EXHIBIT 15
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PROFESSIONAL STAFF PLC
AND
THE BANK OF NEW YORK
AS Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of August 6, 1996
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS. ..................................................... 2
SECTION 1.1. American Depositary Shares. ........................... 2
SECTION 1.2. Article; Section. ..................................... 2
SECTION 1.3. Beneficial Owner. ..................................... 2
SECTION 1.4. Commission. ........................................... 2
SECTION 1.5. Company. .............................................. 3
SECTION 1.6. Consultation. ......................................... 3
SECTION 1.7. Custodian. ............................................ 3
SECTION 1.8. Delivery; Deposit; Surrender; Transfer; Withdraw. ..... 3
SECTION 1.9. Deposit Agreement. .................................... 4
SECTION 1.10. Depositary; Corporate Trust Office. ................... 4
SECTION 1.11. Deposited Securities. ................................. 4
SECTION 1.12. Dollars; Pence. ....................................... 4
SECTION 1.13. Foreign Currency. ..................................... 5
SECTION 1.14. Foreign Registrar. .................................... 5
SECTION 1.15. Owner. ................................................ 5
SECTION 1.16. Receipts. ............................................. 5
SECTION 1.17. Registrar. ............................................ 5
SECTION 1.18. Restricted Securities. ................................ 5
SECTION 1.19. Securities Act of 1933. ............................... 6
SECTION 1.20. Shares. ............................................... 6
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS. .............................. 7
SECTION 2.1. Form and Transferability of Receipts. ................. 7
SECTION 2.2. Deposit of Shares. .................................... 8
SECTION 2.3. Execution and Delivery of Receipts. ................... 9
SECTION 2.4. Transfer of Receipts; Combination and Split-up of
Receipts. ............................................. 10
SECTION 2.5. Surrender of Receipts and Withdrawal of Shares. ....... 12
SECTION 2.6. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts. ................................ 13
SECTION 2.7. Lost Receipts, etc. ................................... 15
SECTION 2.8. Cancellation and Destruction of Surrendered Receipts. . 15
SECTION 2.9. Pre-Release of Receipts. .............................. 15
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS. ....................... 17
SECTION 3.1. Filing Proofs, Certificates and Other Information. .... 17
SECTION 3.2. Liability of Owner or Beneficial Owner for Taxes. ..... 17
SECTION 3.3. Warranties on Deposit of Shares. ...................... 18
SECTION 3.4. Disclosure of Beneficial Ownership. ................... 18
ARTICLE 4. THE DEPOSITED SECURITIES. ........................................ 20
SECTION 4.1. Cash Distributions. ................................... 20
SECTION 4.2. Distributions Other Than Cash, Shares or Rights. ...... 21
SECTION 4.3. Distributions in Shares. .............................. 22
SECTION 4.4. Rights. ............................................... 23
SECTION 4.5. Conversion of Foreign Currency. ....................... 26
SECTION 4.6. Fixing of Record Date. ................................ 27
SECTION 4.7. Voting of Deposited Securities. ....................... 28
SECTION 4.8. Changes Affecting Deposited Securities. ............... 30
SECTION 4.9. Reports. .............................................. 31
SECTION 4.10. Lists of Owners. ...................................... 31
SECTION 4.11. Withholding. .......................................... 31
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY. .................. 32
SECTION 5.1. Maintenance of Office and Transfer Books by the
Depositary. ........................................... 32
SECTION 5.2. Prevention or Delay in Performance by the Depositary
or the Company. ....................................... 33
SECTION 5.3. Obligations of the Depositary, the Custodian and the
Company. .............................................. 34
SECTION 5.4. Resignation and Removal of the Depositary. ............ 36
SECTION 5.5. The Custodians. ....................................... 37
SECTION 5.6. Notices and Reports. .................................. 38
SECTION 5.7. Distribution of Additional Shares, Rights, etc. ....... 38
SECTION 5.8. Indemnification. ...................................... 39
SECTION 5.9. Charges of Depositary. ................................ 40
SECTION 5.10. Retention of Depositary Documents. .................... 41
SECTION 5.11. Exclusivity. .......................................... 41
SECTION 5.12. List of Restricted Securities Owners. ................. 42
ARTICLE 6. AMENDMENT AND TERMINATION. ....................................... 42
SECTION 6.1. Amendment. ............................................ 42
SECTION 6.2. Termination. .......................................... 43
ARTICLE 7. MISCELLANEOUS. ................................................... 44
SECTION 7.1. Counterparts. ......................................... 44
SECTION 7.2. No Third Party Beneficiaries. ......................... 45
SECTION 7.3. Severability. ......................................... 45
SECTION 7.4. Owners and Beneficial Owners as Parties; Binding
Effect. ............................................... 45
SECTION 7.5. Notices. .............................................. 45
SECTION 7.6. Governing Law. ........................................ 46
SECTION 7.7. Compliance with U.S. Securities Laws. ................. 46
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of August 6, 1996 among PROFESSIONAL STAFF
PLC, incorporated under the laws of England and Wales (herein called the
Company), THE BANK OF NEW YORK, a New York banking corporation (herein called
the Depositary), and all Owners and Beneficial Owners from time to time of
American Depositary Receipts issued hereunder.
W I T N E S S E T H :
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WHEREAS, the Company desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1. American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent one
(1) Share, until there shall occur a distribution upon Deposited Securities
covered by Section 4.3 or a change in Deposited Securities covered by Section
4.8 with respect to which additional Receipts are not executed and delivered,
and thereafter American Depositary Shares shall evidence the amount of Shares or
Deposited Securities specified in such Sections.
SECTION 1.2. Article; Section.
Wherever references are made in this Deposit Agreement to an
"Article" or "Articles" or to a "Section" or "Sections", such references shall
mean an article or articles or a section or sections of this Deposit Agreement,
unless otherwise required by the context.
SECTION 1.3. Beneficial Owner.
The term "Beneficial Owner" shall mean any person owning from
time to time any beneficial interest in the American Depositary Shares evidenced
by any Receipt, and who may or may not be the owner of such Receipt.
SECTION 1.4. Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
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SECTION 1.5. Company.
The term "Company" shall mean Professional Staff plc, a
corporation organized under the laws of England and Wales, and its successors.
SECTION 1.6. Consultation.
The term "consultation" shall mean the good faith attempt by the
Depositary to discuss, if practicable, the relevant issue in a timely manner
with a person employed by the Company reasonably believed by the Depositary to
be empowered by the Company to engage in such discussion on behalf of the
Company.
SECTION 1.7. Custodian.
The term "Custodian" shall mean the London, England office of
The Bank of New York, as agent of the Depositary for the purposes of this
Deposit Agreement, and any other firm or corporation which may hereafter be
appointed by the Depositary pursuant to the terms of Section 5.5, as substitute
or additional custodian or custodians hereunder, as the context shall require
and shall also mean all of them collectively.
SECTION 1.8. Delivery; Deposit; Surrender; Transfer; Withdraw.
The terms "deliver", "deposit", "surrender", "transfer" or
"withdraw", when used (i) with respect to Shares, (a) in the case of book-entry
Shares, shall refer to an entry or entries in an account or accounts maintained
by institutions authorized under applicable law to effect transfers of
securities, or (b) in the case of certificated Shares, to the physical delivery,
deposit, withdrawal or transfer of certificates representing the Shares and (ii)
with respect to American Depositary Shares evidenced by Receipts, (a) in the
case of American Depositary Shares available in book-entry form, shall refer to
appropriate adjustments in the records
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maintained by (1) the Depositary, (2) DTC or its nominee, or (3) institutions
that have accounts with DTC, as applicable, or (b) otherwise, shall refer to the
physical delivery, deposit, surrender, transfer or withdrawal of such American
Depositary Shares evidenced by Receipts.
SECTION 1.9. Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the
same may be amended from time to time in accordance with the provisions hereof
and all instruments supplemental hereto.
SECTION 1.10. Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New
York banking corporation and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the corporate trust office of the Depositary which at the date of this Agreement
is 101 Barclay Street, New York, New York, 10286.
SECTION 1.11. Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares
at such time deposited or deemed to be deposited under this Deposit Agreement
and any and all other securities, property and cash received by the Depositary
or the Custodian in respect thereof and at such time held hereunder, subject as
to cash to the provisions of Section 4.5.
SECTION 1.12. Dollars; Pence.
The term "Dollars" and the symbol "$" shall refer to the lawful
currency of the United States. The terms "Pounds" and "Pence" and the symbol "p"
shall refer to the lawful currency of the United Kingdom.
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SECTION 1.13. Foreign Currency.
The term "Foreign Currency" shall mean any currency other than
Dollars.
SECTION 1.14. Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that
presently carries out the duties of registrar for the Shares or any successor as
registrar for the Shares and any other appointed agent of the Company for the
transfer and registration of Shares.
SECTION 1.15. Owner.
The term "Owner" shall mean the person or persons in whose name
a Receipt is registered on the books of the Depositary maintained for such
purpose. An Owner of a Receipt may or may not be a Beneficial Owner of the
American Depositary Shares evidenced thereby.
SECTION 1.16. Receipts.
The term "Receipts" shall mean the American Depositary Receipts
issued hereunder evidencing American Depositary Shares as such Receipts may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.17. Registrar.
The term "Registrar" shall mean any bank or trust company having
an office in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein provided.
SECTION 1.18. Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company or its affiliates (as defined in Rule 144 under the Securities Act) in a
transaction
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or chain of transactions not involving any public offering or which are subject
to resale limitations under Regulation D under that Act or both, or which are
held by an officer, director (or persons performing similar functions) or other
affiliate of the Company, or which are subject to other restrictions on sale or
deposit under the laws of the United States or England and Wales, or under a
shareholder agreement or the Articles of Association and By-laws of the Company.
SECTION 1.19. Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.20. Shares.
The term "Shares" shall mean ordinary shares in registered form
of the Company, nominal value 2p each, heretofore validly issued and outstanding
and fully paid, nonassessable and free of any pre-emptive rights of the holders
of outstanding Shares or hereafter validly issued and outstanding and fully
paid, nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares or interim certificates representing such Shares; provided,
however, that if there shall occur any change in par value, a split-up or
consolidation or any other reclassification or, upon the occurrence of an event
described in Section 4.8, an exchange or conversion in respect of the Shares,
the term "Shares" shall thereafter mean the successor securities resulting from
such change in par value, split-up or consolidation or such other
reclassification or such exchange or conversion.
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ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.1. Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth
in Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual or facsimile signature of a duly authorized signatory of the
Depositary and, if a Registrar for the Receipts shall have been appointed,
countersigned by the manual or facsimile signature of a duly authorized officer
of the Registrar. The Depositary shall maintain books on which each Receipt so
executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered. Receipts bearing the manual or facsimile signature
of a duly authorized signatory of the Depositary who was at any time a proper
signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to hold such office prior to the execution and delivery of
such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
The Receipts, with the consent of the Company (which consent
shall not be unreasonably withheld) may be endorsed with or have incorporated in
the text thereof such legends or recitals or modifications not inconsistent with
the provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any
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particular Receipts are subject by reason of the date of issuance of the
underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument; provided, however, that the Company and the
Depositary, notwithstanding any notice to the contrary, may treat the Owner
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.2. Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form satisfactory to the Custodian,
together with all such certifications as may be required by the Depositary or
the Custodian in accordance with the provisions of this Deposit Agreement, and,
if the Depositary requires, together with a written order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order, a Receipt or Receipts for the number of
American Depositary Shares representing such deposit. No Share shall be accepted
for deposit unless accompanied by evidence satisfactory to the Depositary that
any necessary approval has been granted by any governmental body in the United
Kingdom which is then performing the function of the regulation of currency
exchange. If required by the Depositary, Shares presented for deposit at any
time, whether or not the transfer books of the Company or the Foreign Registrar,
if applicable, are closed, shall also be accompanied by
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an agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Custodian of any dividend, or
right to subscribe for additional Shares or to receive other property which any
person in whose name the Shares are or have been recorded may thereafter receive
upon or in respect of such deposited Shares, or in lieu thereof, such agreement
of indemnity or other agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or
certificates for Shares to be deposited hereunder, together with the other
documents above specified, such Custodian shall, as soon as transfer and
recordation can be accomplished, present such certificate or certificates to the
Company or the Foreign Registrar, if applicable, for transfer and recordation of
the Shares being deposited in the name of the Depositary or its nominee or such
Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine with the prior consent of the
Company.
SECTION 2.3. Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section
2.2 hereunder (and in addition, if the transfer books of the Company or the
Foreign Registrar, if applicable,
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are open, the Depositary may in its sole discretion require a proper
acknowledgment or other evidence from the Company that any Deposited Securities
have been recorded upon the books of the Company or the Foreign Registrar, if
applicable, in the name of the Depositary or its nominee or such Custodian or
its nominee), together with the other documents required as above specified,
such Custodian shall notify the Depositary of such deposit and the person or
persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares to
be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver as promptly
as practicable at its Corporate Trust Office, to or upon the order of the person
or persons entitled thereto, a Receipt or Receipts, registered in the name or
names and evidencing any authorized number of American Depositary Shares
requested by such person or persons, but only upon payment to the Depositary of
the fees of the Depositary for the execution and delivery of such Receipt or
Receipts as provided in Section 5.9, and of all taxes and governmental charges
and fees payable in connection with such deposit and the transfer of the
Deposited Securities.
SECTION 2.4. Transfer of Receipts; Combination and Split-up of
Receipts.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall register transfers of Receipts on its transfer books
from time to time, upon any surrender of a Receipt, by the Owner in person or by
a duly authorized attorney, properly endorsed or accompanied by proper
instruments of transfer, and duly stamped as may be required
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by the laws of the State of New York and of the United States of America.
Thereupon the Depositary shall, as promptly as practicable, execute a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose
of effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts, as promptly as practicable, for any
authorized number of American Depositary Shares requested, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered.
The Depositary upon the written request or with the written
approval of the Company, may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. Such co-transfer agents
may be removed by the Depositary upon the request or with the written approval
of the Company and substitutes appointed by the Depositary upon the request or
with the written approval of the Company. Each co-transfer agent appointed under
this Section 2.4 shall give notice in writing to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Owners or persons entitled to Receipts but only to the extent
that the Depositary would in similar circumstances be entitled so to require.
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SECTION 2.5. Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary
of a Receipt for the purpose of withdrawal of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, and
upon payment of the fee of the Depositary for the surrender of Receipts as
provided in Section 5.9 and payment of all taxes and governmental charges
payable in connection with such surrender and withdrawal of the Deposited
Securities, and subject to the terms and conditions of this Deposit Agreement,
the Owner of such Receipt shall be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities at the time represented by the
American Depositary Shares evidenced by such Receipt. Delivery of such Deposited
Securities may be made by the delivery of (a) certificates in the name of such
Owner or as ordered by him or by certificates properly endorsed or accompanied
by proper instruments of transfer to such Owner or as ordered by him and (b) any
other securities, property and cash to which such Owner is then entitled in
respect of such Receipts to such Owner or as ordered by him. Such delivery shall
be made, as hereinafter provided, as promptly as practicable.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the London office of such
Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and
conditions of this Deposit Agreement, to
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or upon the written order of the person or persons designated in the order
delivered to the Depositary as above provided, the amount of Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, except that the Depositary may make delivery to such person or persons
at the Corporate Trust Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, or of any proceeds of sale
of any dividends, distributions or rights, which may at the time be held by the
Depositary.
At the request, risk and expense of any Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Owner, by cable, telex or facsimile
transmission.
SECTION 2.6. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, Custodian or Registrar
may require payment from the depositor of Shares or the presentor of the Receipt
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
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with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.6.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to the provisions of Section 7.7 hereof. Notwithstanding
any other provision of this Deposit Agreement or the Receipts, the surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of shares in connection with voting at
a shareholders' meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares.
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SECTION 2.7. Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or
stolen, the Depositary shall execute and deliver a new Receipt of like tenor in
exchange and substitution for such mutilated Receipt upon cancellation thereof,
or in lieu of and in substitution for such destroyed, lost or stolen Receipt.
Before the Depositary shall execute and deliver a new Receipt in substitution
for a destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed
with the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.8. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by
the Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.9. Pre-Release of Receipts.
Notwithstanding Section 2.3 hereof, the Depositary, unless
requested by the Company to cease doing so, may execute and deliver Receipts
prior to the receipt of Shares pursuant to Section 2.2 ("Pre-Release"). The
Depositary may, pursuant to Section 2.5, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation from the person
to whom Receipts or Shares are to be delivered that such person, or its
customer, owns the Shares or
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Receipts to be remitted, as the case may be, (b) at all times fully
collateralized (such collateral marked to market daily) with cash, U.S.
Government Securities or such other collateral as the Depositary determines in
good faith, will provide substantially similar liquidity and security, (c)
terminable by the Depositary on not more than five (5) business days notice, and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The number of American Depositary Shares which are
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited hereunder then outstanding;
provided, however, that the Depositary reserves the right to disregard such
limit from time to time as it reasonably deems appropriate, and may, with the
prior written consent of the Company, change such limit for purposes of general
application. The Depositary will also set dollar limits with respect to
Pre-Release transactions to be entered into hereunder with any particular
Pre-Releasee on a case-by-case basis as the Depositary deems appropriate. For
purposes of enabling the Depositary to fulfill its obligations to the Owners and
Beneficial Owners under the Deposit Agreement, the collateral referred to in
clause (b) above shall be held by the Depositary as security for the performance
of the Pre-Releasee's obligation to deliver Shares or Receipts upon termination
of a Pre-Release transaction (and shall not, for the avoidance of doubt,
constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
- 16 -
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.1. Filing Proofs. Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or
Beneficial Owner of a Receipt may be required from time to time to file with the
Depositary or the Custodian such proof of citizenship or residence, exchange
control approval, or such information relating to the registration on the books
of the Company or the Foreign Registrar, if applicable, to execute such
certificates and to make such representations and warranties, as the Depositary
may deem necessary or proper. The Depositary may withhold the delivery or
registration of transfer of any Receipt or the distribution of any dividend or
sale or distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made.
SECTION 3.2. Liability of Owner or Beneficial Owner for Taxes.
If any tax or other governmental charge shall become payable
with respect to any Receipt or any Deposited Securities represented by any
Receipt, such tax or other governmental charge shall be payable by the Owner or
Beneficial Owner of such Receipt to the Depositary. The Depositary may refuse to
effect any transfer of such Receipt or any withdrawal of Deposited Securities
represented by American Depositary Shares evidenced by such Receipt until such
payment is made, and may withhold any dividends or other distributions, or may
sell for the account of the Owner or Beneficial Owner thereof any part or all of
the Deposited Securities represented by the American Depositary Shares evidenced
by such Receipt, and may apply such dividends or other distributions or the
proceeds of any such sale in payment of such tax or other governmental charge
- 17 -
and the Owner or Beneficial Owner of such Receipt shall remain liable for any
deficiency.
SECTION 3.3. Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefor are validly issued, fully paid, nonassessable and free of
any pre-emptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that the deposit of such Shares and the sale of Receipts
evidencing American Depositary Shares representing such Shares by that person
are not restricted under the Securities Act of 1933. Such representations and
warranties shall survive the deposit of Shares and issuance of Receipts.
SECTION 3.4. Disclosure of Beneficial Ownership.
Notwithstanding any other provision of this Deposit Agreement,
each Owner and Beneficial Owner of a Receipt agrees to provide such information
as the Company may request in a disclosure notice (a "Disclosure Notice") given
pursuant to the United Kingdom Companies Act 1985 (as amended from time to time
and including any statutory modification or re-enactment thereof, the "Companies
Act") or the Company's Memorandum and Articles of Association. Each Owner and
Beneficial Owner of a Receipt acknowledges that it understands that failure to
comply with a Disclosure Notice may result in the imposition of sanctions
against the holder of the Shares in respect of which the non-complying Owner or
Beneficial Owner is or was, or appears to be or has been, interested as provided
in the Companies Act and the Company's Memorandum and Articles of Association
(which currently include the withdrawal of voting rights or, in certain
circumstances, in relation to the non-complying Owner, the withholding of any
payments, including
- 18 -
dividends and payments of a capital nature, in respect of the Shares represented
by such American Depositary Shares, voiding any transfers of the Shares
represented by such American Depositary shares, prohibiting the issuance of
additional shares by way of rights or bonus entitlement in respect of the Shares
represented by such American Depositary Shares and the nullification of any
agreement to effect any of the acts subject to the restrictions by virtue of the
sanctions).
In addition, each Owner and Beneficial Owner of a Receipt agrees
to comply with the provisions of the Companies Act with regard to the
notification to the Company of interests in Shares, which currently provide,
inter alia that any holder of Receipts or other person who is or becomes
directly or indirectly interested (within the meaning of the Companies Act) in
3% or more of the outstanding Shares, or is aware that another person for whom
it holds such Receipts or owns such interest in American Depositary Shares is so
interested, must within two United Kingdom business days after becoming so
interested or so aware (and thereafter in certain circumstances upon any change
of at least one percent (1%) of the outstanding Shares) notify the Company as
required by the Companies Act. Each Owner and Beneficial Owner of a Receipt
acknowledges that it understands that failure to comply with the Companies Act
in this regard may similarly result in the imposition of the sanctions described
in the first paragraph of this Section 3.4.
In the event that the Company determines that there has been a
failure to comply with a Disclosure Notice with respect to any Deposited
Securities and that sanctions are to be imposed against such Deposited
Securities pursuant to the Companies Act by a court of competent jurisdiction or
the Company's Memorandum and Articles of Association by the Company, the Company
shall so notify the Depositary, giving full
- 19 -
details thereof, and shall instruct the Depositary in writing as to the
application of such sanctions to the Deposited Securities. Except as prohibited
by applicable law, the Depositary agrees to use reasonable efforts to comply
with any such instructions requesting that the Depositary take the reasonable
and feasible actions specified therein to apply such sanctions.
If the Company requests information from the Depositary or the
Custodian, as the registered holders of Shares, pursuant to the Memorandum and
Articles of Association of the Company or the Companies Act, the Depositary
agrees to use, and, if possible, to cause the Custodian to use, reasonable
efforts to comply with any reasonable instructions received from the Company
requesting the Depositary to take the reasonable actions specified therein to
obtain such information.
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.1. Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other
cash distribution on any Deposited Securities, the Depositary shall, subject to
the provisions of Section 4.5, convert or cause to be converted as promptly as
practicable such dividend or distribution into Dollars and shall distribute as
promptly as practicable the amount thus received (net of the fees of the
Depositary as provided in Section 5.9 hereof, if applicable) to the Owners
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively; provided,
however, that in the event that the Company or the Depositary shall be required
to withhold and does withhold from such cash dividend or such other cash
distribution an amount on account of taxes, the amount distributed to the
- 20 -
Owner of the Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Owner a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to Owners entitled thereto.
The Company or its agent will remit to the appropriate governmental agency in
the United Kingdom all amounts withheld and owing to such agency. The Depositary
will forward to the Company or its agent such information from its records as
the Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental agencies, and the Depositary or the Company
or its agent may file any such reports necessary to obtain benefits under the
applicable tax treaties for the Owners of Receipts.
SECTION 4.2. Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 5.9,
whenever the Depositary shall receive any distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4, the Depositary shall, as promptly as
practicable, cause the securities or property received by it to be distributed
to the Owners entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933
- 21 -
in order to be distributed to Owners or Beneficial Owners) the Depositary deems
such distribution not to be feasible, the Depositary, after consultation with
the Company, may adopt such means as it may deem equitable and practicable for
the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees of the
Depositary as provided in Section 5.9) shall be distributed by the Depositary to
the Owners entitled thereto as in the case of a distribution received in cash;
provided, however, that no such distribution to Owners pursuant to this Section
4.2 shall be unreasonably delayed by any action of the Depositary or any of its
agents. To the extent that such securities or property or the net proceeds
thereof are not effectively distributed to Owners as provided in this paragraph,
each American Depositary Share shall thereafter also represent the additional
securities or property distributed in respect of the Shares represented by such
American Depositary Share prior to such distribution.
SECTION 4.3. Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Company shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement with
respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in
- 22 -
Section 4.11 and the payment of fees of the Depositary as provided in Section
5.9; provided, however, that no such distribution to Owners shall be
unreasonably delayed by any action of the Depositary or any of its agents. In
lieu of delivering Receipts for fractional American Depositary Shares in any
such case, the Depositary shall sell the amount of Shares represented by the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.1. If additional Receipts
are not so distributed, each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities
represented thereby.
SECTION 4.4. Rights.
In the event that the Company shall offer or cause to be offered
to the holders of any Deposited Securities any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary, after
consultation with the Company, shall have discretion as to the procedure to be
followed in making such rights available to any Owners or in disposing of such
rights on behalf of any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering or by reason of applicable
law, the Depositary may not either make such rights available to any Owners or
dispose of such rights and make the net proceeds available to such Owners, then
the Depositary shall allow the rights to lapse. If at the time of the offering
of any rights the Depositary, after consultation with the Company, determines in
its reasonable discretion that it is lawful and feasible to make such rights
available to all Owners or to certain Owners but not to other Owners, the
Depositary may distribute to any Owner to whom it determines the distribution to
be lawful and feasible, in proportion to the number of American Depositary
Shares held by such Owner, warrants or other instruments therefor in such form
as it deems appropriate.
- 23 -
In circumstances in which rights would otherwise not be
distributed, if an Owner of Receipts requests the distribution of warrants or
other instruments in order to exercise the rights allocable to the American
Depositary Shares of such Owner hereunder, the Depositary will make such rights
available as promptly as practicable to such Owner upon written notice from the
Company to the Depositary that (a) the Company has elected in its sole
discretion to permit such rights to be exercised and (b) such Owner has executed
such documents as the Company has determined in its sole discretion are
reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments
for rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of this Deposit Agreement, and shall, pursuant to Section 2.3 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this section, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
- 24 -
If the Depositary determines in its reasonable discretion that
it is not lawful and feasible to make such rights available to all or certain
Owners, it may sell the rights, warrants or other instruments in proportion to
the number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees of the Depositary as
provided in Section 5.9 and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of this
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise. No
distribution of rights or the net proceeds of any sale of rights to Owners shall
be unreasonably delayed by any action of the Depositary or any of its agents.
The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Owners or are registered under the provisions of such Act. If an Owner of
Receipts requests distribution of warrants or other instruments, notwithstanding
that there has been no such registration under such Act, the Depositary shall
not effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Company upon which the Depositary may rely
that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make
- 25 -
such rights available to Owners in general or any Owner in particular.
SECTION 4.5. Conversion of Foreign Currency.
Whenever the Depositary shall receive Foreign Currency, by way
of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
Foreign Currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such Foreign Currency into Dollars,
and such Dollars shall be distributed, as promptly as practicable, to the Owners
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, as promptly as practicable.
If at any time the Depositary shall determine that in its
judgment any Foreign Currency received by the Depositary is not, pursuant to
applicable law, convertible in whole or in part, into Dollars transferable to
the United States, or if any approval or license of any government or agency
thereof
- 26 -
which is required for such conversion is denied or in the reasonable opinion of
the Depositary is not obtainable, or if any such approval or license is not
obtained within a reasonable period as determined by the Depositary, the
Depositary may distribute the Foreign Currency (or an appropriate document
evidencing the right to receive such Foreign Currency) received by the
Depositary to, or in its discretion may hold such Foreign Currency uninvested
and without liability for interest thereon for the respective accounts of, the
Owners entitled to receive the same; provided, however; that if requested in
writing by an Owner entitled thereto, the Depositary shall distribute the
Foreign Currency to such Owner as promptly as practicable.
If any such conversion of Foreign Currency, in whole or in part,
cannot be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the Foreign Currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto; provided, however, that if
requested in writing by an Owner entitled thereto, the Depositary shall
distribute such balance of Foreign Currency to such Owner as promptly as
practicable.
SECTION 4.6. Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued with respect to the Deposited Securities, or whenever for
any reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of
- 27 -
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient, the Depositary shall fix a record date (which shall be
the same date as the record date for the relevant Deposited Securities, or as
soon thereafter as practicable) (a) for the determination of the Owners who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (iii) to receive information
as to such meeting, (b) on or after which each American Depositary Share will
represent the changed number of Shares. Subject to the provisions of Sections
4.1 through 4.5 and to the other terms and conditions of this Deposit Agreement,
the Owners on such record date shall be entitled, as the case may be, to receive
the amount distributable by the Depositary with respect to such dividend or
other distribution or such rights or the net proceeds of sale thereof in
proportion to the number of American Depositary Shares held by them respectively
and to give voting instructions and to act in respect of any other such matter.
SECTION 4.7. Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or
other Deposited Securities, if requested in writing by the Company the
Depositary shall, as soon as practicable thereafter, mail to the Owners a
notice, the content of which notice shall be approved by or furnished by the
Company, which shall contain (a) such information as is contained in such notice
of meeting received by the Depositary from the Company, (b) a statement that the
Owners as of the close of business on a specified record date will be entitled,
subject to any applicable provision of the laws of England and Wales, the
Memorandum and Articles of Association of the Company and the Deposited
Securities, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the
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amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares, and (c) a brief statement as to the manner in which
such instructions may be given, including an express indication that such
instructions may be given to the Depositary to give a discretionary proxy to a
person or persons designated by the Company. Upon the written request of an
Owner on such record date, received on or before the date established by the
Depositary for such purpose, (the "Instruction Date") the Depositary shall
endeavor, in so far as practicable, to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request; provided, that the Depositary, unless specifically instructed
by not less than five Owners, shall not demand a poll. The Depositary shall not
vote or attempt to exercise the right to vote that attaches to the Shares or
other Deposited Securities, other than in accordance with such instructions. If
no instructions are received by the Depositary from any Owner with respect to
any of the Deposited Securities represented by the American Depositary Shares
evidenced by such Owner's Receipts on or before the Instruction Date, such Owner
shall be deemed to have instructed the Depositary to, and the Depositary shall,
give a discretionary proxy to a person designated by the Company with respect to
such Deposited Securities; provided, however, that no such discretionary proxy
shall be given with respect to any matter as to which the Company informs the
Depositary that (i) the Company does not wish such proxy given, (ii) substantial
opposition exists or (iii) the rights of holders of Shares or other Deposited
Securities will be materially and adversely affected. In accordance with the
Memorandum and Articles of Association and English law, failure by an Owner or
Beneficial Owner to comply with the
- 29 -
Company's request for information of the nature described under Section 3.4 may
result, inter alia, in withdrawal of the voting rights of the Owner or
Beneficial Owner.
Although the Depositary will endeavor, insofar as practicable,
to deliver the notice described in the preceding paragraph reasonably in advance
of the Instruction Date, there can be no assurance that the Owners generally or
any Owner in particular will receive the notice described in this paragraph
sufficiently prior to the Instruction Date in order to ensure that the
Depositary will vote the Shares or other Deposited Securities in accordance with
the preceding paragraph.
SECTION 4.8. Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not
apply, upon any change in nominal value, change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, any securities which shall be
received by the Depositary or a Custodian in exchange for or in conversion of or
in respect of Deposited Securities, shall be treated as new Deposited Securities
under this Deposit Agreement, and American Depositary Shares shall thenceforth
represent the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may with the Company's approval, and shall if the
Company shall so request, execute and deliver additional Receipts as in the case
of a dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
- 30 -
SECTION 4.9. Reports.
The Depositary shall make available for inspection by Owners at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary, the Custodian or a nominee of either 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 send to the
Owners copies of such reports furnished by the Company pursuant to Section 5.6.
The Company shall furnish to the Depositary the name of each
dealer known to the Company depositing Shares against issuance of American
Depositary Shares evidenced by Receipts during the period covered by reports
required to be filed with the Commission.
SECTION 4.10. Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at
the expense of the Company, furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares by all persons in
whose names Receipts are registered on the books of the Depositary.
SECTION 4.11. Withholding.
In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charge which the Depositary is
obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay any such taxes or charges and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
- 31 -
charges to the Owners entitled thereto in proportion to the number of American
Depositary Shares held by them respectively.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.
SECTION 5.1. Maintenance of Office and Transfer Books by the
Depositary.
Until termination of this Deposit Agreement in accordance with
its terms, the Depositary shall maintain in the Borough of Manhattan, The City
of New York, facilities for the execution and delivery, registration,
registration of transfers and surrender of Receipts in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books for the registration of Receipts
and transfers of Receipts which at all reasonable times shall be open for
inspection by the Owners, provided that such inspection shall not be for the
purpose of communicating with Owners in the interest of a business or object
other than the business of the Company or a matter related to this Deposit
Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder or at the reasonable request of the Company, provided that
any such closing of the transfer books shall be subject to the provisions of
Section 7.7 which limit the suspensions of withdrawals of Shares.
If any Receipts or the American Depositary Shares evidenced
thereby are listed on one or more stock exchanges in the United States, the
Depositary shall act as Registrar or
- 32 -
appoint a Registrar or, upon the written request or with the written approval of
the Company, one or more co-registrars for registry of such Receipts in
accordance with any requirements of such exchange or exchanges.
Any such co-registrar shall, upon the Company's request, and
may, with the approval of the Company, be removed and a substitute or
substitutes appointed by the Depositary.
The Company shall have the right to inspect transfer and
registration records of the Depositary, take copies thereof and require the
Depositary, the Receipt Registrar and any co-transfer agents or co-registrars to
supply copies of such portions of such records as the Company may reasonable
request.
SECTION 5.2. Prevention or Delay in Performance by the Depositary or
the Company.
Neither the Depositary nor the Company nor any of their
respective directors, employees, agents or affiliates shall incur any liability
to any Owner, Beneficial Owner or other person, if by reason of any provision of
any present or future law or regulation of the United States or any other
country, or of any governmental or regulatory authority or stock exchange, or by
reason of any provision, present or future, of the Memorandum and Articles of
Association of the Company, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or the Company or any of their
respective directors, employees, agents or affiliates shall be prevented or
forbidden from, or be subject to any civil or criminal penalty on account of,
doing or performing any act or thing which by the terms of this Deposit
Agreement it is provided shall be done or performed; nor shall the Depositary or
the Company incur any liability to any Owner, Beneficial Owner or other person
by reason of any
- 33 -
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of this Deposit Agreement it is provided shall or may
be done or performed, or by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement. Where, by the terms of a
distribution pursuant to Sections 4.1, 4.2, or 4.3 of the Deposit Agreement, or
an offering or distribution pursuant to Section 4.4 of the Deposit Agreement, or
for any other reason, such distribution or offering may not be made available to
Owners, and the Depositary may not dispose of such distribution or offering on
behalf of such Owners and make the net proceeds available to such Owners, then
the Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
SECTION 5.3. Obligations of the Depositary, the Custodian and the
Company.
The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Owners, Beneficial Owners or other
persons, except that it agrees to perform its obligations specifically set forth
in this Deposit Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to
any liability under this Deposit Agreement to any Owner, Beneficial Owner or
other persons (including, without limitation, liability with respect to the
validity or worth of the Deposited Securities), except that it agrees to perform
its obligations specifically set forth in this Deposit Agreement without
negligence or bad faith and without negligence.
Neither the Depositary nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion
- 34 -
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information.
The Depositary shall not be liable for any acts or omissions
made by a successor depositary whether in connection with a previous act or
omission of the Depositary or in connection with any matter arising wholly after
the removal or resignation of the Depositary, provided that in connection with
the issue out of which such potential liability arises the Depositary performed
its obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith and without negligence.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
- 35 -
SECTION 5.4. Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
written notice of such removal effective upon the appointment 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
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, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged
or consolidated shall be the successor of the
- 36 -
Depositary without the execution or filing of any document or any further act.
SECTION 5.5. The Custodians.
The Custodian shall be subject at all times and in all respects
to the directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, appoint a substitute custodian or custodians, each of
which shall thereafter be a Custodian hereunder. Whenever the Depositary in its
discretion determines that it is in the best interest of the Owners to do so, it
may appoint substitute or additional custodian or custodians, which shall
thereafter be one of the Custodians hereunder. Upon demand of the Depositary any
Custodian shall deliver such of the Deposited Securities held by it as are
requested of it to any other Custodian or such substitute or additional
custodian or custodians. Each such substitute or additional custodian shall
deliver to the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; but 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
- 37 -
complete power and authority as agent hereunder 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 in respect of any cash or other distributions or the
offering of any rights, the Company agrees to transmit to the Depositary and the
Custodian a copy of the notice thereof in the form given or to be given to
holders of Shares or other Deposited Securities.
The Company will arrange for the prompt transmittal by the
Company to the Depositary and the Custodian of such notices and any other
reports and communications which are made generally available by the Company to
holders of its Shares. If requested in writing by the Company, the Depositary
will arrange for the mailing, as promptly as practicable, of copies of such
notices, reports and communications to all Owners. The Company will timely
provide the Depositary with the quantity of such notices, reports, and
communications, as requested by the Depositary from time to time, in order for
the Depositary to effect such mailings.
SECTION 5.7. Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or
distribution of (1) additional Shares, (2) rights to subscribe for Shares, (3)
securities convertible into Shares, or (4) rights to subscribe for such
securities, (each a "Distribution") the Company will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Company, which counsel
shall be satisfactory to the Depositary, stating whether
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or not the Distribution requires a Registration Statement under the Securities
Act of 1933 to be in effect prior to making such Distribution available to
Owners 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 such Distribution.
The Company agrees with the Depositary that neither the Company
nor any company controlled by, controlling or under common control with the
Company will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Company or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the Securities Act
of 1933.
SECTION 5.8. Indemnification.
The Company agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
fees and expenses of counsel) which may arise out of acts performed or omitted,
in accordance with the provisions of this Deposit Agreement and of the Receipts,
as the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including reasonable fees and expenses of counsel) which may arise out
of acts
- 39 -
performed or omitted by the Depositary or its Custodian or their respective
directors, employees, agents and affiliates due to their negligence or bad
faith.
The obligations set forth in this Section 5.8 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
person indemnified hereby.
SECTION 5.9. Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company once every three months. The charges
and expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing
or withdrawing Shares or by any party surrendering Receipts or to whom Receipts
are issued (including, without limitation, issuance pursuant to a stock dividend
or stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), whichever applicable: (1) taxes, stamp duties, stamp duty reserve
taxes, and other governmental charges, (2) such registration fees as may from
time to time be in effect for the registration of transfers of Shares generally
on the Share register of the Company or Foreign Registrar and applicable to
transfers of Shares to the name of the Depositary or its nominee or the
Custodian or its nominee on the making of deposits or withdrawals hereunder, (3)
such cable, telex and facsimile transmission expenses as are expressly provided
in this Deposit Agreement, (4) such reasonable expenses as are incurred by the
Depositary in the
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conversion of Foreign Currency pursuant to Section 4.5 (5) a fee of $5.00 or
less per 100 American Depositary Shares (or portion thereof) for the execution
and delivery of Receipts pursuant to Section 2.3, 4.3 or 4.4, and the surrender
of Receipts pursuant to Section 2.5 or 6.2, (6) a fee of $.02 or less per
American Depositary Share (or portion thereof) for any cash distribution made
pursuant to the Deposit Agreement including, but not limited to, Sections 4.1
through 4.4 hereof, (7) a fee of $1.50 or less per certificate for a Receipt or
Receipts for transfers made pursuant to Section 2.4 and (8) a fee for the
distribution of securities pursuant to Section 4.2, such fee being in an amount
equal to the fee for the execution and delivery of American Depositary Shares
referred to above which would have been charged as a result of the deposit of
such securities (for purposes of this clause (8) treating all such securities as
if they were Shares), but which securities are instead distributed by the
Depositary to Owners.
The Depositary, subject to Section 2.9 hereof, may own and deal
in any class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10. Retention of Depositary Documents.
The Depositary is authorized to destroy those documents,
records, bills and other data compiled during the term of this Deposit Agreement
at the times permitted by the laws or regulations governing the Depositary
unless the Company requests that such papers be retained for a longer period or
turned over to the Company or to a successor depositary.
SECTION 5.11. Exclusivity.
The Company agrees not to appoint any other depositary for
issuance of American Depositary Receipts so long as The Bank of New York is
acting as Depositary hereunder.
- 41 -
SECTION 5.12. List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a
list setting forth, to the actual knowledge of the Company, those persons or
entities who beneficially own Restricted Securities and the Company shall update
that list on a regular basis. The Company agrees to advise in writing each of
the persons or entities so listed that such Restricted Securities are ineligible
for deposit hereunder. The Depositary may rely on such a list or update but
shall not be liable for any action or omission made in reliance thereon.
ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.1. Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable without the consent of the Owners. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
Receipts until the expiration of thirty days after notice of such amendment
shall have been given to the Owners of outstanding Receipts. Every Owner at the
time any amendment so becomes effective shall be deemed, by continuing to hold
such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair the
right of the Owner of any Receipt to surrender such Receipt and receive therefor
the Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
- 42 -
SECTION 6.2. Termination.
The Depositary shall at any time at the direction of the Company
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 90 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding if at any time 90 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4. On and after
the date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5, and
(c) payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners 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,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of
- 43 -
the Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges). At any
time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, unsegregated and without liability for
interest, for the pro rata benefit of the Owners of Receipts which have not
theretofore been surrendered, such Owners thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit
Agreement, except for certain obligations to the Company under Section 5.8
hereof to account for such net proceeds and other cash (after deducting, in each
case, the fee of the Depositary for the surrender of a Receipt, any expenses for
the account of the Owner of such Receipt in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges). Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.8 and 5.9 hereof.
ARTICLE 7. 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 shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any Owner or Beneficial Owner of a Receipt during
business hours.
- 44 -
SECTION 7.2. No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the
parties hereto and shall not be deemed to give any legal or equitable right,
remedy or claim whatsoever to any other person.
SECTION 7.3. Severability.
In case any one or more of the provisions contained in this
Deposit Agreement or in the Receipts 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. Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners of Receipts from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions hereof and of the Receipts by acceptance thereof.
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 or cable, telex
or facsimile transmission confirmed by letter, addressed to Professional Staff
plc, Buckland House, Waterside Drive, Langley Business Park, Slough SL3 6EZ,
U.K., or any other place to which the Company may have transferred its principal
office.
Any and all notices to be given to the Depositary shall be
deemed to have been duly given if in English and personally delivered or sent by
mail or cable, telex or facsimile transmission confirmed by letter, addressed to
The Bank of New York, 101 Barclay Street, New York, New York 10286, Attention:
- 45 -
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected 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. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6. Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York.
SECTION 7.7. Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under this Deposit
- 46 -
Agreement to prevent the withdrawal or delivery of Deposited Securities in a
manner which would violate the U.S. securities laws, including, but not limited
to, Section I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
- 47 -
IN WITNESS WHEREOF, PROFESSIONAL STAFF PLC and THE BANK OF NEW YORK have
duly executed this agreement as of the day and year first set forth above and
all Owners shall become parties hereto upon acceptance by them of Receipts
issued in accordance with the terms hereof.
PROFESSIONAL STAFF PLC
By: "/s/ signature illegible"
--------------------------
THE BANK OF NEW YORK,
as Depositary
By: "/s/ signature illegible"
--------------------------
- 48 -
Exhibit A to Deposit Agreement
No.
------------------------------
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents one (1)
deposited Ordinary Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF THE
NOMINAL VALUE OF 2p EACH OF
PROFESSIONAL STAFF PLC
(INCORPORATED UNDER THE LAWS OF THE ENGLAND AND WALES)
The Bank of New York as depositary (hereinafter called the
"Depositary"), hereby certifies that ______________________________________
______________________________________________, or registered assigns IS THE
OWNER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited Ordinary Shares (herein called "Shares") of Professional
Staff plc, organized under the laws of England and Wales (herein called the
"Company"). At the date hereof, each American Depositary Share represents one
(1) Share which are either deposited or subject to deposit under the deposit
agreement at the London office of The Bank of New York (herein called the
"Custodian"). The Depositary's Corporate Trust Office is located at a different
address than its principal executive office. Its Corporate Trust Office is
located at 101 Barclay Street, New York, N.Y. 10286, and its principal executive
office is located at 48 Wall Street, New York, N.Y. 10286.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of July ___, 1996 (herein called the "Deposit
Agreement"), by and among the Company, the Depositary, and all Owners and
Beneficial Owners from time to time of Receipts issued thereunder, each of whom
by accepting a Receipt agrees to become a party thereto and become bound by all
the terms and conditions thereof. The Deposit Agreement sets forth the rights of
Owners and Beneficial Owners of the Receipts and the rights and duties of the
Depositary in respect 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 Depositary's Corporate Trust Office in New York City and at the
office of the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified by
and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms not defined herein shall have the
meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates in the name of the Owner hereof or as ordered by
him or by the delivery of certificates properly endorsed or accompanied by
proper instruments of transfer and (b) any other securities, property and cash
to which such Owner is then entitled in respect of this Receipt. Such delivery
will be made as promptly as practicable at the option of the Owner hereof,
either at the office of the Custodian or at the Corporate Trust Office of the
Depositary, provided that the forwarding of certificates for Shares or other
Deposited Securities for such delivery at the Corporate Trust Office of the
Depositary shall be at the risk and expense of the Owner hereof. Notwithstanding
any other provision of the Deposit Agreement or this Receipt, the surrender of
outstanding Receipts and withdrawal of Deposited Securities may be suspended
only for (i) temporary delays caused by closing the
- 2 -
transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
{ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the
Depositary at its Corporate Trust Office by the Owner hereof in person or by a
duly authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the presentor of the Receipt 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 as provided in this Receipt, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with any regulations the Depositary
may establish consistent with the provisions of the Deposit Agreement or this
Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to Article (22) hereof. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act of 1933, unless a registration statement is
in effect as to such Shares.
- 3 -
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented hereby, such tax
or other governmental charge shall be payable by the Owner or Beneficial Owner
hereof to the Depositary. The Depositary may refuse to effect any transfer of
this Receipt or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced by such Receipt until such payment is made, and may
withhold any dividends or other distributions, or may sell for the account of
the Owner or Beneficial Owner hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner or Beneficial
Owner hereof shall remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder shall be deemed thereby to
represent and warrant that such Shares and each certificate therefor are validly
issued, fully paid, nonassessable, and free of any pre-emptive rights of the
holders of outstanding Shares and that the person making such deposit is duly
authorized so to do. Every such person shall also be deemed to represent that
the deposit of such Shares and the sale of Receipts evidencing American
Depositary Shares representing such Shares by that person are not restricted
under the Securities Act of 1933. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts.
6. DISCLOSURE OF BENEFICIAL OWNERSHIP.
Notwithstanding any other provision of the Deposit Agreement, each Owner
and Beneficial Owner of a Receipt agrees to provide such information as the
Company may request in a disclosure notice (a "Disclosure Notice") given
pursuant to the United Kingdom Companies Act 1985 (as amended from time to time
and including any statutory modification or re-enactment thereof, the "Companies
Act") or the Company's Memorandum and Articles of Association. Each Owner and
Beneficial Owner of a Receipt acknowledges that it understands that failure to
comply with a Disclosure Notice may result in the imposition of sanctions
against the holder of the Shares in respect of which the non-complying Owner or
Beneficial Owner is or was, or appears to be or has been, interested as provided
in the Companies Act and the Company's Memorandum and Articles of Association
(which currently include the withdrawal of voting rights or, in certain
circumstances, in relation to the non-complying Owner, the withholding of any
payments, including dividends and payments of a capital nature, in respect of
the Shares represented by such American Depositary Shares, voiding
- 4 -
any transfers of the Shares represented by such American Depositary Shares,
prohibiting the issuance of additional shares by way of rights or bonus
entitlement in respect of the Shares represented by such American Depositary
Shares and the nullification of any agreement to effect any of the acts subject
to the restrictions by virtue of the sanctions).
In addition, each owner and Beneficial Owner of a Receipt agrees to
comply with the provisions of the Companies Act with regard to the notification
to the Company of interests in Shares, which currently provide, inter alia that
any holder of Receipts or other person who is or becomes directly or indirectly
interested (within the meaning of the Companies Act) in 3% or more of the
outstanding Shares, or is aware that another person for whom it holds such
Receipts or owns such interest in American Depositary Shares is so interested,
must within two United Kingdom business days after becoming so interested or so
aware (and thereafter in certain circumstances upon any change of at least one
percent (1%) of the outstanding Shares) notify the Company as required by the
Companies Act. Each Owner and Beneficial Owner of a Receipt acknowledges that it
understands that failure to comply with the Companies Act in this regard may
similarly result in the imposition of the sanctions described in the first
paragraph of Section 3.4 of the Deposit Agreement.
In the event that the Company determines that there has been a failure
to comply with a Disclosure Notice with respect to any Deposited Securities and
that sanctions are to be imposed against such Deposited Securities pursuant to
the Companies Act by a court of competent jurisdiction or the Company's
Memorandum and Articles of Association by the Company, the Company shall so
notify the Depositary, giving full details thereof, and shall instruct the
Depositary in writing as to the application of such sanctions to the Deposited
Securities. Except as prohibited by applicable law, the Depositary agrees to use
reasonable efforts to comply with any such instructions requesting that the
Depositary take the reasonable and feasible actions specified therein to apply
such sanctions.
If the Company requests information from the Depositary or the
Custodian, as the registered holders of Shares, pursuant to the Memorandum and
Articles of Association of the Company or the Companies Act, the Depositary
agrees to use, and, if possible, to cause the Custodian to use, reasonable
efforts to comply with any reasonable instructions received from the Company
requesting the Depositary to take the reasonable actions specified therein to
obtain such information.
- 5 -
7. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial
Owner of a Receipt may be required from time to time to file with the Depositary
or the Custodian such proof of citizenship or residence, exchange control
approval, or such information relating to the registration on the books of the
Company or the Foreign Registrar, if applicable, to execute such certificates
and to make such representations and warranties, as the Depositary may deem
necessary or proper. The Depositary may withhold the delivery or registration of
transfer of any Receipt or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made. No Share
shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary that any necessary approval has been granted by any governmental body
in the United Kingdom which is then performing the function of the regulation of
currency exchange.
8. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company once every three months. The charges
and expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3 of the Deposit Agreement), whichever applicable: (1) taxes, stamp
duties, stamp duty reserve taxes, and other governmental charges, (2) such
registration fees as may from time to time be in effect for the registration of
transfers of Shares generally on the Share register of the Company or Foreign
Registrar and applicable to transfers of Shares to the name of the Depositary or
its nominee or the Custodian or its nominee on the making of deposits or
withdrawals hereunder, (3) such cable, telex and facsimile transmission expenses
as are expressly provided in the Deposit Agreement, (4) such reasonable expenses
as are incurred by the Depositary in the conversion of Foreign Currency pursuant
to Section 4.5 of the Deposit Agreement, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the execution and delivery
of Receipts
- 6 -
pursuant to Section 2.3, 4.3 or 4.4, and the surrender of Receipts pursuant to
Section 2.5 or 6.2 of the Deposit Agreement, (6) a fee of $.02 or less per
American Depositary Share (or portion thereof) for any cash distribution made
pursuant to the Deposit Agreement including, but not limited to Sections 4.1
through 4.4 thereof, (7) a fee of $1.50 or less per certificate for a Receipt or
Receipts for transfers made pursuant to Section 2.4 of the Deposit Agreement and
(8) a fee for the distribution of securities pursuant to Section 4.2 of the
Deposit Agreement, such fee being in an amount equal to the fee for the
execution and delivery of American Depositary Shares referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this clause (8) treating all such securities as if they were
Shares), but which securities are instead distributed by the Depositary to
Owners.
The Depositary, subject to Article (8) hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
9. LOANS AND PRE-RELEASE OF SHARES AND RECEIPTS.
Notwithstanding Section 2.3 of the Deposit Agreement, the Depositary,
unless requested by the Company to cease doing so, may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.2 of the Deposit
Agreement ("Pre-Release"). The Depositary may, pursuant to Section 2.5 of the
Deposit Agreement, deliver Shares upon the receipt and cancellation of Receipts
which have been Pre-Released, whether or not such cancellation is prior to the
termination of such Pre-Release or the Depositary knows that such Receipt has
been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfactory of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts or
Shares are to be delivered that such person, or its customer, owns the Shares or
Receipts to be remitted, as the case may be, (b) at all times fully
collateralized (such collateral marked to market daily) with cash, U.S.
Government Securities or such other collateral as the Depositary determines in
good faith will provide substantially similar liquidity and security, (c)
terminable by the Depositary on not more than five (5) business days notice, and
(d) subject to such further indemnities and credit regulations as the
Depositary deems appropriate. The number of American Depositary Shares which are
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited under the Deposit Agreement then
outstanding; provided, however, that the Depositary reserves the right to change
or disregard such limit from time to time as it deems appropriate, and may, with
the prior written consent of the Company, change such limit for purposes of
general
- 7 -
application. The Depositary will also set dollar limits with respect to
Pre-Release transactions to be entered into hereunder with any particular
Pre-Releasee on a case-by-case basis as the Depositary deems appropriate. For
purposes of enabling the Depositary to fulfill its obligations to the Owners and
Beneficial Owners under the Deposit Agreement, the collateral referred to in
clause (b) above shall be held by the Depositary as security for the performance
of the Pre-Releasee's obligation to deliver Shares or Receipts upon termination
of a Pre-Release transaction (and shall not, for the avoidance of doubt,
constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received
by it in connection with the foregoing.
10. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and
Beneficial Owner of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt when properly endorsed or accompanied by
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of a negotiable instrument, provided, however, that the Company
and the Depositary, notwithstanding any notice to the contrary, may treat the
person in whose name this Receipt is registered on the books of the Depositary
as the absolute owner hereof for the purpose of determining the person entitled
to distribution of dividends or other distributions or to any notice provided
for in the Deposit Agreement or for all other purposes.
11. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
12. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Securities and Exchange Commission (hereinafter called the "Commission").
Such reports and communications will be available for inspection and
copying by Owners and Beneficial Owners at the public reference facilities
maintained by the Commission located at 450 Fifth Street, N.W., Washington, D.C.
20549.
- 8 -
The Depositary will make available for inspection by Owners of Receipts
at its Corporate Trust Office any reports and communications, including any
proxy soliciting material, received from the Company which are both (a) received
by the Depositary, the Custodian or a nominee of either as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary will also send to Owners of
Receipts copies of such reports when furnished by the Company pursuant to the
Deposit Agreement.
The Depositary will keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners of Receipts provided that such inspection shall not be for the
purpose of communicating with Owners of Receipts in the interest of a business
or object other than the business of the Company or a matter related to the
Deposit Agreement or the Receipts.
13. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a Foreign Currency can in the judgment
of the Depositary be converted on a reasonable basis into United States dollars
transferable to the United States, and subject to the Deposit Agreement, convert
or cause to be converted as promptly as practicable such dividend or
distribution into dollars and will distribute as promptly as practicable the
amount thus received to the Owners of Receipts entitled thereto, provided,
however, that in the event that the Company 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, the amount
distributed to the Owners of the Receipts evidencing American Depositary Shares
representing such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Section 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary will, as promptly as practicable, cause the securities or property
received by it to be distributed to the Owners of Receipts entitled thereto, in
any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution; provided, however, that if in the opinion of
the Depositary such distribution cannot be made proportionately among the Owners
of Receipts entitled thereto, or if for any other reason the Depositary deems
such distribution not to be feasible, the Depositary, after consultation with
the Company, may adopt such means as it may deem equitable and practicable
- 9 -
for the purpose of effecting such distribution, including, but not limited to,
the public or private sale of the securities or property thus received, or any
part thereof, and the net proceeds of any such sale (net of the fees of the
Depositary as provided in Section 5.9 of the Deposit Agreement) shall be
distributed by the Depositary to the Owners of Receipts entitled thereto as in
the case of a distribution received in cash; provided, however, that no such
distribution to Owners pursuant to Section 4.2 of the Deposit Agreement shall be
unreasonably delayed by any action of the Depositary or any of its agents. To
the extent that such securities or property or the net proceeds thereof are not
effectively distributed to Owners as provided in this paragraph, each American
Depositary Share shall thereafter also represent the additional securities or
property distributed in respect of the Shares represented by such American
Depositary Share prior to such distribution.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may and shall if the Company shall so request, distribute
to the Owners of outstanding Receipts entitled thereto, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 of the Deposit Agreement and the payment of the fees of the
Depositary as provided in Section 5.9 of the Deposit Agreement; provided,
however, that no such distribution to Owners shall be unreasonably delayed by
any action of the Depositary or any of its agents. In lieu of delivering
Receipts for fractional American Depositary Shares in any such case, the
Depositary will sell the amount of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions set forth in the Deposit Agreement. If additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also represent the
additional Shares distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
- 10 -
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive Foreign Currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
Foreign Currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such Foreign Currency into Dollars,
and such Dollars shall be distributed as promptly as practicable, to the Owners
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.9 of the Deposit Agreement.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license as promptly as practicable.
If at any time the Depositary shall determine that in its judgment any
Foreign Currency received by the Depositary is not, pursuant to applicable law,
convertible in whole or in part into Dollars transferable to the United States,
or if any approval or license of any government or agency thereof which is
required for such conversion is denied or in the reasonable opinion of the
Depositary is not obtainable, or if any such approval or license is not obtained
within a reasonable period as determined by the Depositary, the Depositary may
distribute the Foreign Currency (or an appropriate document evidencing the right
to receive such Foreign Currency) received by the Depositary to, or in its
discretion may hold such Foreign Currency uninvested and without liability for
interest thereon for the respective accounts of, the Owners entitled to receive
the same; provided, however; that if requested in writing by an Owner entitled
thereto, the Depositary shall distribute the Foreign Currency to such Owner as
promptly as practicable.
- 11 -
If any such conversion of Foreign Currency, in whole or in part, cannot
be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the Foreign Currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto; provided, however, that if
requested in writing by an Owner entitled thereto, the Depositary shall
distribute such balance of Foreign Currency to such Owner as promptly as
practicable.
15. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available in Dollars to such
Owners or, if by the terms of such rights offering or, by reason of applicable
law, the Depositary may not either make such rights available to any Owners or
dispose of such rights and make the net proceeds available to such Owners, then
the Depositary shall allow the rights to lapse. If at the time of the offering
of any rights the Depositary, after consultation with the Company, determines in
its reasonable discretion that it is lawful and feasible to make such rights
available to all Owners or to certain Owners but not to other Owners, the
Depositary may distribute, to any Owner to whom it determines the distribution
to be lawful and feasible, in proportion to the number of American Depositary
Shares held by such Owner, warrants or other instruments therefor in such form
as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if
an Owner of Receipts requests the distribution of warrants or other instruments
in order to exercise the rights allocable to the American Depositary Shares of
such Owner hereunder, the Depositary will make such rights available as promptly
as practicable to such Owner upon written notice from the Company to the
Depositary that (a) the Company has elected in its sole discretion to permit
such rights to be exercised and (b) such Owner has executed such documents as
the Company has determined in its sole discretion are reasonably required under
applicable law.
- 12 -
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.3 of the
Deposit Agreement, execute and deliver Receipts to such Owner. In the case of a
distribution pursuant to the second paragraph of this Article, such Receipts
shall be legended in accordance with applicable U.S. laws, and shall be subject
to the appropriate restrictions on sale, deposit, cancellation, and transfer
under such laws.
If the Depositary determines in its reasonable discretion that it is not
lawful and feasible to make such rights available to all or certain Owners, it
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Owners to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.9 of the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of this
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise. No
distribution of rights or the net proceeds of any sale of rights to Owners shall
be unreasonably delayed by any action of the Depositary or any of its agents.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Owners or are registered under the provisions of such Act. If an Owner of
Receipts requests distribution of warrants or other instruments, notwithstanding
that there has been no such registration under such Act, the Depositary shall
not effect such distribution unless it has received an opinion from recognized
counsel in
- 13 -
the United States for the Company upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
16. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient,
the Depositary shall fix a record date (which shall be the same date as the
record date for the relevant Deposited Securities, or as soon thereafter as
practicable) (a) for the determination of the Owners of Receipts who shall be
(i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (iii) to receive information
as to such meeting, (b) on or after which each American Depositary Share will
represent the changed number of Shares, subject to the provisions of the Deposit
Agreement.
17. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the content of which notice shall be approved by or furnished by the
Company, which shall contain (a) such information as is contained in such notice
of meeting received by the Depositary from the Company, (b) a statement that the
Owners of Receipts as of the close of business on a specified record date will
be entitled, subject to any applicable provision of laws of England and Wales,
the Memorandum and Articles of Association of the Company and the Deposited
Securities, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares, and (c) a brief
statement as to the manner in which such instructions may be given, including an
express indication that such instructions may be given to the Depositary to give
a discretionary proxy to a person or persons designated by the Company. Upon the
written request
- 14 -
of an Owner of a Receipt on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor in
so far as practicable to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by such American Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request;
provided, that the Depositary, unless specifically instructed by not less than
five Owners, shall not demand a poll. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions. If no instructions
are received by the Depositary from any Owner with respect to any of the
Deposited Securities represented by the American Depositary Shares evidenced by
such Owner's Receipts on or before the Instruction Date, such Owner shall be
deemed to have instructed the Depositary to, and the Depositary shall, give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities; provided, however, that no such discretionary proxy shall
be given with respect to any matter as to which the Company informs the
Depositary that (i) the Company does not wish such proxy given, (ii) substantial
opposition exists or (iii) the rights of holders of Shares or other Deposited
Securities will be materially and adversely affected. In accordance with the
Memorandum and Articles of Association and English law, failure by an Owner or
Beneficial Owner to comply with the Company's request for information of the
nature described under Section 3.4 of the Deposit Agreement may result, inter
alia, in withdrawal of the voting rights of the Owner or Beneficial Owner.
Although the Depositary will endeavor, insofar as practicable, to
deliver the notice described in the preceding paragraph reasonably in advance of
the Instruction Date, there can be no assurance that the Owners generally or any
Owner in particular will receive the notice described in this paragraph
sufficiently prior to the Instruction Date in order to ensure that the
Depositary will vote the Shares or other Deposited Securities in accordance with
the preceding paragraph.
18. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent the new Deposited
- 15 -
Securities so received in exchange or conversion, unless additional Receipts are
delivered pursuant to the following sentence. In any such case the Depositary
may with the Company's approval, and shall if the Company shall so request,
execute and deliver additional Receipts as in the case of a dividend on the
Shares, or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities.
19. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner, Beneficial Owner or other person, if by reason of any provision of any
present or future law of the United States or any other country, or of any other
governmental or regulatory authority, or by reason of any provision, present or
future, of the Memorandum and Articles of Association of the Company, or by
reason of any act of God or war or other circumstances beyond its control, the
Depositary or the Company or any of their respective directors, employees,
agents or affiliates shall be prevented or forbidden from or be subject to any
civil or criminal penalty on account of doing or performing any act or thing
which by the terms of the Deposit Agreement it is provided shall be done or
performed; nor shall the Depositary or the Company incur any liability to any
Owner, Beneficial Owner or other person, by reason of any non-performance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of the Deposit Agreement it is provided shall or may be done or performed,
or by reason of any exercise of, or failure to exercise, any discretion provided
for in the Deposit Agreement. Where, by the terms of a distribution pursuant to
Sections 4.1, 4.2, or 4.3 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.4 of the Deposit Agreement, such distribution
or offering may not be made available to Owners of Receipts, and the Depositary
may not dispose of such distribution or offering on behalf of such Owners and
make the net proceeds available to such Owners, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse. Neither the Company nor the Depositary assumes any obligation or shall
be subject to any liability under the Deposit Agreement to Owners, Beneficial
Owners or other persons, except that they agree to perform their obligations
specifically set forth in the Deposit Agreement without negligence or bad faith
and without negligence. The Depositary shall not be subject to any liability
with respect to the validity or worth of the Deposited Securities. Neither the
Depositary nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit, or other proceeding in respect of any Deposited
Securities or in respect of the Receipts, which in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
and liability shall be furnished as often
- 16 -
as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. Neither the Depositary nor the Company shall be
liable for any action or nonaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Owner or holder of a Receipt, or any other person believed by it in
good faith to be competent to give such advice or information. The Depositary
shall not be responsible for any failure to carry out any instructions to vote
any of the Deposited Securities, or for the manner in which any such vote is
cast or the effect of any such vote, provided that any such action or nonaction
is in good faith and without negligence. The Depositary shall not be liable for
any acts or omissions made by a successor depositary whether in connection with
a previous act or omission of the Depositary or in connection with a matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. The Company agrees to indemnify the Depositary, its
directors, employees, agents and affiliates and any Custodian against, and hold
each of them harmless from, any liability or expense (including, but not limited
to, the fees and expenses of counsel) which may arise out of acts performed or
omitted, in accordance with the provisions of the Deposit Agreement and of the
Receipts, as the same may be amended, modified, or supplemented from time to
time, (i) by either the Depositary or a Custodian or their respective directors,
employees, agents and affiliates, except for any liability or expense arising
out of the negligence or bad faith of either of them, or (ii) by the Company or
any of its directors, employees, agents and affiliates. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision of the
Deposit Agreement.
The obligations set forth in Section 5.8 of the Deposit Agreement shall
survive the termination of this Deposit Agreement and the succession or
substitution of any person indemnified hereby.
20. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as provided in the Deposit Agreement. The Depositary may at any
time be removed by the Company by written notice of such removal, effective upon
the appointment of a successor depositary and its acceptance of such appointment
as provided in the Deposit Agreement. Whenever the Depositary in
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its discretion determines that it is in the best interest of the Owners of
Receipts to do so, it may appoint a substitute or additional custodian or
custodians.
21. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of the Owners. Any amendment which shall impose or increase
any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners of Receipts, shall, however, not become effective as to
outstanding Receipts until the expiration of thirty days after notice of such
amendment shall have been given to the Owners of outstanding Receipts. Every
Owner of a Receipt at the time any amendment so becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Owner of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby except in order to comply with mandatory provisions of applicable law.
22. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 90 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding if at any time 90 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in the Deposit Agreement. On
and after the date of termination, the Owner of a Receipt, will upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 2.5 of the Deposit Agreement, and (c) payment of any applicable taxes
or governmental charges, will be entitled to delivery, to him or upon his order,
of the amount of Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt. If any Receipts shall remain outstanding after
the date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect
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dividends and other distributions pertaining to Deposited Securities, shall sell
rights as provided in the Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year
from the date of termination, the Depositary may sell the Deposited Securities
then held under the Deposit Agreement and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
thereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts which have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement, except for certain obligations
to the Company under Section 5.8 of the Deposit Agreement to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of the Deposit
Agreement, and any applicable taxes or governmental charges). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the
Depositary with respect to indemnification, charges, and expenses.
23. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under the Deposit Agreement to prevent the withdrawal or
delivery of Deposited Securities in a manner which would violate the U.S.
securities laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
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