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BRITISH AIRWAYS Plc
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS FROM TIME TO TIME OF AMERICAN
DEPOSITARY RECEIPTS EVIDENCING AMERICAN DEPOSITARY SHARES
----------------------------
Second Amended and Restated Deposit Agreement
Dated as of December ___, 2005
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Table of Contents
Page
PARTIES........................................................................1
RECITALS.......................................................................1
Section 1. Certain Definitions................................................1
(a) ADR Register.......................................................1
(b) ADRs...............................................................1
(c) ADSs...............................................................1
(d) Articles...........................................................1
(e) Beneficial Owner...................................................1
(f) Custodian..........................................................2
(g) Deliver, execute, issue, et al.....................................2
(h) Delivery Order.....................................................2
(i) Deposited Securities...............................................2
(j) Direct Registration ADR............................................2
(k) Direct Registration System.........................................2
(l) DTC................................................................2
(m) DTC Participant....................................................2
(n) Holder.............................................................2
(o) Pre-released ADRs..................................................2
(p) Securities Act of 1933.............................................2
(q) Securities Exchange Act of 1934....................................2
(r) Shares.............................................................3
(s) Transfer Office....................................................3
(t) Share Registrar....................................................3
(u) Withdrawal Order...................................................3
Section 2. Form of ADR Incorporation By Reference.............................3
Section 3. Deposit of Shares..................................................4
Section 4. Issue of ADRs......................................................5
Section 5. Distributions on Deposited Securities;
Conversion of Foreign Currency.....................................5
Section 6. Substitution of ADRs...............................................6
Section 7. Cancellation and Destruction of ADRs...............................6
Section 8. The Custodian......................................................6
Section 9. Co-Registrars and Co-Transfer Agents...............................7
Section 10. Lists of Holders...................................................7
Section 11. Depositary's Agents................................................7
Section 12. Successor Depositary...............................................7
Section 13. Reports............................................................8
Section 14. Additional Shares..................................................8
Section 15. Indemnification....................................................8
Section 16. Notices............................................................9
Section 17. Miscellaneous.....................................................10
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Table of Contents
(continued)
Page
Section 18. Amendment and Restatement of Old Deposit Agreement..........10
TESTIMONIUM...................................................................11
SIGNATURES....................................................................11
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EXHIBIT A
Page
FORM OF FACE OF ADR .........................................................A-1
Introductory Paragraph................................................A-1
(1) Issuance of ADRs.................................................A-2
(2) Withdrawal of Deposited Securities...............................A-3
(3) Transfers of ADRs................................................A-3
(4) Certain Limitations..............................................A-4
(5) Taxes; Withholding...............................................A-4
(6) Disclosure of Interests..........................................A-5
(7) Charges of Depositary............................................A-5
(8) Available Information............................................A-6
(9) Execution........................................................A-6
Signature of Depositary...............................................A-6
Address of Depositary's office........................................A-6
FORM OF REVERSE OF ADR.......................................................A-7
(10) Distributions on Deposited Securities............................A-7
(11) Record Dates.....................................................A-8
(12) Voting of Deposited Securities...................................A-8
(13) Changes Affecting Deposited Securities ..........................A-8
(14) Exoneration......................................................A-9
(15) Resignation and Removal of Depositary; the Custodian.............A-9
(16) Amendment........................................................A-9
(17) Termination.....................................................A-10
(18) RESERVED........................................................A-10
(19) RESERVED........................................................A-10
(20) Restriction Upon Ownership......................................A-10
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SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of December
__, 2005 (this "Deposit Agreement"), among BRITISH AIRWAYS Plc (the "Company")
and its successors, CITIBANK, N.A., as successor depositary hereunder (the
"Depositary"), and all Holders and Beneficial Owners from time to time of
American Depositary Receipts ("ADRs") issued hereunder evidencing American
Depositary Shares ("ADSs") representing deposited Shares (as defined below).
W I T N E S S E T H
WHEREAS, the Company and Morgan Guaranty Trust Company of New York
(the "Old Depositary") entered into an Amended and Restated Deposit Agreement,
dated as of April ___, 1999 (the "Old Deposit Agreement"), to provide for the
deposit of Shares of the Company with the Old Depositary, as predecessor
depositary, for the creation of American depositary shares ("Old ADSs")
representing the Shares (as hereinafter defined) so deposited and for the
execution and delivery of American depositary receipts ("Old ADRs") evidencing
the Old ADSs; and
WHEREAS, pursuant to the terms of Sections 12 and 18 of the Old
Deposit Agreement and Paragraphs (15) and (16) of the Old ADRs, the Company now
wishes to (i) remove the Old Depositary as depositary under the Old Deposit
Agreement and replace the Old Depositary with Citibank, N.A., as successor
depositary, and (ii) amend and restate the Old Deposit Agreement and the Old
ADRs in accordance with the terms and conditions set forth in this Deposit
Agreement;
NOW THEREFORE, in consideration of the premises, the parties hereto
hereby amend and restate the Old Deposit Agreement and the Old ADRs in their
entireties as follows:
1. Certain Definitions.
(a) "ADR Register" is defined in Paragraph (3) of the Form of ADR.
(b) "ADRs" means the American Depositary Receipts evidencing ADSs
executed and delivered hereunder. ADRs shall be executed and delivered in
physical certificated form or in the form of uncertificated Direct Registration
ADRs. ADRs in physical certificated form shall be substantially in the form of
Exhibit A annexed hereto (the "Form of ADR"). References to "ADRs" shall include
uncertificated Direct Registration ADRs, unless the context otherwise requires.
(c) "ADSs" means American depositary shares representing beneficial
interests in the Deposited Securities. Subject to Paragraphs (10) and (13) of
the Form of ADR, each ADS represents the right to receive ten (10) Shares.
(d) "Articles" means the Articles of Association of the Company as
adopted on July 19, 2005, or as from time to time amended.
(e) "Beneficial Owner" means a person or entity with a beneficial
interest in an ADS.
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(f) "Custodian" means Citibank, N.A. (London Branch), in its
capacity as such, as the agent of the Depositary for the purposes of this
Deposit Agreement named as Custodian in the Form of ADR and any additional or
substitute Custodian appointed pursuant to Section 8 hereof.
(g) The terms "deliver", "execute", "issue", "register",
"surrender", "transfer" or "cancel", when used with respect to uncertificated
Direct Registration ADRs, shall refer to an entry or entries or an electronic
transfer or transfers in the Direct Registration System.
(h) "Delivery Order" is defined in Section 3 hereof.
(i) "Deposited Securities" as of any time means all Shares at such
time deposited under this Deposit Agreement and any and all other Shares,
securities, property and cash at such time held by the Depositary or the
Custodian in respect or in lieu of such deposited Shares and other Shares,
securities, property and cash.
(j) "Direct Registration ADR" means an uncertificated ADR, the
ownership of which is recorded on the Direct Registration System.
(k) "Direct Registration System" means the direct registration
system maintained by the Depositary, pursuant to which the Depositary may record
the ownership of uncertificated ADRs, which ownership shall be evidenced by
periodic statements issued by the Depositary to the Holders entitled thereto.
(l) "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants maintained in DTC, and any successor thereto.
(m) "DTC Participant" shall mean any financial institution (or any
nominee of such institution) having one or more participant accounts with DTC
for receiving, holding and delivering the securities and cash held in DTC.
(n) "Holder" means the person or persons in whose name ADRs are
registered on the ADR Register.
(o) "Pre-released ADRs" has the meaning set forth in Paragraph (1)
of the Form of ADR.
(p) "Securities Act of 1933" means the United States Securities Act
of 1933, as amended from time to time.
(q) "Securities Exchange Act of 1934" means the United States
Securities Exchange Act of 1934, as amended from time to time.
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(r) "Shares" mean the ordinary shares, nominal value 25 pence each,
as amended or redenominated from time to time, of the Company and shall include
the rights to receive Shares specified in Paragraph (1) of the Form of ADR.
(s) "Share Registrar" means Computershare or any other institution
organized under the laws of the United Kingdom appointed by the Company to carry
out the duties of registrar for the Shares, and any successor thereto.
(t) "Transfer Office" is defined in Paragraph (3) of the Form of
ADR.
(u) "Withdrawal Order" is defined in Paragraph (2) of the Form of
ADR.
2. Form of ADR; Incorporation by Reference.
(a) Appointment of Depositary. The Company hereby appoints the
Depositary as successor depositary for the Deposited Securities and hereby
authorizes and directs the Depositary to act in accordance with the terms and
conditions set forth in the Deposit Agreement and the Form of ADR. Each Holder
and each Beneficial Owner, upon acceptance of any ADSs (or any interest therein)
issued in accordance with the terms and conditions of this Deposit Agreement
shall be deemed for all purposes to (a) be a party to and bound by the terms of
this Deposit Agreement and the applicable ADR(s), and (b) appoint the Depositary
its attorney-in-fact, with full power to delegate, to act on its behalf and to
take any and all actions contemplated in this Deposit Agreement and the
applicable ADR(s), to adopt any and all procedures necessary to comply with
applicable law and to take such action as the Depositary in accordance with this
Deposit Agreement in its sole discretion may deem necessary or appropriate to
carry out the purposes of this Deposit Agreement and the applicable ADR(s), the
taking of such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
(b) Form of ADR. ADRs in certificated form shall be engraved,
printed or otherwise reproduced at the discretion of the Depositary in
accordance with its customary practices in its American depositary receipt
business, or at the request of the Company typewritten and photocopied on plain
or safety paper, and shall be substantially in the form set forth in the Form of
ADR, with such changes as may be required by the Depositary or the Company to
comply with their obligations hereunder, any applicable law, regulation or usage
or to indicate any special limitations or restrictions to which any particular
ADRs evidencing ADSs are subject. ADRs may be issued in denominations of any
whole number of ADSs. ADRs in certificated form shall be dated, executed and
countersigned by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary and registered in the ADR Register. ADRs in
certificated form bearing the manual or facsimile signature of anyone who was at
the time of execution a duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold such office
prior to the delivery of such ADRs. Holders and Beneficial Owners shall be bound
by the terms and conditions of this Deposit Agreement and of the Form of ADR, as
incorporated by reference herein, regardless of whether their ADRs are
uncertificated Direct Registration ADRs or certificated ADRs.
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(c) Incorporation by Reference. The terms and conditions set forth
in the Form of ADR are hereby incorporated by reference herein and made a part
hereof as if set forth herein, and shall be binding upon the parties hereto.
(d) Direct Registration ADRs. Notwithstanding anything in this
Deposit Agreement or in the Form of ADR to the contrary, ADSs may be evidenced
by uncertificated Direct Registration ADRs, unless certificated ADRs are
specifically requested by the Holder or ADSs are to be issued and delivered
pursuant to the terms and conditions of (f) below.
(e) Legends. The ADRs may be endorsed with, or have incorporated in
the text thereof, such legends or recitals not inconsistent with the provisions
of this Deposit Agreement and Form of ADR as (i) may be necessary to enable the
Depositary and the Company to perform their respective obligations hereunder,
(ii) may be required to comply with any applicable laws or regulations, or with
the rules and regulations of any securities exchange or market upon which ADSs
may be traded, listed or quoted, or to conform with any usage with respect
thereto, (iii) may be necessary to indicate any special limitations or
restrictions to which any particular ADRs or ADSs are subject by reason of the
date of issuance of the Deposited Securities or otherwise, or (iv) may be
required by any book-entry system in which the ADRs are held. Holders and
Beneficial Owners shall be deemed, for all purposes, to have notice of, and to
be bound by, the terms and conditions of the legends set forth, in the case of
Holders, on the ADR registered in the name of the applicable Holders or, in the
case of Beneficial Owners, on the ADR representing the ADSs owned by such
Beneficial Owners.
(f) Book-Entry Systems. The Depositary shall make arrangements for
the acceptance of the ADSs into DTC. A single ADR in the form of a "Balance
Certificate" will evidence all ADSs held through DTC and will be registered in
the name of the nominee for DTC (currently "Cede & Co.") and will provide that
it represents the aggregate amount of ADSs from time to time indicated in the
records of the Depositary as being issued hereunder and held through DTC and
that the aggregate amount of ADSs represented thereby may from time to time be
increased or decreased by making adjustments on such records of the Depositary
and of DTC or its nominee as hereinafter provided. The nominee for DTC will be
the only "Holder" of the ADR evidencing all ADSs held through DTC. Citibank,
N.A. (or such other entity as is appointed by DTC or its nominee) may hold the
"Balance Certificate" as custodian for DTC. Each Beneficial Owner of ADSs held
through DTC must rely upon the procedures of DTC and the DTC Participants to
exercise or be entitled to any rights attributable to such ADSs. The DTC
Participants shall for all purposes be deemed to have all requisite power and
authority to act on behalf of the Beneficial Owners of the ADSs held in the DTC
Participants' respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given to it
by DTC Participants on behalf of Beneficial Owners of ADSs. So long as ADSs are
held through DTC or unless otherwise required by law, ownership of beneficial
interests in the ADR registered in the name of the nominee for DTC will be shown
on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC or its nominee (with respect to the interests of DTC
Participants), or (ii) DTC Participants or their nominees (with respect to the
interests of clients of DTC Participants).
3. Deposit of Shares. Subject to Paragraph (1) of the Form of ADR,
in connection with the deposit of Shares hereunder, the Depositary or the
Custodian may require the following in form satisfactory to it: (a) a written
order directing the Depositary to execute and deliver to, or upon the written
4
order of, the person or persons designated in such order uncertificated Direct
Registration ADRs, ADRs evidencing the number of ADSs representing such
deposited Shares or ADSs representing such Shares to the DTC Participant account
number designated in such order by making the appropriate adjustments on the
records of the Depositary and of DTC and its nominee (a "Delivery Order"); (b)
proper endorsements or duly executed instruments of transfer in respect of such
deposited Shares; (c) instruments assigning to the Depositary or its nominee any
distribution on or in respect of such deposited Shares or indemnity therefor;
and, (d) proxies entitling the Depositary to vote such deposited Shares. As soon
as practicable after the Custodian receives Deposited Securities pursuant to any
such deposit or pursuant to Paragraph (10) or (13) of the Form of ADR, the
Custodian shall present such Deposited Securities for registration of transfer
into the name of the Depositary or its nominee, to the extent such registration
is practicable, at the cost and expense of the person making such deposit (or
for whose benefit such deposit is made) and shall obtain evidence satisfactory
to it of such registration. Deposited Securities shall be held by the Custodian
for the account and to the order of the Depositary at such place or places and
in such manner as the Depositary shall determine. Deposited Securities may be
delivered by the Custodian to any person only under the circumstances expressly
contemplated in this Deposit Agreement.
4. Issue of ADRs. After any such deposit of Shares, the Custodian
shall notify the Depositary of such deposit and of the information contained in
any related Delivery Order by letter, first class airmail postage prepaid, or,
at the request, risk and expense of the person making the deposit, by cable,
telex or facsimile transmission. After receiving such notice from the Custodian,
the Depositary, subject to this Deposit Agreement, shall issue and deliver at
the Transfer Office, to or upon the order of any person named in such notice,
the aggregate ADSs to which such person is entitled and, if applicable, ADR(s)
evidencing ADSs so issued, in each case registered as requested. ADRs may be
issued by the Depositary only under circumstances contemplated in this Deposit
Agreement.
5. Distributions on Deposited Securities; Conversion of Foreign
Currency.
(a) Distributions on Deposited Securities. To the extent that the
Depositary determines in good faith, after consultation with the Company to the
extent practicable, that any distribution pursuant to Paragraph (10) of the Form
of ADR is not practicable with respect to any Holder, the Depositary may make
such distribution as it so deems practicable, including the distribution of
foreign currency, securities or property (or appropriate documents evidencing
the right to receive foreign currency, securities or property) or the retention
thereof as Deposited Securities with respect to such Holder's ADRs (without
liability for interest thereon or the investment thereof).
(b) Conversion of Foreign Currency. Upon receipt by the Depositary
or the Custodian of any foreign currency, if at the time of its receipt such
foreign currency can in the judgment of the Depositary be converted on a
reasonable basis into U.S. dollars and the resulting U.S. dollars transferred to
the United States for distribution to Holders entitled thereto, the Depositary
shall as promptly as practicable convert or cause to be converted such foreign
currency into U.S. dollars by sale or in any other manner that it may determine,
and shall transfer the resulting U.S. dollars (net of its charges and expenses
in effecting such conversion) to the United States and shall distribute such
U.S. dollars to the Holders entitled thereto in accordance with Paragraph (10)
of the Form of ADR. If such conversion or distribution can be effected only with
the approval or license of any government or agency thereof, the Depositary
5
shall have discretion to file such application for approval or license as it may
deem desirable. If the Depositary determines in its reasonable judgment that
such foreign currency is not convertible, in whole or in part, on a reasonable
basis into U.S. dollars transferable to the United States, or if any approval or
license which is required for such conversion is denied or in the opinion of the
Depositary, after consultation with the Company to the extent practicable, is
not obtainable or is not obtained within a reasonable period or at a reasonable
cost, the Depositary may distribute all or part of the foreign currency (or an
appropriate document evidencing the right to receive such foreign currency) to,
or in its discretion may hold such foreign currency uninvested and without
liability for interest thereon for the respective accounts of, the Holders
entitled thereto. All expenses of any such conversion shall be deducted from the
proceeds thereof.
6. Substitution of ADRs. The Depositary shall execute and deliver a
new ADR of like tenor in exchange and substitution for any mutilated ADR upon
cancellation thereof or in lieu of and in substitution for such destroyed, lost
or stolen ADR, unless the Depositary has received written notice that such ADR
has been acquired by a bona fide purchaser, upon the Holder thereof filing with
the Depositary a request for such execution and delivery and a sufficient
indemnity bond and satisfying any other reasonable requirements imposed by the
Depositary.
7. Cancellation and Destruction of ADRs. All ADRs surrendered to the
Depositary shall be canceled by the Depositary. The Depositary is authorized to
destroy ADRs so canceled in accordance with its customary practices. The
Depositary shall maintain records of all ADRs surrendered and Deposited
Securities withdrawn under Paragraph (1) of the Form of ADR, substitute ADRs
delivered, and canceled or destroyed ADRs under this Section 7, in keeping with
the procedures ordinarily followed by stock transfer agents located in The City
of New York or as required by applicable law, rule or regulation.
8. The Custodian. The Depositary shall use its best efforts under
the circumstances to ensure that at all times there is a Custodian hereunder.
Any Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. Other than the initial
Custodian appointed hereunder, the Depositary shall be responsible for the
compliance by each Custodian with the provisions hereof applicable thereto. The
Depositary may from time to time, after consultation with the Company, appoint
one or more agents to act for it as Custodian hereunder in addition to or in
lieu of the Custodian named in the Form of ADR. Each Custodian so appointed
(other than Citibank, N.A. (London Branch)) shall give written notice to the
Company and the Depositary accepting such appointment and agreeing to be bound
by the provisions hereof. Any Custodian may resign from its duties hereunder by
at least 30 days' written notice to the Depositary and the Company. The
Depositary may, after consultation with the Company, discharge any Custodian at
any time upon notice to the Custodian being discharged and subject to the
provisions of any agreement between such Custodian and the Depositary. Any
Custodian ceasing to act hereunder as Custodian shall deliver, upon the
instruction of the Depositary, all Deposited Securities held by it to a
Custodian continuing to act.
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9. Co-Registrars and Co-Transfer Agents. The Depositary may appoint
and remove (i) co-registrars to register ADRs and transfers, combinations and
split-ups of ADRs and to countersign ADRs in accordance with the terms of any
such appointment and (ii) co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices in
addition to the Transfer Office on behalf of the Depositary. Each co-registrar
or co-transfer agent (other than Citibank, N.A.) 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.
10. Lists of Holders. At the expense of the Company, the Company
shall have the right to inspect transfer and registration records of the
Depositary or its agents and the ADR Register, take copies thereof and require
the Depositary or its agents to provide in electronic or print format the
information contained in such transfer and registration records or the ADR
Register that the Company may request. The Depositary or its agent shall furnish
to the Company promptly upon the written request of the Company, a list of the
names, addresses and holdings of ADSs by all Holders as of a date within seven
days of the Depositary's receipt of such request. The Depositary's obligations
under Articles 46(C) and 47(C)(ii) and (iii) of the Articles (or any successor
provisions) are limited to and shall be satisfied by the performance of its
obligations under this Section 10. Every Holder and Beneficial Owner of ADSs
upon acceptance of any ADSs (or any interest therein) shall be deemed to have
consented to the Depositary providing such information to the Company (or any of
its designees).
11. Depositary's Agents. The Depositary may perform its obligations.
hereunder through any agent appointed by it, provided that the Depositary shall
notify the Company of such appointment and shall remain responsible for the
performance of such obligations as if no agent were appointed. The Depositary
shall use its best efforts under the circumstances to obtain, a written notice
from each agent appointed hereunder (other than those agents which, on the date
hereof, are acting in an agency capacity for Citibank, N.A.), addressed to the
Company and the Depositary accepting such appointment and agreeing to be bound
by the terms of the applicable provisions hereof.
12. Successor Depositary. If the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a bank
or trust company having an office in the Borough of Manhattan, The City of New
York, as successor depositary hereunder. Every successor depositary shall
execute and deliver to its predecessor and to the Company written acceptance of
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become Depositary hereunder; but such predecessor,
upon payment of all sums due it and on the written request of the Company, shall
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder and assigning all right, title and interest
in the Deposited Securities to such successor, and shall deliver to such
successor a list of the Holders. Any bank or trust company into or with which
the Depositary may be merged or consolidated, or to which the Depositary shall
transfer substantially all its American depositary receipt business (including
the ADR facility established pursuant to this Agreement, shall be the successor
of the Depositary without the execution or filing of any document or any further
act; provided, however, that such bank or trust company shall give a written
notice thereof to the Company. Upon the appointment of any successor depositary
hereunder, any agent of the Depositary then acting hereunder shall forthwith
become such agent hereunder of such successor depositary and such successor
depositary shall, on the written request of any such agent, execute and deliver
to such agent any instruments necessary to give such agent authority as such
agent hereunder of such successor depositary.
7
13. Reports. On or before the first date on which the Company makes
any communication available to holders of Deposited Securities by publication or
otherwise or publicly files or submits any communication to any securities
regulatory authority or stock exchange, the Company shall transmit to the
Depositary a copy thereof in English or with an English translation or summary
to the extent required under applicable rules of the Securities Exchange Act of
1934. In connection with any registration statement under the Securities Act of
1933 relating to the ADSs or with any undertaking contained therein, the Company
and the Depositary shall each furnish to the other and to the United States
Securities and Exchange Commission or any successor governmental agency such
information as shall be required to make such filings or comply with such
undertakings. The Company has delivered to the Depositary and the Custodian a
copy of all provisions of or governing the Shares and any other Deposited
Securities issued by the Company and, promptly upon any change thereto, the
Company shall deliver to the Depositary and the Custodian a copy (in English or
with an English translation) of such provisions as so changed. The Depositary
and its agents may rely upon the Company's delivery thereof for all purposes of
this Deposit Agreement. Whenever the Company intends to serve any notice, report
or other materials to its members or any notice or request for information
relating to Interests (as defined for this purpose in the Articles) in Shares
held by the Depositary or its nominee or nominees, it will, where practicable,
advise the Depositary in advance of the intended service of such materials,
notice or request and will cooperate with the Depositary so that the service of
any such materials, notice or request and the mailing of such materials, notice
or request to the relevant Holder may be synchronized and so that such
materials, notice or request may be delivered to the relevant Holder in a timely
manner. The Company will promptly respond to all inquiries by the Depositary
concerning the number of Affected Shares (as defined in the Articles), the
number of Relevant Shares (as defined in the Articles), and, if the Depositary
provides sufficient information, as to whether any particular Shares would upon
an acquisition of an interest by a particular person or class of person become
or be capable of becoming or being treated as Affected Shares.
14. Additional Shares. Neither the Company nor any company
controlling, controlled by or under common control with the Company shall issue
additional Shares, rights to subscribe for Shares, securities convertible into
or exchangeable for Shares or rights to subscribe for any such securities or
shall deposit any Shares under this Deposit Agreement, except under
circumstances complying in all respects with the Securities Act of 1933. The
Depositary will use reasonable efforts to comply with written instructions of
the Company not to accept for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company's compliance
with securities laws in the United States.
15. Indemnification.
(a) The Company shall indemnify, defend and save harmless each of
the Depositary and its agents hereunder against any loss, liability or expense
(including reasonable fees and expenses of counsel), that may arise out of (i)
its acceptance and performance of its powers and duties in respect of the
Deposit Agreement, except to the extent such loss, liability or expense is due
8
to the negligence or bad faith of the Depositary or any of its agents hereunder,
or (ii) any offer or sale of ADRs, ADSs, Shares or other Deposited Securities or
any registration statement under the Securities Act of 1933 in respect thereof,
except to the extent such loss, liability or expense arises out of information
(or omissions from such information) relating to it furnished in writing to the
Company by it expressly for use in any such registration statement. The
Depositary shall indemnify, defend and save harmless the Company against any
loss, liability or expense (including reasonable fees and expenses of counsel)
incurred by the Company in respect of the Deposit Agreement to the extent such
loss, liability or expense is due to the negligence or bad faith of the
Depositary or any of its agents appointed hereunder other than the initial
Custodian appointed hereunder.
(b) Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this Section 15 and shall only
affect its rights hereunder to the extent such failure is prejudicial) and shall
consult in good faith with the indemnifying person as to the conduct of the
defense of such action or claim, which shall be reasonable in the circumstances.
No indemnified person shall compromise or settle any indemnifiable action or
claim without the prior written consent of the indemnifying person (which
consent shall not be unreasonably withheld or delayed).
(c) The obligations set forth in this Section 15 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
16. Notices. Notice to any Holder shall be deemed given when first
mailed, first class postage prepaid, to the address of such Holder on the ADR
Register or received by such Holder. Notice to the Depositary or the Company
shall be deemed given when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, or at such other
address or facsimile transmission number as either may specify to the other by
written notice:
(a) Citibank, N.A.
388 Greenwich Street, 14th Floor
New York, NY 10013
Attention: Depositary Receipts Department
Fax: 212-816-6865
(b) British Airways Plc
Waterside
PO Box 365
Harmondsworth
UB7 OGB
United Kingdom
Attention: Company Secretary
Fax: 181-738-9800
9
17. Miscellaneous. This Deposit Agreement is for the exclusive
benefit of the Company, the Depositary, the Holders, the Beneficial Owners and
their respective successors hereunder, and shall not give any legal or equitable
right, remedy or claim whatsoever to any other person. The Holders and
Beneficial Owners of ADRs from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the provisions hereof. If any such
provision is invalid, illegal or unenforceable in any respect, the remaining
provisions shall in no way be affected thereby. This Deposit Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original and all of which shall constitute one instrument. The Depositary agrees
to respond promptly to such reasonable inquiries or requests for information
(which information is currently made available on a regular basis by the
Depositary to its depositary receipt clientele) as the Company may make from
time to time with respect to the depositary receipt facility created hereby.
18. Amendment and Restatement of Old Deposit Agreement. The Deposit
Agreement amends and restates the Old Deposit Agreement in its entirety to
consist exclusively of this Deposit Agreement, and Old ADRs are hereby deemed
amended and restated to substantially conform to the Form of ADR set forth in
Exhibit A annexed hereto, except that, to the extent any portion of such
amendment and restatement would prejudice any substantial existing right of
Holders of Old ADRs, such portion shall not become effective as to such Holders
with respect to such Old ADRs until thirty (30) days after such Holders shall
have received notice thereof, such notice to be conclusively deemed given upon
the mailing to such Holders of notice of such amendment and restatement which
notice contains a provision whereby such Holders can receive a copy of the Form
of ADR.
10
IN WITNESS WHEREOF, BRITISH AIRWAYS Plc and CITIBANK, N.A. have duly
executed this Deposit Agreement as of the day and year first above set forth and
all Holders and Beneficial Owners of ADRs shall become parties hereto upon
acceptance by them of ADRs issued in accordance with the terms hereof.
BRITISH AIRWAYS Plc
By
---------------------------
Name:
Title:
CITIBANK, N.A.
By
---------------------------
Name:
Title:
11
EXECUTION COPY
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
No. of ADSs:
- ----------
Number
------------------------
Each ADS represents
ten (10) Shares
CUSIP: 110419306
AS PROVIDED IN THE ARTICLES OF ASSOCIATION OF BRITISH AIRWAYS Plc
AND THE DEPOSIT AGREEMENT, THIS ADR IS SUBJECT TO CERTAIN
RESTRICTIONS CONCERNING OWNERSHIP OF OR OTHER ENTITLEMENTS TO ADSs
BY NON-UNITED KINGDOM NATIONALS. UNDER CERTAIN CIRCUMSTANCES THE
HOLDER OF THIS ADR MAY NOT BE ENTITLED TO DIRECT THE VOTING OF SOME
OR ALL OF THE UNDERLYING DEPOSITED SECURITIES AND SOME OR ALL OF THE
UNDERLYING DEPOSITED SECURITIES MAY BE SOLD BY BRITISH AIRWAYS Plc,
IN WHICH CASE THIS ADR WILL ENTITLE THE HOLDER ONLY TO THE PROCEEDS
OF SUCH SALE, LESS TAXES AND EXPENSES. SEE PARAGRAPH (20) HEREOF.
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES, NOMINAL VALUE 25 PENCE EACH,
of
BRITISH AIRWAYS Plc
(Incorporated under the laws of England and Wales)
Citibank, N.A., a national banking association organized and
existing under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that ____________ is the registered owner (a
"Holder") of ____________ American Depositary Shares ("ADSs"), each (subject to
Paragraphs (10) and (13) representing ten (10) ordinary shares, nominal value 25
pence each (including the rights to receive Shares described in Paragraph (1),
"Shares" and, together with any other securities, cash or property from time to
time held by the Depositary in respect or in lieu of deposited Shares, the
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"Deposited Securities"), of British Airways Plc (the "Company"), a corporation
organized under the laws of England and Wales, deposited at the office of
Citibank, N.A. (London Branch), as Custodian (subject to Paragraph (15), the
"Custodian"), under the Second Amended and Restated Deposit Agreement, dated as
of December __, 2005 (as amended from time to time, the "Deposit Agreement")
among the Company, the Depositary and all Holders and Beneficial Owners from
time to time of American Depositary Receipts evidencing ADSs issued thereunder,
each of whom, by accepting an ADR or an interest therein, agrees to become a
party thereto and to be bound by all of the terms and conditions thereof and
hereof. The Deposit Agreement and this ADR (which includes the provisions set
forth on the reverse hereof) shall be governed by and construed in accordance
with the laws of the State of New York. Notwithstanding anything contained in
the Deposit Agreement, any ADR or any present or future provisions of the laws
of the State of New York, the rights of holders of Shares and of any other
Deposited Securities and the obligations and duties of the Company in respect of
the holders of Shares and other Deposited Securities, as such, shall be governed
by the laws of the United Kingdom (or, if applicable, such other laws as may
govern the Deposited Securities). The terms and conditions of the Deposit
Agreement are hereby incorporated by reference and all capitalized terms used
herein which are not otherwise defined herein shall have the meanings ascribed
thereto in the Deposit Agreement.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the
Deposit Agreement to evidence ADRs outstanding thereunder. Subject to Paragraph
(4), the Depositary may issue ADRs for delivery at the Transfer Office (defined
in Paragraph (3)) only against deposit with the Custodian of: (a) Shares in form
satisfactory to the Custodian; (b) rights to receive Shares from the Company or
any registrar, transfer agent, clearing agent or other entity recording Share
ownership or transactions; or, (c) unless requested in writing by the Company to
cease doing so at least two business days in advance of the proposed deposit,
other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs"), only if (i) Pre-released
ADRs are fully collateralized (marked to market daily) with cash or U.S.
government securities held by the Depositary for the benefit of Holders (but
such collateral shall not constitute Deposited Securities), (ii) each recipient
of Pre-released ADRs represents and agrees in writing with the Depositary that
such recipient or its customer (a) beneficially owns such Shares, (b) assigns
all beneficial right, title and interest therein to the Depositary for the
benefit of the Holders, (c) holds such Shares for the account of the Depositary
and (d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor but in no event more than five days after demand
therefor and (iii) all Pre-released ADRs evidence not more than 30% of all ADSs
then issued and outstanding (excluding those evidenced by Pre-released ADRs),
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate. The Depositary may retain
for its own account any earnings on collateral for Pre-released ADRs and its
charges for issuance thereof. At the request, risk and expense of the person
depositing Shares, the Depositary may accept deposits for forwarding to the
Custodian and may deliver ADRs at a place other than its office. Every person
depositing Shares under the Deposit Agreement represents and warrants that such
Shares are validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly authorized so to
do and that such Shares (A) are not "restricted securities" as such term is
defined in Rule 144 under the Securities Act of 1933 unless at the time of
deposit they may be freely transferred in accordance with Rule 144(k) and may
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otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance of ADRs. The Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares required
to be registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company's compliance with the Securities Act
of 1933.
(2) Withdrawal of Deposited Securities. Holders of ADRs will be
entitled to withdraw the Deposited Securities represented by the ADSs evidenced
by their ADRs at any time subject only to (i) temporary delays caused by closing
the transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any laws or governmental regulations relating to the ADRs or the withdrawal of
Deposited Securities. Upon surrender of these ADRs in form satisfactory to the
Depositary at the Transfer Office and upon payment of any fees, expenses, taxes
or governmental charges as provided in the Deposit Agreement, subject to the
terms of the Deposit Agreement and Paragraphs (4) and (5) hereof, the Holder
hereof is entitled to delivery at the Custodian's office of the Deposited
Securities at the time represented by the ADSs evidenced by this ADR so
surrendered. In connection with any surrender of an ADR for withdrawal and the
delivery of the Deposited Securities represented by the ADSs evidenced thereby,
the Depositary may require proper endorsement in blank of such ADR (or duly
executed instruments of transfer thereof in blank) and the Holder's written
order (a "Withdrawal Order") directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered to, or upon the written order of, any person designated in such order.
At the request, risk and expense of the Holder hereof, the Depositary may
deliver such Deposited Securities at such other place as may have been requested
by the Holder, subject to applicable laws in England and Wales. Delivery of
Deposited Securities may be made by the delivery of certificates (which, if
required by law shall be properly endorsed or accompanied by properly executed
instruments of transfer or, if such certificates may be registered, registered
in the name of such Holder or as ordered by such Holder in any Withdrawal Order)
or by such other means as the Depositary may deem practicable.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration of ADRs and registration of transfer, combination and split-up of
ADRs, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Deposit Agreement and (b)
facilities for the delivery and receipt of ADRs. Title to this ADR (and to the
Deposited Securities represented by the ADSs evidenced hereby), when properly
endorsed or accompanied by proper instruments of transfer, is transferable by
delivery with the same effect as in the case of negotiable instruments under the
laws of the State of New York; provided that the Depositary, notwithstanding any
notice to the contrary, may treat the person in whose name an ADR is registered
on the ADR Register as the absolute owner hereof for all purposes. Subject to
Paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be
split into other ADRs or combined with other ADRs into one ADR, evidencing the
same number of ADSs evidenced by this ADR, by the Holder hereof or by duly
authorized attorney upon surrender of this ADR at the Transfer Office properly
endorsed or accompanied by proper instruments of transfer and duly stamped as
may be required by applicable law; provided that the Depositary may close the
A-3
ADR Register at any time or from time to time when deemed expedient by it or
requested by the Company. At the request of a Holder, the Depositary shall, for
the purpose of substituting a certificated ADR with uncertificated Direct
Registration ADRs, or vice versa, execute (if applicable) and deliver a
certificated ADR or uncertificated Direct Registration ADRs, as the case may be,
for any authorized number of ADSs requested, evidencing the same aggregate
number of ADSs as those evidenced by the certificated ADR or designated as
uncertificated Direct Registration ADRs, as the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration,
registration of transfer, split-up or combination of any ADR, the delivery of
any distribution in respect thereof, or, subject to the first sentence of
Paragraph (2), the withdrawal of any Deposited Securities, and from time to time
in the case of clause (b)(ii) of this Paragraph (4), the Company, the Depositary
or the Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in Paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the first sentence of
Paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed advisable by
the Depositary or the Company.
(5) Taxes; Withholding. If any tax or other governmental charge
shall become payable by or on behalf of the Custodian or the Depositary with
respect to this ADR, any Deposited Securities represented by the ADSs evidenced
hereby or any distribution thereon, such tax or other governmental charge shall
be paid by the Holder hereof to the Depositary. The Depositary may refuse to
effect any registration, registration of transfer, split-up or combination
hereof or, subject to the first sentence of Paragraph (2), any withdrawal of
such Deposited Securities until such payment is made. The Depositary may also
deduct from any distributions on or in respect of Deposited Securities, or may
sell by public or private sale for the account of the Holder hereof any part or
all of such Deposited Securities (after attempting by reasonable means to notify
the Holder hereof prior to such sale), and may apply such deduction or the
proceeds of any such sale in payment of such tax or other governmental charge,
the Holder and Beneficial Owner hereof remaining liable for any deficiency, and,
if appropriate, shall reduce the number of ADSs evidenced hereby to reflect any
such sales of Shares and shall distribute the net proceeds of any such sale or
the balance of any such property after deduction of such tax or other
governmental charge to the Holder hereof. In connection with any distribution to
Holders, the Company will remit to the appropriate governmental authority or
agency all amounts (if any) required to be withheld and owing to such authority
or agency by the Company; and the Depositary and the Custodian will remit to the
A-4
appropriate governmental authority or agency all amounts (if any) required to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. If the Depositary determines that any distribution in property other
than cash (including Shares or rights) on Deposited Securities is subject to any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such amounts and
in such manner as the Depositary deems necessary and practicable to pay such
taxes, by public or private sale, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction of
such taxes to the Holders entitled thereto.
(6) Disclosure of Interests. To the extent that the provisions of or
governing any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders, Beneficial Owners and all persons
holding ADSs (or any interest therein) agree to comply with all such disclosure
requirements and ownership limitations and to cooperate with the Depositary in
the Depositary's compliance with any Company instructions in respect thereof,
and the Depositary will use reasonable efforts to comply with such Company
instructions.
Notwithstanding any other provision of the Deposit Agreement or this
ADR, each Holder and Beneficial Owner agrees to provide such information as the
Company may request in a disclosure notice (a "Disclosure Notice") given
pursuant to the 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 Articles of Association of the Company within the time period
specified in such Disclosure Notice. Each Holder and Beneficial Owner
acknowledges that it understands that failure to comply with a Disclosure Notice
may result in the imposition of sanctions against the holder of the Shares in
respect of which the non-complying person is or was, or appears to be or has
been, interested as provided in the Companies Act and the Articles of
Association which currently include, the withdrawal of the voting rights of such
Shares and the imposition of restrictions on the rights to receive dividends on
and to transfer such Shares. In addition, each Holder and Beneficial Owner
agrees to comply with the provisions of the Companies Act with regard to the
notification to the Company of interests in Shares, which currently provide,
inter alia, that any Holder and Beneficial Owner who is or becomes directly or
indirectly interested (within the meaning of the Companies Act) in 3% or more of
the outstanding Shares, or is aware that another person for whom it holds such
ADRs is so interested, must within two business days after becoming so
interested or so aware (and thereafter in certain circumstances upon any change
to the particulars previously notified) notify the Company as required by the
Companies Act.
(7) Charges of Depositary. The Depositary may charge each person to
whom ADRs are issued against deposits of Shares, including deposits in respect
of Share Distributions, Rights and Other Distributions (as such terms are
defined in Paragraph (10)), and each person surrendering ADRs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
delivered or surrendered. The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions prior to such deposit to pay such charge. The
Company will pay all other charges and expenses of the Depositary and any agent
of the Depositary (except the Custodian) pursuant to agreements from time to
A-5
time between the Company and the Depositary, except (i) stock transfer or other
taxes and other governmental charges (which are payable by Holders and
Beneficial Owners or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders or Beneficial Owner delivering Shares, ADSs (or any interest therein)
or Deposited Securities (which are payable by such persons or Holders), (iii)
transfer or registration fees for the registration of transfer of Deposited
Securities on any applicable register in connection with the deposit or
withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders or Beneficial Owners withdrawing Deposited Securities; there
are no such fees in respect of the Shares as of the date of the Deposit
Agreement) and (iv) expenses of the Depositary in connection with the conversion
of foreign currency into U.S. dollars (which are paid out of such foreign
currency). These charges may be changed in the manner indicated in Paragraph
(16).
(8) Available Information. The Deposit Agreement, the provisions or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders and Beneficial Owners at the offices of
the Depositary and the Custodian and at the Transfer Office. At the written
request of the Company, the Depositary will distribute copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by the Company. The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and accordingly files
certain reports with the United States Securities and Exchange Commission (the
"Commission"). Such reports and other information may be inspected and copied at
public reference facilities maintained by the Commission located as of the date
of the Deposit Agreement at 100 F Street, N.E., Washington, D.C. 20549.
(9) Execution. This ADR shall not be valid for any purpose unless
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary.
Dated: December __, 2005
CITIBANK, N.A., as Depositary
By
--------------------------
Authorized Officer
The Depositary's principal executive office is located at 388
Greenwich Street, New York, New York 10013.
A-6
[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to Paragraphs
(4) and (5) and any restrictions imposed by English law, regulation or
applicable permit, to the extent practicable, the Depositary will promptly
distribute to each Holder entitled thereto on the record date set by the
Depositary therefor at such Holder's address shown on the ADR Register, in
proportion to the number of Deposited Securities (on which the following
distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash. Any U.S. dollars available to
the Depositary resulting from a cash dividend or other cash distribution or the
net proceeds of sales of any other distribution or portion thereof authorized in
this Paragraph (10) ("Cash"), on an averaged or other practicable basis, subject
to (i) appropriate adjustments for taxes withheld, (ii) such distribution being
impermissible or impracticable with respect to certain Holders, and (iii)
deduction of the Depositary's expenses in (1) converting any foreign currency to
U.S. dollars by sale or in such other manner as the Depositary may determine to
the extent that it determines that such conversion may be made on a reasonable
basis, (2) transferring foreign currency or U.S. dollars to the United States by
such means as the Depositary may determine to the extent that it determines that
such transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. If the Depositary determines that any foreign currency received by it
cannot be converted on a reasonable basis and transferred to the United States,
the Depositary may distribute the foreign currency received by it or, at its
sole discretion, hold such foreign currency, uninvested and without liability
for interest thereon. (b) Shares. (i) Additional ADRs evidencing whole ADSs
representing any Shares available to the Depositary resulting from a dividend or
free distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) Rights. (i) Warrants or other instruments in the good faith
discretion of the Depositary representing rights to acquire additional ADRs in
respect of any rights to subscribe for additional Shares or rights of any nature
available to the Depositary as a result of a distribution on Deposited
Securities ("Rights"), to the extent that the Company timely furnishes to the
Depositary evidence satisfactory to the Depositary that the Depositary may
lawfully distribute the same (the Company has no obligation to so furnish such
evidence), or (ii) to the extent the Company does not so furnish such evidence
and sales of Rights are practicable, any U.S. dollars available to the
Depositary from the net proceeds of sales of Rights as in the case of Cash, or
(iii) to the extent the Company does not so furnish such evidence and such sales
cannot practicably be accomplished by reason of the nontransferability of the
Rights, limited markets therefor, their short duration or otherwise, nothing
(and any Rights may lapse). (d) Other Distributions. (i) Securities or property
available to the Depositary resulting from any distribution on Deposited
Securities other than Cash, Share Distributions and Rights ("Other
Distributions"), by any means that the Depositary may deem, after consultation
with the Company to the extent practicable, lawful, equitable and practicable,
or (ii) to the extent the Depositary deems, after consultation with the Company
to the extent practicable, distribution of such securities or property not to be
lawful, equitable or practicable, any U.S. dollars available to the Depositary
from the net proceeds of sales of Other Distributions as in the case of Cash.
Such U.S. dollars available will be distributed by checks drawn on a bank in the
United States for whole dollars and cents (any fractional cents being withheld
A-7
without liability for interest and added to future Cash distributions).
Notwithstanding anything herein to the contrary, the Company shall have no
obligation to either (i) register any ADSs, Shares, Rights or other securities
described in this Paragraph (10) under the Securities Act of 1933 or (ii) take
other actions to permit the distribution of such ADSs, Shares, Rights or other
securities in accordance with applicable U.S. securities laws.
(11) Record Dates. The Depositary may, after consultation with the
Company, if practicable, fix a record date (which shall be as near as
practicable to any corresponding record date set by the Company with respect to
the Shares) for the determination of the Holders who shall be entitled to
receive any distribution on or in respect of Deposited Securities, to give
instructions for the exercise of any voting rights, to receive any notice or to
act in respect of other matters and only such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after
receipt from the Company of notice of any meeting or solicitation of consents or
proxies of holders of Shares or other Deposited Securities, the Depositary, upon
the written request of the Company, shall distribute to Holders a notice stating
(a) such information as is contained in such notice and any solicitation
materials, (b) that each Holder on the record date set by the Depositary
therefor will be entitled to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Deposited Securities represented by
ADSs evidenced by such Holder's ADRs and (c) the manner in which such
instructions may be given. Upon receipt of instructions of a Holder on such
record date in the manner and on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable and permitted under the provisions of or governing Deposited
Securities to vote or cause to be voted the Deposited Securities represented by
the ADSs evidenced by such Holder's ADRs in accordance with such instructions.
The Depositary will not itself exercise any voting discretion in respect of any
Deposited Security.
(13) Changes Affecting Deposited Securities. Subject to Paragraphs
(4) and (5) the Depositary may, in its discretion, amend the terms and
conditions of the ADRs or ADSs or distribute additional or amended ADRs or ADSs
(with or without calling this ADR for exchange) or cash, securities or property
on the record date set by the Depositary therefor to reflect any change in par
value, split-up, consolidation, cancellation or other reclassification of
Deposited Securities, any Share Distribution or Other Distribution not
distributed to Holders or any cash, securities or property available to the
Depositary in respect of Deposited Securities from (and the Depositary is hereby
authorized to surrender any Deposited Securities to any person and to sell by
public or private sale any property received in connection with) any
recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend the terms and
conditions of the ADRs or ADSs or make a distribution to Holders to reflect any
of the foregoing, or the net proceeds thereof, whatever cash, securities or
property results from any of the foregoing shall constitute Deposited Securities
and each ADS evidenced by this ADR shall automatically represent its pro rata
interest in the Deposited Securities as then constituted.
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(14) Exoneration. The Depositary, the Company, their agents and each
of them shall: (a) incur no liability (i) if law, regulation, the provisions of
or governing any Deposited Securities, act of God, war or other circumstance
beyond its control shall prevent, delay or subject to any civil or criminal
penalty any act which the Deposit Agreement, this ADR or the ADSs evidenced by
this ADR provides shall be done or performed by it, or (ii) by reason of any
exercise or failure to exercise any discretion given it in the Deposit Agreement
or this ADR; (b) assume no liability except to perform its obligations to the
extent they are specifically set forth in this ADR and the Deposit Agreement
without gross negligence or bad faith; (c) in the case of the Depositary and its
agents, be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or this ADR; (d)
in the case of the Company and its agents hereunder be under no obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities, this ADR or the ADSs evidenced by this ADR, which
in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary, the Company and
the respective agents of each of them may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by them
to be genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, for the
manner in which any such vote is cast or for the effect of any such vote. The
Depositary and its agents may own and deal in any class of securities of the
Company and its affiliates and in the Deposited Securities, this ADR or the ADSs
evidenced by this ADR. The Company has agreed to indemnify the Depositary and
its agents under certain circumstances and the Depositary has agreed to
indemnify the Company against losses incurred by the Company under certain
circumstances. No disclaimer of liability under the Securities Act of 1933 is
intended by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The
Depositary may resign as Depositary by written notice of its election to do so
delivered to the Company, or be removed as Depositary by the Company by written
notice of such removal delivered to the Depositary; such resignation or removal
shall take effect upon the appointment of and acceptance by a successor
depositary. The Depositary may, after consultation with the Company, appoint
substitute or additional Custodians and the term "Custodian" refers to each
Custodian or all Custodians as the context requires.
(16) Amendment. Subject to the first sentence of Paragraph (2), the
ADRs, the ADSs evidenced by the ADRs and the Deposit Agreement may be amended by
the Company and the Depositary without the consent of the Holders or Beneficial
Owners in any respect, provided that any amendment that imposes or increases any
fees or charges (other than stock transfer or other taxes and other governmental
charges, transfer or registration fees, cable, telex or facsimile transmission
costs, delivery costs or other such expenses), or that shall otherwise prejudice
any substantial existing right of Holders or Beneficial Owners, shall become
effective 30 days after notice of such amendment shall have been given to the
Holders and Beneficial Owners. Every Holder and Beneficial Owner of an ADS (or
any interest therein) at the time any amendment to the Deposit Agreement so
becomes effective shall be deemed, by continuing to hold such ADS (or any
interest therein), to consent and agree to such amendment and to be bound by the
Deposit Agreement and, if applicable, the ADR(s), as so amended thereby. In no
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event shall any amendment impair the right of the Holder of any ADR to cancel
such ADR and receive the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. The parties hereto
agree that any amendments or supplements which (i) are reasonably necessary (as
agreed by the Company and the Depositary) in order for (a) the ADSs to be
registered on Form F-6 under the Securities Act of 1933 or (b) the ADSs or
Shares to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by Holders
and Beneficial Owners, shall be deemed not to prejudice any substantial rights
of Holders or Beneficial Owners. Notwithstanding the foregoing, if any
governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the Form of ADR to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement, the ADRs and the ADSs evidenced by the ADRs at
any time in accordance with such changed rules. Such amendment or supplement to
the Deposit Agreement and, if applicable, the ADR, in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders and Beneficial Owners or within any other period of time as required for
compliance.
(17) Termination. The Depositary may, and shall at the written
direction of the Company, terminate the Deposit Agreement and this ADR by
mailing notice of such termination to the Holders at least 30 days prior to the
date fixed in such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further acts under
the Deposit Agreement and this ADR, except to receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn. As soon as practicable after the expiration of six months from the
date so fixed for termination, the Depositary shall sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in a
segregated account the net proceeds of such sales, together with any other cash
then held by it under the Deposit Agreement, without liability for interest, in
trust for the pro rata benefit of the Holders of ADRs not theretofore
surrendered. After making such sale, the Depositary shall be discharged from all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such net proceeds and other cash. After the date so fixed for termination,
the Company shall be discharged from all obligations under the Deposit Agreement
except for its obligations to the Depositary and its agents.
(18) [RESERVED]
(19) [RESERVED]
(20) Restrictions upon Ownership. (a) The Holders and Beneficial
Owners of ADRs acknowledge and agree (i) that each ADR, and the terms upon which
it is held by such Holders and Beneficial Owners, is subject to the Articles of
Association of the Company (the "Articles"), (ii) that (except as otherwise
provided in the Articles) such Holder's ADRs represent an Interest (as defined
in the Articles) in the Shares underlying such ADSs evidenced by ADRs, (iii)
that so long as the Articles provide a means by which the Company may, in
accordance with the Articles, limit the Interests (as defined for this purpose
in the Articles) that Relevant Persons (as defined in the Articles and
including, without limitation, non-United Kingdom nationals) may have in such
relevant share capital (the "Foreign Interest Limitation"), such Holder and
Beneficial Owner will be bound by the Foreign Interest limitation and the
Directors have a duty to take action in certain circumstances and in accordance
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with the Articles to enforce the Foreign Interest Limitation against such Holder
and Beneficial Owner (including, without limitation, making provision for the
withdrawal of the right of such Holder and Beneficial Owner to direct the voting
of the Shares underlying such Holder's and Beneficial Owner's ADRs and the
forced sale of all or part of such Shares if a sufficient disposal or disposals
of or of Interests in such Shares has not been made to the Directors'
satisfaction within 21 days or such longer period as the Directors consider
reasonable) after service upon the Depositary or its nominee of a notice
requiring such disposal) or against other Holders, Beneficial Owners or holders
of Shares, (iv) that such Holder, to the extent it may legally do so, will
provide such information as lies in its knowledge without further investigation
that is requested by the Company under statutory provisions of English law or
the Articles, which requests may seek, among other things, information as to the
capacity in which such Holder or Beneficial Owner holds ADRs and the nature and
extent of the Interests of such Holder or Beneficial Owner or other persons in
the Shares underlying such Holders' ADRs and (v) that the Articles provide that
any resolution or determination of, or any decision or the exercise of any
discretion or power by, the Directors under the provisions of the Articles
concerning the Foreign Interest Limitation shall be final and conclusive and not
open to challenge and the Directors shall not be obliged to give any reason
therefor and that the Directors shall, so long as they act reasonably and in
good faith, be under no liability to the Company or to any other person in
acting or not taking action under or pursuant to such provisions of the
Articles.
(b) If the Depositary receives an Affected Share Notice (as defined
in the Articles) from the Company or the Directors informing the Depositary that
(i) specified Holder(s) or Beneficial Owner(s) (a "Relevant Holder" or "Relevant
Holders") are believed or are deemed to be Relevant Persons (as defined in the
Articles) or are believed or are deemed to be Relevant Holders through which a
Relevant Person or Persons have Interests in relation to any Shares specified in
the Affected Share Notice and (ii) the Directors believe that each Relevant
Holder or the Relevant Person or Persons believed or deemed to have Interests
through such Relevant Holder are or are deemed to be interested (as provided in
the Articles) in a specified number of such Shares, paragraph (i) of this
Paragraph shall apply. The Company need not include in an Affected Share Notice
the information described in clause (ii) of this paragraph (b). If the Affected
Share Notice does not include such information, the Depositary shall assume for
purposes of paragraph (i) of this Paragraph (20) that each Relevant Holder or
the Relevant Person or Persons believed or deemed to have Interests through such
Relevant Holder are or are deemed to be interested (as provided in the Articles)
in that number of the Shares specified in the Affected Share Notice that bears
the same ratio to the total number of Shares specified in such Affected Share
Notice as the number of such Relevant Holder's ADSs bears to the number of ADSs
of all Relevant Holders specified in such Affected Share Notice.
(c) In this Paragraph (20), "Relevant ADR" means an ADR evidencing
the Shares in which a Relevant Holder or the Relevant Person or Persons believed
or deemed to have Interests through such Relevant Holder are or are deemed to be
interested by virtue of paragraph (b) of this Paragraph (20).
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(d) Following the receipt of an Affected Share Notice, the
Depositary shall (i) refuse to register any transfer of a Relevant ADR until the
Company has withdrawn the Affected Share Notice in respect of that Relevant ADR;
(ii) deny the voting rights attaching to a Relevant ADR to the Relevant Holder
thereof to the extent that the voting rights of the Shares underlying that
Relevant ADR are denied to the Depositary as notified in the Affected Share
Notice until the Company has withdrawn the Affected Share Notice in respect of
that Relevant ADR; and (iii) give notice to each Relevant Holder specified
therein of receipt by the Depositary of the Affected Share Notice and of the
actions to be taken under this paragraph (d) and the matters provided for in
paragraph (e) of this Paragraph.
If the Depositary at any time receives a further notice from the
Company or the Directors modifying such Affected Share Notice, the Depositary
shall take action in accordance with such modified Affected Share Notice from
and after the receipt of such notice by the Depositary.
(e) If the Affected Share Notice in respect of a Relevant ADR so
specifies, the Depositary shall give notice to the Relevant Holder that (i) the
Relevant Holder must within 21 days of receipt of the Affected Share Notice by
the Depositary (or any longer period specified in the Affected Share Notice)
make a disposal or disposals of or of Interests in the Relevant ADR or
underlying Shares to the Directors' satisfaction such that no Relevant Person
has an interest in the Relevant ADR or underlying Shares and (ii) if such
disposal or disposals are not so made to the Directors' satisfaction and if such
Affected Share Notice has not been withdrawn, (A) any or all Shares underlying
the Relevant ADR may be sold pursuant to the Articles and (B) if any such sale
is made, such Relevant ADR shall thenceforth represent only the right to receive
any cash received by the Depositary in respect thereof, less any taxes and
expenses incurred or paid by the Depositary in distributing such cash to the
Relevant Holder thereof, and upon surrender of such Relevant ADR, the Relevant
Holder thereof shall be entitled to withdraw such cash and underlying Shares and
other Deposited Securities in the manner set forth in Paragraph (2) of this ADR.
(f) If the Depositary receives a Affected Share Notice that does not
contain the information described in clause (i) of paragraph (b), the Depositary
shall (i) apply any denial of voting rights in consequence thereof pro rata to
all ADSs outstanding from time to time; and (ii) give notice to all Holders of
receipt by the Depositary of the Affected Share Notice and of the actions to be
taken under this paragraph (f) and the matters provided for in paragraph (e),
and treat any sale of Shares in consequence of the Affected Share Notice as if
it were a distribution in cash and a change in Deposited Securities applicable
to all Deposited Securities as provided in Paragraphs (10) and (13) of this ADR.
(g) Each Holder and Beneficial Owner acknowledges that the Articles
provide that the Directors are entitled to assume that all Shares underlying
ADRs or ADSs are Shares in which Relevant Persons have Interests, unless the
contrary is established to the Directors' satisfaction. Each Holder and each
Beneficial Owner agrees that the Directors are entitled to assume that each
Holder with a registered address in the United States is or holds on behalf of a
United States national.
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(h) At the Company's expense, the Depositary will cooperate in
forwarding to Holders or to the Company, as the case may be, communications
relating to the application of the provisions described in this Paragraph (20).
Holders and Beneficial Owners seeking to communicate with the Company or its
Directors on matters relating to the application of the provisions described in
this Paragraph (20) may send their communications to the Depositary for
forwarding at their own risk to the Company.
(i) The Depositary's obligations under Article 47 (or any successor
provisions) of the Articles are limited to and shall be satisfied by the
performance of its obligations under this Paragraph (20) and subject to
Paragraph (15) hereof, the Depositary shall not have any liability to any Holder
by reason of the Depositary's performance of its obligations hereunder.
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