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BRITISH ENERGY PLC
AND
JPMORGAN CHASE BANK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Amended and Restated Deposit Agreement
Dated as of March 18, 2003
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TABLE OF CONTENTS
Page
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PARTIES........................................................................1
RECITALS.......................................................................1
Section 1. Certain Definitions
(a) ADR Register................................................1
(b) ADRs; Direct Registration ADRs............................. 1
(c) ADS.........................................................1
(d) Articles....................................................1
(e) Custodian................................................. 2
(f) Deliver, execute, issue et al.............................. 2
(g) Delivery Order............................................. 2
(h) Deposited Securities...................................... 2
(i) Direct Registration System................................. 2
(j) Holder..................................................... 2
(k) Relevant Article............................................2
(l) Securities Act of 1933......................................2
(m) Securities Exchange Act of 1934.............................2
(n) Shares......................................................2
(o) Transfer Office............................................ 2
(p) Withdrawal Order........................................... 2
Section 2. ADR Certificates.................................................. 3
Section 3. Deposit of Shares..................................................3
Section 4. Issue of ADRs..................................................... 4
Section 5. Distributions on Deposited Securities............................. 4
Section 6. Withdrawal of Deposited Securities................................ 4
Section 7. Substitution of ADRs.............................................. 4
Section 8. Cancellation and Destruction of ADRs.............................. 4
Section 9. The Custodian..................................................... 4
Section 10. Co-Registrars and Co-Transfer Agents.............................. 5
Section 11. Lists of Holders. ................................................ 5
Section 12. Depositary's Agents............................................... 5
Section 13. Successor Depositary.............................................. 5
Section 14. Reports........................................................... 6
Section 15. Additional Shares................................................. 6
Section 16. Indemnification................................................... 6
Section 17. Notices........................................................... 6
Section 18. Miscellaneous..................................................... 7
Section 19. Amendment and Restatement of Old Deposit Agreement................ 7
TESTIMONIUM................................................................... 8
SIGNATURES.................................................................... 8
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Page
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EXHIBIT A
FORM OF FACE OF ADR.................................................................. A-1
Introductory Paragraph...................................................... A-1
(1) Issuance of ADRs................................................. A-2
(2) Withdrawal of Deposited Securities............................... A-2
(3) Transfers of ADRs................................................ A-2
(4) Certain Limitations.............................................. A-3
(5) Taxes............................................................ A-3
(6) Disclosure of Interests.......................................... A-4
(7) Charges of Depositary............................................ A-4
(8) Available Information............................................ A-5
(9) Execution........................................................ A-5
Signature of Depositary..................................................... A-5
Address of Depositary's Office ............................................. A-5
FORM OF REVERSE OF ADR............................................................... A-6
(10) Distributions on Deposited Securities............................ A-6
(11) Record Dates..................................................... A-7
(12) Voting of Deposited Securities................................... A-7
(13) Changes Affecting Deposited Securities........................... A-7
(14) Exoneration...................................................... A-7
(15) Resignation and Removal of Depositary; the
Custodian........................................................ A-8
(16) Amendment........................................................ A-8
(17) Termination...................................................... A-9
(18) Restrictions Upon Ownership...................................... A-9
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AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of March 18, 2003 (the
"Deposit Agreement") among BRITISH ENERGY PLC and its successors (the
"Company"), JPMORGAN CHASE BANK, as depositary hereunder (the "Depositary"), and
all holders from time to time of American Depositary Receipts issued hereunder
("ADRs") evidencing American Depositary Shares ("ADSs") representing deposited
Shares (defined below).
WITNESSETH:
WHEREAS, the Company and the Depositary entered into a
deposit agreement dated as of December 8, 1999 (the "Old Deposit Agreement") to
provide for the deposit of Shares of the Company with the Depositary or with the
Custodian as agent of the Depositary for the purposes set forth in such Old
Deposit Agreement, for the creation of American depositary shares representing
the Shares so deposited and for the execution and delivery of American
depositary receipts ("Old ADRs") evidencing the ADSs;
WHEREAS, the Company and the Depositary desire to amend
certain terms of the Old Deposit Agreement in accordance with paragraph (16) of
the Form of ADR thereof and to reflect such amendments pursuant to the terms and
conditions set forth in this Deposit Agreement; and
WHEREAS, it is desired to provide, as hereinafter set forth
in this Deposit Agreement, for the deposit of Shares of the Company from time to
time with the Custodian for the purposes set forth herein, and for the issuance
of ADRs, in respect of the Shares so deposited.
NOW THEREFORE, in consideration of the premises, it is
agreed by and among the parties hereto as follows:
1. Certain Definitions.
(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
(b) "ADRs" mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct
Registration ADRs. ADRs in physical certificated form shall be substantially in
the form of Exhibit A annexed hereto (the "form of ADR"). The term "Direct
Registration ADR" means an ADR, the ownership of which is recorded on the Direct
Registration System. References to "ADRs" shall include Direct Registration
ADRs, unless the context otherwise requires. The form of ADR is hereby
incorporated herein and made a part hereof; the provisions of the form of ADR
shall be binding upon the parties hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced
by an ADR represents the right to receive 75 Shares and a pro rata share in any
other Deposited Securities.
(d) "Articles" means the Memorandum and Articles of Association of the
Company,
as in effect from time to time.
(e) "Custodian" means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
(f) The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to Direct Registration ADRs,
shall refer to an entry or entries or an electronic transfer or transfers in the
Direct Registration System.
(g) "Delivery Order" is defined in Section 3.
(h) "Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(i) "Direct Registration System"means the system for the uncertificated
registration of ownership of securities established by The Depository Trust &
Clearing Corporation ("DTCC") and utilized by the Depositary pursuant to which
the Depositary may record the ownership of ADRs without the issuance of a
certificate, which ownership shall be evidenced by periodic statements issued by
the Depositary to the Holders entitled thereto. For purposes hereof, the Direct
Registration System shall include access to the Profile Modification System
maintained by DTCC which provides for automated transfer of ownership between
DTCC and the Depositary.
(j) "Holder" means the person or persons in whose name an ADR is
registered on the ADR Register.
(k) "Relevant Article" means Articles 15 and 16 of the Companies Act.
(l) "Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
(m) "Securities Exchange Act of 1934" means the United States
Securities Exchange Act of 1934, as from time to time amended.
(n) "Shares" mean the ordinary shares of the Company and shall include
the rights to receive Shares specified in paragraph (1) of the form of ADR.
(o) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(p) "Withdrawal Order" is defined in Section 6.
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2. ADR Certificates. (a) ADRs in certificated form shall be engraved,
printed or otherwise reproduced at the discretion of the Depositary in
accordance with its customary practices in its American depositary receipt
business, or at the request of the Company typewritten and photocopied on plain
or safety paper, and shall be substantially in the form set forth in the form of
ADR, with such changes as may be required by the Depositary or the Company to
comply with their obligations hereunder, any applicable law, regulation or usage
or to indicate any special limitations or restrictions to which any particular
ADRs are subject. ADRs may be issued in denominations of any whole number of
ADSs. ADRs in certificated form shall be executed by the Depositary by the
manual or facsimile signature of a duly authorized officer of the Depositary.
ADRs in certificated form bearing the facsimile signature of anyone who was at
the time of execution a duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold such office
prior to the delivery of such ADRs.
(b) Direct Registration ADRs. Notwithstanding anything in this Deposit
Agreement or in the form of ADR to the contrary, ADSs shall be evidenced by
Direct Registration ADRs, unless certificated ADRs are specifically requested by
the Holder.
(c) Holders shall be bound by the terms and conditions of this Deposit
Agreement and of the form of ADR, regardless of whether their ADRs are Direct
Registration ADRs or certificated ADRs.
3. Deposit of Shares. In connection with the deposit of Shares
hereunder, the Depositary or the Custodian may require the following in form
satisfactory to it: (a) a written order directing the Depositary to issue to, or
upon the written order of, the person or persons designated in such order a
Direct Registration ADR or ADRs evidencing the number of ADSs representing such
deposited Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer in respect of such deposited Shares; (c) instruments
assigning to the Custodian or its nominee any distribution on or in respect of
such deposited Shares or indemnity therefor; and (d) proxies entitling the
Custodian to vote such deposited Shares. As soon as practicable after the
Custodian receives Deposited Securities pursuant to any such deposit or pursuant
to paragraph (10) or (13) of the form of ADR, the Custodian shall present such
Deposited Securities for registration of transfer into the name of the Custodian
or its nominee, to the extent such registration is practicable, at the cost and
expense of the person making such deposit (or for whose benefit such deposit is
made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities shall be held by the Custodian for the account and to the
order of the Depositary at such place or places and in such manner as the
Depositary shall determine. Deposited Securities may be delivered by the
Custodian to any person only under the circumstances expressly contemplated in
this Deposit Agreement. Shares may also be deposited hereunder by such delivery
thereof as the Depositary or the Custodian may reasonably accept, including,
without limitation, by causing them to be credited to an account maintained by
the Custodian for such purpose with an accredited intermediary, such as a bank,
acting as a registrar for the Shares or otherwise through the CREST real time
settlement system for U.K. securities, in each case together with delivery of
the documents, payments and Delivery Order referred to herein to the Custodian
or the Depositary.
3
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall
notify the Depositary of such deposit and of the information contained in any
related Delivery Order by letter, first class airmail postage prepaid, or, at
the request, risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement, shall properly issue at the
Transfer Office, to or upon the order of any person named in such notice, an ADR
or ADRs registered as requested and evidencing the aggregate ADSs to which such
person is entitled.
5. Distributions on Deposited Securities. To the extent that the
Depositary determines in its discretion that any distribution pursuant to
paragraph (10) of the form of ADR is not practicable with respect to any Holder,
the Depositary may make such distribution as it so deems practicable, including
the distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender
of an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the Depositary may require proper endorsement in blank of
such ADR (or duly executed instruments of transfer thereof in blank) and the
Holder's written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered to, or upon the written order of, any person designated in such order
(a "Withdrawal Order"). Directions from the Depositary to the Custodian to
deliver Deposited Securities shall be given by letter, first class airmail
postage prepaid, or, at the request, risk and expense of the Holder, by cable,
telex or facsimile transmission. Delivery of Deposited Securities may be made by
the delivery of certificates (which, if required by law shall be properly
endorsed or accompanied by properly executed instruments of transfer or, if such
certificates may be registered, registered in the name of such Holder or as
ordered by such Holder in any Withdrawal Order) or by such other means as the
Depositary may deem practicable.
7. Substitution of ADRs. The Depositary shall execute and deliver a new
Direct Registration ADR in exchange and substitution for any mutilated
certificated ADR upon cancellation thereof or in lieu of and in substitution for
such destroyed, lost or stolen certificated ADR, unless the Depositary has
notice that such ADR has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary a request for such execution and delivery and
a sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary.
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the
Depositary shall be cancelled by the Depositary. The Depositary is authorized to
destroy ADRs in certificated form so cancelled in accordance with its customary
practices.
9. The Custodian. Any Custodian in acting hereunder shall be subject to
the directions of the Depositary and shall be responsible solely to it. The
Depositary may from time to time, after consultation with the Company if
practicable, appoint one or more agents to act for it as Custodian hereunder.
Each Custodian so appointed (other than JPMorgan Chase Bank) shall
4
give written notice to the Company and the Depositary accepting such appointment
and agreeing to be bound by the applicable terms hereof. Any Custodian may
resign from its duties hereunder by at least 30 days written notice to the
Depositary. The Depositary may discharge any Custodian at any time upon notice
to the Custodian being discharged. Any Custodian ceasing to act hereunder as
Custodian shall deliver, upon the instruction of the Depositary, all Deposited
Securities held by it to a Custodian continuing to act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may, after
consultation with the Company if practicable, appoint and remove (i)
co-registrars to register ADRs and transfers, combinations and split-ups of ADRs
and to countersign ADRs in accordance with the terms of any such appointment and
(ii) co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of ADRs at designated transfer offices in addition to the Transfer
Office on behalf of the Depositary. Each co-registrar or co-transfer agent
(other than JPMorgan Chase Bank) shall give notice in writing to the Company and
the Depositary accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement.
11. Lists of Holders. The Company shall have the right to inspect
transfer records of the Depositary and its agents and the ADR Register, take
copies thereof and require the Depositary and its agents to supply copies of
such portions of such records as the Company may request. The Depositary or its
agent shall furnish to the Company promptly upon the written request of the
Company, a list of the names, addresses and holdings of ADSs by all Holders as
of a date within seven days of the Depositary's receipt of such request.
12. Depositary's Agents. The Depositary may perform its obligations
under this Deposit Agreement through any agent appointed by it, provided that
the Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed. The Depositary shall use its reasonable efforts under the
circumstances to consult with the Company prior to appointing any agent
hereunder (other than those agents which, on the date hereof, are acting in an
agency capacity for JPMorgan Chase Bank).
13. Successor Depositary. If the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a bank
or trust company having an office in the Borough of Manhattan, The City of New
York, as successor depositary hereunder. Every successor depositary shall
execute and deliver to its predecessor and to the Company written acceptance of
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become Depositary hereunder; but such predecessor,
upon payment of all sums due it and on the written request of the Company, shall
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder and assigning all interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Holders. Any bank or trust company into or with which the Depositary may be
merged or consolidated, or to which the Depositary shall transfer substantially
all its American depositary receipt business, shall be the successor of the
Depositary without the execution or filing of any document or any further act.
Upon the appointment of any successor depositary hereunder, any agent of the
Depositary then acting hereunder shall forthwith become such agent hereunder of
such successor depositary and such successor depositary shall, on the
5
written request of any such agent, execute and deliver to such agent any
instruments necessary to give such agent authority as such agent hereunder of
such successor depositary.
14. Reports. On or before the first date on which the Company makes any
communication available to holders of Deposited Securities, any securities
regulatory authority in the United States or the United Kingdom, The London
Stock Exchange or the New York Stock Exchange, by publication or otherwise, the
Company shall transmit a copy thereof to the Depositary. The Company has
delivered to the Depositary, the Custodian and any Transfer Office, a copy of
all provisions of or governing the Shares and any other Deposited Securities
issued by the Company or any affiliate of the Company and, promptly upon any
change thereto, the Company shall deliver to the Depositary, the Custodian and
any Transfer Office, a copy of such provisions as so changed. The Depositary and
its agents may rely upon the Company's delivery thereof for all purposes of this
Deposit Agreement.
15. Additional Shares. Neither the Company nor any company controlling,
controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933. The Depositary will
use reasonable efforts to comply with written instructions of the Company not to
accept for deposit hereunder any Shares identified in such instructions at such
times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with securities
laws in the United States.
16. Indemnification. The Company shall indemnify, defend and save
harmless each of the Depositary and its agents against any loss, liability or
expense (including reasonable fees and expenses of counsel) that may arise out
of (a) its acceptance and performance of its powers and duties in respect of
this Deposit Agreement, except to the extent such loss, liability or expense is
due to its negligence or bad faith, or (b) any offer or sale of ADRs, ADSs,
Shares or other Deposited Securities or any registration statement under the
Securities Act of 1933 in respect thereof, except to the extent such loss,
liability or expense arises out of information (or omissions from such
information) relating to it furnished in writing to the Company by it expressly
for use in any such registration statement. The Depositary shall indemnify,
defend and save harmless the Company against any loss, liability or expense
incurred by the Company in respect of this Deposit Agreement to the extent such
loss, liability or expense is due to the negligence or bad faith of the
Depositary. In no event shall the Depositary or any of its agents be liable for
any indirect, special, punitive or consequential damages. The obligations set
forth in this Section 16 shall survive the termination of this Deposit Agreement
and the succession or substitution of any indemnified person.
17. Notices. Notice to any Holder shall be deemed given when first
mailed, first class postage prepaid, to the address of such Holder on the ADR
Register or received by such Holder. Notice to the Depositary or the Company
shall be deemed given when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, or at such other
address or facsimile transmission number as either may specify to the other by
written notice:
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(a) JPMorgan Xxxxx Xxxx
0 Xxxxx Xxxxxxxxx Xxxxx (00xx Xxxxx)
New York, New York 10081
Attention: ADR Administration
Fax: (000) 000-0000
(b) British Energy plc
0 Xxxxxxx Xxxxxxxx
Xxxx Xxxx
Xxxx Xxxxxxxx
X00 0XX
Attention: Xxxxxx Xxxxxx
Fax: 00000 000000
18. Miscellaneous. This Deposit Agreement is for the exclusive benefit
of the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and owners of ADRs from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable in
any respect, the remaining provisions shall in no way be affected thereby. This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one instrument.
19. Amendment and Restatement of Old Deposit Agreement. The Deposit
Agreement amends and restates the Old Deposit Agreement in its entirety to
consist exclusively of the Deposit Agreement, and each Old Receipt is hereby
deemed amended and restated to substantially conform to the form of ADR set
forth in Exhibit A annexed hereto.
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IN WITNESS WHEREOF, BRITISH ENERGY PLC and JPMORGAN CHASE BANK have
duly executed this Deposit Agreement as of the day and year first above set
forth and all holders of ADRs shall become parties hereto upon acceptance by
them of ADRs issued in accordance with the terms hereof.
BRITISH ENERGY PLC
By:
-------------------------
Name:
Title:
JPMORGAN CHASE BANK
By:
-------------------------
Name:
Title: Vice President
8
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
No. of ADSs:
------
Number
--------
Each ADS represents
75 Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
BRITISH ENERGY PLC
(Incorporated under the
laws of Scotland)
JPMORGAN CHASE BANK, a New York corporation, 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 75 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 British Energy plc, a
corporation organized under the laws of Scotland (the "Company"), deposited
under the Amended and Restated Deposit Agreement dated as of March 18, 2003 (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.
A-1
(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; 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. 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 the Securities Act
of 1933.
(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, 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
A-2
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. 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 advisable by
the Depositary or the Company.
(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
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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. 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. (a) Notwithstanding any other provision of
this Deposit Agreement, each Holder agrees to comply with requests from the
Company, pursuant to the Articles or the Companies Act, to provide information
as to the capacity in which such Holder owns ADRs, the identity of any other
person interested (as defined in the Companies Act) in such ADRs and the nature
and extent of such interest and any other information required by such request.
(b) Each Holder hereof acknowledges that failure to comply
with such a request in a timely fashion may result, inter alia, in the
withdrawal of the voting rights, transfer rights and rights to dividends and
other distributions of the Shares underlying such Holder's ADRs. Each Holder
agrees to comply with the provisions of the Articles and of the Companies Act
with regard to notification to the Company of interests in Shares, which
includes, in the case of the Companies Act, provisions relating to disclosure of
interests in the Company's share capital in excess of the percentage(s) of such
capital (at the date hereof being 3 percent).
(c) If the Company requests information from the Depositary
or the Custodian as the registered holders of Shares and such request complies
with the Articles, the obligations of the Depositary or the Custodian, as the
case may be, shall be limited to disclosing to the Company such information
relating to the Shares in question as has in each case been recorded by it
pursuant to the terms of this Agreement.
(7) Charges of Depositary. The Depositary may charge each person to
whom ADRs 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
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ADRs for withdrawal of Deposited Securities, U.S. $5.00 for each 100 ADSs (or
portion thereof) evidenced by the ADRs 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 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) 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 of 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, the Articles 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 to Holders when furnished by the
Company. The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and accordingly files certain reports with the
United States Securities and Exchange Commission (the "Commission"). Such
reports and other information may be inspected and copied at public reference
facilities maintained by the Commission located at the date hereof at Judiciary
Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 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, as Depositary
By .................. ......
Authorized Officer
The Depositary's office is located at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4)
and (5), to the extent practicable, the Depositary will distribute by mail 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. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents (any fractional cents being withheld without
liability for interest and added to future Cash distributions).
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(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
mail 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 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.
(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, 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 respective
directors, officers and 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
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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 its 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. The Company
has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company against
losses incurred by the Company to the extent such losses are due to the
negligence or bad faith of the Depositary. In no event shall the Depositary or
any of its agents be liable 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 written notice of its election to do so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary; such resignation or removal
shall take effect upon the appointment of and acceptance by a successor
depositary. The Depositary may 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
A-8
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. 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.
(18) Restrictions upon Ownership. (a) The purpose of this paragraph
(18) is to assist the Company in implementing the provisions of the Relevant
Article. For the purposes of this paragraph (18), the terms "interest",
"Permitted Person", "Relevant Holder", "Relevant Person", "Relevant Share
Capital", "Relevant Shares" and "Required Disposal" defined in the Relevant
Article shall have the respective meanings herein as specified in such Article.
References to the Company for purposes of this paragraph (18) only shall mean
the Company or the Directors, or both, as may be provided in the Articles or the
Companies Act.
(b) Until such time as the Special Share (as defined in the
Relevant Article) has been redeemed (which may be at any time after September
30, 2006), the Relevant Article limits the interest which a person (other than a
Permitted Person) may have, or be deemed to have, in Relevant Share Capital to
less than 15 percent of the total votes attaching to such Relevant Share Capital
(the "Limitation"). Notwithstanding any contrary provision of the Deposit
Agreement or this ADR, each Holder acknowledges and agrees (i) that each ADR,
and the terms upon which it is held by such Holder, are subject to and governed
by the Articles, (ii) that (except as otherwise provided in the Articles), such
Holder's ADRs represent an interest in the Shares underlying such ADRs, (iii)
that such Holder and any other person having such an interest will be bound by
the Limitation and the Company will have a duty under the Articles to take
action to enforce the Limitation against such persons (including, without
limitation, withdrawal of the voting rights of the Shares underlying such
Holder's ADRs or the forced sale of all or part of, or of interests in, such
Shares), and (iv) that such Holder will provide information required by, and
comply with requests from the Company made in accordance with, statutory
provisions of English law or the Articles to provide information, including,
among other things,
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information as to the capacity in which such Holder owns ADRs and regarding the
identity of any other person having an interest in such ADRs and the nature and
extent of the interests of such Holder or other person.
(c) If the Depositary or the Custodian (or any nominee of
either) as registered holder of any Shares receives a notice from the Company
pursuant to the Relevant Article calling for a Required Disposal (a "Required
Disposal Notice") and informing the Depositary that:
(i) a Relevant Holder or Holders is or are believed
or deemed to be a Relevant Person or Persons or is or are persons
through whom a Relevant Person or Persons is or are believed or deemed
to be interested in Shares, as specified in the Required Disposal
Notice; and
(ii) the Relevant Holder or Holders, or the Relevant
Person or Persons, as the case may be, is or are believed or deemed to
be interested in a number of Shares specified in relation to that
person in the Required Disposal Notice,
then the Depositary shall:
(A) except in the case of a Required Disposal, refuse
(x) to register any transfer of an ADR relating to the Shares in which
such Relevant Holder, or such Relevant Person or Persons, are or are
believed or deemed to be interested, as specified in such Notices (a
"Relevant ADR") or (y) to permit the withdrawal of the Deposited
Securities evidenced thereby, until in either case the Required
Disposal Notice in respect of that Relevant ADR has been withdrawn or
complied with to the satisfaction of the Company;
(B) deny the voting rights attaching to a Relevant
ADR thereof to the extent that the voting rights of the Shares
underlying that Relevant ADR are denied to the Depositary as notified
in the Required Disposal Notice until the Company has withdrawn the
Required Disposal Notice in respect of that Relevant ADR or such Notice
has been complied with to the satisfaction of the Company; and
(C) give notice to each Relevant Holder specified
therein of receipt of the Depositary of the Required Disposal Notice
and of the actions to be taken under this subsection (c) and the
matters provided for in subsection (d) of this Section.
(d) The notice to be given by the Depositary to the Relevant
Holder pursuant to clause (C) of subsection (c) shall state that (i) the
Relevant Holder, or the Relevant Person or Persons specified in the Required
Disposal Notice, must, before the date specified in the Required Disposal
Notice, make a disposal or disposals of, or of interests in, such number of
American Depositary Shares or underlying Shares evidenced by the Relevant ADR
(and any other Relevant Shares) the disposal of which would cause each such
Relevant Person or Persons to cease to be a Relevant Person to the satisfaction
of the Company, and (ii) if such disposal or disposals are not so made to the
satisfaction of the Company and if such Required Disposal
A-10
Notice has not been withdrawn, any or all of the Shares underlying the Relevant
ADR may be sold pursuant to the Articles. If any Shares underlying any Relevant
ADR are sold in such circumstances pursuant to the Articles, such Relevant ADR
shall thenceforth represent only (A) the right to receive any cash received by
the Depositary in respect thereof, less any taxes or expenses incurred or paid
in selling such Shares or in distributing such cash to the Relevant Holder
thereof, and (B) any unsold Shares or Deposited Securities. Upon surrender of
such Relevant ADR, the Relevant Holder thereof shall be entitled to withdraw
such cash and such underlying Shares and other Deposited Securities in the
manner set forth in paragraph (2) of this ADR.
(e) Except to the extent (if at all) provided in the
Articles, the Company shall be under no obligation to give, to modify or to
withdraw a Required Disposal Notice or to give any instructions to the
Depositary or the Custodian in connection with any of the foregoing and shall
have no liability whatsoever to any person in respect of any of the foregoing.
Nothing in the Deposit Agreement or this ADR shall limit any right or remedy
which the Company may have under the Articles.
(f) Any resolution or determination of, or decision or
exercise of any discretion or power by, the Company, or the Depositary or the
Custodian, under or pursuant to the Articles (with respect to the Limitation, a
Required Disposal or otherwise) or this Section shall be final and conclusive
and binding on any Holder thereby affected and all other persons concerned and
shall not be open to challenge, whether as to its validity or otherwise, on any
ground whatsoever, and, neither the Company nor the Depositary (nor the
Custodian) shall have any liability whatsoever to any person in respect thereof,
nor be required to give any reason for any decision, determination or
declaration taken or made; provided, however, that nothing contained in this
paragraph (18)(f) shall in any way affect the rights of the Depositary, the
Custodian, the ADR Registrar and any co-transfer agent or co-registrar, on the
one hand, or of the Company, on the other, to seek indemnity each from the other
pursuant to Section 16 of the Deposit Agreement.
(g) This Section shall apply notwithstanding any other
provisions of the Deposit Agreement of this ADR to the contrary.
(h) Without prejudice to any other provision hereof or of
the Deposit Agreement, references in this paragraph (18) to the Articles are to
the Articles as from time to time in force.
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