accepting an ADR becomes a party thereto. The Deposit Agreement
and this ADR (which includes the provisions set forth on the reverse hereof)
shall be governed by and construed in accordance with the laws of the State
of
New York.
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Shares in form satisfactory to the Custodian; (b) rights to receive Shares
from
the Company or any registrar, transfer agent, clearing agent or other entity
recording Share ownership or transactions on behalf of the Company; or, (c)
other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released
ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient
of
Pre-released ADRs agrees in writing with the Depositary that such recipient
(a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary
and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not
more
than 30% of all ADSs (excluding those evidenced by Pre-released ADRs),
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
earnings on collateral for Pre-released ADRs and its charges for issuance
thereof. At the request, risk and expense of the person depositing Shares,
the
Depositary may accept deposits for forwarding to the Custodian and may deliver
ADRs at a place other than its office. Every person depositing Shares under
the
Deposit Agreement represents and warrants that such Shares are validly issued
and outstanding, fully paid, nonassessable and free of pre-emptive rights,
that
the person making such deposit is duly authorized so to do and that such Shares
(A) are not "restricted securities" as such term is defined in Rule 144 under
the Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and
sold
freely in the United States or (B) have been registered under the Securities
Act
of 1933. Such representations and warranties shall survive the deposit of Shares
and issuance of ADRs. If any of the representations or warranties are incorrect
in any way, the Depositary and the Company may in their sole discretion, at
the
cost and expense of the Holder, take any and all actions necessary to correct
the consequences of any such misrepresentation. The Depositary will not
knowingly accept for deposit under the Deposit Agreement any Shares required
to
be registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company's compliance with such
Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, the
Holder hereof is entitled to delivery at the Custodian's office of the Deposited
Securities at the time represented by the ADSs evidenced by this ADR. At the
request, risk and expense of the Holder hereof and to the extent not prohibited
under applicable law, the Depositary may deliver such Deposited Securities
at
such other place as may have been requested by the Holder. Notwithstanding
any
other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office in the
Borough of Manhattan, The City of New York (the "Transfer Office"), (a) a
register (the "ADR Register") for the registration, registration of transfer,
combination and split-up of ADRs, and, in the case of Direct Registration ADRs,
shall include the Direct Registration System, which at all reasonable times
will
be open for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the Company or
a
matter relating to the Deposit Agreement and (b) facilities for the delivery
and
receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed (in the case of ADRs in certificated
form) or upon delivery to the Depositary of proper instruments of transfer,
is
transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes and neither the Depositary nor the Company will have
any
obligation or be subject to any liability under the Deposit Agreement to any
holder of an ADR, unless such holder is the Holder thereof. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may
be
split into other ADRs or combined with other ADRs into one ADR, evidencing
the
same number of ADSs evidenced by this ADR, by the Holder hereof or by duly
authorized attorney upon surrender of this ADR at the Transfer Office properly
endorsed (in the case of ADRs in certificated form) or upon delivery to the
Depositary of proper instruments of transfer and duly stamped as may be required
by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company. At the request of a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR with
a
Direct Registration ADR, or vice versa, execute and deliver a certificated
ADR
or a Direct Registration ADR, as the case may be, for any authorized number
of
ADSs requested, evidencing the same aggregate number of ADSs as those evidenced
by the certificated ADR or Direct Registration ADR, as the case may be,
substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject to
the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Shares or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity and genuineness
of any signature and (ii) such other information, including without limitation,
information as to citizenship, residence, exchange control approval, beneficial
ownership of any securities, compliance with applicable law, regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and this ADR, as it may deem necessary or proper; and (c) compliance
with such regulations as the Depositary may establish consistent with the
Deposit Agreement. The issuance of ADRs, the acceptance of deposits of Shares,
the registration, registration of transfer, split-up or combination of ADRs
or,
subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may be suspended, generally or in particular instances, when the
ADR
Register or any register for Deposited Securities is closed or when any such
action is deemed necessary or advisable by the Depositary.
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary may also deduct from any distributions on or in respect
of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required
to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. The Depositary shall forward to the Company or its agent such
information from its records as the Company may reasonably request to enable
the
Company or its agent to file necessary reports with governmental authorities
or
agencies. If the Depositary determines that any distribution in property other
than cash (including Shares or rights) on Deposited Securities is subject to
any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such amounts
and
in such manner as the Depositary deems necessary and practicable to pay such
taxes, by public or private sale, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction
of
such taxes to the Holders entitled thereto.
(6)
Disclosure
of Interests.
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, Holders
and all persons holding ADRs agree to comply with all such disclosure
requirements and ownership limitations and to cooperate with the Depositary
in
the Depositary's compliance with any Company instructions in respect thereof,
and the Depositary will use reasonable efforts to comply with such Company
instructions.
Notwithstanding
any provision of the Deposit Agreement or of this ADR and without limiting
the
foregoing, by being a Holder of an ADR, each such Holder agrees to provide
such
information as the Company may request in a disclosure notice (a "Disclosure
Notice") given pursuant to the Great Britain Companies Act 1985 (as amended
from
time to time and including any statutory modification or re-enactment thereof,
the "Companies Act") or the Articles of Association of the Company. By accepting
or holding this ADR, each Holder acknowledges that it understands that failure
to comply with a Disclosure Notice may result in the imposition of sanctions
against the holder of the Shares in respect of which the non-complying person
is
or was, or appears to be or has been, interested as provided in the Companies
Act and the Articles of Association which currently include, the withdrawal
of
the voting rights of such Shares and the imposition of restrictions on the
rights to receive dividends on and to transfer such Shares. In addition, by
accepting or holding this ADR each Holder agrees to comply with the provisions
of the Companies Act with regard to the notification to the Company of interests
in Shares, which currently provide, inter alia,
that
any Holder who is or becomes directly or indirectly interested (within the
meaning of the Companies Act) in 3% or more of the outstanding Shares, or is
aware that another person for whom it holds such ADRs is so interested, must
within two business days after becoming so interested or so aware (and
thereafter in certain circumstances upon any change to the particulars
previously notified) notify the Company as required by the Companies Act. After
the relevant threshold is exceeded, similar notifications must be made in whole
respect of whole percentage figure increases or decreases, rounded down to
the
nearest whole number.
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADSs are issued against deposits
of
Shares, including deposits in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADSs for withdrawal of Deposited Securities, U.S. $5.00 for each
100 ADSs (or portion thereof) delivered or surrendered. The Depositary may
sell
(by public or private sale) sufficient securities and property received in
respect of Share Distributions, Rights and Other Distributions prior to such
deposit to pay such charge. The following additional charges shall be incurred
by the Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADRs or to whom ADRs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company
or
an exchange of stock regarding the ADRs or the Deposited Securities or a
distribution of ADRs pursuant to paragraph (10)), whichever is applicable (i)
to
the extent not prohibited by the rules of any stock exchange or interdealer
quotation system upon which the ADSs are traded, a fee of $0.02 or less per
ADS
(or portion thereof) for any Cash distribution made pursuant to the Deposit
Agreement, (ii) to the extent not prohibited by the rules of any stock exchange
or interdealer quotation system upon which the ADSs are traded, a fee of $1.50
per ADR or ADRs for transfers made pursuant to paragraph (3) hereof, (iii)
a fee
for the distribution or sale of securities pursuant to paragraph (10) hereof,
such fee being in an amount equal to the fee for the execution and delivery
of
ADSs referred to above which would have been charged as a result of the deposit
of such securities (for purposes of this paragraph (7) treating all such
securities as if they were Shares) but which securities or the net cash proceeds
from the sale thereof are instead distributed by the Depositary to Holders
entitled thereto and (iv) such fees and expenses as are incurred by the
Depositary (including without limitation expenses incurred on behalf of Holders
in connection with compliance with foreign exchange control regulations or
any
law or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation. The Company will pay all
other charges and expenses of the Depositary and any agent of the Depositary
(except the Custodian) pursuant to agreements from time to time between the
Company and the Depositary, except (i) stamp duty, sdrt, stock transfer or
other
taxes and other governmental charges (which are payable by Holders or persons
depositing Shares), (ii) cable, telex and facsimile transmission and delivery
charges incurred at the request of persons depositing, or Holders delivering
Shares, ADRs or Deposited Securities (which are payable by such persons or
Holders), (iii) transfer or registration fees for the registration or transfer
of Deposited Securities on any applicable register in connection with the
deposit or withdrawal of Deposited Securities (which are payable by persons
depositing Shares or Holders withdrawing Deposited Securities; there are no
such
fees in respect of the Shares as of the date of the Deposit Agreement), and
(iv)
expenses of the Depositary in connection with the conversion of foreign currency
into U.S. dollars (which are paid out of such foreign currency). These charges
may be changed in the manner indicated in paragraph (16).
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will distribute copies of such communications
(or English translations or summaries thereof) to Holders when furnished by
the
Company. The Company shall publish on its web site (xxx.xxxxxxxxxxxxxxxxxxx.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
Exchange Act. 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 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary by
the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
JPMORGAN
CHASE BANK, N.A.,
as
Depositary
By
______________________
Authorized
Officer
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will
distribute to each Holder entitled thereto on the record date set by the
Depositary therefor at such Holder's address shown on the ADR Register, in
proportion to the number of Deposited Securities (on which the following
distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged
or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses
in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made
on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at
a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received
in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities ("Rights"), to the extent
that
the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company
has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any
U.S.
dollars available to the Depositary from the net proceeds of sales of Rights
as
in the case of Cash, or (iii) to the extent the Company does not so furnish
such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions and
Rights ("Other Distributions"), by any means that the Depositary may deem
equitable and practicable, or (ii) to the extent the Depositary deems
distribution of such securities or property not to be equitable and practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales
of
Other Distributions as in the case of Cash. Any U.S. dollars available will
be
distributed by checks drawn on a bank in the United States for whole dollars
and
cents. Fractional cents will be withheld without liability and dealt with by
the
Depositary in accordance with its then current practices.
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable, fix a record
date (which shall be as near as practicable to any corresponding record date
set
by the Company) for the determination of the Holders who shall be entitled
to
receive any distribution on or in respect of Deposited Securities, to give
instructions for the exercise of any voting rights, to receive any notice or
to
act in respect of other matters and only such Holders shall be so
entitled.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall distribute to Holders a notice stating (a)
such
information as is contained in such notice and any solicitation materials,
(b)
that each Holder on the record date set by the Depositary therefor, subject
to
United Kingdom laws and the provisions of the Company's Memorandum and Articles
of Association, will be entitled to instruct the Depositary as to the exercise
of the voting rights, if any, pertaining to the Deposited Securities represented
by the ADSs evidenced by such Holder's ADRs and (c) the manner in which such
instructions may be given, including instructions to give a discretionary proxy
to a person designated by the Company. Upon receipt of instructions of a Holder
on such record date in the manner and on or before the date established by
the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable and permitted under the provisions of or governing Deposited
Securities to vote or cause to be voted the Deposited Securities represented
by
the ADSs evidenced by such Holder's ADRs in accordance with such instructions.
The Depositary will not itself exercise any voting discretion in respect of
any
Deposited Securities. There can be no assurance that Holders generally or any
Holder in particular will receive the notice described above with sufficient
time to enable such Holder to return voting instructions to the Depositary
in a
timely manner.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its discretion, amend this
ADR
or distribute additional or amended ADRs (with or without calling this ADR
for
exchange) or cash, securities or property on the record date set by the
Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Share
Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and to sell by public or private sale any
property received in connection with) any recapitalization, reorganization,
merger, scheme of arrangement, consolidation, liquidation, receivership,
bankruptcy or sale of all or substantially all the assets of the Company, and
to
the extent the Depositary does not so amend this ADR or make a distribution
to
Holders to reflect any of the foregoing, or the net proceeds thereof, whatever
cash, securities or property results from any of the foregoing shall constitute
Deposited Securities and each ADS evidenced by this ADR shall automatically
represent its pro rata interest in the Deposited Securities as then
constituted.
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if law, regulation, the provisions of or governing any Deposited
Securities, act of God, war or other circumstance beyond its control shall
prevent, delay or subject to any civil or criminal penalty any act which the
Deposit Agreement or this ADR provides shall be done or performed by it, or
(ii)
by reason of any exercise or failure to exercise any discretion given it in
the
Deposit Agreement or this ADR; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of
the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which
in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not
be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to
give
such advice or information. The Depositary, its agents and the Company may
rely
and shall be protected in acting upon any written notice, request, direction
or
other document believed by them to be genuine and to have been signed or
presented by the proper party or parties. The Depositary and the Company and
their respective agents will not be responsible for any failure to carry out
any
instructions to vote any of the Deposited Securities, for the manner in which
any such vote is cast or for the effect of any such vote. The Depositary and
its
agents may own and deal in any class of securities of the Company and its
affiliates and in ADRs. Notwithstanding anything to the contrary set forth
in
the Deposit Agreement or an ADR, 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 Holder or Holders, any
ADR
or ADRs 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. The Company has agreed to indemnify the
Depositary and its agents under certain circumstances and the Depositary has
agreed to indemnify the Company under certain circumstances. Neither the Company
nor the Depositary nor any of their respective agents shall be liable to Holders
or beneficial owners of interests in ADSs for any indirect, special, punitive
or
consequential damages. No disclaimer of liability under the Securities Act
of
1933 is intended by any provision hereof.
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by 90 days prior written notice of its
election to do so delivered to the Company, or be removed as Depositary by
the
Company by 90 days prior written notice of such removal delivered to the
Depositary. The Depositary may, upon consultation with the Company if
practicable, appoint substitute or additional Custodians and the term
"Custodian"
refers
to each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary, provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other
such
expenses), or that shall otherwise prejudice any substantial existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time any amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold such ADR, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Holder of any ADR to surrender such ADR and receive the Deposited
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 Company and the Depositary) in order
for
(a) the ADSs to be registered on Form F-6 under the Securities Act of 1933
or
(b) the ADSs or Shares to be traded solely in electronic book-entry form and
(ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to prejudice any substantial rights of
Holders. Notwithstanding the foregoing, if any governmental body should adopt
new laws, rules or regulations which would require amendment or supplement
of
the Deposit Agreement or the form of ADR to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and
the
ADR at any time in accordance with such changed rules. Such amendment or
supplement to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance.
(17)
Termination.
Upon
the resignation or removal of the Depositary pursuant to the Deposit Agreement,
the Depositary may, and shall at the written direction of the Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination to
the
Holders at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary and its
agents will perform no further acts under the Deposit Agreement and this ADR,
except to receive and hold (or sell) distributions on Deposited Securities
and
deliver Deposited Securities being withdrawn. As soon as practicable after
the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such sales,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash.
After the date so fixed for termination, the Company shall be discharged from
all obligations under the Deposit Agreement except for its obligations to the
Depositary and its agents which shall survive the termination of this
Agreement.
