SECOND SUPPLEMENT AND AMENDMENT TO DEPOSIT AGREEMENT
SECOND
SUPPLEMENT AND AMENDMENT TO DEPOSIT AGREEMENT
SECOND
SUPPLEMENT AND
AMENDMENT TO DEPOSIT AGREEMENT,
dated
as of August , 2006 (this "Agreement"),
to
the Amended and Restated Deposit Agreement dated as of February 12, 1999
and
previously supplemented and amended as of October 25, 2002 (as so supplemented
and amended, the "Deposit
Agreement")
among
Invensys Plc (the "Company"),
Deutsche Bank Trust Company Americas, an indirect wholly owned subsidiary
of
Deutsche Bank AG, in its capacity as the successor depositary (the "Depositary"),
and
all Owners and Beneficial Owners from time to time of American Depositary
Receipts issued thereunder.
WITNESSETH
THAT:
WHEREAS,
the Company and the Depositary desire to amend and supplement the terms of
the
Deposit Agreement and form of Receipts to reflect a change in the number
of
Shares represented by each American Depositary Share.
NOW,
THEREFORE, the Company and the Depositary hereby amend and supplement the
Receipts and the Deposit Agreement, effective as of the Effective Date set
forth
in Section 5.01 hereof, as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions
Generally.
Unless
otherwise defined in this Agreement, 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
The
ratio
of Shares per American Depositary Share set forth in the Deposit Agreement
is
amended so that after the Effective Date, each American Depositary Share
represents one Share.
ARTICLE
III
AMENDMENTS
TO FORM OF RECEIPT
The
ratio
of Shares per American Depositary Share set forth in the Deposit Agreement
is
amended so that after the Effective Date, each American Depositary Share
represents one Share.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
Section
4.01 Representations
and Warranties of the Company.
The
Company represents and warrants to each of the Depositary and the Owners,
that
this Agreement, when executed and delivered by the Company, and the Deposit
Agreement, as amended and supplemented by this Agreement and all other
documentation executed and delivered by the Company in connection therewith,
will be 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.
2
Section
4.02 Representations
and Warranties of the Depositary.
The
Depositary represents and warrants to each of the Company and the Owners,
that
this Agreement, when executed and delivered by Depositary, and the Deposit
Agreement, as amended and supplemented by this Agreement and all other
documentation executed and delivered by the Depositary in connection therewith
will be duly and validly authorized, executed and delivered by the Depositary,
and constitute the legal, valid and binding obligations of the Depositary,
enforceable against the Depositary 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.
ARTICLE
V
MISCELLANEOUS
Section
5.01 Effective
Date.
This
Agreement is dated as of the date set forth above and shall be effective
as of
the time of effectiveness of the Post-Effective Amendment to Registration
Statement on Form F-6 to be filed by the Depositary on behalf of the legal
entity created by the Deposit Agreement, as amended (the "Effective
Date").
From
and after the Effective Date, all references in the Deposit Agreement and
the
Form of Receipt shall be deemed to be references to the Deposit Agreement
and
Form of Receipt, as amended and supplemented by this Agreement.
3
Section
5.02 Outstanding
Receipts.
Receipts issued prior to the date hereof, which do not reflect the changes
to
the Receipts effected hereby, will need to be exchanged for new Receipts
which
reflect the amended ratio. The Depositary is authorized and directed to take
any
and all actions deemed necessary to effect the foregoing.
Owners
and Beneficial Owners of Receipts issued pursuant to the Deposit Agreement
issued prior to the date hereof and outstanding as of the date hereof, shall,
from and after the date hereof, be deemed Owners and Beneficial Owners of
Receipts issued pursuant and be subject to all of the terms and conditions
of
the Deposit Agreement, as amended and supplemented by this Agreement, in
all
respects.
Section
5.03 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 Agreement
and the transactions contemplated herein.
Section
5.04 Governing
Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW
YORK.
4
Section
5.05 Counterparts.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the
Company and the Depositary have caused this Agreement to be executed by
representatives hereunto duly authorized as of the date set forth
above.
| Invensys Plc | ||
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The
Common Seal of Invensys Plc., as the Company, was affixed hereto in the presence of |
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| By: | ||
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Name:
Title:
Authorized Signatory
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| By: | ||
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Name:
Title:
Authorized Signatory
|
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DEUTSCHE
BANK TRUST COMPANY
AMERICAS, as the Depositary |
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| By: | ||
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Name:
Title:
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| By: | ||
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Name:
Title:
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5
Exhibit
A
to
Supplement
and Amendment to Deposit Agreement
AMERICAN
DEPOSITARY SHARES
(Each
American Depositary Share
represents
one deposited Share)
DEUTSCHE
BANK TRUST COMPANY AMERICAS
AMERICAN
DEPOSITARY RECEIPT
FOR
ORDINARY SHARES OF
INVENSYS
PLC (F/K/A BTR XXXXX PLC)
(A
PUBLIC LIMITED COMPANY ORGANIZED UNDER THE LAWS OF ENGLAND AND
WALES)
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
a bank
organized under the laws of the State of New York, as depositary (hereinafter
called the "Depositary"), hereby certifies that or registered assigns IS
THE
OWNER OF
American
Depositary Shares, representing deposited ordinary shares in registered form
only (herein called "Shares") of Invensys plc (f/k/a BTR Xxxxx plc), a public
limited company organized under the laws of England and Wales (herein called
the
"Company"). At the date hereof, each American Depositary Share represents
one
(1) Share which is either deposited or subject to deposit under the Deposit
Agreement at the office of Deutsche Bank AG, London (herein called the
"Custodian").
THE
DEPOSITARY’S CORPORATE TRUST OFFICE ADDRESS IS
00
XXXX
XXXXXX, XXX XXXX, X.X. 00000
(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 February
12, 1999, as further amended from time to time (herein called the "Deposit
Agreement"), by and among the Company, the Depositary, and all Owners and
Beneficial Owners from time to time of Receipts issued thereunder, each of
whom
by accepting this Receipt agrees to become a party thereto and become bound
by
all the terms and conditions thereof. The Deposit Agreement sets forth the
rights of Owners and Beneficial Owners of the Receipts and the rights and
duties
of the Depositary in respect or in lieu of the Shares deposited or deemed
to be
deposited thereunder and any and all other securities, property and cash
from
time to time received in respect or in lieu 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
Corporate Trust Office in The City of New York 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 defined in the Deposit Agreement and 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 Corporate Trust
Office of the Depositary of this Receipt for the purpose of withdrawal of
the
Deposited Securities represented by the American Depositary Shares evidenced
by
such Receipt and upon payment of the fee of the Depositary for the surrender
of
Receipts as provided in Section 5.09 of the Deposit Agreement and payment
of all
taxes and governmental charges payable in connection with such surrender
and
withdrawal of the Deposited Securities, and subject to the terms and conditions
of the Deposit Agreement, the Articles, the Deposited Securities and applicable
law, the Owner of such Receipt acting for itself or on behalf of the Beneficial
Owner, as the case may be, shall be entitled to delivery, to him or upon
his
order of the amount of Deposited Securities at the time represented by the
American Depositary Shares evidenced by such Receipt or such beneficial
interest. Delivery of such Deposited Securities may be made by the delivery
of
(x) certificates in the name of such Owner or as ordered by him or certificates
properly endorsed or accompanied by a proper instrument or instruments of
transfer to such Owner or as ordered by him, and (y) any other securities,
property and cash to which such Owner is then entitled in respect of such
Receipts to such Owner or as ordered by him. Such delivery shall be made,
as
hereinafter provided, without unreasonable delay.
Notwithstanding
any other provision of the Deposit Agreement or the Receipts, the surrender
of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
subject only to (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.
A
Receipt
surrendered under Section 2.05 of the Deposit Agreement for such purposes
may be
required by the Depositary to be properly endorsed in blank or accompanied
by a
proper instrument or instruments of transfer in blank, and if the Depositary
so
requires, the Owner thereof shall execute and deliver to the Depositary a
written order directing the Depositary to cause the Deposited Securities
being
withdrawn to be delivered to or upon the written order of a person or persons
designated in such order. Thereupon the Depositary shall direct the Custodian
to
deliver at the London, England office of such Custodian, subject to Sections
2.06, 3.01 and 3.02 of the Deposit Agreement and to the other terms and
conditions of the Deposit Agreement, to or upon the written order of the
person
or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except that the Depositary may
make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
2
At
the
request, risk and expense of any Owner so surrendering a Receipt or any
Beneficial Owner submitting such written instructions for delivery, and for
the
account of such Owner or Beneficial Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate
Trust
Office of the Depositary. Such direction shall be given by letter or, at
the
request, risk and expense of such Owner, by air courier, cable, telex or
facsimile transmission.
(3) TRANSFERS,
SPLIT-UPS, AND COMBINATIONS OF RECEIPTS. The Depositary, subject to the terms
and conditions of the Deposit Agreement, shall register transfers of Receipts
on
its transfer books from time to time, upon any surrender of a Receipt, by
the
Owner in person or by a duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer, and duly stamped as may be
required by the laws of the State of New York and of the United States of
America. Thereupon the Depositary shall execute a new Receipt or Receipts
and
deliver the same to or upon the order of the person entitled thereto.
Notwithstanding
anything in this Receipt or the Deposit Agreement to the contrary, to the
extent
the Depositary so desires, American Depositary Shares shall be evidenced
by
Receipts reflected on the direct registration system unless certificated
Receipts are specifically requested by the Owner.
This
Receipt may be split into other such Receipts, or may be combined with other
such Receipts into one Receipt, representing 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 or the adjustment of the Depositary's records to reflect the deposit
of Shares or any such transfer, split-up, combination, surrender or withdrawal,
the Depositary, Company, Custodian or Registrar may require payment from
the
depositor of Shares or the presenter of the Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer
or
registration fee or conversion fee, if any, with respect thereto (including
any
such tax or charge and fee with respect to the Shares being deposited or
withdrawn) and payment of any applicable fees as herein provided, may require
the production of proof satisfactory to it as to the identity and genuineness
of
any signature and may also require compliance with any regulations the
Depositary may establish consistent with the provisions of the Deposit
Agreement, including, without limitation, Section 2.06 thereof.
The
delivery of Receipts against deposits of Shares generally or against deposits
of
particular Shares may be suspended, or deposits of Shares may be refused,
or the
transfer of Receipts in particular instances may be refused or the registration
of transfer, split-up or combination of outstanding Receipts, may be suspended
generally or in particular instances, during any period when the transfer
books
of the Depositary or the Company or the Foreign Registrar, if applicable,
are
closed, or if any such action is deemed necessary or advisable by the Depositary
or the Company at any time or from time to time because of any requirement
of
law or of any government or governmental body or commission, or under any
provision of the Deposit Agreement, or for any other reason, subject to the
provisions of Section 7.07 of the Deposit Agreement. 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.
3
(4)
LIABILITY
OF OWNER FOR TAXES. If any tax or other governmental charge shall become
payable
with respect to this Receipt or any Deposited Securities represented by the
American Depositary Shares evidenced by this Receipt, such tax or other
governmental charge will be payable by the Owner hereof to the Depositary.
The
Depositary may refuse to effect registration of transfer of this Receipt
(or any
split-up or combination hereof) or any withdrawal of Deposited Securities
represented by American Depositary Shares evidenced by this Receipt until
such
payment is made, and may withhold any dividends or other distributions in
respect of any Deposited Securities, or may sell for the account of the Owner
or
Beneficial Owner hereof any part or all of the Deposited Securities represented
by the American Depositary Shares evidenced by this Receipt, and may apply
such
dividends or other distributions or the proceeds of any such sale in payment
of
such tax or other governmental charge and the Owner hereof will remain liable
for any deficiency.
(5)
WARRANTIES
OF DEPOSITORS. Every person depositing Shares under the Deposit Agreement
will
be deemed thereby to represent and warrant, in addition to such representations
and warranties as may be required pursuant to Section 2.02 of the Deposit
Agreement, that such Shares and each certificate therefor are validly issued,
fully paid, nonassessable, and free of any preemptive rights of the holders
of
outstanding Shares and that the person making such deposit is duly authorized
to
do so. 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 will survive the deposit
of
such Shares and issuance of Receipts.
(6)
FILING
PROOFS, CERTIFICATES AND OTHER INFORMATION. Any person presenting Shares
for
deposit or any Owner or Beneficial Owner of this Receipt may be required
from
time to time to file with the Depositary or the Custodian such proof of
citizenship or residence, exchange control approval, proof of the identity
of
any person legally or beneficially interested in this Receipt and the nature
of
such interest, proof of compliance with all applicable laws and regulations
and
provisions of or governing Deposited Securities and the terms of the Deposit
Agreement or such information relating to the registration on the books of
the
Company or the Foreign Registrar, if applicable, of the Shares presented
for
deposit or other information, 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 distribution of rights or
of the
sale 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 all
conditions to such deposit have been satisfied by the person depositing such
Shares under the laws and regulations of the United Kingdom and that any
necessary approval has been granted by any governmental body in the United
Kingdom which is then performing the function of the regulation of currency
exchange or any other function which requires approval for the deposit of
Shares.
4
The
Depositary shall refuse to accept Shares for deposit whenever it is notified
in
writing that such deposit would result in any violation of applicable
laws.
(7)
CHARGES
OF DEPOSITARY. (a) The Company agrees to pay the fees, reasonable expenses
and
out-of-pocket charges of the Depositary and those of any Registrar (which,
for
the avoidance of doubt shall exclude all charges, fees and expenses payable
pursuant to Section 5.09(b) of the Deposit Agreement) 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, if any, to the Company once every three months. The charges and
expenses of the Custodian are for the sole account of the
Depositary.
For
the
avoidance of doubt, the parties acknowledge that the Company shall not be
responsible under this Agreement, among other things, for any charges payable
pursuant to Section 5.09(b) of the Deposit Agreement.
(b)
The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or
stock
split declared by the Company or an exchange of stock regarding the Receipts
or
Deposited Securities or a distribution of Receipts pursuant to Section 4.03
of
the Deposit Agreement), whichever applicable: (1) taxes and other governmental
charges (including without limitations the United Kingdom stamp duty and
stamp
duty reserve tax and any similar duties or taxes), (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 4.05 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 Section 2.03, 4.03 or 4.04 of the Deposit Agreement,
and
the surrender of Receipts pursuant to Section 2.05 or 6.02 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
of
$1.50 or less per certificate for a Receipt or Receipts for transfers made
pursuant to Section 2.04 of the Deposit Agreement and (8) a fee for the
distribution of securities pursuant to Section 4.02 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 (8)
treating all such securities as if they were Shares), but which securities
are
instead distributed by the Depositary to Owners.
5
(c)
The
Depositary, subject to Section 2.09 of the Deposit Agreement, may own and
deal
in any class of securities of the Company and its affiliates and in
Receipts.
(8)
PRE-RELEASE
OF RECEIPTS. The Depositary may issue Receipts against the delivery by the
Company (or any agent of the Company recording Share ownership) of rights
to
receive Shares from the Company (or any such agent). No such issue of Receipts
will be deemed a "Pre-Release" that is subject to the restrictions of the
following paragraph.
The
Depositary shall not deliver Shares under the Deposit Agreement except upon
receipt and cancellation of Receipts. Unless requested in writing by the
Company
to cease doing so, the Depositary may, notwithstanding Section 2.03 of the
Deposit Agreement, execute and deliver Receipts prior to the receipt of Shares
pursuant to Section 2.02 of the Deposit Agreement ("Pre-Release"). The
Depositary may, pursuant to Section 2.05 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 and agreement from the person to
whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee,
or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may
be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and
for
the benefit of the Owners, and (iii) will not take any action with respect
to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in satisfaction of such Pre-Release, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) 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 Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result
of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited under the Deposit Agreement; provided, however, that the Depositary
reserves the right to disregard such limit from time to time as it deems
reasonably appropriate, and may, with the prior written consent of the Company,
change such limit for purposes of general application. The Depositary will
also
set Dollar limits with respect to Pre-Release transactions to be entered
into
under the Deposit Agreement with any particular Pre-Releasee on a case-by-case
basis as the Depositary deems appropriate. For purposes of enabling the
Depositary to fulfill its obligations to the Owners under the Deposit Agreement,
the collateral referred to in clause (b) above shall be held by the Depositary
as security for the performance of the Pre-Releasee's obligations to the
Depositary in connection with a Pre-Release transaction, including the
Pre-Releasee's obligation to deliver Shares or Receipts upon termination
of a
Pre-Release transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities under the Deposit Agreement).
6
The
Depositary may retain for its own account any compensation received by it
in
connection with the foregoing.
(9)
TITLE TO
RECEIPTS. Title to this Receipt (and to the American Depositary Shares evidenced
hereby), when properly endorsed or accompanied by a proper instrument or
instruments of transfer and transferred in accordance with the terms of the
Deposit Agreement, is transferable by delivery with the same effect as in
the
case of a negotiable instrument under the laws of the State of New York;
provided, however, that the Depositary, notwithstanding any notice to the
contrary, may treat the Owner hereof 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 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 this Receipt, unless such holder is the Owner hereof.
(10)
VALIDITY
OF RECEIPT. This Receipt will 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 (other than
the
Depositary) for the Receipts shall have been appointed, countersigned by
the
manual or facsimile signature of a duly authorized signatory of the
Registrar.
(11)
REPORTS;
INSPECTION OF TRANSFER BOOKS.
The
Company currently furnishes the Securities and Exchange Commission (hereinafter
called 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. Such reports and communications will be available for inspection
and
copying by holders and Owners at the public reference facilities maintained
by
the Commission located at 000 X Xxxxxx X.X., Xxxxxxxxxx, X.X.
00000.
The
Depositary will make available for inspection by Owners at its Corporate
Trust
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. If requested by the
Company, the Depositary shall also send to the Owners copies of such reports
when furnished by the Company pursuant to Section 5.06 of the Deposit Agreement.
Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Company shall be furnished in
English to the extent such materials are required to be translated into English
pursuant to any regulations of the Commission.
The
Depositary shall keep books at its Corporate Trust Office for the registration
of Receipts and transfers of Receipts which at all reasonable times shall
be
open for inspection by the Owners, provided that such inspection shall not
be
for the purpose of communicating with Owners in the interest of a business
or
object other than the business of the Company or a matter related to the
Deposit
Agreement or the Receipts.
7
The
Depositary may close the transfer books, at any time or from time to time,
when
deemed expedient by it in connection with the performance of its duties under
the Deposit Agreement.
(12)
DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary shall receive any cash
dividend or other cash distribution on any Deposited Securities, the Depositary
shall, if such cash is received in Foreign Currency, subject to the provisions
of Section 4.05 of the Deposit Agreement, promptly convert such dividend
or
distribution into Dollars and shall as promptly as practicable distribute
the
amount thus received (net of the fees and out-of-pocket expenses of the
Depositary as provided in Section 5.09 of the Deposit Agreement) to the Owners
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities evidenced by Receipts held by them
respectively; 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 an amount on account of taxes or
other
governmental charges, the amount distributed to the Owner of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly.
Subject
to the provisions of Sections 4.11 and 5.09 of the Deposit Agreement, whenever
the Depositary shall receive any distribution other than a distribution
described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement, the Depositary
shall cause the securities or property received by it to be distributed to
the
Owners entitled thereto, after the deduction or upon payment of any fees
and
out-of-pocket expenses of the Depositary or any taxes or other governmental
charges under the Deposit Agreement in proportion to the number of American
Depositary Shares representing such Deposited Securities evidenced by Receipts
held by them respectively, in any manner that the Depositary may deem equitable
and practicable for accomplishing such distribution; provided, however, that
if
in the opinion of the Depositary such distribution cannot be made
proportionately among the Owners entitled thereto, or if for any other reason
(including, but not limited to, any requirement that the Company or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be registered under the Securities Act of 1933
in
order to be distributed to Owners or Beneficial Owners of Receipts) 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 and out-of-pocket
expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement)
shall be distributed by the Depositary to the Owners entitled thereto, all
in
the manner and subject to the conditions described in Section 4.01 of the
Deposit Agreement.
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,
in
proportion to the number of American Depositary Shares representing such
Deposited Securities evidenced by Receipts held by them respectively, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement
with
respect to the deposit of Shares and the issuance of American Depositary
Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement
and the
payment of the fees and out-of-pocket expenses of the Depositary as provided
in
Section 5.09 of the Deposit Agreement. The Depositary may withhold any such
distribution of Receipts if it has not received satisfactory assurances from
the
Company in its reasonable judgment that such distribution does not require
registration under the Securities Act of 1933 or is exempt from registration
under the provisions of such Act. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions described
in
Section 4.01 of the Deposit Agreement. If such adjustments on the records
of the
Depositary are not so made or additional Receipts are not so distributed,
each
American Depositary Share shall thenceforth also represent the additional
Shares
distributed upon the Deposited Securities represented thereby.
8
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 entitled
thereto in proportion to the number of American Depositary Shares held by
them
respectively.
(13)
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, after consultation with the Company, 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 or 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.
In
circumstances in which rights would otherwise not be distributed, if an Owner
of
Receipts requests the distribution of warrants or other instruments in order
to
exercise the rights allocable to the American Depositary Shares of such Owner
under the Deposit Agreement, the Depositary will make such rights available
to
such Owner upon written notice from the Company to the Depositary that (a)
the
Company has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Company has determined
in
its sole discretion are reasonably required under applicable law.
9
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 an 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 and out-of-pocket
expenses 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 2.02 of the Deposit Agreement, and shall, pursuant
to Section 2.03 of the Deposit Agreement, execute and deliver Receipts to
such
Owner. In the case of a distribution pursuant to the second paragraph of
Section
4.04 of the Deposit Agreement, such Receipts shall be legended in accordance
with applicable U.S. laws, and shall be subject to the appropriate restrictions
on sale, deposit, cancellation and transfer under such laws.
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 out-of-pocket expenses of the Depositary as provided
in
Section 5.09 of 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, or not subject
to, registration under the Securities Act of 1933 with respect to a distribution
to all Owners or are registered under the provisions of such Act; provided,
that
nothing in the Deposit Agreement or otherwise shall create any obligation
on the
part of the Company to file a registration statement with respect to such
rights
or underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests the 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 counsel in the United States for the
Company upon which the Depositary may rely that such distribution to such
Owner
is exempt from or not subject to such registration requirements.
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.
10
(14)
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 promptly 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 promptly be distributed to the Owners entitled
thereto in proportion to the number of ADSs representing such Deposited
Securities evidenced by ADRs held by them, respectively, 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, as applicable, upon surrender thereof for cancellation in whole
or
in part depending upon the terms of such warrants or other instruments. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions,
the
date of delivery of any Receipt or otherwise and shall be net of any expenses
of
conversion into Dollars incurred by the Depositary as provided in Section
5.09
of the Deposit Agreement.
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 in its judgment that 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.
(15)
FIXING
OF
RECORD DATE. 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, 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 find it necessary or convenient, the Depositary
shall fix a record date which shall be the same date as the record date,
if any,
applicable to the Deposited Securities, or as close thereto as practicable
(a)
for the determination of the Owners 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 Sections 4.01
through
4.05 of the Deposit Agreement and to the other terms and conditions of the
Deposit Agreement, the Owners on such record date shall be entitled, as the
case
may be, to receive the amount distributable by the Depositary with respect
to
such dividend or other distribution or such rights or the net proceeds of
sale
thereof in proportion to the number of American Depositary Shares evidenced
by
Receipts held by them respectively and to give voting instructions, to exercise
the rights of Owners under the Deposit Agreement with respect to such changed
number of Shares and to act in respect of any other such matter.
11
(16)
VOTING
OF
DEPOSITED SECURITIES. Upon receipt of notice of any meeting or solicitation
of
consents or proxies 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 a notice, which shall contain (a) such
information as is contained in such notice of meeting, and (b) a statement
that
the Owners 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
Memorandum and Articles of Association of the Company, to instruct the
Depositary as to the exercise of the voting rights, if any, 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, including an express indication that such
instructions may be given or deemed given in accordance with the last sentence
of this paragraph if no instruction is received, to the Depositary to give
a
discretionary proxy to a person designated by the Company. Upon the written
request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose, (the "Instruction Date")
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 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 or deemed
instructions. If no instructions are received by the Depositary from any
Owner
with respect to any of the Deposited Securities represented by the American
Depositary Shares evidenced by such Owner's Receipts on or before the
Instruction Date, the Depositary shall deem such Owner to have instructed
the
Depositary to give a discretionary proxy to a person designated by the Company
with respect to such Deposited Securities and the Depositary shall give a
discretionary proxy to a person designated by the Company to vote such Deposited
Securities, provided, that no such instruction shall be given with respect
to
any matter as to which the Company informs the Depositary that (x) the Company
does not wish such proxy given, (y) substantial opposition exists or (z)
such
matter materially and adversely affects the rights of holders of Shares or
other
Deposited Securities.
Although
the Depositary shall endeavor, insofar as practicable, to deliver the notice
described in the preceding paragraph reasonably in advance of the Instruction
Date, 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.
12
(17)
CHANGES
AFFECTING DEPOSITED SECURITIES. In circumstances where the provisions of
Section
4.03 of the Deposit Agreement do not apply, upon any change in nominal value,
change in par value, split-up, consolidation or any other reclassification
of
Deposited Securities, or upon any recapitalization, reorganization, merger
or
consolidation or sale of assets affecting the Company or to which it is a
party,
any securities which shall be received by the Depositary or a Custodian in
exchange for or in conversion of or in respect of Deposited Securities, shall
be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent, in addition to existing Deposited
Securities, 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, 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.
(18)
LIABILITY
OF THE COMPANY AND DEPOSITARY. Neither the Depositary nor the Company nor
any of
their respective directors, employees, agents or affiliates shall incur any
liability to any Owner or Beneficial Owner of any Receipt, if by reason of
any
provision of any present or future law, regulation, order, decree, moratorium
or
fiat of the United States, any other country, or of any governmental or
regulatory authority, stock exchange or automated quotation system, or by
reason
of any provision, present or future, of the Articles, or by reason of any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or
other
circumstances beyond its control, the Depositary or the Company or any of
their
directors, employees, agents or affiliates shall be prevented, delayed 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
or the Deposited Securities it is provided shall be done or performed; nor
shall
the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates incur any liability to any Owner or Beneficial Owner
of any
Receipt by reason of any nonperformance 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 Section 4.01, 4.02, or
4.03 of
the Deposit Agreement, or an offering or distribution pursuant to Section
4.04
of the Deposit Agreement, or for any other reason, such distribution or offering
may not be made available to Owners, and the Depositary may not dispose of
such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
13
The
Company assumes no obligation nor shall it be subject to any liability under
the
Deposit Agreement to any Owner or Beneficial Owner, except that it agrees
to
perform its obligations specifically set forth in the Deposit Agreement without
negligence or bad faith. The Depositary assumes no obligation nor shall it
be
subject to any liability under the Deposit Agreement to any Owner or Beneficial
Owner (including, without limitation, liability with respect to the validity
or
worth of the Deposited Securities), except that it agrees to perform its
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith. 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 in its sole discretion 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 any other person believed
by
it in good faith to be competent to give such advice or information including,
but not limited to, any such action or nonaction based upon any written notice,
request, direction or other document believed by it to be genuine and to
have
been signed or presented by the proper party or parties. The Depositary shall
not be liable for any acts or omissions made by a successor depositary whether
in connection with a previous act or omission of the Depositary or in connection
with 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 without
negligence and in good faith. No disclaimer of liability under the Securities
Act of 1933 is intended by any provision of the Deposit Agreement.
The
Company agrees to indemnify the Depositary, its directors, employees, agents
and
affiliates and any Custodian against, and hold each of them harmless from,
any
liability or expense (including, but not limited to, the reasonable fees
and
expenses of counsel) which may arise out of acts performed or omitted, in
accordance with the provisions of the Deposit Agreement and of the Receipts,
as
the same may be amended, modified or supplemented from time to time, (i)
by
either the Depositary or a Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of
the
negligence or bad faith of either of them, or (ii) by the Company or any
of its
directors, employees, agents and affiliates.
The
indemnities contained in the preceding paragraph shall not extend to any
liability or expense which arises solely and exclusively out of a Pre-Release
(as defined in Section 2.09 of the Deposit Agreement) of a Receipt or Receipts
in accordance with Section 2.09 of the Deposit Agreement and which would
not
otherwise have arisen had such Receipt or Receipts not been the subject of
a
Pre-Release pursuant to Section 2.09 of the Deposit Agreement; provided,
however, that the indemnities provided in the preceding paragraph shall apply
to
any such liability or expense (i) to the extent that such liability or expense
would have arisen had a Receipt or Receipts not be the subject of a Pre-Release,
or (ii) which may arise out of any misstatement or alleged misstatement or
omission or alleged omission in any registration statement, proxy statement,
prospectus (or placement memorandum), or preliminary prospectus (or preliminary
placement memorandum) relating to the offer or sale of American Depositary
Shares, except to the extent any such liability or expense arises out of
(i)
information relating to the Depositary or any Custodian (other than the
Company), as applicable, furnished in writing and not materially changed
or
altered by the Company expressly for use in any of the foregoing documents,
or,
(ii) if such information is provided, the failure to state a material fact
necessary to make the information provided not misleading.
14
The
Depositary agrees to indemnify the Company, its directors, employees, agents
and
affiliates and hold them harmless from any liability or expense (including
but
not limited to, the fees and expenses of counsel) which may arise out of
acts
performed or omitted by the Depositary or its Custodian or their respective
directors, employees, agents and affiliates due to their negligence or bad
faith.
Any
person seeking indemnification under the Deposit Agreement (an "indemnified
person") shall notify the person from whom it is seeking indemnification
(the
"indemnifying person") of a commencement of an indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement;
provided, however, that the failure of the indemnified person to so notify
the
indemnifying person shall not impair the indemnified person's right to receive
indemnification from the indemnifying person unless such failure adversely
affects the defense of such action or claim, in which case indemnification
shall
be adjusted accordingly, and, provided that a conflict of interest does not
exist between the indemnified person and the indemnifying person, and the
indemnified person shall consult in good faith with the indemnifying person
as
to the conduct of the defense of such action or claim, which defense shall
be
reasonable under the circumstances. No indemnified person shall compromise
or
settle any action or claim without the consent of the indemnifying
person.
The
obligations set forth in Section 5.08 of the Deposit Agreement shall survive
the
termination of the Deposit Agreement and the succession or substitution of
any
indemnified person.
(19)
RESIGNATION
AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR CUSTODIAN. The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
60 days' written notice of its election to do so (or a lesser amount of notice
if satisfactory to the Company) delivered to the Company, effective upon
the
appointment of a successor depositary to the Company and its acceptance of
such
appointment as provided in the Deposit Agreement, which appointment shall
be on
terms satisfactory to the Company in its sole discretion. The Depositary
may at
any time be removed by the Company by 60 days' written notice of such removal
effective upon the appointment of a successor depositary satisfactory to
the
Company and its acceptance of such appointment as provided in the Deposit
Agreement, which appointment shall be on terms satisfactory to the Company
in
its sole discretion. In case at any time the Depositary shall resign or be
removed, the Company will use its best efforts to appoint a successor
depositary, which will be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary will
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment under the Deposit Agreement, and thereupon
such successor depositary, without any further act or deed, will become fully
vested with all the rights, powers, duties and obligations of its predecessor;
but such predecessor, nevertheless, upon payment of all sums due it and on
the
written request of the Company, will execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
under
the Deposit Agreement, will duly assign, transfer and deliver all right,
title
and interest in the Deposited Securities to such successor, and will deliver
to
such successor a current and accurate list of the Owners of all outstanding
Receipts. Any such successor depositary will promptly mail notice of its
appointment to the Owners. Whenever the Depositary in its discretion determines
that it is in the best interest of the Owners to do so, it may appoint a
substitute or additional custodian or custodians.
15
(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 without the consent of Owners or Beneficial Owners of Receipts
in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other expenses), or which shall otherwise prejudice any
substantial existing right of Owners will, 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 and Beneficial Owner at the time any amendment so becomes effective
will
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 this Receipt to
surrender such Receipt and receive herefor the Deposited Securities represented
hereby, except in order to comply with mandatory provisions of applicable
law.
(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 30 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 Section 5.04 of the
Deposit Agreement. On and after the date of termination, the Owner of this
Receipt will, upon (a) surrender of such Receipt at the Corporate Trust Office
of the Depositary, (b) payment of the fee of the Depositary for the surrender
of
Receipts referred to in Section 2.05 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 and other distributions 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
and
other property as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights
or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable
taxes
or governmental charges). At any time after the expiration of one year from
the
date of termination, the Depositary may sell the Deposited Securities then
held
under the Deposit Agreement and may thereafter hold uninvested the net proceeds
of any such sale, together with any other cash then held by it under the
Deposit
Agreement, 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 5.08 and 5.09 of the Deposit Agreement. The
obligations of the Depositary under Section 5.08 of the Deposit Agreement
shall
survive the termination of the Deposit Agreement.
16
(22)
DISCLOSURE
OF BENEFICIAL OWNERSHIP. Notwithstanding any other provision of the Deposit
Agreement to the contrary, each Owner and Beneficial Owner of a Receipt agrees
to provide such information as the Company may request in a disclosure notice
(a
"Disclosure Notice") given pursuant to the United Kingdom Companies Act 1985
(as
amended from time to time and including any statutory modification or
re-enactment thereof, the "Companies Act") or the Company's Memorandum and
Articles of Association, as amended from time to time. Each Owner and Beneficial
Owner of a Receipt 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 Owner or Beneficial Owner
is
or was, or appears to be or has been, interested as provided in the Companies
Act and the Company's Memorandum and Articles of Association, as amended
from
time to time. Such sanctions may include, without limitation, the withdrawal
of
voting rights or, in certain circumstances, in relation to the non-complying
Owner, the withholding of any payments, including dividends and payments
of a
capital nature, in respect of the Shares represented by such American Depositary
Shares, voiding any transfers of the Shares represented by such American
Depositary Shares, prohibiting the issuance of additional shares by way of
rights or bonus entitlement in respect of the Shares represented by such
American Depositary Shares and the nullification of any agreement to effect
any
of the acts subject to the restrictions by virtue of the sanctions.
17
In
addition, each Owner and Beneficial Owner of a Receipt 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
of
Receipts or other person 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 Receipts or
owns
such interest in American Depositary Shares is so interested, must within
two
United Kingdom Business Days after becoming so interested or so aware (and
thereafter in certain circumstances upon any change of at least one percent
(1%)
of the outstanding Shares) notify the Company as required by the Companies
Act.
Each Owner and Beneficial Owner of a Receipt acknowledges that it understands
that failure to comply with the Companies Act in this regard may similarly
result in the imposition of the sanctions described in the first paragraph
of
Section 3.04 of the Deposit Agreement.
In
the
event that the Company determines that there has been a failure to comply
with a
Disclosure Notice with respect to any Deposited Securities, and that sanctions
are to be imposed against such Deposited Securities pursuant to the Companies
Act by a court of competent jurisdiction, or by the Company, pursuant to
the
Company's Memorandum and Articles of Association, the Company shall so notify
the Depositary, giving full details thereof, and shall instruct the Depositary
in writing as to the application of such sanctions to the Deposited Securities.
Except as prohibited by applicable law, the Depositary agrees to use reasonable
efforts to comply with any such instructions requesting that the Depositary
take
the reasonable and feasible actions specified therein to apply such
sanctions.
If
the
Company requests information from the Depositary or the Custodian, as the
registered holders of Shares, pursuant to the Company's Memorandum and Articles
of Association or the Companies Act, the Depositary agrees to use, and to
cause
the Custodian to use, reasonable efforts to comply with any reasonable
instructions received from the Company requesting the Depositary to take
the
reasonable actions specified therein to obtain such information.
(23)
COMPLIANCE
WITH U.S. SECURITIES LAWS. Notwithstanding anything in the Deposit Agreement
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.
18
