SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 OF
THE SECURITIES EXCHANGE ACT OF 1934
November 10, 2003
Hanson PLC
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(Translation of Registrant's Name into English)
1 Grosvenor Place, London SW1X 7JH, England
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(Address of Principal Executive Offices)
Indicate by check mark whether the registrant files or will file annual reports
under cover of Form 20-F or Form 40-F.
Form 20-F X Form 40-F
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Indicate by check mark whether the registrant by furnishing the information
contained in this form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes No X
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EXHIBIT INDEX
Exhibit No. 1 Deposit Agreement, dated as of October 14, 2003, by and
among Hanson PLC (formerly known as Hanson Building
Materials PLC), Citibank, N.A., a national banking
association acting in its capacity as depositary, and all
Holders and Beneficial Owners of American Depositary
Shares issued thereunder.
SIGNATURE
Pursuant to the requirement of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
HANSON PLC
Dated: November 7, 2003 By: /s/ Graham Dransfield
-------------------------
Name: Graham Dransfield
Title: Legal Director
EXHIBIT NO. 1
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DEPOSIT AGREEMENT
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by and among
HANSON PLC
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES ISSUED HEREUNDER
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Dated as of October 14, 2003
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.....................................................................2
Section 1.1 "Affiliate"....................................................................2
Section 1.2 "ADS Record Date"..............................................................2
Section 1.3 "American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)"....................2
Section 1.4 "American Depositary Share(s)" and "ADS(s)"....................................2
Section 1.5 "Applicant"....................................................................3
Section 1.6 "Beneficial Owner".............................................................3
Section 1.7 "Certificated ADS(s)"..........................................................3
Section 1.8 "Commission"...................................................................3
Section 1.9 "Company"......................................................................3
Section 1.10 "CREST"........................................................................3
Section 1.11 "Custodian"....................................................................3
Section 1.12 "Deliver" and "Delivery".......................................................3
Section 1.13 "Deposit Agreement"............................................................3
Section 1.14 "Depositary"...................................................................3
Section 1.15 "Deposited Securities".........................................................3
Section 1.16 "Dollars" and "$"..............................................................4
Section 1.17 "DTC"..........................................................................4
Section 1.18 "DTC Participant"..............................................................4
Section 1.19 "Exchange Act".................................................................4
Section 1.20 "Foreign Currency".............................................................4
Section 1.21 "Full Entitlement ADR(s)," "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)"....................................................4
Section 1.22 "Holder(s)"....................................................................4
Section 1.23 "Old Hanson"...................................................................4
Section 1.24 "Old Hanson ADRs"..............................................................4
Section 1.25 "Old Hanson ADSs"..............................................................4
Section 1.26 "Old Hanson Deposit Agreement".................................................4
Section 1.27 "Old Hanson Depositary"........................................................4
Section 1.28 "Partial Entitlement ADR(s)," "Partial Entitlement ADS(s)" and
"Partial Entitlement Share(s)".................................................4
Section 1.29 "Pounds; Pence" and "(pound);p"................................................5
Section 1.30 "Pre-Release Transaction"......................................................5
Section 1.31 "Principal Office".............................................................5
Section 1.32 "Registrar"....................................................................5
Section 1.33 "Restricted Securities"........................................................5
Section 1.34 "Restricted ADR(s)," "Restricted ADS(s)" and "Restricted Shares"...............5
Section 1.35 "Scheme of Arrangement"........................................................5
Section 1.36 "Securities Act"...............................................................5
Section 1.37 "Share Registrar"..............................................................5
Section 1.38 "Shares".......................................................................6
Section 1.39 "Uncertificated ADS(s)"........................................................6
Section 1.40 "United States" and "U.S.".....................................................6
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ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS..............................................6
Section 2.1 Appointment of Depositary......................................................6
Section 2.2 Form and Transferability of ADSs...............................................6
Section 2.3 Deposit with Custodian.........................................................8
Section 2.4 Registration and Safekeeping of Deposited Securities...........................9
Section 2.5 Issuance of ADSs...............................................................9
Section 2.6 Transfer, Combination and Split-up of ADRs....................................10
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities......................11
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of ADRs;
Suspension of Delivery, Transfer, etc.........................................12
Section 2.9 Lost ADRs, etc................................................................13
Section 2.10 Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records........................................................13
Section 2.11 Partial Entitlement ADSs......................................................13
Section 2.12 Certificated/Uncertificated ADSs..............................................14
Section 1.1 Restricted ADSs...............................................................15
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL
OWNERS OF ADSs................................................................17
Section 3.1 Proofs, Certificates and Other Information....................................17
Section 3.2 Liability for Taxes and Other Charges.........................................17
Section 3.3 Representations and Warranties on Deposit of Shares...........................18
Section 3.4 Compliance with Information Requests..........................................18
Section 3.5 Ownership Restrictions........................................................19
ARTICLE IV THE DEPOSITED SECURITIES......................................................19
Section 4.1 Cash Distributions............................................................19
Section 4.2 Distribution in Shares........................................................20
Section 4.3 Elective Distributions in Cash or Shares......................................20
Section 4.4 Distribution of Rights to Purchase Additional ADSs............................21
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares............23
Section 4.6 Intentionally omitted.........................................................23
Section 4.7 Intentionally omitted.........................................................23
Section 4.8 Conversion of Foreign Currency................................................23
Section 4.9 Fixing of ADS Record Date.....................................................24
Section 4.10 Voting of Deposited Securities................................................25
Section 4.11 Changes Affecting Deposited Securities........................................26
Section 4.12 Available Information.........................................................27
Section 4.13 Reports.......................................................................27
Section 4.14 List of Holders...............................................................27
Section 4.15 Taxation......................................................................27
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.................................28
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.....................28
Section 5.2 Exoneration...................................................................29
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Section 5.3 Standard of Care..............................................................29
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary..........................................................30
Section 5.5 The Custodian.................................................................31
Section 5.6 Notices and Reports...........................................................31
Section 5.7 Issuance of Additional Shares, ADSs etc.......................................32
Section 5.8 Indemnification...............................................................33
Section 5.9 Fees and Charges of Depositary................................................33
Section 5.10 Pre-Release Transactions......................................................34
Section 5.11 Restricted Securities Owners..................................................35
ARTICLE VI AMENDMENT AND TERMINATION.....................................................35
Section 6.1 Amendment/Supplement..........................................................35
Section 6.2 Termination...................................................................36
ARTICLE VII MISCELLANEOUS.................................................................37
Section 7.1 Counterparts..................................................................37
Section 7.2 No Third-Party Beneficiaries..................................................37
Section 7.3 Severability..................................................................37
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect......................37
Section 7.5 Notices.......................................................................37
Section 7.6 Governing Law and Jurisdiction................................................38
Section 7.7 Assignment....................................................................40
Section 7.8 Compliance with U.S. Securities Laws..........................................40
Section 7.9 English Law References........................................................40
Section 7.10 Titles and References.........................................................40
Section 7.11 Exchange Procedures for Old Hanson ADSs.......................................40
EXHIBITS
Form of ADR................................................................................A-1
Fee Schedule...............................................................................B-1
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of October 14, 2003, by and among (i)
HANSON PLC, a company organized and existing under the laws of England and
previously known as "Hanson Building Materials PLC", and its successors (the
"Company"), (ii) CITIBANK, N.A., a national banking association organized under
the laws of the United States of America acting in its capacity as depositary,
and any successor depositary hereunder (the "Depositary"), and (iii) all Holders
and Beneficial Owners of American Depositary Shares issued hereunder (all such
capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide inter alia for the deposit of the Shares (as hereinafter
defined) and the issuance of American Depositary Shares representing the Shares
so deposited; and
WHEREAS, the Depositary is willing to act as the Depositary for such
ADR facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, any American Depositary Receipts issued pursuant to the
terms of this Deposit Agreement are to be substantially in the form of Exhibit A
attached hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement; and
WHEREAS, the Shares are admitted to the Official List and are listed
for trading on the London Stock Exchange and American Depositary Shares to be
issued pursuant to the terms of this Deposit Agreement are to be listed for
trading on The New York Stock Exchange, Inc.;
WHEREAS, the Board of Directors of the Company (or an authorized
committee thereof) has duly approved the establishment of an ADR facility upon
the terms set forth in this Deposit Agreement (as hereinafter defined), the
execution and delivery of this Deposit Agreement on behalf of the Company, and
the actions of the Company and the transactions contemplated herein;
WHEREAS, Hanson plc, a company organized and existing under the laws
of England ("Old Hanson"), Citibank, N.A., as depositary (Citibank, N.A. in such
capacity, the "Old Hanson Depositary") entered into a deposit agreement, dated
as of September 29, 1986, as amended and restated as of November 3, 1986 and as
of January 4, 1988, and as further amended by Amendment No. 1 to Deposit
Agreement, dated as of February 21, 1997 (such deposit agreement as so amended,
the "Old Hanson Deposit Agreement"), pursuant to which American depositary
shares ("Old Hanson ADSs") are outstanding that are evidenced by American
depositary receipts ("Old Hanson ADRs");
WHEREAS, pursuant to a scheme of arrangement (the "Scheme of
Arrangement"), which has been (i) approved by the holders of Old Hanson
securities, including holders of Old Hanson ADSs, at (a) a scheme court hearing
held on September 19, 2003, and (b) an extraordinary general meeting of Old
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Hanson shareholders held on September 19, 2003, and (ii) sanctioned by the High
Court of Justice in England and Wales, holders of Old Hanson securities will
receive securities of the Company upon exchange of their Old Hanson securities;
and
WHEREAS, as a result of the foregoing Scheme of Arrangement it is
contemplated that holders of Hanson ADSs will receive American Depositary Shares
upon exchange of their Hanson ADSs pursuant to the procedures described in
Section 7.11 hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall
have the meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1 "AFFILIATE" shall have the meaning assigned to such term
by the Commission (as hereinafter defined) under Regulation C promulgated under
the Securities Act (as hereinafter defined), or under any successor regulation
thereto.
SECTION 1.2 "ADS RECORD DATE" shall have the meaning given to such
term in Section 4.9.
SECTION 1.3 "AMERICAN DEPOSITARY RECEIPT(S)", "ADR(S)" and
"RECEIPT(S)" shall mean the certificate(s) issued by the Depositary to evidence
the American Depositary Shares issued under the terms of the Deposit Agreement
in the form of Certificated ADS(s) (as hereinafter defined), as such ADRs may be
amended from time to time in accordance with the provisions of the Deposit
Agreement. An ADR may evidence any number of ADSs and may, in the case of ADSs
held through a central depository such as DTC, be in the form of a "Balance
Certificate."
SECTION 1.4 "AMERICAN DEPOSITARY SHARE(S)" and "ADS(S)" shall mean
the rights and interests in the Deposited Securities granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement
and, if applicable, the ADR(s) issued to evidence such ADS(s). ADS(s) may be
issued under the terms of the Deposit Agreement in the form of (a) Certificated
ADS(s) (as hereinafter defined), in which case the ADS(s) are evidenced by
ADR(s), or (b) Uncertificated ADS(s) (as hereinafter defined), in which case the
ADS(s) are not evidenced by ADR(s) but are reflected on the direct registration
system maintained by the Depositary for such purposes under the terms of Section
2.12 hereof. Unless otherwise specified in this Deposit Agreement or in any ADR,
or unless the context otherwise requires, any reference in the Deposit Agreement
or any ADR to ADS(s) shall include Certificated ADS(s) and Uncertificated
ADS(s), individually or collectively, as the context may require. Each ADS shall
represent five (5) Share(s) until there shall occur a distribution upon
Deposited Securities referred to in Section 4.2 or a change in Deposited
Securities referred to in Section 4.11 with respect to which additional ADSs are
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not issued, and thereafter each ADS shall represent the Deposited Securities
determined in accordance with the terms of such Sections.
SECTION 1.5 "APPLICANT" shall have the meaning given to such term in
Section 5.10.
SECTION 1.6 "BENEFICIAL OWNER" shall mean, as to any ADS, any person
or entity having a beneficial interest deriving from the ownership of such ADS.
A Beneficial Owner of ADSs may or may not be the Holder of the ADSs. A
Beneficial Owner shall be able to exercise any right or receive any benefit
hereunder solely through the person who is the Holder of the ADSs owned by such
Beneficial Owner.
SECTION 1.7 "CERTIFICATED ADS(S)" shall have the meaning given to
such term in Section 2.12.
SECTION 1.8 "COMMISSION" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency thereto in
the United States.
SECTION 1.9 "COMPANY" shall mean Hanson PLC, a company incorporated
and existing under the laws of England, and previously known as "Hanson Building
Materials PLC". and its successors.
SECTION 1.10 "CREST" shall mean CREST Co., which provides the
book-entry settlement system for equity securities in England, or any successor
entity thereto.
SECTION 1.11 "CUSTODIAN" shall mean, as of the date hereof, Citibank,
N.A., London, having its principal office at 25 Molesworth Street, Lewisham,
London, SE1 7EX, England, as the custodian for the purposes of this Deposit
Agreement, and any other entity that may be appointed by the Depositary pursuant
to the terms of Section 5.5 as successor, substitute or additional custodian
hereunder. The term "Custodian" shall mean any Custodian individually or all
Custodians collectively, as the context requires.
SECTION 1.12 "DELIVER" and "DELIVERY" shall mean, when used in
respect of ADSs, Deposited Securities and Shares, either (i) the physical
delivery of the certificate(s) representing such securities, or (ii) the
electronic delivery of such securities by means of book-entry transfer, if
available.
SECTION 1.13 "DEPOSIT AGREEMENT" shall mean this Deposit Agreement
and all exhibits hereto, as the same may from time to time be amended and
supplemented from time to time in accordance with the terms hereof.
SECTION 1.14 "DEPOSITARY" shall mean Citibank, N.A., a national
banking association organized under the laws of the United States, in its
capacity as depositary under the terms of this Deposit Agreement, and any
successor depositary hereunder.
SECTION 1.15 "DEPOSITED SECURITIES" shall mean Shares at any time
deposited under this Deposit Agreement and any and all other securities,
property and cash held by the Depositary or the Custodian in respect thereof,
subject, in the case of cash, to the provisions of Section 4.8. The collateral
3
delivered in connection with Pre-Release Transactions described in Section 5.10
hereof shall not constitute Deposited Securities.
SECTION 1.16 "DOLLARS" and "$" shall refer to the lawful currency of
the United States.
SECTION 1.17 "DTC" shall mean The Depository Trust Company, a
national clearinghouse and the central book-entry settlement system for
securities traded in the United States and, as such, the custodian for the
securities of DTC Participants (as hereinafter defined) maintained in DTC, and
any successor thereto.
SECTION 1.18 "DTC PARTICIPANT" shall mean any financial institution
(or any nominee of such institution) having one or more participant accounts
with DTC for receiving, holding and delivering the securities and cash held in
DTC.
SECTION 1.19 "EXCHANGE ACT" shall mean the United States Securities
Exchange Act of 1934, as amended from time to time.
SECTION 1.20 "FOREIGN CURRENCY" shall mean any currency other than
Dollars.
SECTION 1.21 "FULL ENTITLEMENT ADR(S)," "FULL ENTITLEMENT ADS(S)" AND
"FULL ENTITLEMENT SHARE(S)" shall have the respective meanings set forth in
Section 2.11.
SECTION 1.22 "HOLDER(S)" shall mean the person(s) in whose name the
ADS is registered on the books of the Depositary (or the Registrar, if any)
maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADS(s) registered in its name, such
person shall be deemed to have all requisite authority to act on behalf of the
Beneficial Owners of the ADSs.
SECTION 1.23 "OLD HANSON" shall have the meaning given to such term
in the preambles to the Deposit Agreement.
SECTION 1.24 "OLD HANSON ADRS" shall have the meaning given to such
term in the preambles to the Deposit Agreement.
SECTION 1.25 "OLD HANSON ADSS" shall have the meaning given to such
term in the preambles to the Deposit Agreement.
SECTION 1.26 "OLD HANSON DEPOSIT AGREEMENT" shall have the meaning
given to such term in the preambles to the Deposit Agreement.
SECTION 1.27 "OLD HANSON DEPOSITARY" shall have the meaning given to
such term in the preambles to the Deposit Agreement.
SECTION 1.28 "PARTIAL ENTITLEMENT ADR(S)," "PARTIAL ENTITLEMENT
ADS(S)" and "PARTIAL ENTITLEMENT SHARE(S)" shall have the respective meanings
set forth in Section 2.11.
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SECTION 1.29 "POUNDS; PENCE" and "(POUND);P" shall refer to the
lawful currency of EngLAND.
SECTION 1.30 "PRE-RELEASE TRANSACTION" shall have the meaning set
forth in Section 5.10.
SECTION 1.31 "PRINCIPAL OFFICE" shall mean, when used with respect to
the Depositary, the principal office of the Depositary at which at any
particular time its depositary receipts business shall be administered, which,
at the date of this Deposit Agreement, is located at 111 Wall Street, New York,
New York 10043, U.S.A.
SECTION 1.32 "REGISTRAR" shall mean the Depositary or any bank or
trust company having an office in the Borough of Manhattan, The City of New
York, which shall be appointed by the Depositary to register issuances,
transfers and cancellations of ADSs as herein provided, and shall include any
co-registrar appointed by the Depositary for such purposes. Registrars (other
than the Depositary) may be removed and substitutes appointed by the Depositary.
Each Registrar (other than the Depositary) appointed pursuant to this Deposit
Agreement shall be required to give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
SECTION 1.33 "RESTRICTED SECURITIES" shall mean Shares, Deposited
Securities or ADSs which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an officer or
director (or persons performing similar functions) or other Affiliate of the
Company, or (iii) are subject to other restrictions on sale or deposit under the
laws of the United States, England, or under a shareholder agreement or the
Articles of Association of the Company or under the regulations of an applicable
securities exchange unless, in each case, such Shares, Deposited Securities or
ADSs are being transferred or sold to persons other than an Affiliate of the
Company in a transaction (a) covered by an effective resale registration
statement, or (b) exempt from the registration requirements of the Securities
Act (as hereinafter defined), and the Shares, Deposited Securities or ADSs are
not, when held by such person(s), Restricted Securities.
SECTION 1.34 "RESTRICTED ADR(S)," "RESTRICTED ADS(S)" AND "RESTRICTED
SHARES" shall have the respective meanings set forth in Section 2.13.
SECTION 1.35 "SCHEME OF ARRANGEMENT" shall have the meaning given to
such term in the preambles to the Deposit Agreement.
SECTION 1.36 "SECURITIES ACT" shall mean the United States Securities
Act of 1933, as amended from time to time.
SECTION 1.37 "SHARE REGISTRAR" shall mean Lloyds TSB Registrars or
any other institution organized under the laws of England appointed by the
Company to carry out the duties of registrar for the Shares, and any successor
thereto.
5
SECTION 1.38 "SHARES" shall mean the Company's ordinary shares,
(pound)3.00 each, validly issued and outstanding and fully paid and may, if the
Depositary so agrees after consultation with the Company, include evidence of
the right to receive Shares; provided that in no event shall Shares include
evidence of the right to receive Shares with respect to which the full purchase
price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised; provided further, however, that, if there
shall occur any change in par value, split-up, consolidation, reclassification,
exchange, conversion or any other event described in Section 4.11 in respect of
the Shares of the Company, the term "Shares" shall thereafter, to the maximum
extent permitted by law, represent the successor securities resulting from such
event.
SECTION 1.39 "UNCERTIFICATED ADS(S)" shall have the meaning given to
such term in Section 2.12.
SECTION 1.40 "UNITED STATES" and "U.S." shall have the meaning
assigned to it in Regulation S as promulgated by the Commission under the
Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF
RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 APPOINTMENT OF DEPOSITARY. The Company hereby appoints
the Depositary as depositary for the Deposited Securities and hereby authorizes
and directs the Depositary to act in accordance with the terms and conditions
set forth in this Deposit Agreement and the representative ADR(s), if and as
applicable. Each Holder and each Beneficial Owner, upon acceptance of any ADSs
(or any interest therein) issued in accordance with the terms and conditions of
this Deposit Agreement shall be deemed for all purposes to (a) be a party to and
bound by the terms of this Deposit Agreement and the representative ADR(s), if
and as applicable, and (b) appoint the Depositary its attorney-in-fact, with
full power to delegate, to act on its behalf and to take any and all actions
contemplated in this Deposit Agreement and the representative ADR(s), if and as
applicable, to adopt any and all procedures necessary to comply with applicable
law and to take such action as the Depositary in its sole discretion may deem
necessary or appropriate to carry out the purposes of this Deposit Agreement and
the representative ADR(s), if and as applicable, the taking of such actions to
be the conclusive determinant of the necessity and appropriateness thereof.
SECTION 2.2 FORM AND TRANSFERABILITY OF ADSS.
(A) FORM. Certificated ADSs shall be evidenced by definitive ADRs
which shall be engraved, printed, lithographed or produced in such other manner
as may be agreed upon by the Company and the Depositary. ADRs may be issued
under the Deposit Agreement in denominations of any whole number of ADSs. The
ADRs shall be substantially in the form set forth in Exhibit A to the Deposit
Agreement, with any appropriate insertions, modifications and omissions, in each
case as otherwise contemplated in the Deposit Agreement or required by law. ADRs
6
shall be (i) dated, (ii) signed by the manual or facsimile signature of a duly
authorized signatory of the Depositary, (iii) countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of ADRs. No ADR and no Certificated ADS evidenced
thereby shall be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company,
unless such ADR shall have been so dated, signed, countersigned and registered.
ADRs bearing the facsimile signature of a duly-authorized signatory of the
Depositary or the Registrar, who at the time of signature was a duly-authorized
signatory of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such ADR by the Depositary. The ADSs shall
be assigned a CUSIP number that is different from any CUSIP number that was, is
or may be assigned to any depositary shares previously or subsequently issued
pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company and which are not ADSs issued hereunder.
(B) LEGENDS. The ADRs may be endorsed with, or have incorporated in
the text thereof, such legends or recitals not inconsistent with the provisions
of the Deposit Agreement as (i) may be necessary to enable the Depositary and
the Company to perform their respective obligations hereunder, (ii) may be
required to comply with any applicable laws or regulations, or with the rules
and regulations of any securities exchange or market upon which ADSs may be
traded, listed or quoted, or to conform with any usage with respect thereto,
(iii) may be necessary to indicate any special limitations or restrictions to
which any particular ADRs or ADSs are subject by reason of the date of issuance
of the Deposited Securities or otherwise, or (iv) may be required by any
book-entry system in which the ADSs are held. Holders and Beneficial Owners
shall be deemed, for all purposes, to have notice of, and to be bound by, the
terms and conditions of the legends set forth, in the case of Holders, on the
ADR registered in the name of the applicable Holders or, in the case of
Beneficial Owners, on the ADR representing the ADSs owned by such Beneficial
Owners.
(C) TITLE. Subject to the limitations contained herein and in the
ADR, title to an ADR (and to each Certificated ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that such ADR has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of an ADS
(that is, the person in whose name an ADS is registered on the books of the
Depositary) as the absolute owner thereof for all purposes. Neither the
Depositary nor the Company shall have any obligation nor be subject to any
liability under this Deposit Agreement or any ADR to any holder or any
Beneficial Owner unless such holder is the Holder registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner, or the
Beneficial Owner's representative, is the Holder registered on the books of the
Depositary.
(D) BOOK-ENTRY SYSTEMS. The Depositary shall make arrangements for
the acceptance of the ADSs into DTC. A single ADR in the form of a "Balance
Certificate" will evidence all ADSs held through DTC and will be registered in
the name of the nominee for DTC (currently "Cede & Co.") and will provide that
it represents the aggregate number of ADSs from time to time indicated in the
records of the Depositary as being issued hereunder and that the aggregate
7
number of ADSs represented thereby may from time to time be increased or
decreased by making adjustments on such records of the Depositary and of DTC or
its nominee as hereinafter provided. As such, the nominee for DTC will be the
only "Holder" of the ADR evidencing all ADSs held through DTC. Citibank, N.A.
(or such other entity as is appointed by DTC or its nominee) may hold the
"Balance Certificate" as custodian for DTC. Each Beneficial Owner of ADSs held
through DTC must rely upon the procedures of DTC and the DTC Participants to
exercise or be entitled to any rights attributable to such ADSs. The DTC
Participants shall for all purposes be deemed to have all requisite power and
authority to act on behalf of the Beneficial Owners of the ADSs held in the DTC
Participants' respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given to it
by DTC Participants on behalf of Beneficial Owners of ADSs. So long as ADSs are
held through DTC or unless otherwise required by law, ownership of beneficial
interests in the ADR registered in the name of the nominee for DTC will be shown
on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC or its nominee (with respect to the interests of DTC
Participants), or (ii) DTC Participants or their nominees (with respect to the
interests of clients of DTC Participants).
SECTION 2.3 DEPOSIT WITH CUSTODIAN. Subject to the terms and
conditions of this Deposit Agreement and applicable law, Shares or evidence of
rights to receive Shares (other than Restricted Securities) may be deposited by
any person (including the Depositary in its individual capacity but subject,
however, in the case of the Company or any Affiliate of the Company, to Section
5.7 hereof) at any time, whether or not the transfer books of the Company or the
Share Registrar, if any, are closed, by Delivery of the Shares to the Custodian.
Every deposit of Shares shall be accompanied by the following: (A) (i) in the
case of Shares represented by certificates issued in registered form,
appropriate instruments of transfer or endorsement, in a form satisfactory to
the Custodian, (ii) in the case of Shares represented by certificates in bearer
form, the requisite coupons and talons pertaining thereto, and (iii) in the case
of Shares delivered by book-entry transfer, confirmation of such book-entry
transfer to the Custodian or that irrevocable instructions have been given to
cause such Shares to be so transferred, (B) such certifications and payments
(including, without limitation, the Depositary's fees and related charges) and
evidence of such payments (including, without limitation, stamping or otherwise
marking such Shares by way of receipt) as may be required by the Depositary or
the Custodian in accordance with the provisions of this Deposit Agreement and
applicable law, (C) if the Depositary so requires, a written order directing the
Depositary to issue and deliver to, or upon the written order of, the person(s)
stated in such order the number of ADSs representing the Shares so deposited,
(D) evidence satisfactory to the Depositary (which may be an opinion of counsel)
that all necessary approvals have been granted by, or there has been compliance
with the rules and regulations of, any applicable governmental agency in
England, and (E) if the Depositary so requires, (i) an agreement, assignment or
instrument satisfactory to the Depositary or the Custodian which provides for
the prompt transfer by any person in whose name the Shares are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall be
satisfactory to the Depositary or the Custodian and (ii) if the Shares are
registered in the name of the person on whose behalf they are presented for
deposit, a proxy or proxies entitling the Custodian to exercise voting rights in
8
respect of the Shares for any and all purposes until the Shares so deposited are
registered in the name of the Depositary, the Custodian or any nominee.
Without limiting any other provision of this Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities (except as
contemplated by Section 2.13 hereof) nor (b) any fractional Shares or fractional
Deposited Securities nor (c) a number of Shares or Deposited Securities which
upon application of the ADS to Shares ratio would give rise to fractional ADSs.
No Share shall be accepted for deposit unless accompanied by evidence, if any is
required by the Depositary, that is reasonably satisfactory to the Depositary or
the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under the laws and regulations of England and any
necessary approval has been granted by any applicable governmental body in
England, if any. The Depositary may issue ADSs against evidence of rights to
receive Shares from the Company, any agent of the Company or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished by the Company or any such custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares.
SECTION 2.4 REGISTRATION AND SAFEKEEPING OF DEPOSITED SECURITIES. The
Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Shares being deposited hereunder with the Custodian (or
other Deposited Securities pursuant to Article IV hereof), together with the
other documents above specified, to present such certificate(s), together with
the appropriate instrument(s) of transfer or endorsement, duly stamped, to the
Share Registrar for transfer and registration of the Shares (as soon as transfer
and registration can be accomplished and at the expense of the person for whom
the deposit is made) in the name of the Depositary, the Custodian or a nominee
of either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee in
each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the
Securities Act, unless a registration statement is in effect as to such Shares
or other Deposited Securities or such Shares or other Deposited Securities will
be issued pursuant to an exemption from registration under the Securities Act,
or any Shares or other Deposited Securities the deposit of which would violate
any provisions of the Articles of Association of the Company.
SECTION 2.5 ISSUANCE OF ADSS. The Depositary has made arrangements
with the Custodian to confirm to the Depositary (i) that a deposit of Shares has
been made pursuant to Section 2.3 hereof, (ii) that such Deposited Securities
have been recorded in the name of the Depositary, the Custodian or a nominee of
either on the shareholders' register maintained by or on behalf of the Company
by the Share Registrar if registered Shares have been deposited or, if deposit
is made by book-entry transfer, confirmation of such transfer in the books of
CREST, (iii) that all required documents have been received, and (iv) the
9
person(s) to whom or upon whose order ADSs are deliverable in respect thereof
and the number of ADSs to be so delivered. Such notification may be made by
letter, cable, telex, SWIFT message or, at the risk and expense of the person
making the deposit, by facsimile or other means of electronic transmission. Upon
receiving such notice from the Custodian, the Depositary shall, subject to the
terms and conditions of this Deposit Agreement and applicable law, issue the
ADSs representing the Shares so deposited to or upon the order of the person(s)
named in the notice delivered to the Depositary and shall, if the ADSs so issued
are Certificated ADSs, execute and deliver at its Principal Office ADR(s)
registered in the name(s) requested by such person(s) and evidencing the
aggregate number of ADSs to which such person(s) are entitled, but only upon
payment to the Depositary of the charges of the Depositary for accepting a
deposit, issuing ADSs (as set forth in Section 5.9 and Exhibit B hereto) and all
taxes and governmental charges and fees payable in connection with such deposit
and the transfer of the Shares and the issuance of the ADS(s). The Depositary
shall only issue ADSs in whole numbers and deliver ADR(s) evidencing whole
numbers of ADSs. Nothing herein shall prohibit any Pre-Release Transaction upon
the terms set forth in this Deposit Agreement.
SECTION 2.6 TRANSFER, COMBINATION AND SPLIT-UP OF ADRS.
(A) TRANSFER. The Registrar shall register the transfer of ADRs (and
of the ADSs represented thereby) on the books maintained for such purpose and
the Depositary shall (x) cancel such ADRs and execute new ADRs evidencing the
same aggregate number of ADSs as those evidenced by the ADRs canceled by the
Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver
such new ADRs to or upon the order of the person entitled thereto, if each of
the following conditions has been satisfied: (i) the ADRs have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a transfer
thereof, (ii) the surrendered ADRs have been properly endorsed or are
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) the surrendered
ADRs have been duly stamped (if required by the laws of the State of New York or
of the United States), and (iv) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject,
however, in each case, to the terms and conditions of the applicable ADRs, of
the Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
(B) COMBINATION & SPLIT UP. The Registrar shall register the split-up
or combination of ADRs (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall (x) cancel such ADRs and
execute new ADRs for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by the ADRs cancelled by the Depositary,
(y) cause the Registrar to countersign such new ADRs and (z) Deliver such new
ADRs to or upon the order of the Holder thereof, if each of the following
conditions has been satisfied: (i) the ADRs have been duly Delivered by the
Holder (or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a split-up or combination thereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
10
in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in each
case, to the terms and conditions of the applicable ADRs, of the Deposit
Agreement and of applicable law, in each case as in effect at the time thereof.
(C) CO-TRANSFER AGENTS. The Depositary may appoint one or more
co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of ADRs at designated transfer offices on behalf of the Depositary. In
carrying out its functions, a co-transfer agent may require evidence of
authority and compliance with applicable laws and other requirements by Holders
or persons entitled to such ADRs and will be entitled to protection and
indemnity to the same extent as the Depositary. Such co-transfer agents may be
removed and substitutes appointed by the Depositary. Each co-transfer agent
appointed under this Section 2.6 (other than the Depositary) shall give notice
in writing to the Depositary accepting such appointment and agreeing to be bound
by the applicable terms of this Deposit Agreement.
SECTION 2.7 SURRENDER OF ADSS AND WITHDRAWAL OF DEPOSITED SECURITIES.
The Holder of ADSs shall be entitled to Delivery (at the Custodian's designated
office) of the Deposited Securities at the time represented by the ADSs upon
satisfaction of each of the following conditions: (i) the Holder (or a
duly-authorized attorney of the Holder) has duly Delivered ADSs to the
Depositary at its Principal Office (and if applicable, the ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the Depositary, the ADRs
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered 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 the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B
hereof) have been paid, subject, however, in each case, to the terms and
conditions of the ADRs evidencing the surrendered ADSs, of the Deposit
Agreement, of the Company's Articles of Association and of any applicable laws
and the rules of CREST, and to any provisions of or governing the Deposited
Securities , in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADRs evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of the ADRs evidencing the ADSs so
cancelled, of the Articles of Association of the Company, of any applicable laws
and of the rules of CREST, and to the terms and conditions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
11
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of the Delivery to it of ADSs representing a number
other than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
SECTION 2.8 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, ETC. OF
ADRS; SUSPENSION OF DELIVERY, TRANSFER, ETC.
(A) ADDITIONAL REQUIREMENTS. As a condition precedent to the
execution and delivery, registration of issuance, transfer, split-up,
combination or surrender, of any ADR, the delivery of any distribution thereon,
or the withdrawal of any Deposited Securities, the Depositary or the Custodian
may require (i) payment from the depositor of Shares or presenter of ADSs or of
an ADR of a sum sufficient to reimburse it for any tax or other governmental
charge and any stock transfer or registration fee with respect thereto
(including any such tax or charge and fee with respect to Shares being deposited
or withdrawn) and payment of any applicable fees and charges of the Depositary
as provided in Section 5.9 and Exhibit B hereof, (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature or any
other matter contemplated by Section 3.1 hereof, and (iii) compliance with (A)
any laws or governmental regulations relating to the execution and delivery of
ADRs or ADSs or to the withdrawal of Deposited Securities and (B) such
reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of the applicable ADR, this Deposit Agreement and
applicable law.
(B) ADDITIONAL LIMITATIONS. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be suspended, or
the deposit of particular Shares may be refused, or the registration of transfer
of ADSs in particular instances may be refused, or the registration of transfers
of ADSs generally may be suspended, during any period when the transfer books of
the Company, the Depositary, a Registrar or the Share Registrar are closed or if
any such action is deemed necessary or advisable by the Depositary or the
12
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange on which the ADSs or Shares are listed, or under any
provision of this Deposit Agreement or the representative ADR(s), if applicable,
or under any provision of, or governing, the Deposited Securities, or because of
a meeting of shareholders of the Company or for any other reason, subject, in
all cases, to Section 7.8 hereof.
(C) REGULATORY RESTRICTIONS. Notwithstanding any provision of this
Deposit Agreement or any ADR(s) to the contrary, Holders are entitled to
surrender outstanding ADSs to withdraw the Deposited Securities at any time
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, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the ADRs or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Instruction I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time). The Depositary shall comply with
written instructions of the Company that the Depositary shall not accept
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 the securities laws of the United
States.
SECTION 2.9 LOST ADRS, ETC. In case any ADR shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new ADR
of like tenor at the expense of the Holder (a) in the case of a mutilated ADR,
in exchange of and substitution for such mutilated ADR upon cancellation
thereof, or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and
in substitution for such destroyed, lost, or stolen ADR, after the Holder
thereof (i) has submitted to the Depositary a written request for such exchange
and substitution before the Depositary has notice that the ADR has been acquired
by a bona fide purchaser, (ii) has provided such security or indemnity
(including an indemnity bond) as may be required by the Depositary to save it
and any of its agents harmless, and (iii) has satisfied any other reasonable
requirements imposed by the Depositary, including, without limitation, evidence
satisfactory to the Depositary of such destruction, loss or theft of such ADR,
the authenticity thereof and the Holder's ownership thereof.
SECTION 2.10 CANCELLATION AND DESTRUCTION OF SURRENDERED ADRS;
MAINTENANCE OF RECORDS. All ADRs surrendered to the Depositary shall be canceled
by the Depositary. Canceled ADRs shall not be entitled to any benefits under
this Deposit Agreement or be valid or enforceable against the Depositary for any
purpose. The Depositary is authorized to destroy ADRs so canceled, provided the
Depositary maintains a record of all destroyed ADRs. Any ADSs held in book-entry
form (i.e., through accounts at DTC) shall be deemed canceled when the
Depositary causes the number of ADSs evidenced by the Balance Certificate to be
reduced by the number of ADSs surrendered (without the need to physically
destroy the Balance Certificate).
SECTION 2.11 PARTIAL ENTITLEMENT ADSS. In the event any Shares are
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
13
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Deposit
Agreement, issue ADSs and deliver ADRs representing Partial Entitlement Shares
which are separate and distinct from the ADSs and ADRs representing Full
Entitlement Shares, by means of separate CUSIP numbering and legending (if
necessary) ("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to
exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the
Custodian to transfer the Partial Entitlement Shares into the account of the
Full Entitlement Shares, and (c) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and
Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the
entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of
Full Entitlement ADSs shall be entitled only to the entitlements of Full
Entitlement Shares. All provisions and conditions of this Deposit Agreement
shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full
Entitlement ADRs and ADSs, except as contemplated by this Section 2.11. The
Depositary is authorized to take any and all other actions as may be necessary
(including, without limitation, making the necessary notations on ADRs) to give
effect to the terms of this Section 2.11. The Company agrees to give timely
written notice to the Depositary if any Shares issued or to be issued are
Partial Entitlement Shares and shall assist the Depositary with the
establishment of procedures enabling the identification of Partial Entitlement
Shares upon Delivery to the Custodian.
SECTION 2.12 CERTIFICATED/UNCERTIFICATED ADSS. Notwithstanding any
other provision of the Deposit Agreement, the Depositary may, at any time and
from time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
"Uncertificated ADS(s)" and the ADS(s) evidenced by ADR(s), the "Certificated
ADS(s)"). Uncertificated ADSs shall not be represented by any instruments and
shall be evidenced only by registration as "uncertificated securities" on the
books and records of the Depositary maintained for such purpose. Any reference
to Holders of ADR(s) or ADS(s) in the Deposit Agreement shall, in the context of
the Uncertificated ADSs, refer to the person(s) shown on the books and records
of the Depositary as the holder of the Uncertificated ADS(s). Holders of
Uncertificated ADSs that are not subject to any registered pledges, liens,
restrictions or adverse claims of which the Depositary has notice at such time,
shall at all times have the right to exchange the Uncertificated ADS(s) for
Certificated ADS(s) of the same type and class, subject in each case to
applicable laws and any rules and regulations the Depositary may established in
respect of the Uncertificated ADSs. Holders of Certificated ADSs shall, if the
Depositary maintains a direct registration system for the ADSs, have the right
to exchange the Certificated ADSs for Uncertificated ADSs upon (i) the due
surrender of the Certificated ADS(s) to the Depositary for such purpose and (ii)
the presentation of a written request to that effect to the Depositary, subject
in each case to (a) all liens and restrictions noted on the ADR evidencing the
Certificated ADS(s) and all adverse claims of which the Depositary then has
notice, (b) the terms of the Deposit Agreement and the rules and regulations
that the Depositary may establish for such purposes hereunder, (c) applicable
law, and (d) payment of the Depositary fees and expenses applicable to such
14
exchange of Certificated ADS(s) for Uncertificated ADS(s). Uncertificated ADSs
shall in all material respects be identical to Certificated ADS(s) of the same
type and class, except that (i) no ADR(s) shall be, nor shall need to be, issued
to evidence Uncertificated ADS(s), (ii) Uncertificated ADS(s) shall, subject to
the terms of the Deposit Agreement, be transferable upon the same terms and
conditions as uncertificated securities under New York law, (iii) the ownership
of Uncertificated ADS(s) shall be recorded on the books and records of the
Depositary maintained for such purpose and evidence of such ownership shall be
reflected in periodic statements provided by the Depositary to the Holder(s) in
accordance with applicable law, (iv) the Depositary may from time to time, upon
notice to the Holders of Uncertificated ADSs affected thereby, establish rules
and regulations, and amend or supplement existing rules and regulations, as may
be deemed reasonably necessary to maintain Uncertificated ADS(s) on behalf of
Holders, provided that such rules and regulations do not conflict with the terms
of the Deposit Agreement and applicable law, (v) the Uncertificated ADS(s) shall
not be entitled to any benefits under this Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company unless such
Uncertificated ADS(s) is/are registered on the books and records of the
Depositary maintained for such purpose, (vi) the Depositary may, in connection
with any deposit of Shares resulting in the issuance of Uncertificated ADSs and
with any transfer, pledge, release and cancellation of Uncertificated ADSs,
require the prior receipt of such documentation as the Depositary may deem
reasonably appropriate, and (vii) upon termination of the Deposit Agreement, the
Depositary shall not require Holders of Uncertificated ADSs to affirmatively
instruct the Depositary before remitting proceeds from the sale of the Deposited
Securities represented by such Holders' Uncertificated ADSs under the terms of
Section 6.2 of the Deposit Agreement. When issuing ADSs under the terms of the
Deposit Agreement, including, without limitation, issuances pursuant to Sections
2.5, 4.2, 4.3, 4.4, 4.5 and 4.11 thereof, the Depositary may in its discretion
determine to issue Uncertificated ADSs rather than Certificated ADSs, unless
otherwise specifically instructed by the applicable Holder to issue Certificated
ADSs. All provisions and conditions of the Deposit Agreement shall apply to
Uncertificated ADSs to the same extent as to Certificated ADSs, except as
contemplated by this Section 2.12. The Depositary is authorized and directed to
take any and all actions and establish any and all procedures, deemed reasonably
necessary to give effect to the terms of this Section 2.12. Except as set forth
in this Section 2.12 and except as required by applicable law, the
Uncertificated ADSs shall be treated as ADSs issued and outstanding under the
terms of the Deposit Agreement. In the event that, in determining the rights and
obligations of parties to the Deposit Agreement with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit
Agreement (other than this Section 2.12) and (b) the terms of this Section 2.12,
the terms and conditions set forth in this Section 2.12 shall be controlling and
shall govern the rights and obligations of the parties to the Deposit Agreement
pertaining to the Uncertificated ADSs.
SECTION 1.1 RESTRICTED ADSS. The Depositary shall, at the request and
expense of the Company, establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Restricted Shares in the form of
ADSs issued under the terms hereof (such Shares, "Restricted Shares"). Upon
receipt of a written request from the Company to accept Restricted Shares for
deposit hereunder, the Depositary agrees to establish procedures permitting the
deposit of such Restricted Shares and the issuance of ADSs representing such
deposited Restricted Shares (such ADSs, the "Restricted ADSs," and the ADRs
15
evidencing such Restricted ADSs, the "Restricted ADRs"). The Company shall
assist the Depositary in the establishment of such procedures and agrees that it
shall take all reasonable steps requested by the Depositary to insure that the
establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such Restricted
Shares and the holders of the Restricted ADSs may be required prior to the
deposit of such Restricted Shares, the transfer of the Restricted ADRs and the
Restricted ADSs evidenced thereby or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory to
the Depositary and (ii) contain the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit
of Restricted Shares shall be separately identified on the books of the
Depositary and the Restricted Shares so deposited shall be held separate and
distinct from the other Deposited Securities held hereunder. The Restricted
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions. The Restricted ADSs shall not be eligible for inclusion in any
book-entry settlement system, including, without limitation, DTC, and shall not
in any way be fungible with the ADSs issued under the terms hereof that are not
Restricted ADSs. The Restricted ADRs and the Restricted ADSs evidenced thereby
shall be transferable only by the Holder thereof upon delivery to the Depositary
of (i) all documentation otherwise contemplated by this Deposit Agreement and
(ii) an opinion of counsel reasonably satisfactory to the Depositary setting
forth, inter alia, the conditions upon which the Restricted ADR presented is,
and the Restricted ADSs evidenced thereby are, transferable by the Holder
thereof under applicable securities laws and the transfer restrictions contained
in the legend set forth on the Restricted ADR presented for transfer. Except as
set forth in this Section 2.13 and except as required by applicable law, the
Restricted ADRs and the Restricted ADSs evidenced thereby shall be treated as
ADRs and ADSs issued and outstanding under the terms of the Deposit Agreement.
In the event that, in determining the rights and obligations of parties hereto
with respect to any Restricted ADSs, any conflict arises between (a) the terms
of this Deposit Agreement (other than this Section 2.13) and (b) the terms of
(i) this Section 2.13 or (ii) the applicable Restricted ADR, the terms and
conditions set forth in this Section 2.13 and of the Restricted ADR shall be
controlling and shall govern the rights and obligations of the parties to this
Deposit Agreement pertaining to the deposited Restricted Shares, the Restricted
ADSs and Restricted ADRs.
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares are no
longer Restricted Securities, the Depositary, upon receipt of (x) an opinion of
counsel reasonably satisfactory to the Depositary setting forth, inter alia,
that the Restricted ADRs, the Restricted ADSs and the Restricted Shares are not
as of such time Restricted Securities, and (y) instructions from the Company to
remove the restrictions applicable to the Restricted ADRs, the Restricted ADSs
and the Restricted Shares, shall (i) eliminate the distinctions and separations
between the applicable Restricted Shares held on deposit under this Section 2.13
and the other Shares held on deposit under the terms of the Deposit Agreement
that are not Restricted Shares, (ii) treat the newly unrestricted ADRs and ADSs
on the same terms as, and fully fungible with, the other ADRs and ADSs issued
and outstanding under the terms of the Deposit Agreement that are not Restricted
ADRs or Restricted ADSs, (iii) take all actions necessary to remove any
distinctions, limitations and restrictions previously existing under this
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Section 2.13 between the applicable Restricted ADRs and Restricted ADSs,
respectively, on the one hand, and the other ADRs and ADSs that are not
Restricted ADRs or Restricted ADSs, respectively, on the other hand, including,
without limitation, by making the newly-unrestricted ADSs eligible for
Pre-Release Transactions and for inclusion in the applicable book-entry
settlement systems.
ARTICLE III
CERTAIN OBLIGATIONS OF
HOLDERS AND BENEFICIAL OWNERS OF ADSS
SECTION 3.1 PROOFS, CERTIFICATES AND OTHER INFORMATION. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
this Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Share Registrar) as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under this Deposit Agreement
and the applicable ADR(s). The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any ADS or the
distribution or sale of any dividend or distribution of rights or of the
proceeds thereof or, to the extent not limited by the terms of Section 7.8
hereof, the delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided,
in each case to the Depositary's, the Registrar's and the Company's
satisfaction. The Depositary shall provide the Company, in a timely manner, with
copies (or originals if necessary and appropriate) of (i) any such proofs of
citizenship or residence, taxpayer status, or exchange control approval which it
receives from Holders and Beneficial Owners, and (ii) any other information or
documents which the Company may reasonably request and which the Depositary
shall request and receive from any Holder or Beneficial Owner or any person
presenting Shares for deposit or ADSs for cancellation, transfer or withdrawal.
Nothing herein shall obligate the Depositary to (i) obtain any information for
the Company if not provided by the Holders or Beneficial Owners, or (ii) verify
or vouch for the accuracy of the information so provided by the Holders or
Beneficial Owners.
SECTION 3.2 LIABILITY FOR TAXES AND OTHER CHARGES. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR, any Deposited Securities or ADSs shall be payable by the Holders and
Beneficial Owners to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial
17
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or charges, the Holder and the Beneficial Owner remaining liable for
any deficiency. The Custodian may refuse the deposit of Shares and the
Depositary may refuse to issue ADSs, deliver ADRs, register the transfer of
ADSs, register the split-up or combination of ADRs and (subject to Section 7.8)
the withdrawal of Deposited Securities until payment in full of such tax,
charge, penalty or interest is received. Every Holder and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian, and any of their
agents, officers, employees and Affiliates for, and to hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES ON DEPOSIT OF SHARES. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, and (v) the Shares presented for deposit are not, and the ADSs
issuable upon such deposit will not be, Restricted Securities (except as
contemplated in Section 2.13), and (vi) the Shares presented for deposit have
not been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of ADSs in respect thereof and the transfer of such ADSs. If any
such representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
SECTION 3.4 COMPLIANCE WITH INFORMATION REQUESTS. Notwithstanding any
other provision of this Deposit Agreement or any ADR(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company in accordance
with applicable law, the rules and requirements of the London Stock Exchange,
and any other stock exchange on which the Shares or ADSs are, or will be,
registered, traded or listed or the Articles of Association of the Company,
which are made to provide information, inter alia, as to the capacity in which
such Holder or Beneficial Owner owns ADSs (and Shares as the case may be) and
regarding the identity of any other person(s) interested in such ADSs and the
nature of such interest and various other matters, whether or not they are
Holders and/or Beneficial Owners at the time of such request. The Depositary
agrees to use its reasonable efforts to forward, upon the request of the Company
and at the Company's expense, any such request from the Company to the Holders
and to forward to the Company any such responses to such requests received by
the Depositary and the Company agrees to reimburse the Depositary for reasonable
out-of-pocket expenses incurred by the Depositary in connection with such
requests.
Notwithstanding any other provision of this Deposit Agreement or any
ADR(s) and without limiting the foregoing, each Holder and Beneficial Owner
agrees to provide such information as the Company may request in a disclosure
notice (a "Disclosure Notice") given pursuant to the Great Britain Companies Act
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1985 (as amended from time to time and including any statutory modification or
re-enactment thereof, the "Companies Act") or the Articles of Association of the
Company. Each Holder and Beneficial Owner acknowledges that it understands that
failure to comply with a Disclosure Notice may result in the imposition of
sanctions against the holder of Shares in respect of which the non-complying
person is or was, or appears to be or has been, interested as provided in the
Companies Act and the Articles of Association which currently include, the
withdrawal of voting rights of such Shares and the imposition of restrictions on
the rights to receive dividends on and to transfer such Shares. In addition,
each Holder and Beneficial Owner 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 or Beneficial Owner
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 directly or indirectly such Shares or ADSs representing
such Shares is so interested, must within two (2) business days after becoming
so interested or so aware (and thereafter in certain circumstances upon any
change in the particulars previously notified) notify the Company as required by
the Companies Act. After the relevant threshold is exceeded, similar
notifications must be made in respect of whole percentage figure increases or
decreases, rounded down to the nearest whole number.
SECTION 3.5 OWNERSHIP RESTRICTIONS. Notwithstanding any other
provision in this Deposit Agreement or any ADR, the Company may restrict
transfers of the Shares where such transfer might result in ownership of Shares
exceeding limits imposed by applicable law or the Articles of Association of the
Company. The Company may also restrict, in such manner as it deems appropriate,
transfers of the ADSs where such transfer may result in the total number of
Shares represented by the ADSs owned by a single Holder or Beneficial Owner to
exceed any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including, but not limited to, the imposition
of restrictions on the transfer of ADSs, the removal or limitation of voting
rights or mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the ADSs held by such Holder or Beneficial
Owner in excess of such limitations, if and to the extent such disposition is
permitted by applicable law and the Articles of Association of the Company.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 CASH DISTRIBUTIONS. Whenever the Depositary receives
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Deposited Securities or any other entitlements held in respect of
Deposited Securities under the terms hereof, the Depositary will (i) if at the
time of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary (pursuant to Section 4.8) be converted on a
practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
19
into Dollars (on the terms described in Section 4.8), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9, and (iii)
distribute promptly the amount thus received (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to
the Holders entitled thereto as of the ADS Record Date in proportion to the
number of ADSs held as of the ADS Record Date. The Depositary shall distribute
only such amount, however, as can be distributed without attributing to any
Holder a fraction of one cent, and any balance not so distributed shall be held
by the Depositary (without liability for interest thereon) and shall be added to
and become part of the next sum received by the Depositary for distribution to
Holders of ADSs outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
SECTION 4.2 DISTRIBUTION IN SHARES. Upon receipt of confirmation of a
deposit of Shares with the Custodian as a result of any distribution upon any
Deposited Securities consisting of a dividend in, or free distribution of,
Shares, the Depositary shall distribute to the Holders as of the ADS Record Date
(established upon the terms of Section 4.9) in proportion to the number of ADSs
held as of the ADS Record Date, additional ADSs, which represent in the
aggregate the number of Shares received as such dividend, or free distribution,
subject to the other terms of this Deposit Agreement (including, without
limitation, payment of (a) the applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes). In lieu of delivering fractional
ADSs, the Depositary shall sell the number of Shares or ADSs, as the case may
be, represented by the aggregate of such fractions and distribute the net
proceeds upon the terms described in Section 4.1. If additional ADSs are not so
distributed, each ADS issued and outstanding as of the applicable ADS Record
Date shall also represent proportionate rights and interests in the additional
integral number of Shares distributed upon the Deposited Securities represented
thereby (net of (a) the applicable fees and charges of, and expenses incurred
by, the Depositary and (b) taxes).
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, the Depositary may dispose of all
or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable to satisfy any such tax
or governmental charges.
SECTION 4.3 ELECTIVE DISTRIBUTIONS IN CASH OR SHARES. Whenever the
Company informs the Depositary that it intends to make a distribution payable at
the election of the holders of Shares in cash or in additional Shares and the
Company wishes such elective distribution to be made available to Holders of
ADSs, the Depositary shall consult with the Company as to the lawfulness of
making the elective distribution available to Holders and shall determine
whether it is reasonably practicable to make such elective distribution
available to the Holders of ADSs. The Depositary shall not make such elective
20
distribution available to Holders unless (i) the Company shall have timely
requested the Depositary to make such elective distribution available to Holders
(60 days prior to the elective distribution being a typical timeframe for
delivery of initial notice to the Depositary), (ii) the Depositary shall have
determined that such elective distribution is reasonably practicable and (iii)
the lawfulness of such distribution shall have been established to the
reasonable satisfaction of the Company and the Depositary. If the above
conditions are satisfied, the Depositary shall establish an ADS Record Date (on
the terms described in Section 4.9) and establish procedures to enable Holders
to elect the receipt of the proposed distribution in cash or in additional ADSs.
If a Holder elects to receive the proposed distribution (X) in cash, the
distribution shall be made upon the terms described in Section 4.1, or (Y) in
ADSs, the distribution shall be made upon the terms described in Section 4.2.
Nothing herein shall obligate the Depositary to make available to Holders a
method to receive the elective distribution in Shares (rather than ADSs). There
can be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
If (i) the Company does not timely request the Depositary to make
such elective distribution available to Holders, or (ii) the Depositary shall
have determined that such distribution is not reasonably practicable or (iii)
the lawfulness of making the elective distribution available to Holders shall
not have been established to the reasonable satisfaction of the Company and the
Depositary, the Depositary shall, to the extent permitted by law, distribute to
the Holders on the basis of the same determination as is made in England in
respect of the Shares for which no election is made either (X) cash upon the
terms described in Section 4.1 or (Y) additional ADSs representing such
additional Shares upon the terms described in Section 4.2.
SECTION 4.4 DISTRIBUTION OF RIGHTS TO PURCHASE ADDITIONAL ADSS.
(A) DISTRIBUTION TO ADS HOLDERS. Whenever the Company informs the
Depositary that it intends to distribute to the holders of the Deposited
Securities rights to subscribe for additional Shares and that it wishes such
rights to be made available to Holders of ADSs, the Depositary shall consult
with the Company as to the lawfulness of making such rights available to Holders
and shall determine whether it is reasonably practicable to make such rights
available to the Holders. The Depositary shall not make such distribution to
Holders unless (i) the Company shall have timely requested that such rights be
made available to the Holders (60 days prior to distribution of rights being a
typical timeframe for delivery of initial notice to the Depositary), (ii) the
Depositary shall have determined that such distribution is reasonably
practicable and (iii) the lawfulness of such distribution shall have been
established to the reasonable satisfaction of the Company and the Depositary. If
the above conditions are satisfied, the Depositary shall establish an ADS Record
Date (upon the terms described in Section 4.9) and establish procedures to (x)
distribute rights to purchase additional ADSs (by means of warrants or
otherwise), (y) to enable the Holders to exercise such rights (upon payment of
the subscription price and of the applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs
upon the valid exercise of such rights. Nothing herein shall obligate the
Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs).
21
(B) SALE OF RIGHTS. If (i) the Company does not timely request the
Depositary to make the distribution of rights to Holders or requests not to make
such distribution to Holders, (ii) the Depositary determines it is not
reasonably practicable to make the rights available to Holders, (iii) the
lawfulness of such distribution is not established to the reasonable
satisfaction of the Company and the Depositary or (iv) any rights made available
are not exercised and appear to be about to lapse, the Depositary in its
discretion may sell such rights, in a riskless principal capacity, at such place
and upon such terms (including public or private sale) as it may deem
practicable. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms set forth in Section
4.1.
(C) LAPSE OF RIGHTS. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be liable to Holders or Beneficial Owners
for (i) any failure to determine that it may be lawful or practicable to make
such rights available to Holders in general or any Holders in particular, (ii)
any foreign exchange exposure or loss incurred in connection with such sale, or
exercise, or (iii) the content of any materials forwarded to the Holders on
behalf of the Company in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) it is established to the reasonable satisfaction of the Company and the
Depositary that the offering and sale of such securities to Holders and
Beneficial Owners are exempt from, or do not require registration under, the
provisions of the Securities Act or any other applicable laws.
In the event that the Company, the Depositary or the Custodian shall
be required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. 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 charges which
the Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
22
SECTION 4.5 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS TO
PURCHASE SHARES.
(A) Whenever the Company informs the Depositary that it intends to
distribute to the holders of Deposited Securities property other than cash,
Shares or rights to purchase additional Shares, and that it wishes such
distribution to be made to Holders of ADSs, the Depositary shall consult with
the Company as to the lawfulness of such distribution to Holders of ADSs and
shall determine whether such distribution to Holders is reasonably practicable.
The Depositary shall not make such distribution unless (i) the Company shall
have requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have determined that such distribution is reasonably
practicable and (iii) the lawfulness of such distribution shall have been
established to the reasonable satisfaction of the Company and the Depositary.
(B) Upon satisfaction of the conditions in Section 4.5(a), the
Depositary shall distribute the property so received to the Holders of record,
as of the ADS Record Date, in proportion to the number of ADSs held by them
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary deems necessary and
practicable to satisfy any taxes (including applicable interest and penalties)
or other governmental charges applicable to the distribution.
(C) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the lawfulness of the distribution is not established to the reasonable
satisfaction of the Company and the Depositary, or (iii) the Depositary
determines that all or a portion of such distribution is not reasonably
practicable, the Depositary shall sell or cause such property to be sold in a
public or private sale, at such place or places and upon such terms as it may
deem practicable and shall (i) cause the proceeds of such sale, if any, to be
converted into Dollars and (ii) distribute the proceeds of such conversion
received by the Depositary (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) to the Holders as of the ADS
Record Date upon the terms of Section 4.1. If the Depositary is unable to sell
such property, the Depositary may dispose of such property for the account of
the Holders in any way it deems reasonably practicable under the circumstances.
SECTION 4.6 Intentionally omitted.
SECTION 4.7 Intentionally omitted.
SECTION 4.8 CONVERSION OF FOREIGN CURRENCY. Whenever the Depositary
or the Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall convert
or cause to be converted, by sale or in any other manner that it may determine,
such Foreign Currency into Dollars, and shall distribute such Dollars (net of
23
any applicable fees, any reasonable and customary expenses incurred in such
conversion and any expenses incurred on behalf of the Holders in complying with
currency exchange control or other governmental requirements) in accordance with
the terms of the applicable sections of this Deposit Agreement. If the
Depositary shall have distributed warrants or other instruments that entitle the
holders thereof to such Dollars, the Depositary shall distribute such Dollars to
the holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest thereon. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its judgment
the conversion of any Foreign Currency and the transfer and distribution of
proceeds of such conversion received by the Depositary is not practicable or
lawful, or if any approval or license of any governmental authority or agency
thereof that is required for such conversion, transfer and distribution is
denied or, in the opinion of the Depositary, not obtainable at a reasonable cost
or within a reasonable period, the Depositary may, in its discretion, (i) make
such conversion and distribution in Dollars to the Holders for whom such
conversion, transfer and distribution is lawful and practicable, (ii) distribute
the Foreign Currency (or an appropriate document evidencing the right to receive
such Foreign Currency) to Holders for whom this is lawful and practicable or
(iii) hold (or cause the Custodian to hold) such Foreign Currency (without
liability for interest thereon) for the respective accounts of the Holders
entitled to receive the same.
SECTION 4.9 FIXING OF ADS RECORD DATE. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of, or solicitation of consents or proxies of, holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date (the "ADS Record Date") for the determination of the Holders of ADSs
who shall be entitled to receive such distribution, to give instructions for the
exercise of voting rights at any such meeting, to give or withhold such consent,
to receive such notice or solicitation or to otherwise take action, or to
exercise the rights of Holders with respect to such changed number of Shares
represented by each ADS. The Depositary shall make reasonable efforts to
establish the ADS Record Date as closely as possible to the applicable record
date for the Deposited Securities (if any) set by the Company in England.
Subject to applicable law and the provisions of Section 4.1 through 4.8 and to
the other terms and conditions of this Deposit Agreement, only the Holders of
ADSs at the close of business in New York on such ADS Record Date shall be
entitled to receive such distribution, to give such voting instructions, to
24
receive such notice or solicitation, or otherwise take action. The Depositary
shall, as required by applicable rules, promptly notify The New York Stock
Exchange, Inc. or other stock exchange or automated quotation system where the
ADSs are listed or quoted of any action to fix a record date for the ADSs or to
close the transfer books for the ADSs.
SECTION 4.10 VOTING OF DEPOSITED SECURITIES. As soon as practicable
after receipt of notice of any meeting at which the holders of Deposited
Securities are entitled to vote, or of solicitation of consents or proxies from
holders of Deposited Securities, the Depositary shall fix the ADS Record Date in
respect of such meeting or solicitation of consent or proxy in accordance with
Section 4.9. The Depositary shall, if requested by the Company in a timely
manner (30 days prior to the date of vote or meeting being a typical timeframe
for delivery of such notice to the Depositary) and provided no U.S. legal
prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such
notice of meeting or solicitation of consent or proxies, (b) a statement that
the Holders at the close of business on the ADS Record Date will be entitled,
subject to any applicable law, the provisions of this Deposit Agreement, the
Articles of Association of the Company and the provisions of or governing the
Deposited Securities (which provisions, if any, shall be summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Deposited Securities represented by
such Holder's ADSs, and (c) a brief statement as to the manner in which such
voting instructions may be given. Voting instructions may be given only in
respect of a number of ADSs representing an integral number of Deposited
Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record
Date of voting instructions in the manner specified by such notice or
solicitation statement, the Depositary shall endeavor, insofar as practicable
and permitted under applicable law, the provisions of this Deposit Agreement,
Articles of Association of the Company and the provisions of the Deposited
Securities, to vote, or cause the Custodian to vote, the Deposited Securities
(in person or by proxy) represented by such Holder's ADSs in accordance with the
manner of the voting instructions set forth in such notice or solicitation
statement. Unless otherwise stated in the notice or solicitation statement, such
vote may be either on a show of hands, in which case the Custodian shall be
instructed to vote the Deposited Securities in accordance with the voting
instructions received from a majority of Holders giving voting instructions, or
by poll, in which case the Custodian shall be instructed to vote in accordance
with the voting instructions received from the Holders giving voting
instructions.
Unless specifically instructed by at least three (3) Holders of ADSs
representing not less than 10% of the total voting rights of all Holders of ADSs
having the right to vote at such meeting, the Depositary may not join in
demanding a poll. Under the Articles of Association of the Company (as in effect
on the date hereof), a poll may be demanded at any general meeting by the
chairman of the meeting, by at least three (3) members present in person or by
proxy and having the right to vote at the meeting, or by a member or members
present in person or by proxy holding Shares conferring a right to vote at the
meeting, being Shares on which the aggregate sum has been paid up equal to not
less than 10% of the total sum paid up on all the Shares conferring that right.
Neither the Depositary nor the Custodian shall under any
circumstances exercise any discretion as to voting and neither the Depositary
nor the Custodian shall vote, attempt to exercise the right to vote, or in any
25
way make use of, for purposes of establishing a quorum or otherwise, the
Deposited Securities represented by ADSs, except pursuant to and in accordance
with the voting instructions timely received from Holders or as otherwise
contemplated herein. Unless the Company requests in writing to the contrary, if
the Depositary timely receives voting instructions from a Holder which fail to
specify the manner in which the Depositary is to vote the Deposited Securities
represented by such Holder's ADSs, the Depositary will deem such Holder (unless
otherwise specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such voting instructions.
Deposited Securities represented by ADSs for which no timely voting instructions
are received by the Depositary from the Holder shall not be voted.
Notwithstanding anything else contained in this Deposit Agreement or any
Receipt, the Depositary shall, if so requested in writing by the Company,
represent all Deposited Securities (whether or not voting instructions have been
received in respect of such Deposited Securities from Holders as of the ADS
Record Date) for the sole purpose of establishing quorum at such meeting.
Notwithstanding anything else contained in this Deposit Agreement or
any Receipt, the Depositary shall not have any obligation to take any action
with respect to any meeting, or solicitation of consents or proxies, of holders
of Deposited Securities if the taking of such action would violate U.S. laws.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
SECTION 4.11 CHANGES AFFECTING DEPOSITED SECURITIES. Upon any change
in nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the ADRs shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Depositary may, with the Company's approval, and
provided the lawfulness thereof has been established to the reasonable
satisfaction of the Company and the Depositary, execute and deliver additional
ADRs as in the case of a stock dividend on the Shares, or call for the surrender
of outstanding ADRs to be exchanged for new ADRs, in either case, as well as in
the event of newly deposited Shares, with necessary modifications to the form of
ADR contained in Exhibit A hereto, specifically describing such new Deposited
Securities or corporate change. Notwithstanding the foregoing, in the event that
any security so received may not be lawfully distributed to some or all Holders,
the determination of the Depositary may, with the Company's approval, and shall,
if the Company requests, subject to the determination of the Depositary that
such action is not in violation of any applicable laws or regulations, sell such
securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of (a) fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) for the account of the Holders otherwise entitled to such securities upon
26
an averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.1. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such securities available to
Holders in general or to any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
SECTION 4.12 AVAILABLE INFORMATION. The Company is subject to the
periodic reporting requirements of the Exchange Act and accordingly files
certain information with the Commission. These reports and documents can be
inspected and copied at the public reference facilities maintained by the
Commission located at Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C.
20549.
SECTION 4.13 REPORTS. The Depositary shall make available for
inspection by Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company which are
both (a) received by the Depositary, the Custodian, or the nominee of either of
them as the holder of the Deposited Securities and (b) made generally available
to the holders of such Deposited Securities by the Company. The Depositary shall
also provide to Holders copies of such reports when furnished by the Company
pursuant to Section 5.6.
SECTION 4.14 LIST OF HOLDERS. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of ADSs of all Holders and Beneficial Owners (to
the extent available to it).
SECTION 4.15 TAXATION. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of ADSs may be required from time
to time, and in a timely manner, to file such proof of taxpayer status,
residence and beneficial ownership (as applicable), to execute such certificates
and to make such representations and warranties, or to provide any other
information or documents, as the Depositary or the Custodian may deem necessary
or proper to fulfill the Depositary's or the Custodian's obligations under
applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
27
If the Company (or any of its agents) withholds from any distribution
any amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e., stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary or the
Custodian, as applicable. Neither the Depositary nor the Custodian shall be
liable for the failure by any Holder or Beneficial Owner to obtain the benefits
of credits on the basis of non-U.S. tax paid against such Holder's or Beneficial
Owner's income tax liability.
Neither the Depositary nor the Company is under any obligation
hereunder to provide the Holders and Beneficial Owners with any information
about the tax status of the Company. Neither the Depositary nor the Company
shall incur any liability for any tax consequences that may be incurred by
Holders and Beneficial Owners on account of their ownership of the ADSs,
including without limitation, tax consequences resulting from the Company (or
any of its subsidiaries) being treated as a "Foreign Personal Holding Company,"
or as a "Passive Foreign Investment Company" (in each case as defined in the
U.S. Internal Revenue Code and the regulations issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY,
THE CUSTODIAN AND THE COMPANY
SECTION 5.1 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE
REGISTRAR. Until termination of this Deposit Agreement in accordance with its
terms, the Registrar shall maintain in the Borough of Manhattan, the City of New
York, an office and facilities for the execution and delivery, registration of
issuances, registration of transfers, combination and split-up of ADRs, and the
surrender of ADRs for the purpose of withdrawal of Deposited Securities in
accordance with the provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of issuances and
transfers of ADRs which at all reasonable times shall be open for inspection by
the Company and by the Holders of such ADRs, provided that such inspection shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such ADRs in the interest of a business or object other than the
business of the Company or other than a matter related to this Deposit Agreement
or the ADRs.
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The Registrar may close the transfer books with respect to the ADRs,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section 7.8
hereof.
If any ADRs or the ADSs evidenced thereby are listed on one or more
stock exchanges or automated quotation systems in the United States, the
Depositary shall act as Registrar or appoint a Registrar or one or more
co-registrars for registration of ADRs and transfers, combinations and
split-ups, and to countersign such ADRs in accordance with any requirements of
such exchanges or systems. Such Registrar or co-registrars may be removed and a
substitute or substitutes appointed by the Depositary.
SECTION 5.2 EXONERATION. Neither the Depositary nor the Company nor
any of their respective controlling persons, directors, employees, agents or
affiliates shall be obligated to do or perform any act which is inconsistent
with the provisions of this Deposit Agreement or incur any liability (i) if the
Depositary or the Company shall be prevented or forbidden from, or delayed in,
doing or performing any act or thing required by the terms of this Deposit
Agreement, by reason of any provision of any present or future law or regulation
of the United States, England or any other country, or of any other governmental
authority or regulatory authority or stock exchange, or on account of the
possible criminal or civil penalties or restraint, or by reason of any
provision, present or future, of the Articles of Association of the Company or
any provision of or governing any Deposited Securities, or by reason of any act
of God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, acts of terrorism, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in this Deposit Agreement or in the
Articles of Association of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for the inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of this
Deposit Agreement, made available to Holders of ADSs, or (v) for any
consequential or punitive damages for any breach of the terms of this Deposit
Agreement.
The Depositary, its controlling persons, any Custodian and the
Company, its controlling persons, directors, employees, agents and affiliates
may rely and shall be protected in acting upon any written notice, request or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by
any provision of this Deposit Agreement.
SECTION 5.3 STANDARD OF CARE. The Company and the Depositary assume
no obligation and shall not be subject to any liability under this Deposit
Agreement or any ADRs to any Holder(s) or Beneficial Owner(s), except that the
29
Company and the Depositary agree to perform their respective obligations
specifically set forth in this Deposit Agreement or the applicable ADRs without
negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, 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 ADSs,
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 (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effect of any vote, provided that any
such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. The Depositary shall not incur (absent negligence or bad
faith) any liability for any failure to determine that any distribution or
action may be lawful or reasonably practicable, for the content of any
information submitted to it by the Company for distribution to the Holders or
for any inaccuracy of any translation thereof, for allowing any rights to lapse
upon the terms of this Deposit Agreement or for the failure or timeliness of any
notice from the Company. Notwithstanding the foregoing, the Depositary shall not
incur any liability for any investment risk associated with acquiring an
interest in the Deposited Securities, for the validity or worth of the Deposited
Securities or for any tax consequences that may result from the ownership of
ADSs, Shares or Deposited Securities, for the credit-worthiness of any third
party.
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the ninetieth (90th) day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 hereof), or (ii) the appointment by
the Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by written
notice of such removal, which removal shall be effective on the later of (i) the
ninetieth (90th) day after delivery thereof to the Depositary (whereupon the
Depositary shall be entitled to take the actions contemplated in Section 6.2
hereof), or (ii) upon the appointment by the Company of a successor depositary
and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
30
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due
it and on the written request of the Company shall, (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADSs and such other information relating to ADSs and
Holders thereof as the successor may reasonably request. Any such successor
depositary shall promptly provide notice of its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 THE CUSTODIAN. The Depositary has initially appointed
Citibank, N.A., London as Custodian for the purpose of this Deposit Agreement.
The Custodian or its successors in acting hereunder shall be subject at all
times and in all respects to the direction of the Depositary for the Shares for
which the Custodian acts as custodian and shall be responsible solely to it. If
any Custodian resigns or is discharged from its duties hereunder with respect to
any Deposited Securities and no other Custodian has previously been appointed
hereunder, the Depositary shall promptly appoint a substitute custodian that is
organized under the laws of England. The Depositary shall require such resigning
or discharged Custodian to deliver the Deposited Securities held by it, together
with all such records maintained by it as Custodian with respect to such
Deposited Securities as the Depositary may request, to the Custodian designated
by the Depositary. Whenever the Depositary determines, in its discretion, that
it is appropriate to do so, it may appoint an additional custodian with respect
to any Deposited Securities, or discharge the Custodian with respect to any
Deposited Securities and appoint a substitute custodian, which shall thereafter
be Custodian hereunder with respect to the Deposited Securities. Immediately
upon any such change, the Depositary shall give notice thereof in writing to all
Holders of ADRs, each other Custodian and the Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
SECTION 5.6 NOTICES AND REPORTS. On or before the first date on which
the Company gives notice, by publication or otherwise, of any meeting of holders
of Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
31
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities.
The Company will also transmit to the Depositary the other notices,
reports and communications which are made generally available by the Company to
holders of its Shares or other Deposited Securities. The Depositary shall
arrange, at the request of the Company and at the Company's expense, to provide
copies thereof to all Holders or make such notices, reports and other
communications available to all Holders on a basis similar to that for holders
of Shares or other Deposited Securities or on such other basis as the Company
may advise the Depositary or as may be required by any applicable law,
regulation or stock exchange requirement.
The Depositary will, at the expense of the Company, make available a
copy of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the ADSs at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
SECTION 5.7 ISSUANCE OF ADDITIONAL SHARES, ADSS ETC. The Company
agrees that in the event of any issuance of additional Shares or of other
securities (including rights and convertible or exchangeable securities) that
affect the ADSs the Company will promptly furnish to the Depositary a written
opinion of counsel for the Company in the United States, which counsel shall be
satisfactory to the Depositary, stating whether or not the circumstances of such
issuance are such as to make it necessary for a Registration Statement under the
Securities Act to be in effect prior to making such dividend or distribution
available to the Holders entitled thereto. If in the opinion of such counsel a
Registration Statement is required, such counsel shall furnish to the Depositary
a written opinion as to whether or not there is a Registration Statement in
effect which will cover the issuance of such securities.
The Company agrees that it shall obtain legal advice as to whether
future issuances for cash of (i) additional Shares; (ii) rights to subscribe for
Shares, (iii) securities convertible into or exchangeable for Shares, or (iv)
rights to subscribe for securities convertible or exchangeable for Shares are
such as to make it necessary for a Registration Statement under the Securities
Act covering such securities to be in effect. If, being advised by counsel, the
Company determines that an issue of such securities is required to be registered
under the Securities Act, the Company will register such issuance to the extent
necessary, alter the terms of the issuance to avoid the registration
requirements of the Securities Act or direct the Depositary to take specific
measures with respect to the acceptance for deposit of Shares or such other
securities to prevent such issuance from being made in violation of the
registration requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor
any company controlled by the Company will at any time deposit any Shares,
either upon original issuance or upon a sale of Shares previously issued and
reacquired by the Company or by any company under its control, unless a
Registration Statement is in effect as to such Shares under the Securities Act
or unless the Company shall have delivered to the Depositary a written opinion
from the United States counsel for the Company, which counsel and opinion shall
be reasonably satisfactory to the Depositary, to the effect that registration is
32
not required under the Securities Act in connection with the deposit of said
Shares or the Depositary's issuance of ADRs in connection therewith.
Notwithstanding anything else contained in this Deposit Agreement,
nothing in this Deposit Agreement shall be deemed to obligate the Company to
file any registration statement in respect of any proposed transaction.
SECTION 5.8 INDEMNIFICATION. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
by the Depositary or the Custodian under the terms hereof due to the negligence
or bad faith of the Depositary or the Custodian.
The Company agrees to indemnify the Depositary, the Custodian and any
of their respective directors, officers, employees, agents and Affiliates
against, and hold each of them harmless from, any direct loss, liability, tax,
charge or expense of any kind whatsoever (including, but not limited to, the
reasonable fees and expenses of counsel) that may arise (a) out of or in
connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of ADRs, ADSs, the Shares, or other Deposited Securities, as the case
may be, (b) out of or as a result of any offering documents in respect thereof
or (c) out of acts performed or omitted (including, but not limited to, any
delivery by the Depositary on behalf of the Company of information regarding the
Company) in accordance with this Deposit Agreement, the ADRs, the ADSs, the
Shares, or any Deposited Securities, in any such case (i) by the Depositary, the
Custodian or any of their respective directors, officers, employees, agents and
Affiliates, except to the extent such loss, liability, tax, charge or expense is
due to the negligence or bad faith of any of them, or (ii) by the Company or any
of its directors, officers, employees, agents and Affiliates.
The obligations set forth in this Section shall survive the
termination of this Deposit Agreement and the succession or substitution of any
party hereto.
Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
SECTION 5.9 FEES AND CHARGES OF DEPOSITARY. The Company, the Holders,
the Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
33
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees
and charges and to reimburse the Depositary for such out-of-pocket expenses as
the Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its statement for such expenses and fees or
charges to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
SECTION 5.10 PRE-RELEASE TRANSACTIONS. Subject to the further terms
and provisions of this Section 5.10, the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its Affiliates and in ADSs. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 and
(ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7, including ADSs which were issued under (i)
above but for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Shares are to be delivered
(w) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such Shares or ADSs are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs, and (z) agrees
to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days' notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of ADSs and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding
34
under (i) above), 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 also set limits with respect to the number of ADSs
and Shares involved in Pre-Release Transactions with any one person on a
case-by-case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
SECTION 5.11 RESTRICTED SECURITIES OWNERS. The Company agrees (to the
extent practicable) to advise in writing each of the persons or entities who, to
the knowledge of the Company, holds Restricted Securities that such Restricted
Securities are ineligible for deposit hereunder (except under the circumstances
contemplated in Section 2.12) and, to the extent practicable, shall require each
of such persons to represent in writing that such person will not deposit
Restricted Securities hereunder (except under the circumstances contemplated in
Section 2.12).
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 AMENDMENT/SUPPLEMENT. Subject to the terms and conditions
of this Section 6.1 and applicable law, the ADRs outstanding at any time, the
provisions of this Deposit Agreement and the form of ADR attached hereto and to
be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. The parties
hereto agree that 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 or (b) the ADSs to be
settled 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 materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADSs, to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and the ADR, if applicable, as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such ADS and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
35
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and the ADRs at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement and the ADRs 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 with such laws, rules or regulations.
SECTION 6.2 TERMINATION. The Depositary shall, at any time at the
written direction of the Company, terminate this Deposit Agreement by providing
notice of such termination to the Holders of all ADSs then outstanding at least
thirty (30) days prior to the date fixed in such notice for such termination. If
(i) ninety (90) days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign, or (ii)
ninety (90) days shall have expired after the Company shall have delivered to
the Depositary a written notice of the removal of the Depositary, and in either
case a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4, the Depositary may terminate this
Deposit Agreement by providing notice of such termination to the Holders of all
ADSs then outstanding at least ninety (90) days prior to the date fixed for such
termination. On and after the date of termination of this Deposit Agreement, the
Holder of an ADS will, upon surrender of such ADS at the Principal Office of the
Depositary, upon the payment of the charges of the Depositary for the surrender
of ADSs referred to in Section 2.7 and subject to the conditions and
restrictions therein set forth, and upon 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 such ADS. If any ADSs shall remain
outstanding after the date of termination of this Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of ADSs,
and the Depositary shall suspend the distribution of dividends to the Holders
thereof, and shall not give any further notices or perform any further acts
under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in this Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.7, 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 ADSs surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of an ADS, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of this Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders whose
ADSs have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit Agreement
with respect to the ADSs, the Deposited Securities and the ADSs, except to
account for such net proceeds and other cash (after deducting, or charging, as
the case may be, in each case, the charges of the Depositary for the surrender
of an ADS, any expenses for the account of the Holder in accordance with the
terms and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments). Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
36
Deposit Agreement except for its obligations to the Depositary under Sections
5.8, 5.9 and 7.6 hereof.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 COUNTERPARTS. This Deposit Agreement may be executed in
any number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
SECTION 7.2 NO THIRD-PARTY BENEFICIARIES. This Deposit Agreement is
for the exclusive benefit of the parties hereto (and their successors) and shall
not be deemed to give any legal or equitable right, remedy or claim whatsoever
to any other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates from engaging in such transactions or establishing or maintaining
such relationships or (b) obligate the Depositary or any of its Affiliates to
disclose such transactions or relationships or to account for any profit made or
payment received in such transactions or relationships.
SECTION 7.3 SEVERABILITY. In case any one or more of the provisions
contained in this Deposit Agreement or in the ADRs should be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 HOLDERS AND BENEFICIAL OWNERS AS PARTIES; BINDING EFFECT.
The Holders and Beneficial Owners from time to time of ADSs shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of any ADR by acceptance thereof or any beneficial interest therein.
SECTION 7.5 NOTICES. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex or facsimile transmission, confirmed by letter
personally delivered or sent by mail or air courier, addressed to Hanson
Building Materials PLC, 1 Grosvenor Place, London SW1X 7JH, England, Attention:
Paul Tunnacliffe, or to any other address which the Company may specify in
writing to the Depositary.
37
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter personally delivered
or sent by mail or air courier, addressed to Citibank, N.A., 111 Wall Street,
New York, New York 10043, U.S.A., Attention: Depositary Receipts Department, or
to any other address which the Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have
been duly given if (a) personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the books of the Depositary or, if such
Holder shall have filed with the Depositary a request that notices intended for
such Holder be mailed to some other address, at the address specified in such
request, or (b) if a Holder shall have designated such means of notification as
an acceptable means of notification under the terms of this Deposit Agreement,
by means of electronic messaging addressed for delivery to the e-mail address
designated by the Holder for such purpose. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Failure to notify a Holder or any defect in the notification to a Holder shall
not affect the sufficiency of notification to other Holders or to the Beneficial
Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian, the Depositary or
the Company, notwithstanding that such cable, telex or facsimile transmission
shall not be subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed
to be effective at the time of the initiation of the transmission by the sender
(as shown on the sender's records), notwithstanding that the intended recipient
retrieves the message at a later date, fails to retrieve such message, or fails
to receive such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address or for any
other reason.
SECTION 7.6 GOVERNING LAW AND JURISDICTION. This Deposit Agreement
and the ADRs shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York applicable to agreements made and to be performed in
such state. Notwithstanding anything contained in this Deposit Agreement, any
ADR or any present or future provisions of the laws of the State of New York,
the rights and obligations attaching to the Shares and other Deposited
Securities shall be governed by the laws of England (or, if applicable, such
other laws as may govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.6,
the Company and the Depositary agree that the federal or state courts in the
City of New York shall have jurisdiction to hear and determine any suit, action
38
or proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers Hanson Building Materials America,
Inc. (the "Agent") now at Monmouth Shores Corporate Park, 1333 Campus Parkway,
Neptune, New Jersey 07753, as its authorized agent to receive and accept for and
on its behalf, and on behalf of its properties, assets and revenues, service by
mail of any and all legal process, summons, notices and documents that may be
served in any suit, action or proceeding brought against the Company in any
federal or state court as described in the preceding sentence or in the next
paragraph of this Section 7.6. If for any reason the Agent shall cease to be
available to act as such, the Company agrees to designate a new agent in New
York on the terms and for the purposes of this Section 7.6 reasonably
satisfactory to the Depositary. The Company further hereby irrevocably consents
and agrees to the service of any and all legal process, summons, notices and
documents in any suit, action or proceeding against the Company, by service by
mail of a copy thereof upon the Agent (whether or not the appointment of such
Agent shall for any reason prove to be ineffective or such Agent shall fail to
accept or acknowledge such service), with a copy mailed to the Company by
registered or certified air mail, postage prepaid, to its address provided in
Section 7.5 hereof. The Company agrees that the failure of the Agent to give any
notice of such service to it shall not impair or affect in any way the validity
of such service or any judgment rendered in any action or proceeding based
thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of venue of any actions, suits or proceedings brought in any court as
provided in this Section 7.6, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, and agrees not to plead or claim, any right of immunity
from legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
39
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any ADR or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by
any provision of the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in part.
SECTION 7.7 ASSIGNMENT. Subject to the provisions of Section 5.4
hereof, this Deposit Agreement may not be assigned by either the Company or the
Depositary.
SECTION 7.8 COMPLIANCE WITH U.S. SECURITIES LAWS. Notwithstanding
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
SECTION 7.9 ENGLISH LAW REFERENCES. Any summary of English laws and
regulations and of the terms of the Company's Articles of Association set forth
in this Deposit Agreement have been provided by the Company solely for the
convenience of Holders, Beneficial Owners and the Depositary. While such
summaries are believed by the Company to be accurate as of the date of this
Deposit Agreement, (i) they are summaries and as such may not include all
aspects of the materials summarized applicable to a Holder or Beneficial Owner,
and (ii) these laws and regulations and the Company's Articles of Association
may change after the date of this Deposit Agreement. Neither the Depositary nor
the Company has any obligation under the terms of this Deposit Agreement to
update any such summaries.
SECTION 7.10 TITLES AND REFERENCES. All references in this Deposit
Agreement to exhibits, articles, sections, subsections, and other subdivisions
refer to the exhibits, articles, sections, subsections and other subdivisions of
this Deposit Agreement unless expressly provided otherwise. The words "this
Deposit Agreement", "herein", "hereof", "hereby", "hereunder", and words of
similar import refer to the Deposit Agreement as a whole as in effect between
the Company, the Depositary and the Holders and Beneficial Owners of ADSs and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless the context otherwise requires. Titles to sections of this
Deposit Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement. References to
"applicable laws and regulations" shall refer to laws and regulations applicable
to ADRs, ADSs or Deposited Securities as in effect at the relevant time of
determination, unless otherwise required by law or regulation.
SECTION 7.11 EXCHANGE PROCEDURES FOR OLD HANSON ADSS. The Company
hereby instructs the Depositary, and the Depositary agrees, at the expense of
the Company, to establish procedures to facilitate the exchange of Old Hanson
ADSs for ADSs. The Company shall assist the Depositary with the establishment of
40
such procedures and has taken all steps necessary to ensure that the
establishment of such procedures and the exchange of Old Hanson ADSs for ADSs
contemplated herein do not violate the U.S. securities laws and any other laws
applicable to the Company or Old Hanson. The procedures so established shall
include, inter alia, the following: (i) the establishment and maintenance of a
securities account for the purpose of safekeeping ADSs to be delivered to
holders of Old Hanson ADSs who surrender their Old Hanson ADSs in exchange for
ADSs, (ii) the mailing of notices and instruction forms to holders of Old Hanson
ADRs that describe the manner in which holders of Old Hanson ADRs may surrender
their Old Hanson ADSs to the Depositary in order to receive the corresponding
ADSs, (iii) the acceptance of all Old Hanson ADSs held by DTC in exchange for
ADSs and the delivery of the corresponding ADSs to DTC for the benefit of the
applicable DTC participants and their clients, (iv) the cancellation of Old
Hanson ADSs received from surrendering holders of Old Hanson ADRs and (x) the
issuance of the corresponding Uncertificated ADSs (in accordance with the terms
of Section 2.12 hereof) or (y) if so requested by the surrendering holder(s) of
Old Hanson ADRs, the issuance of the corresponding Certificated ADSs and the
delivery of the requisite ADRs to the person(s) designated by the surrendering
holder(s), (v) the maintenance of records with respect to the holders who have
and have not exchanged their Old Hanson ADSs and the delivery of reports in
respect thereof to the Company and its advisors (as may be directed by the
Company), (vi) the submission to the U.S. tax authorities of the requisite
reports relating to the exchange of Old Hanson ADSs for ADSs, (vii) the
escheatment, in accordance with applicable U.S. laws, of any ADSs held by the
Depositary in respect of Old Hanson ADSs not surrendered prior to the applicable
escheatment deadline, (viii) procedures for holders of Old Hanson ADSs to
exchange the Old Hanson ADSs evidenced by Old Hanson ADRs that have been lost,
stolen or destroyed, (ix) procedures for the sale of fractional entitlements to
ADSs that are to be delivered in exchange for Old Hanson ADSs and the remitting
of net proceeds from such sale to surrendering holders of Old Hanson ADSs, and
(x) such other procedures as the Company and Depositary may agree from time to
time.
41
IN WITNESS WHEREOF, HANSON PLC and CITIBANK, N.A. have duly executed
this Deposit Agreement as of the day and year first above set forth and all
Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of ADSs evidenced by ADRs issued in accordance with the terms hereof, or
upon acquisition of any beneficial interest therein.
HANSON PLC
By: /s/ Graham Dransfield
----------------------------------
Name: Graham Dransfield
Title: Legal Director
CITIBANK, N.A.
By: /s/ Susanna Mancini
----------------------------------
Name: Susanna Mancini
Title: Vice President
42
EXHIBIT A
[FORM OF ADR]
Number CUSIP NUMBER:
------------- -----------
American Depositary Shares (each
American Depositary Share
representing five (5) Fully Paid
Ordinary shares,(pound)3.00 each
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
HANSON PLC
(Incorporated under the laws of England)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, (pound)3.00 each, including evidence of rights to receive such ordinary
shares (the "Shares"), of Hanson PLC, a corporation incorporated under the laws
of England (the "Company"). As of the date of the Deposit Agreement (as
hereinafter defined), each ADS represents five (5) Shares deposited under the
Deposit Agreement with the Custodian, which at the date of execution of the
Deposit Agreement is Citibank, N.A., London (the "Custodian"). The
ADS(s)-to-Share(s) ratio is subject to amendment as provided in Articles IV and
VI of the Deposit Agreement. The Depositary's Principal Office is located at 111
Wall Street, New York, New York 10043, U.S.A.
(1) THE DEPOSIT AGREEMENT. This American Depositary Receipt is one of
an issue of American Depositary Receipts ("ADRs"), issued upon the terms and
conditions set forth in the Deposit Agreement, dated as of October 14, 2003 (as
A-1
amended and supplemented from time to time, the "Deposit Agreement"), by and
among the Company, the Depositary, and all Holders and Beneficial Owners from
time to time of ADSs issued thereunder. The Deposit Agreement sets forth the
rights and obligations of Holders and Beneficial Owners of ADSs and the rights
and duties of the Depositary in respect of the Shares deposited thereunder and
any and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Principal Office of the Depositary and with the
Custodian. Each Holder and each Beneficial Owner, upon acceptance of any ADSs
(or any interest therein) issued in accordance with the terms and conditions of
the Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of the Deposit Agreement and the representative ADR(s), if as
applicable, and (b) appoint the Depositary its attorney-in-fact, with full power
to delegate, to act on its behalf and to take any and all actions contemplated
in the Deposit Agreement and the representative ADR(s), if and as applicable, to
adopt any and all procedures necessary to comply with applicable law and to take
such action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of the Deposit Agreement and the
representative ADR(s), if and as applicable, the taking of such actions to be
the conclusive determinant of the necessity and appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries
of certain provisions of the Deposit Agreement and the Articles of Association
of the Company (as in effect on the date of the signing of the Deposit
Agreement) and are qualified by and subject to the detailed provisions of the
Deposit Agreement and the Articles of Association, to which reference is hereby
made. All capitalized terms used herein which are not otherwise defined herein
shall have the meanings ascribed thereto in the Deposit Agreement. The
Depositary makes no representation or warranty as to the validity or worth of
the Deposited Securities.
(2) WITHDRAWAL OF DEPOSITED SECURITIES. The Holder of this ADR (and
of the ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the following conditions: (i)
the Holder (or a duly authorized attorney of the Holder) has duly Delivered to
the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if applicable and so required by the Depositary, this
ADR has been properly endorsed in blank or is accompanied by proper instruments
of transfer in blank (including signature guarantees in accordance with standard
securities industry practice), (iii) if so required by the Depositary, the
Holder of the ADSs has executed and delivered 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 the person(s) designated in such
order, and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been
paid, subject, however, in each case, to the terms and conditions of this ADR,
of the Deposit Agreement, of the Company's Articles of Association, of any
applicable laws and the rules of CREST, and to any provisions of or governing
the Deposited Securities, in each case as in effect at the time thereof.
A-2
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
ADR(s) evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this ADR, of the Articles of Association
of the Company, of any applicable laws and the rules of CREST, and to the terms
and conditions of or governing the Deposited Securities, in each case as in
effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of Delivery to it of ADSs representing a number
other than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the ADSs. Notwithstanding
anything else contained in this ADR or the Deposit Agreement, the Depositary may
make delivery at the Principal Office of the Depositary of (i) any cash
dividends or cash distributions, or (ii) any proceeds from the sale of any
distributions of shares or rights, which are at the time held by the Depositary
in respect of the Deposited Securities represented by the ADSs surrendered for
cancellation and withdrawal. At the request, risk and expense of any Holder so
surrendering ADSs represented by this ADR, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
(3) TRANSFER, COMBINATION AND SPLIT-UP OF ADRS. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled, (y) cause the Registrar to countersign such
new ADRs, and (z) Deliver such new ADRs to or upon the order of the person
entitled thereto, if each of the following conditions has been satisfied: (i)
this ADR has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a transfer thereof, (ii) this ADR has been properly endorsed or is
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this ADR has been
duly stamped (if required by the laws of the State of New York or of the United
States), and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
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forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been
paid, subject, however, in each case, to the terms and conditions of this ADR,
of the Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
The Registrar shall register the split-up or combination of this ADR
(and of the ADSs represented hereby) on the books maintained for such purpose
and the Depositary shall (x) cancel this ADR and execute new ADRs for the number
of ADSs requested, but in the aggregate not exceeding the number of ADSs
evidenced by this ADR (when canceled), (y) cause the Registrar to countersign
such new ADRs, and (z) Deliver such new ADRs to or upon the order of the Holder
thereof, if each of the following conditions has been satisfied: (i) this ADR
has been duly Delivered by the Holder (or by a duly authorized attorney of the
Holder) to the Depositary at its Principal Office for the purpose of effecting a
split-up or combination hereof, and (ii) all applicable fees and charges of, and
expenses incurred by, the Depositary and all applicable taxes and governmental
charges (as are set forth in Section 5.9 of, and Exhibit B to, the Deposit
Agreement) have been paid, subject, however, in each case, to the terms and
conditions of this ADR, of the Deposit Agreement and of applicable law, in each
case as in effect at the time thereof.
(4) PRE-CONDITIONS TO REGISTRATION, TRANSFER, ETC. As a condition
precedent to the execution and delivery, the registration of issuance, transfer,
split-up, combination or surrender, of any ADR, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in the Deposit Agreement and in this ADR, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matters contemplated in the Deposit Agreement, and (iii)
compliance with (A) any laws or governmental regulations relating to the
execution and delivery of ADRs or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary or the Company
may establish consistent with the provisions of this ADR and the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of ADSs in particular
instances may be refused, or the registration of transfers of ADSs generally may
be suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action
is deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law, any
government or governmental body or commission or any securities exchange upon
which the Shares or ADSs are listed, or under any provision of the Deposit
Agreement or this ADR, or under any provision of, or governing, the Deposited
Securities, or because of a meeting of shareholders of the Company or for any
other reason, subject in all cases to paragraph (24) hereof. Notwithstanding any
provision of the Deposit Agreement or this ADR to the contrary, Holders are
entitled to surrender outstanding ADSs to withdraw the Deposited Securities at
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any time 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, (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the ADRs or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 (as such General Instructions may be amended from time to time). The
Depositary shall comply with written instructions of the Company that the
Depositary shall not accept 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 the
securities laws of the United States.
(5) COMPLIANCE WITH INFORMATION REQUESTS. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company
in accordance with applicable law, the rules and requirements of the London
Stock Exchange, and of any other stock exchange on which Shares or ADSs are, or
will be, registered, traded or listed, or the Articles of Association of the
Company, which are made to provide information, inter alia, as to the capacity
in which such Holder or Beneficial Owner owns ADSs (and Shares, as the case may
be) and regarding the identity of any other person(s) interested in such ADSs
and the nature of such interest and various other matters, whether or not they
are Holders and/or Beneficial Owners at the time of such request. The Depositary
agrees to use its reasonable efforts to forward, upon the request of the Company
and at the Company's expense, any such request from the Company to the Holders
and to forward to the Company any such responses to such requests received by
the Depositary and the Company agrees to reimburse the Depositary for reasonable
out-of-pocket expenses incurred by the Depositary in connection with such
requests.
Notwithstanding any other provision of this Deposit Agreement or any
ADR(s) and without limiting the foregoing, each Holder and Beneficial Owner
agrees to provide such information as the Company may request in a disclosure
notice (a "Disclosure Notice") given pursuant to the Great Britain Companies Act
1985 (as amended from time to time and including any statutory modification or
re-enactment thereof, the "Companies Act" or the Articles of Association of the
Company. Each Holder and Beneficial Owner acknowledges that it understands that
failure to comply with a Disclosure Notice may result in the imposition of
sanctions against the holder of Shares in respect of which the non-complying
person is or was, or appears to be or has been, interested as provided in the
Companies Act and the Articles of Association which currently include, the
withdrawal of voting rights of such Shares and the imposition of restrictions on
the rights to receive dividends on and to transfer such Shares. In addition,
each Holder and Beneficial Owner 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 or Beneficial Owner
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 directly or indirectly such Shares or ADSs representing
such Shares is so interested, must within two (2) business days after becoming
so interested or so aware (and thereafter in certain circumstances upon any
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change in the particulars previously notified) notify the Company as required by
the Companies Act. After the relevant threshold is exceeded, similar
notifications must be made in respect of whole percentage figure increases or
decreases, rounded down to the nearest whole number.
(6) OWNERSHIP RESTRICTIONS. Notwithstanding any provision of this ADR
or of the Deposit Agreement, the Company may restrict transfers of the Shares
where such transfer might result in ownership of Shares exceeding limits imposed
by applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of ADSs where
such transfer may result in the total number of Shares represented by the ADSs
owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association of the Company.
(7) LIABILITY OF HOLDER FOR TAXES AND OTHER CHARGES. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR, any Deposited Securities or ADSs shall be payable by the Holders and
Beneficial Owners to the Depositary. The Company, the Custodian and/or
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or charges, the Holder and the Beneficial Owner hereof remaining
liable for any deficiency. The Custodian may refuse the deposit of Shares and
the Depositary may refuse to issue ADSs, deliver ADRs, register the transfer of
ADSs, register the split-up or combination of ADRs and (subject to paragraph
(24) hereof) the withdrawal of Deposited Securities until payment in full of
such tax, charge, penalty or interest is received. Every Holder and Beneficial
Owner agrees to indemnify the Depositary, the Company, the Custodian, and any of
their agents, officers, employees and Affiliates for, and hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
(8) REPRESENTATIONS AND WARRANTIES OF DEPOSITORS. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, (v) the Shares presented for deposit are not, and the ADSs
issuable upon such deposit will not be, Restricted Securities (except as
contemplated in Section 2.13 of the Deposit Agreement), and (vi) the Shares
presented for deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
A-6
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and the Depositary shall be authorized, at the cost and
expense of the person depositing Shares, to take any and all actions necessary
to correct the consequences thereof.
(9) FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement or the ADRs evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration of Shares on the books of
the Company or of the Share Registrar) as the Depositary or the Custodian may
deem necessary or proper or as the Company may reasonably require by written
request to the Depositary consistent with its obligations under the Deposit
Agreement. The Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any ADS or the distribution
or sale of any dividend or other distribution of rights or of the proceeds
thereof or, to the extent not limited by paragraph (24) hereof, the delivery of
any Deposited Securities until such proof or other information is filed or such
certifications are executed, or such representations are made or such
information and documentation are provided, in each case to the Depositary's,
the Registrar's and the Company's satisfaction.
(10) CHARGES OF DEPOSITARY. The Depositary shall charge the following
fees for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs
(or portion thereof) so issued under the terms of the
Deposit Agreement (excluding issuances pursuant to
paragraphs (iii) and (v) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of
U.S. $ 5.00 per 100 ADSs (or portion thereof) so
surrendered;
(iii) No Fee shall be payable upon distribution of (a) cash
dividends or (b) ADSs pursuant to stock dividends (or
other free distributions of stock) so long as the charging
of such fee is prohibited by the exchange upon which the
ADSs are listed. If charging of such fees is not
prohibited, the fees specified in (i) above shall be
payable in respect of ADS distributions pursuant to stock
dividends (or other free distributions of stock) and the
fees specified in (iv) below shall be payable in respect
of distributions of cash;
A-7
(iv) to any Holder of ADSs, a fee not in excess of U.S. $ 2.00
per 100 ADSs (or portion thereof) held for the
distribution of cash proceeds (i.e., upon the sale of
rights and other entitlements); and
(v) to any Holder of ADSs, a fee not in excess of U.S. $ 5.00
per 100 ADSs (or portion thereof) issued upon the exercise
of rights to purchase additional ADSs.
In addition, Holders, Beneficial Owners, persons depositing Shares
for deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and
other governmental charges;
(ii) such registration fees as may from time to time be in
effect for the registration of Shares or other Deposited
Securities on the share register and applicable to
transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals,
respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit
Agreement to be at the expense of the person depositing or
withdrawing Shares or Holders and Beneficial Owners of
ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary
in connection with compliance with exchange control
regulations and other regulatory requirements applicable
to Shares, Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in
connection with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by paragraph (22) of this ADR. The Depositary will provide, without
charge, a copy of its latest fee schedule to anyone upon request. The charges
and expenses of the Custodian are for the sole account of the Depositary.
(11) TITLE TO ADRS. It is a condition of this ADR, and every
successive Holder of this ADR by accepting or holding the same consents and
agrees, that title to this ADR (and to each Certified ADS evidenced hereby)
A-8
shall be transferable upon the same terms as a certificated security under the
laws of the State of New York, provided that the ADR has been properly endorsed
or is accompanied by proper instruments of transfer. Notwithstanding any notice
to the contrary, the Depositary and the Company may deem and treat the Holder of
this ADR (that is, the person in whose name this ADR is registered on the books
of the Depositary) as the absolute owner thereof for all purposes. Neither the
Depositary nor the Company shall have any obligation nor be subject to any
liability under the Deposit Agreement or this ADR to any holder of this ADR or
any Beneficial Owner unless such holder is the Holder of this ADR registered on
the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(12) VALIDITY OF ADR. The Holder(s) of this ADR (and the ADSs
represented hereby) shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company unless this ADR has been (i) dated, (ii) signed by the manual or
facsimile signature of a duly-authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly-authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of ADRs. ADRs bearing
the facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the delivery of such ADR by the Depositary.
(13) AVAILABLE INFORMATION; REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the Exchange
Act and accordingly files certain information with the Commission. These reports
and documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington D.C. 20549. The Depositary shall make available for inspection by
Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
provide to Holders copies of such reports when furnished by the Company pursuant
to Section 5.6 of the Deposit Agreement.
The Registrar shall keep books for the registration of issuances and
transfers of ADRs which at all reasonable times shall be open for inspection by
the Company and by the Holders of such ADRs, provided that such inspection shall
not be, to the Registrar's knowledge, for the purpose of communicating with
Holders of such ADRs in the interest of a business or object other than the
business of the Company or other than a matter related to the Deposit Agreement
or the ADRs.
The Registrar may close the transfer books with respect to the ADRs,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to paragraph
(24) hereof.
A-9
If any ADRs or the ADSs evidenced thereby are listed on one or more
stock exchanges or automated quotation systems in the United States, the
Depositary shall act as Registrar or appoint a Registrar or one or more
co-registrars for registration of ADRs and transfers, combinations and
split-ups, and to countersign such ADRs in accordance with any requirements of
such exchanges or systems. Such Registrar or co-registrars may be removed and a
substitute or substitutes appointed by the Depositary.
Dated:
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: ________________________________ By: ______________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 111 Wall
Street, New York, New York 10043, U.S.A.
A-10
[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) DIVIDENDS AND DISTRIBUTIONS IN CASH, SHARES, ETC. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will (i) if at the time of receipt thereof any amounts received in a
Foreign Currency can, in the judgment of the Depositary (upon the terms of the
Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (upon the terms of the
Deposit Agreement), (ii) if applicable, establish the ADS Record Date upon the
terms described in Section 4.9 of the Deposit Agreement, and (iii) distribute
promptly the amount thus received (net of (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes withheld) to the
Holders entitled thereto as of the ADS Record Date in proportion to the number
of ADSs held as of the ADS Record Date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority.
Upon receipt of confirmation of a deposit of Shares with the
Custodian as a result of any distribution upon any Deposited Securities
consisting of a dividend in, or free distribution of, Shares, the Depositary
shall distribute to the Holders as of the ADS Record Date (established upon the
terms of the Deposit Agreement) in proportion to the number of ADSs held as of
the ADS Record Date, additional ADSs, which represent in aggregate the number of
Shares received as such dividend, or free distribution, subject to the terms of
the Deposit Agreement (including, without limitation, (net of (a) the applicable
fees and charges of, and expenses incurred by, the Depositary, and (b) taxes).
A-11
In lieu of delivering fractional ADSs, the Depositary shall sell the number of
Shares or ADSs, as the case may be, represented by the aggregate of such
fractions and distribute the net proceeds upon the terms set forth in the
Deposit Agreement. If additional ADSs are not so distributed, each ADS issued
and outstanding as of the applicable ADS Record Date shall also represent
proportionate rights and interests in the integral number of additional Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes). In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, the Depositary may dispose of all
or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable to satisfy any such tax
or governmental charges.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders of ADSs upon the terms
described in the Deposit Agreement, the Depositary shall consult with the
Company as to the lawfulness of making the elective distribution available to
Holders and shall determine whether it is reasonably practicable to make such
elective distribution available to the Holders of ADSs. The Depositary shall not
make such elective distribution available to Holders unless (i) the Company
shall have timely requested the Depositary to make such elective distribution
available to Holders (60 days prior to the elective distribution being a typical
timeframe for delivery of initial notice to the Depositary), (ii) the Depositary
shall have determined that such elective distribution is reasonably practicable
and (iii) the lawfulness of such distribution shall have been established to the
reasonable satisfaction of the Company and the Depositary. If so, the Depositary
shall, subject to the terms and conditions of the Deposit Agreement, establish
an ADS Record Date according to paragraph (16) and establish procedures to
enable the Holder hereof to elect to receive the proposed distribution in cash
or in additional ADSs. If a Holder elects to receive the distribution in cash,
the distribution shall be made as in the case of a distribution in cash. If the
Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be made as in the case of a distribution in Shares upon the
terms described in the Deposit Agreement. If (i) the Company does not timely
request the Depositary to make such elective distribution available to Holders,
or (ii) the Depositary shall have determined that such distribution is not
reasonably practicable or (iii) the lawfulness of making the elective
distribution available to Holders shall not have been established to the
reasonable satisfaction of the Company and the Depositary, the Depositary shall,
to the extent permitted by law, distribute to Holders, on the basis of the same
determination as is made in England in respect of the Shares for which no
election is made, either (x) cash or (y) additional ADSs representing such
additional Shares, in each case, upon the terms described in the Deposit
Agreement. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof or Holders generally will be given the opportunity to
receive elective distributions on the same terms and conditions as the holders
of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall not make such rights available to
any Holders unless (i) the Company shall have timely requested that such rights
be made available to Holders (60 days prior to distribution of rights being a
typical timeframe for delivery of initial notice to the Depositary), (ii) the
Depositary shall have determined that such distribution is reasonably
practicable and (iii) the lawfulness of such distribution shall have been
established to the reasonable satisfaction of the Company and the Depositary. If
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the above conditions are satisfied, the Depositary shall establish an ADS Record
Date (upon the terms described in the Deposit Agreement) and establish
procedures (x) to distribute rights to purchase additional ADSs (by means of
warrants or otherwise), (y) to enable the Holders to exercise the rights (upon
payment of the subscription price and of the applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs
upon the valid exercise of such rights. Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise rights to subscribe for Shares (rather than ADSs). If (i) the
Company does not timely request the Depositary to make the distribution of
rights to Holders or if the Company requests not to make such distribution to
Holders, (ii) the Depositary determines it is not reasonably practicable to make
the rights available to Holders, (iii) the lawfulness of such distribution is
not established to the reasonable satisfaction of the Company and the Depositary
or (iv) any rights made available are not exercised and appear to be about to
lapse, the Depositary, in its discretion, may sell such rights, in a riskless
principal capacity, at such place and upon such terms (including public and
private sale) as it may deem practicable. The Depositary shall, upon such sale,
convert and distribute proceeds of such sale (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to make
any rights available to Holders or to arrange for the sale of the rights upon
the terms described above, the Depositary shall allow such rights to lapse. The
Depositary shall not be liable to Holders or Beneficial Owners for (i) any
failure to determine that it may be lawful or practicable to make such rights
available to Holders in general or any Holders in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale or exercise, or
(iii) the content of any materials forwarded to the ADS Holders on behalf of the
Company in connection with the rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) it is established to the reasonable satisfaction
of the Company and the Depositary that the offering and sale of such securities
to Holders and Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws. In the
event that the Company, the Depositary or the Custodian shall be required to
withhold and does withhold from any distribution of property (including rights)
an amount on account of taxes or other governmental charges, the amount
distributed to the Holders of ADSs representing such Deposited Securities shall
be reduced accordingly. 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 charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
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There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or to be able to exercise
such rights. Nothing herein or in the Deposit Agreement shall obligate the
Company to file any registration statement in respect of any rights or Shares or
other securities to be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property
other than cash, Shares or rights to purchase additional Shares, to be made to
Holders of ADSs, the Depositary shall consult with the Company as to the
lawfulness of such distribution to Holders of ADSs and shall determine whether
such distribution to Holders is reasonably practicable. The Depositary shall not
make such distribution unless (i) the Company shall have requested the
Depositary to make such distribution to Holders, (ii) the Depositary shall have
determined that such distribution is reasonably practicable and (iii) the
lawfulness of such distribution shall have been established to the reasonable
satisfaction of the Company and the Depositary. Upon satisfaction of such
conditions, the Depositary shall distribute the property so received to the
Holders of record, as of the ADS Record Date, in proportion to the number of
ADSs held by them respectively and in such manner as the Depositary may deem
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and expenses incurred by, the
Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of
all or a portion of the property so distributed and deposited, in such amounts
and in such manner (including public or private sale) as the Depositary deems
necessary and practicable to satisfy any taxes (including applicable interest
and penalties) or other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell
or cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem practicable and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
to the Holders as of the ADS Record Date upon the terms hereof and of the
Deposit Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
(15) REDEMPTION. Intentionally omitted.
(16) FIXING OF ADS RECORD DATE. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall fix a record date ("ADS Record Date") for the
determination of the Holders of ADSs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
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meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. Subject
to applicable law and the terms and conditions of this ADR and the Deposit
Agreement, only the Holders of ADSs at the close of business in New York on such
ADS Record Date shall be entitled to receive such distribution, to give such
voting instructions, to receive such notice or solicitation, or otherwise take
action. The Depositary shall, as required by applicable rules, promptly notify
The New York Stock Exchange, Inc. or other stock exchange or automated quotation
system where the ADSs are listed or quoted of any action to fix a record date
for the ADSs or to close the transfer books for the ADSs.
(17) VOTING OF DEPOSITED SECURITIES. As soon as practicable after
receipt of notice of any meeting at which the holders of Deposited Securities
are entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of such consent or proxy in accordance with the
applicable terms of the Deposit Agreement. The Depositary shall, if requested by
the Company in a timely manner (30 days prior to the date of vote or meeting
being a typical timeframe for delivery of such notice to the Depositary) and
provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS
Record Date: (a) such notice of meeting or solicitation of consent or proxies,
(b) a statement that the Holders at the close of business on the ADS Record Date
will be entitled, subject to any applicable law, the provisions of the Deposit
Agreement, the Company's Articles of Association and the provisions of or
governing Deposited Securities (which provisions, if any, shall be summarized in
pertinent part by the Company), to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Deposited Securities represented by
such Holder's ADSs, and (c) a brief statement as to the manner in which such
voting instructions may be given. Voting instructions may be given only in
respect of a number of ADSs representing an integral number of Deposited
Securities. Upon the timely receipt of voting instructions from a Holder of ADSs
as of the ADS Record Date in the manner specified by such notice or solicitation
statement, the Depositary shall endeavor, insofar as practicable and permitted
under applicable law and the provisions of the Deposit Agreement, the Articles
of Association of the Company and the provisions of the Deposited Securities, to
vote, or cause the Custodian to vote, the Deposited Securities (in person or by
proxy) represented by such Holder's ADSs in accordance with the manner of the
voting instructions set forth in such notice or solicitation statement. Unless
otherwise stated in the notice or solicitation statement, such vote may be
either on a show of hands, in which case the Custodian shall be instructed to
vote the Deposited Securities in accordance with the voting instructions
received from a majority of Holders giving voting instructions, or by poll, in
which case the Custodian shall be instructed to vote in accordance with the
voting instructions received from the Holders giving voting instructions.
Unless specifically instructed by at least three (3) Holders of ADSs
representing not less than 10% of the total voting rights of all Holders of ADSs
having the right to vote at such meeting, the Depositary may not join in
demanding a poll. Under the Articles of Association of the Company (as in effect
on the date hereof), a poll may be demanded at any general meeting by the
chairman of the meeting, by at least three (3) members present in person or by
proxy and having the right to vote at the meeting, or by a member or members
present in person or by proxy holding Shares conferring a right to vote at the
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meeting, being Shares on which the aggregate sum has been paid up equal to not
less than 10% of the total sum paid up on all the Shares conferring that right.
Neither the Depositary nor the Custodian shall under any
circumstances exercise any discretion as to voting and neither the Depositary
nor the Custodian shall vote, attempt to exercise the right to vote, or in any
way make use of, for purposes of establishing a quorum or otherwise, the
Deposited Securities represented by ADSs, except pursuant to and in accordance
with the voting instructions timely received from Holders or as otherwise
contemplated herein. Unless the Company requests in writing to the contrary, if
the Depositary timely receives voting instructions from a Holder which fail to
specify the manner in which the Depositary is to vote the Deposited Securities
represented by such Holder's ADSs, the Depositary will deem such Holder (unless
otherwise specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such voting instructions.
Deposited Securities represented by ADSs for which no timely voting instructions
are received by the Depositary from the Holder shall not be voted.
Notwithstanding anything else contained in this Deposit Agreement or any
Receipt, the Depositary shall, if so requested in writing by the Company,
represent all Deposited Securities (whether or not voting instructions have been
received in respect of such Deposited Securities from Holders as of the ADS
Record Date) for the sole purpose of establishing quorum at such meeting.
Notwithstanding anything else contained in the Deposit Agreement or this ADR,
the Depositary shall not have any obligation to take any action with respect to
any meeting, or solicitation of consents or proxies, of holders of Deposited
Securities if the taking of such action would violate U.S. laws. There can be no
assurance that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable the Holder to return
voting instructions to the Depositary in a timely manner.
(18) CHANGES AFFECTING DEPOSITED SECURITIES. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the ADRs shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Depositary may, with the Company's approval, and
provided the lawfulness thereof has been established to the reasonable
satisfaction of the Company and the Depositary, execute and deliver additional
ADRs as in the case of a stock dividend on the Shares, or call for the surrender
of outstanding ADRs to be exchanged for new ADRs, in either case, as well as in
the event of newly deposited Shares, with necessary modifications to the form of
ADR contained in this Exhibit A to the Deposit Agreement, specifically
describing such new Deposited Securities or corporate change. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall if the Company requests, subject to the determination of the
Depositary that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem proper and may allocate the net
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proceeds of such sales (net of (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes) for the account of the Holders otherwise
entitled to such securities upon an averaged or otherwise practicable basis
without regard to any distinctions among such Holders and distribute the net
proceeds so allocated to the extent practicable as in the case of a distribution
received in cash pursuant to the Deposit Agreement. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or feasible
to make such securities available to Holders in general or to any Holder in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or (iii) any liability to the purchaser of such securities.
(19) EXONERATION. Neither the Depositary nor the Company nor any of
their respective controlling persons, directors, employees, agents, or
affiliates shall be obligated to do or perform any act which is inconsistent
with the provisions of the Deposit Agreement or incur any liability (i) if the
Depositary or the Company shall be prevented or forbidden from, or subjected to
any civil or criminal penalty or restraint on account of, or delayed in, doing
or performing any act or thing required by the terms of the Deposit Agreement
and this ADR, by reason of any provision of any present or future law or
regulation of the United States, England or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or on account
of possible criminal or civil penalties or restraint, or by reason of any
provision, present or future, of the Articles of Association of the Company or
any provision of or governing any Deposited Securities, or by reason of any act
of God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, acts of terrorism, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in the Deposit Agreement or in the
Articles of Association of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for the inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of the
Deposit Agreement, made available to Holders of ADSs, or (v) for any
consequential or punitive damages for any breach of the terms of the Deposit
Agreement. The Depositary, its controlling persons, any Custodian and the
Company, its controlling persons directors, employees, agents and affiliates may
rely and shall be protected in acting upon any written notice, request or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties. No disclaimer of liability under the Securities Act
is intended by any provision of the Deposit Agreement or this ADR.
(20) STANDARD OF CARE. The Company and the Depositary assume no
obligation and shall not be subject to any liability under the Deposit Agreement
or this ADR to any Holder(s) or Beneficial Owner(s), except that the Company and
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without negligence or bad faith. The
Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any vote is cast or the effect of any vote, provided that any such action or
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omission is in good faith and in accordance with the terms of this Deposit
Agreement. The Depositary shall not incur (absent negligence or bad faith) any
liability for any failure to determine that any distribution or action may be
lawful or reasonably practicable, for the content of any information submitted
to it by the Company for distribution to the Holders or for any inaccuracy of
any translation thereof, for allowing any rights to lapse upon the terms of the
Deposit Agreement or for the failure or timeliness of any notice from the
Company. Notwithstanding the foregoing, the Depositary shall not incur any
liability for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party.
(21) RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary under
the Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the ninetieth (90th) day
after delivery thereof to the Company, or (ii) upon the appointment by the
Company of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may at any time be removed by
the Company by written notice of such removal, which removal shall be effective
on the later of (i) the ninetieth (90th) day after delivery thereof to the
Depositary, or (ii) upon the appointment by the Company of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
the Deposit Agreement). The predecessor depositary, upon payment of all sums due
it and on the written request of the Company, shall (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in the Deposit Agreement),
(ii) duly assign, transfer and deliver all right, title and interest to the
Deposited Securities to such successor, and (iii) deliver to such successor a
list of the Holders of all outstanding ADSs and such other information relating
to ADSs and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly provide notice of its appointment to such
Holders. Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
(22) AMENDMENT/SUPPLEMENT. Subject to the terms and conditions of
this paragraph 22, the Deposit Agreement and applicable law, this ADR and any
provisions of the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
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charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. The parties
hereto agree that 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 or (b) the ADSs to be
settled 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 materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s), to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and this ADR, if applicable, as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such ADS and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and this ADR at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement and this ADR 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 with such laws, rules or regulations.
(23) TERMINATION. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If (i)
ninety (90) days shall have expired after the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) ninety (90) days
shall have expired after the Company shall have delivered to the Depositary a
written notice of the removal of the Depositary, and in either case a successor
depositary shall not have been appointed and accepted its appointment as
provided herein and in the Deposit Agreement, the Depositary may terminate the
Deposit Agreement by providing notice of such termination to the Holders of all
ADSs then outstanding at least ninety (90) days prior to the date fixed for such
termination. On and after the date of termination of the Deposit Agreement, the
Holder will, upon surrender of such Holders' ADS(s) at the Principal Office of
the Depositary, upon the payment of the charges of the Depositary for the
surrender of ADSs referred to in paragraph (2) hereof and in the Deposit
Agreement and subject to the conditions and restrictions therein set forth, and
upon 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 such ADS. If any ADSs shall remain outstanding after the date of
termination of the Deposit Agreement, the Registrar thereafter shall discontinue
the registration of transfers of ADSs, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
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Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in the Deposit Agreement, 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 ADSs
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of an ADS, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose ADSs have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement with respect to the ADSs, the Deposited
Securities and the ADSs, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case, the charges of
the Depositary for the surrender of an ADS, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
(24) COMPLIANCE WITH U.S. SECURITIES LAWS. Notwithstanding any
provisions in this ADR or the Deposit Agreement to the contrary, the withdrawal
or delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Instruction I.A.(1) of the General
Instructions to Form F-6 Registration Statement, as amended from time to time,
under the Securities Act.
(25) CERTAIN RIGHTS OF THE DEPOSITARY; LIMITATIONS. Subject to the
further terms and provisions of this paragraph (25), the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. The Depositary may
issue ADSs against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 of the
Deposit Agreement and (ii) deliver Shares prior to the receipt of ADSs for
withdrawal of Deposited Securities pursuant to Section 2.7 of the Deposit
Agreement, including ADSs which were issued under (i) above but for which Shares
may not have been received (each such transaction a "Pre-Release Transaction").
The Depositary may receive ADSs in lieu of Shares under (i) above and receive
Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will
be (a) subject to a written agreement whereby the person or entity (the
"Applicant") to whom ADSs or Shares are to be delivered (w) represents that at
the time of the Pre-Release Transaction the Applicant or its customer owns the
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Shares or ADSs that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) agrees to indicate the Depositary as owner of such Shares or
ADSs in its records and to hold such Shares or ADSs in trust for the Depositary
until such Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (z) agrees to any additional restrictions
or requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days' notice and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), 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 also set limits with
respect to the number of ADSs and Shares involved in Pre-Release Transactions
with any one person on a case by case basis as it deems appropriate. The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not earnings thereon, shall be held for the benefit of the Holders (other than
the Applicant).
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(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within ADR and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADR on the books of the Depositary with full power of substitution
in the premises.
Dated: Name:________________________________
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within instrument
in every particular, without alteration or
enlargement or any change whatsoever.
If the endorsement be executed by an attorney,
executor, administrator, trustee or guardian,
the person executing the endorsement must give
his/her full title in such capacity and proper
evidence of authority to act in such capacity,
if not on file with the Depositary, must be
forwarded with this ADR.
--------------------------
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs must be
guaranteed by a member of a Medallion Signature
Program approved by the Securities Transfer
Association, Inc.
LEGENDS
[THE ADRS ISSUED IN RESPECT OF PARTIAL ENTITLEMENT AMERICAN DEPOSITARY
SHARES SHALL BEAR THE FOLLOWING LEGEND ON THE FACE OF THE ADR: "THIS ADR
EVIDENCES ADSS REPRESENTING 'PARTIAL ENTITLEMENT' ORDINARY SHARES OF HANSON
PLC AND AS SUCH DO NOT ENTITLE THE HOLDERS THEREOF TO THE SAME PER-SHARE
ENTITLEMENT AS OTHER ORDINARY SHARES (WHICH ARE 'FULL ENTITLEMENT' ORDINARY
SHARES) ISSUED AND OUTSTANDING AT SUCH TIME. THE ADSS REPRESENTED BY THIS
ADR SHALL ENTITLE HOLDERS TO DISTRIBUTIONS AND ENTITLEMENTS IDENTICAL TO
OTHER ADSS WHEN THE ORDINARY SHARES REPRESENTED BY SUCH ADSS BECOME 'FULL
ENTITLEMENT' ORDINARY SHARES."]
A-22
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. DEPOSITARY FEES
The Company, the Holders, the Beneficial Owners and the persons
depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
------------------------------------------- -------------------------------------------- -------------------------------------------
SERVICE RATE BY WHOM PAID
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(1) ISSUANCE OF ADSS UPON DEPOSIT OF UP TO $5.00 PER 100 ADSS (OR FRACTION PERSON FOR WHOM DEPOSITS ARE MADE OR
SHARES (EXCLUDING ISSUANCES THEREOF) ISSUED. PERSON RECEIVING ADSS.
CONTEMPLATED BY PARAGRAPHS (3)(B)
AND (5) BELOW).
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(2) DELIVERY OF DEPOSITED SECURITIES, UP TO $5.00 PER 100 ADSS (OR FRACTION PERSON SURRENDERING ADSS OR MAKING
PROPERTY AND CASH AGAINST THEREOF) SURRENDERED. WITHDRAWAL.
SURRENDER OF ADSS.
------------------------------------------- -------------------------------------------- -------------------------------------------
(3) DISTRIBUTION OF (A) CASH DIVIDEND NO FEE, SO LONG AS PROHIBITED BY THE PERSON TO WHOM DISTRIBUTION IS MADE.
OR (B) ADSS PURSUANT TO STOCK EXCHANGE UPON WHICH THE ADSS ARE LISTED.
DIVIDENDS (OR OTHER FREE IF THE CHARGING OF SUCH FEE IS NOT
DISTRIBUTION OF STOCK). PROHIBITED, THE FEES SPECIFIED IN (1)
ABOVE SHALL BE PAYABLE IN RESPECT
OF A DISTRIBUTION OF ADSS
PURSUANT TO STOCK DIVIDENDS (OR
OTHER FREE DISTRIBUTION OF STOCK)
AND THE FEES SPECIFIED IN (4)
BELOW SHALL BE PAYABLE IN RESPECT
OF DISTRIBUTIONS OF CASH.
------------------------------------------- -------------------------------------------- -------------------------------------------
(4) DISTRIBUTION OF CASH PROCEEDS UP TO $2.00 PER 100 ADSS (OR FRACTION PERSON TO WHOM DISTRIBUTION IS MADE.
(I.E., UPON SALE OF RIGHTS AND THEREOF) HELD.
OTHER ENTITLEMENTS).
------------------------------------------- -------------------------------------------- -------------------------------------------
(5) DISTRIBUTION OF ADSS PURSUANT TO UP TO $5.00 PER 100 ADSS (OR FRACTION PERSON TO WHOM DISTRIBUTION IS MADE.
EXERCISE OF RIGHTS TO PURCHASE THEREOF) ISSUED.
ADDITIONAL ADSS.
------------------------------------------- -------------------------------------------- -------------------------------------------
B-1
II. CHARGES
Holders, Beneficial Owners, persons depositing Shares for deposit and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or
any nominees upon the making of deposits and withdrawals,
respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense
of the person depositing or withdrawing Shares or Holders and
Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities.
B-2