LLOYDS TSB GROUP PLC and THE BANK OF NEW YORK
EXHIBIT
4.5
and
THE
BANK OF NEW YORK
As
Depositary
and
OWNERS
AND BENEFICIAL OWNERS OF
AMERICAN
DEPOSITARY SHARES
(Registered—Series)
Dated
as of _______, 2007
DEPOSIT
AGREEMENT dated as of _______, 2007 among LLOYDS TSB GROUP PLC, a
public limited company incorporated under the laws of Scotland (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 Shares issued
hereunder.
W
I T N E S S E T H :
WHEREAS,
the Company has duly authorized the issue from time to time of its U.S. Dollar
Preference Shares (herein called Preference Shares), to be issued in one or
more
series and with such terms and provisions as shall be specified in or pursuant
to one or more resolutions of its Board of Directors or an authorized committee
thereof, or pursuant to authorization by any authorized executive director
of
the company; and
WHEREAS,
the Company desires to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of Preference Shares (as hereinafter defined) of
one
or more Series (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 of one or more corresponding Series
representing the Preference 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 set forth herein, it is agreed
by
and among 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
1.01 American
Depositary Shares.
The
term “American Depositary Shares”
shall mean the American Depositary Shares, the securities representing the
interests in the Deposited Securities and evidenced by the Receipts issued
hereunder. Each American Depositary Share shall represent the number
of Preference Shares specified in Exhibit A to this Deposit
Agreement,
until there shall occur a distribution upon Deposited Securities covered by
Section 4.03 or a change in Deposited Securities covered by Section 4.08 with
respect to which additional Receipts are not executed and delivered, and
thereafter American Depositary Shares shall represent the amount of Preference
Shares or Deposited Securities specified in such Sections.
SECTION
1.02 Beneficial
Owner.
The
term
“Beneficial Owner” shall mean each person owning from time to time any
beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION
1.03 Commission.
The
term
“Commission” shall mean the Securities and Exchange Commission of the United
States or any successor governmental agency in the United States.
SECTION
1.04 Company.
The
term
“Company” shall mean Lloyds TSB Group plc, a public limited company incorporated
in Scotland under the Companies ▇▇▇ ▇▇▇▇, as amended, and its
successors.
SECTION
1.05 Custodian.
The
term
“Custodian” shall mean the principal London office of The Bank of New York, as
agent of the Depositary for the purposes of this Deposit Agreement, or any
other
firm or corporation which may hereafter be appointed by the Depositary pursuant
to the terms of Section 5.05, as substitute or additional custodian hereunder,
as the context shall require and shall also mean all of them
collectively.
SECTION
1.06 Deposit
Agreement.
The
term
“Deposit Agreement” shall mean this Deposit Agreement, as the same may be
amended from time to time in accordance with the provisions of this Deposit
Agreement.
SECTION
1.07 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 office of the
Depositary which at the date of this Agreement is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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SECTION
1.08 Deposited
Securities.
The
term
“Deposited Securities” as of any time shall mean Preference 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 4.05.
SECTION
1.09 Dollars.
The
term
“Dollars” shall mean United States dollars.
SECTION
1.10 DTC.
The
term
DTC shall mean The Depository Trust Company, or its successor.
SECTION
1.11 Foreign
Registrar.
The
term
“Foreign Registrar” shall mean the entity that presently carries out the duties
of registrar for the Preference Shares or any successor as registrar for the
Preference Shares and any other appointed agent of the Company for the transfer
and registration of Preference Shares.
SECTION
1.12 Owner.
The
term
“Owner” shall mean the person in whose name a Receipt is registered on the books
of the Depositary maintained for such purpose.
SECTION
1.13 Preference
Shares.
The
term “Preference Shares” shall mean
U.S. Dollar Preference Shares of the Company that are validly issued and
outstanding and fully paid, nonassessable and that were not issued in violation
of any pre-emptive or similar rights of the holders of outstanding Preference
Shares or interim certificates representing such Preference 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 4.08, an exchange or conversion in respect of the
Preference Shares of the Company, the term “Preference Shares” shall thereafter
also mean the successor securities resulting from such change in nominal value,
split-up or consolidation or such other reclassification or such exchange or
conversion.
SECTION
1.14 Receipts.
The
term
“Receipts” shall mean the American Depositary Receipts issued hereunder
evidencing American Depositary Shares.
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SECTION
1.15 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
1.16 Restricted
Securities.
The
term
“Restricted Securities” shall mean Preference Shares, or Receipts representing
Preference Shares, that are acquired directly or indirectly from the Company
or
any affiliate (as defined in Rule 144 under the Securities Act) of the Company
in a transaction or chain of transactions not involving any public offering,
or
that are held by an officer, director (or person performing similar functions)
or other affiliate of the Company, or that would require registration under
the
Securities Act in connection with the public offer and sale thereof in the
United States, or that are subject to other restrictions on sale or deposit
under the laws of the United States or the United Kingdom, or under a
shareholder agreement or the articles of incorporation of the
Company.
SECTION
1.17 Securities
Act.
The
term
“Securities Act ” shall mean the United States Securities Act of 1933, as
amended.
SECTION
1.18 Securities
Exchange Act.
The
term
“Securities Exchange Act” shall mean the United States Securities Exchange Act
of 1934, as amended.
ARTICLE
2. FORM
OF RECEIPTS, DEPOSIT OF PREFERENCE SHARES; EXECUTION AND DELIVERY, TRANSFER
AND
SURRENDER OF RECEIPTS
SECTION
2.01 Form
and Transferability of Receipts.
(a) 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 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
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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 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 (i) by the Depositary after
consultation with the Company; or (ii) to comply with any applicable law or
regulations or with the rules and regulations of any securities exchange upon
which the 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 particular Receipts are subject by reason of the date or manner of
issuance of the underlying Deposited Securities or otherwise.
The
Receipts shall bear a CUSIP number that is different from any CUSIP number
that
is or may be assigned to any other depositary receipt facility relating to
the
Preference Shares.
(b) 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
under
the laws of New York; provided, however, that the Depositary and
the Company, 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
2.02 Deposit
of Preference Shares.
Subject
to
the terms and conditions of this Deposit Agreement, Preference Shares or
evidence of rights to receive Preference Shares may be deposited by delivery
thereof to the 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 deposited Preference
Shares.
No
Preference Shares 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 that is then performing the function
of the regulation of currency exchange. If required by the Depositary,
Preference 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 an
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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 Preference Shares or to receive other property which
any person in whose name the Preference Shares are or have been recorded may
thereafter receive upon or in respect of such deposited Preference 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 Preference
Shares, and for the account of such person, the Depositary may receive
certificates for Preference Shares to be deposited, together with the other
instruments herein specified, for the purpose of forwarding such Preference
Share certificates to the Custodian for deposit hereunder.
Upon
each
delivery to a Custodian of a certificate or certificates for Preference 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 Preference 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.
SECTION
2.03 Execution
and Delivery of Receipts.
Upon
receipt by any Custodian of any deposit pursuant to Section 2.02 hereunder
(and
in addition, if the transfer books of the Company or the Foreign Registrar,
if
applicable, are open, the Depositary may in its sole reasonable 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 Preference Shares by the Depositary, the
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
execute and deliver 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 and expenses of the Depositary for the execution and delivery of such
Receipt or Receipts as provided in Section 5.09, and of all taxes and
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governmental
charges and fees and expenses payable in connection with such deposit and the
transfer of the Deposited Securities.
SECTION
2.04 Registration
of 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 by the laws of the State of New York and of the
United States of America. Thereupon the Depositary shall execute a
new Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto.
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 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 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. 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 and will be entitled to protection and indemnity to the same extent
as
the Depositary.
SECTION
2.05 Surrender
of Receipts and Withdrawal of Preference 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 5.09 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 memorandum and articles of association
of the Company and the terms of the Deposited Securities, 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) Preference Shares in the name
of such Owner or as ordered by him or 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
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such
Owner
or as ordered by him. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
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 office of such Custodian, subject
to Sections 2.06, 3.01 and 3.02 and to the other terms and conditions of this
Deposit Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, except that the Depositary may make delivery to
such
person or persons at the Corporate Trust Office of the Depositary of any
dividends or distributions with respect to the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, or of any proceeds
of sale of any dividends, distributions or rights, which may at the time be
held
by the Depositary.
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
2.06 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 Preference Shares or the presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such
tax
or charge and fee with respect to Preference 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, may require delivery of such certifications as the Company may
from time to time specify in writing to the Depositary to assure the Company
of
compliance with the Securities Act and the rules and regulations thereunder
and
may also require compliance with any regulations the
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Depositary
may establish consistent with the provisions of this Deposit Agreement,
including, without limitation, this Section 2.06.
The
delivery of Receipts against deposit of Preference Shares generally or against
deposit of particular Preference 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 any
provision governing the Deposited Securities, or for any other
reason. The Depositary shall as promptly as practicable notify the
Company of any suspension or refusal under the preceding sentence that is
outside the ordinary course of business.
Notwithstanding
anything to the contrary in this Deposit Agreement, 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 Preference 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.
The
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Preference Shares that would be required to be registered under the
provisions of the Securities Act for the public offer and sale thereof in the
United States, unless a registration statement is in effect as to such
Preference Shares for such offer and sale.
Without
limiting the foregoing, Preference Shares that the Depositary believes have
been
withdrawn from a restricted depositary receipt facility established or
maintained by a depositary bank (including any such other facility maintained
by
the Depositary) may be accepted for deposit hereunder only if those Shares
are
not “restricted securities” within the meaning of Rule 144(a)(3) under the
Securities Act, and the Depositary may, as a condition of accepting those
Preference Shares for deposit hereunder, require the person depositing those
Preference Shares to provide the Depositary with a certificate to the foregoing
effect.
SECTION
2.07 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,
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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
2.08 Cancellation
and Destruction of Surrendered Receipts.
All
Receipts surrendered to the Depositary shall be canceled by the
Depositary. The Depositary is authorized to destroy Receipts so
canceled.
SECTION
2.09 Issuance
in Series.
If
the
Company issues Preference Shares in more than one class or series or that
otherwise entitle their holders to rights that vary from the rights to which
other Preference Shares entitle their holders, the following provisions shall
apply, notwithstanding anything to the contrary in this Deposit
Agreement:
(a) The
word
“Series,” when used with respect to Preference Shares, shall mean all
outstanding Preference Shares that entitle their holders to identical rights
with respect to those Preference Shares, regardless of the title or any other
designation that may be assigned to Preference Shares.
(b) The
Depositary shall direct the Custodian to hold Preference Shares of a Series
deposited under this Deposit Agreement, and other Deposited Securities it
receives in respect of those Preference Shares in a segregated account different
from the account in which it holds Preference Shares of any other
Series.
(c) Preference
Shares of each Series that are deposited under this Deposit Agreement shall
be
represented by a “Series” of American Depositary Shares separate from the
American Depositary Shares representing Preference Shares of any other
Series. The Depositary shall assign a designation to each Series of
American Depositary Shares and shall reflect in its records the series to which
each American Depositary Share belongs. Each series of American
Depositary Shares shall be evidenced by a “Series” of Receipts separate from the
Receipts evidencing American Depositary Shares of any other
Series. Each Receipt shall be marked to indicate the designation of
the Series of the American Depositary Shares evidenced by that Receipt and
to
identify the Series of Preference Shares those American Depositary Shares
represent.
(d) If
the
rights to which deposited Preference Shares of a Series entitle their holders
are modified such that those rights become identical to the rights to which
deposited Preference Shares of another Series entitle their holders, the
Depositary shall cause the Custodian to combine the accounts in which the former
separate Series of
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Preference
Shares are held, the Series of American Depositary Shares representing those
Preference Shares will automatically be combined into one Series of American
Depositary Shares and the Depositary may take any action necessary or convenient
to effect that combination. At any time after that combination, the
Owners of Receipts affected by that combination will be entitled to surrender
their Receipts to the Depositary and receive Receipts reflecting the designation
of the American Depositary Shares owned by them as a result of that
combination.
(e)
Owners
and Beneficial Owners of American Depositary Shares of a Series shall be
entitled to rights under this Deposit Agreement only with respect to deposited
Preference Shares of the corresponding Series and other Deposited Securities
received in respect of deposited Preference Shares of that Series.
SECTION
2.10 Uncertificated
American Depositary Shares; Direct Registration System.
Notwithstanding
anything to the
contrary in this Deposit Agreement:
(a) American
Depositary Shares may be certificated securities evidenced by Receipts or
uncertificated securities. The form of Receipt annexed as Exhibit A
to this Deposit Agreement describes the terms and conditions of, and will be
the
prospectus required under the Securities Act for, both certificated and
uncertificated American Depositary Shares. Except for those
provisions of this Deposit Agreement that by their nature do not apply to
uncertificated American Depositary Shares, all the provisions of this Deposit
Agreement shall apply, mutatis mutandis, to uncertificated American
Depositary Shares as well as to certificated American Depositary Shares, and
to
Owners and holders of uncertificated American Depositary Shares as well as
to
Owners and holders of Receipts.
(b) (i) The
term “deliver”, or its noun form, when used with respect to Receipts, shall mean
(A) book-entry transfer of American Depositary Shares to an account at DTC
designated by the person entitled to such delivery, (B) registration
of American Depositary Shares not evidenced by a Receipt on the books of the
Depositary in the name requested by the person entitled to such delivery
and mailing to that person of a statement confirming that
registration or (C) if requested by the person entitled to such delivery,
delivery at the Corporate Trust Office of the Depositary to the person entitled
to such delivery of one or more Receipts evidencing American Depositary Shares
registered in the name requested by that person.
(ii) The
term “surrender”, when used with respect to Receipts, shall mean (A) one or more
book-entry transfers of American Depositary Shares to the DTC account of the
Depositary, (B) delivery to the Depositary at its Corporate Trust Office of
an
instruction to surrender American Depositary Shares not evidenced by a
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Receipt or
(C) surrender to the Depositary at its Corporate Trust Office of one or more
Receipts evidencing American Depositary Shares.
(c) American
Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of the State of New
York.
(d) The
Depositary shall have a duty to register a transfer in the case of
uncertificated American Depositary Shares, upon receipt from the Owner of a
proper instruction (including, for the avoidance of doubt, instructions through
DRS and Profile as defined and provided in subsection (f) below). The
Depositary, upon surrender of a Receipt for the purpose of exchanging for
uncertificated American Depositary Shares, shall cancel that Receipt and send
the Owner a statement confirming that the Owner is the owner of the same number
of uncertificated American Depositary Shares that the surrendered Receipt
evidenced. The Depositary, upon receipt of a proper instruction (including,
for
the avoidance of doubt, instructions through DRS and Profile as provided in
subsection (f) below) from the Owner of uncertificated American Depositary
Shares for the purpose of exchanging for certificated American Depositary
Shares, shall execute and deliver to the Owner a Receipt evidencing the same
number of certificated American Depositary Shares.
(e) Upon
satisfaction of the conditions for replacement of a Receipt that is mutilated,
lost, destroyed or stolen, the Depositary shall deliver to the Owner the
American Depositary Shares evidenced by that Receipt in uncertificated form
unless otherwise requested by the Owner.
(f) (i) The
parties acknowledge that the Direct Registration System (“DRS”) and Profile
Modification System (“Profile”) shall apply to uncertificated American
Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the
system administered by DTC pursuant to which the Depositary may register the
ownership of uncertificated American Depositary Shares, which ownership shall
be
evidenced by periodic statements issued by the Depositary to the Owners entitled
thereto. Profile is a required feature of DRS which allows a DTC
participant, claiming to act on behalf of an Owner of American Depositary
Shares, to direct the Depositary to register a transfer of those American
Depositary Shares to DTC or its nominee and to deliver those American Depositary
Shares to the DTC account of that DTC participant without receipt by the
Depositary of prior authorization from the Owner to register such
transfer.
(ii) In
connection with and
in accordance with the arrangements and procedures relating to DRS/Profile,
the
parties understand that the Depositary will not verify, determine or otherwise
ascertain that the DTC participant which is claiming to be acting on behalf
of
an Owner in requesting a registration of transfer and delivery as described
in
subsection (a) has the actual authority to act on behalf of the Owner
(notwithstanding any requirements under the Uniform Commercial
Code). For the avoidance of doubt, the provisions of Sections 5.03
and 5.08 shall apply to the matters
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arising
from the use of the DRS. The parties agree that the Depositary’s
reliance on and compliance with instructions received by the Depositary through
the DRS/Profile System and in accordance with this Deposit Agreement shall
not
constitute negligence or bad faith on the part of the Depositary.
ARTICLE
3. CERTAIN
OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS
SECTION
3.01 Filing
Proofs, Certificates and Other Information.
Any
person
presenting Preference 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
or as the Company may reasonably require by written request to the Depositary
or
the Custodian. 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. The Depositary shall provide to the Company, as promptly as
practicable, upon its written request, copies of any such proof of citizenship
or residence or other information referred to above so requested, to the extent
that disclosure is permitted under applicable law.
SECTION
3.02 Liability
of Owner or Beneficial Owner for Taxes.
If
any tax
or other governmental charge shall become payable by the Custodian or the
Depositary 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 and the Owner or Beneficial Owner of such Receipt
shall remain liable for any deficiency.
SECTION
3.03 Warranties
on Deposit of Preference Shares.
Every
person depositing Preference
Shares under this Deposit Agreement shall be deemed thereby to represent and
warrant that such Preference Shares and each certificate therefor, if
applicable, are validly issued, fully paid, nonassessable and were
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not
issued
in violation of any preemptive or similar rights of the holders of outstanding
Preference Shares and that the person making such deposit is duly authorized
to
do so. Such representations and warranties shall survive the deposit
of Preference Shares, delivery of Receipts, transfer of American Depositary
Shares and surrender of Receipts and withdrawal of Deposited
Securities.
SECTION
3.04 Disclosure
of Interests.
The
Company may from time to time request Owners to provide information as to the
capacity in which such Owners own or owned Receipts and regarding the identity
of any other persons then or previously having a beneficial interest in such
Receipts and the nature of such interest and various other
matters. Each Owner agrees to provide any information requested by
the Company or the Depositary pursuant to this Section 3.04. The
Depositary agrees to comply with reasonable written instructions received from
time to time from the Company requesting that the Depositary forward any such
requests to the Owners and to forward to the Company any such responses to
such
requests received by the Depositary.
ARTICLE
4. THE
DEPOSITED SECURITIES
SECTION
4.01 Cash
Distributions.
Whenever
the Depositary shall receive any cash dividend or other cash distribution on
any
Deposited Securities, the Depositary shall, as promptly as practicable, subject
to the provisions of Section 4.05, convert such dividend or distribution into
Dollars and shall distribute the amount thus received (net of the fees and
expenses of the Depositary as provided in Section 5.09) 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 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 (in the case of a fractional amount equal to half a cent such
fractional amount shall be rounded up) 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.
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SECTION
4.02 Distributions
Other Than Cash, Preference Shares or Rights.
Subject
to
the provisions of Sections 4.11 and 5.09, whenever the Depositary shall
receive any distribution other than a distribution described in
Section 4.01, 4.03 or 4.04, the Depositary shall, after consultation with
the Company to the extent practicable, as promptly as practicable, cause the
securities or property received by it to be distributed to the Owners entitled
thereto, after deduction or upon payment of any fees and expenses of the
Depositary or any taxes or other governmental charges, 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
in
order to be distributed to Owners or Beneficial Owners) the Depositary deems
such distribution not to be feasible, the Depositary may, after consultation
with the Company to the extent practicable, as promptly as practicable, adopt
such method as it may reasonably deem equitable and practicable for the purpose
of effecting such distribution, including, but not limited to, the public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale (net of the fees and expenses of the
Depositary as provided in Section 5.09) shall be distributed by the
Depositary to the Owners entitled thereto, all in the manner and subject to
the
conditions described in Section 4.01. The Depositary may withhold any
distribution of securities under this Section 4.02 if it has not received
satisfactory assurances from the Company that the distribution does not require
registration under the Securities Act. The Depositary may sell, by
public or private sale, an amount of securities or other property it would
otherwise distribute under this Section 4.02 that is sufficient to pay its
fees
and expenses in respect of that distribution. To the extent that such
securities or other property or the net proceeds thereof are not effectively
distributed to Owners or applied to fees or expenses of the Depositary as
provided in this Section 4.02, the same shall constitute Deposited Securities
and each American Depositary Share shall thereafter also represent its
proportionate interest in such securities, property or net
proceeds.
SECTION
4.03 Distributions
in Preference Shares.
If
any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Preference Shares, the Depositary may, and shall, if the
Company shall so request in writing, 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 Preference
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Shares
received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Preference
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 and the payment of the fees and expenses of the Depositary as
provided in Section 5.09 (and the Depositary may sell, by public or private
sale, an amount of the Preference Shares received that is sufficient to pay
its
fees and expenses in respect of that distribution). In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary shall use reasonable efforts to sell the amount of Preference
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.01. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Preference
Shares distributed upon the Deposited Securities represented
thereby.
SECTION
4.04 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 Preference 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 for any other reason, the Depositary may not either
make such rights available to any Owners or dispose of such rights and make
the
net proceeds available to such Owners, then the Depositary shall allow the
rights to lapse. If at the time of the offering of any rights the
Depositary reasonably determines, after consultation with the Company, that
it
is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom
it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems reasonably
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 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
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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 Preference Shares to be received
upon
the exercise of the rights, and upon payment of the fees and expenses of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Preference Shares, and the Company shall cause the Preference
Shares so purchased to be delivered to the Depositary on behalf of such
Owner. As agent for such Owner, the Depositary will cause the
Preference Shares so purchased to be deposited pursuant to Section 2.02 of
this Deposit Agreement, and shall, pursuant to Section 2.03 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 4.04, such
Receipts shall be legended in accordance with applicable U.S. law and shall
be
subject to the appropriate restrictions on sale, deposit, cancellation and
transfer under such laws.
If
the
Depositary reasonably determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it shall use
its reasonable efforts to sell the rights, warrants or other instruments in
proportion to the number of American Depositary Shares held by the Owners to
whom it has determined it may not lawfully or feasibly make such rights
available, and allocate the net proceeds of such sales (net of the fees and
expenses of the Depositary as provided in Section 5.09 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 and distribute such net proceeds to the Owners entitled to them
as
in the case of a distribution of cash.
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 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided, that nothing
in this Deposit Agreement shall create any obligation on the part of the Company
to file a registration statement with respect to such rights or underlying
securities or to endeavor to have such a registration statement declared
effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under the Securities 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 such rights available to Owners in general or any
Owner in particular.
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SECTION
4.05 Conversion
of Foreign Currency.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, 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 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 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 5.09.
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary shall file such application
for
approval or license, if any, as it may deem desirable.
If
at any
time the Depositary or the Custodian shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if
any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period
as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for
the
respective accounts of, the Owners entitled to receive the same.
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some of the Owners entitled thereto, the Depositary may in
its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance of
the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of,
the
Owners entitled thereto.
SECTION
4.06 Fixing
of Record Date.
Whenever
any cash dividend or other cash distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be issued
with respect to the Deposited Securities, or whenever the Depositary shall
receive
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notice
of
any meeting of holders of Preference Shares or other Deposited Securities,
or
whenever for any reason the Depositary causes a change in the number of
Preference Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (which shall be as near as practicable to any
corresponding record date set by the Company) (a) for the determination of
the Owners who shall be (i) entitled to receive such dividend, distribution
or rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting or (iii)
who
shall be responsible for any fee or charges assessed by the Depositary pursuant
to this Deposit Agreement, or (b) on or after which each American
Depositary Share will represent the changed number of Preference
Shares. Subject to the provisions of Sections 4.01 through 4.05
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, to give
voting instructions or to act in respect of any other such matter.
SECTION
4.07 Voting
of Deposited Securities.
Upon
receipt from the Company of notice of any meeting or solicitation of proxies
or
consents of holders of Preference Shares or other Deposited Securities, the
Depositary shall, if requested in writing by the Company, as soon as practicable
thereafter, mail to the Owners a notice, the form of which notice shall be
in
the sole discretion of the Depositary, 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 Scottish law and of the articles of association and any similar
document of the Company, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the amount of Preference Shares or other
Deposited Securities represented by their respective American Depositary Shares
and (c) a statement as to the manner in which such instructions may be
given. Upon the written request 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 Preference 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, including
an express indication that, if the Depositary does not receive instructions,
it
may deem instructions to have been given under the last sentence of this
paragraph to give a discretionary proxy to a person designated by the
Company. Upon the written request of an Owner of a Receipt on that
record date, received on or before the date established by the Depositary for
the purpose, the Depositary shall endeavor, in so far as practicable, to vote
or
cause to be voted the amount of Preference Shares or other Deposited Securities
represented by the American Depositary Shares evidenced by that Receipt in
accordance with the
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instructions
set forth in that request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to such Preference Shares or other
Deposited Securities other than in accordance with instructions received from
Owners or deemed received under the following sentence. If (i) the
Company made a request to the Depositary as contemplated by the first sentence
of this Section 4.07 and complied with the following paragraph of this Section
4.07 and (ii) no instructions are received by the Depositary from an
Owner with respect to an amount of Deposited Securities represented by the
American Depositary Shares evidenced by that Owner’s Receipts on or before the
date established by the Depositary for that purpose, the Depositary shall deem
that Owner to have instructed the Depositary to give, and the Depositary shall
give, a discretionary proxy to a person designated by the Company with respect
to that amount of Deposited Securities, except that such instruction shall
not
be deemed to have been given and the Depositary shall not give a discretionary
proxy with respect to any matter as to which the Company informs the Depositary
(and the Company agrees to provide that information as promptly as practicable
in writing, if applicable) that (x) the Company does not wish to receive a
discretionary proxy, (y) substantial opposition exists or (z) the matter
materially and adversely affects the rights of holders of Preference
Shares.
In
order
to give Owners a reasonable opportunity to instruct the Depositary as to the
exercise of voting rights relating to Deposited Securities, if the Company
requests the Depositary to act under the first sentence of this Section 4.07,
the Company shall give the Depositary notice of any such meeting or solicitation
not less than 30 days prior to the meeting date or date for giving such proxies
or consents.
SECTION
4.08 Changes
Affecting Deposited Securities.
In
circumstances where the provisions of Section 4.03 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,
in addition to the existing Deposited Securities, the right to receive the
new
Deposited Securities so received in exchange or conversion, unless additional
Receipts are delivered pursuant to the following sentence. In any
such case the Depositary may execute and deliver additional Receipts as in
the
case of a dividend in Preference Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
SECTION
4.09 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 as
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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 when furnished by the Company
pursuant to Section 5.06. Any such reports and communications,
including any such proxy soliciting material, furnished to the Depositary by
the
Company shall be furnished in English, to the extent such materials are required
to be translated into English pursuant to any regulations of the
Commission.
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 Preference 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 Preference
Shares and rights to subscribe therefor) in such amounts and in such manner
as
the Depositary reasonably deems necessary and practicable to pay such taxes
or
charges and the Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to the Owners entitled thereto in
proportion to the number of American Depositary Shares held by them
respectively.
SECTION
4.12 Redemption
of Deposited Securities.
If
the
Depositary receives a notice that Deposited Securities are to be redeemed,
the
Depositary shall (i) call for surrender a corresponding number of American
Depositary Shares, (ii) notify the Owners of those American Depositary Shares
that the Deposited Securities underlying their American Depositary Shares will
be surrendered for redemption and (iii) surrender Deposited Securities that
have
been redeemed to the issuer of those securities or its agent on the redemption
date. Owners of American Depositary Shares affected by the redemption
may surrender the Receipts evidencing those American Depositary Shares and
receive delivery of money or other property the Depositary receives upon
redemption of Deposited Securities as provided in Section 2.05.
If
the
Depositary receives notice that less than all the Deposited Securities are
to be
redeemed, the Depositary shall determine in its discretion which American
Depositary Shares to call for surrender in connection with that
redemption. If the Depositary calls for surrender less than all
the American Depositary Shares evidenced by a Receipt in connection with a
redemption of Deposited Securities, the Depositary shall, upon surrender of
that
Receipt, deliver to the Owner a Receipt evidencing the amount of
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American
Depositary Shares evidenced by the surrendered Receipt that were not called
for
surrender.
ARTICLE
5. THE
DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION
5.01 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, at its Corporate Trust Office, for the registration
of Receipts and transfers of Receipts which at all reasonable times shall be
open for inspection by the Owners, provided that such inspection shall not
be
for the purpose of communicating with Owners in the interest of a business
or
object other than the business of the Company or a matter related to 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 and shall close them upon the reasonable written request of the
Company. The Depositary shall notify the Company of any closure under
the preceding sentence that is outside the ordinary course of
business.
SECTION
5.02 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 or Beneficial Owner
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 articles of association or any similar document of the Company, or by
reason of any provision of any securities issued or distributed by the Company,
or any offering or distribution thereof, or by reason of any act of God or
war
or terrorism or other circumstances beyond its control, the Depositary or the
Company shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of this Deposit Agreement or Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Company
or
any of their respective directors, employees, agents or affiliates incur any
liability to any Owner or Beneficial Owner of any Receipt (i) by reason of
any
nonperformance 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, (ii) by reason of any
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exercise
of, or failure to exercise, any discretion provided for in this Deposit
Agreement, (iii) for the inability of any Owner or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Owners or Beneficial Owners or (iv) for any
special, consequential or punitive damages for any breach of the terms of this
Deposit Agreement. Where, by the terms of a distribution pursuant to
Section 4.01, 4.02, or 4.03, or an offering or distribution pursuant to
Section 4.04, 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
5.03 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 or Beneficial Owners, 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 or Beneficial Owner (including, without
limitation, liability with respect to the validity or worth of the Deposited
Securities), except that it agrees to perform its obligations specifically
set
forth in this Deposit Agreement without negligence or bad faith.
Neither
the Depositary nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts on behalf of any Owner,
Beneficial Owner or other person, 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 Preference Shares for deposit, any Owner or any other
person believed by it in good faith to be competent to give such advice or
information. Each of the Company and the Depositary may rely and
shall be protected in relying upon any written notice, request, direction or
other document believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties.
The
Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the
removal or
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23
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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.
No
disclaimer of liability under the Securities Act is intended by any provision
of
this Deposit Agreement.
SECTION
5.04 Resignation
and Removal of the Depositary.
The
Depositary may at any time resign as Depositary 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 60 days’ prior written
notice of such removal, to become effective upon the later of (i) the 60th
day
after delivery of the notice to the Depositary or (ii) 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 Depositary without the execution or filing of
any
document or any further act.
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SECTION
5.05 The
Custodian.
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. The 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 would be no Custodian acting under this Deposit Agreement,
the
Depositary shall, as promptly as practicable after receiving such notice,
appoint a substitute custodian, 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 a substitute
or additional custodian or custodians, each of which shall thereafter be a
Custodian 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. Each 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. The
Depositary shall notify the Company as promptly as practicable of any change
in
Custodian.
Upon
the
appointment of any successor depositary hereunder, the 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 that Custodian all such
instruments as may be proper to give to that Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION
5.06 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 Preference 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 English but otherwise in the form given or to
be
given to holders of Preference Shares or other Deposited
Securities.
The
Company will arrange for the translation into English, if not already in
English, to the extent required pursuant to any regulations of the Commission,
and 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 Preference Shares. If
requested in writing by the Company, the Depositary will arrange for the
mailing, at the Company’s expense, 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
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25
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requested
by the Depositary from time to time, in order for the Depositary to effect
such
mailings.
The
Company will deliver to the Depositary and the Custodian a copy (in English
or
with an English translation) of all provisions of or governing the Preference
Shares and any other Deposited Securities. Promptly upon any change
in such provisions, the Company shall deliver promptly 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 on the copy of
such provisions as so delivered for all purposes of this Deposit
Agreement.
SECTION
5.07 Distribution
of Additional Preference Shares, Rights, etc.
If
the
Company or any affiliate of the Company determines to make any issuance or
distribution of (1) additional Preference Shares, (2) rights to
subscribe for Preference Shares, (3) securities convertible into Preference
Shares, or (4) rights to subscribe for such securities (each a
“Distribution”), the Company shall notify the Depositary in writing in English
as promptly as practicable and in any event before the Distribution starts
and,
if requested in writing by the Depositary, the Company shall promptly furnish
to
the Depositary a written opinion from U.S. counsel for the Company that is
reasonably satisfactory to the Depositary, stating whether or not the
Distribution requires, or, if made in the United States, would require,
registration under the Securities Act. If, in the opinion of that
counsel, the Distribution requires, or, if made in the United States, would
require, registration under the Securities Act, that counsel shall furnish
to
the Depositary a written opinion as to whether or not there is a registration
statement under the Securities Act in effect that will cover that
Distribution. The Company shall be under no obligation to file a
registration statement with respect to any Distribution.
SECTION
5.08 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) that may arise out of or in connection with (a) any offer or sale
of
American Depositary Shares or Deposited Securities in the United States or
(b)
acts performed or omitted pursuant to 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 which may arise
out of acts performed or omitted by the Depositary or its Custodian or
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26
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their
respective directors, employees, agents and affiliates due to their negligence
or bad faith.
SECTION
5.09 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
Preference Shares or by any party surrendering Receipts or to whom Receipts
are
issued (including, without limitation, issuance pursuant to a stock dividend
or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03) or by Owners, as applicable: (1) taxes and
other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Preference Shares
generally on the share register of the Company or Foreign Registrar and
applicable to transfers of Preference 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
expenses as are incurred by the Depositary in the conversion of foreign currency
pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.03, 4.03 or 4.04 and the surrender of
Receipts pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or less
per American Depositary Share (or portion thereof) for any cash distribution
made pursuant to this Deposit Agreement, including, but not limited to Sections
4.01 through 4.04, (7) a fee for the distribution of securities pursuant to
Section 4.02, 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 7 treating all such securities as if they were
Preference Shares) but which securities are instead distributed by the
Depositary to Owners, (8) a fee of $.02 or less per American Depositary Share
(or portion thereof) for depositary services, which will accrue on the last
day
of each calendar year and will be payable as provided in clause 9 below and
(9)
any other charges payable by the Depositary, any of the Depositary’s agents,
including the Custodian, or the agents of the Depositary’s agents in connection
with the servicing of Preference Shares or other Deposited Securities (which
charge shall be assessed against Owners as of the date or dates set by the
Depositary in accordance with Section 4.06 and shall be collected at the sole
discretion of the Depositary by billing such Owners for such charge or by
deducting such charge from one or more cash dividends or other cash
distributions).
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The
Depositary 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
reasonably requests that such papers be retained for a longer
period.
SECTION
5.11 Exclusivity.
The
Company agrees not to appoint any other depositary for issuance of American
or
global depositary receipts so long as The Bank of New York is acting as
Depositary hereunder.
ARTICLE
6. AMENDMENT
AND TERMINATION
SECTION
6.01 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
without the consent of Owners or Beneficial Owners in any respect which they
may
deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other 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 30 days after notice of such amendment shall
have been given to the Owners of outstanding Receipts. Every Owner
and Beneficial Owner, at the time any amendment so becomes effective, shall
be
deemed, by continuing to hold such Receipt or any interest therein, 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.
SECTION
6.02 Termination.
The
Depositary shall, at any time at the direction of the Company, terminate this
Deposit Agreement by mailing notice of termination to the Owners of all Receipts
then outstanding at least 30 days prior to the date fixed in such notice for
such termination. The Depositary may likewise terminate this Deposit
Agreement by mailing notice of termination to the Company and the Owners of
all
Receipts then outstanding if at least 60 days have passed since the
Depositary delivered to the Company a written
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notice
of
its election to resign and a successor depositary has not been appointed and
accepted its appointment as provided in Section 5.04. 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 2.05, 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 and other
property 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 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 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 5.08 and
5.09.
ARTICLE
7. MISCELLANEOUS
SECTION
7.01 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 during business hours.
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SECTION
7.02 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
7.03 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
7.04 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 or any interest therein.
SECTION
7.05 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 the Company at Lloyds TSB Group
plc, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Attention: Company Secretary, Facsimile: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇,
or any other place to which the Company may have transferred its principal
office with notice to the Depositary.
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, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: American Depositary Receipt Administration, Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇ or any other place to which the Depositary may have transferred
its Corporate Trust Office with notice to the Company.
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 effective at the time when a duly addressed letter containing
the
same (or a confirmation thereof in the case of a cable, telex or facsimile
transmission) is
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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
7.06 Submission
to Jurisdiction; Appointment of Agent for Service of Process.
The
Company hereby (i) irrevocably designates and appoints ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Chief US Counsel, Lloyds TSB Bank plc, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as the Company’s authorized agent upon which process may be
served in any suit or proceeding arising out of or relating to the Preference
Shares or Deposited Securities, the American Depositary Shares, the Receipts
or
this Deposit Agreement, (ii) consents and submits to the jurisdiction of any
state or federal court in the State of New York in which any such suit or
proceeding may be instituted, and (iii) agrees that service of process upon
said
authorized agent shall be deemed in every respect effective service of process
upon the Company in any such suit or proceeding. The Company agrees
to deliver, upon the execution and delivery of this Deposit Agreement, a written
acceptance by such agent of its appointment as such agent. The
Company further agrees to take any and all action, including the filing of
any
and all such documents and instruments, as may be necessary to continue such
designation and appointment in full force and effect for so long as any American
Depositary Shares or Receipts remain outstanding or this Agreement remains
in
force. In the event the Company fails to continue such designation
and appointment in full force and effect, the Company hereby waives personal
service of process upon it and consents that any such service of process may
be
made by certified or registered mail, return receipt requested, directed to
the
Company at its address last specified for notices hereunder, and service so
made
shall be deemed completed ten (10) days after the same shall have been so
mailed.
SECTION
7.07 WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS DEPOSIT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
DEPOSIT AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
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SECTION
7.08 Governing
Law.
This
Deposit Agreement and the Receipts shall be interpreted in accordance with,
and
all rights hereunder and thereunder and provisions hereof and thereof shall
be
governed by, the laws of the State of New York.
SECTION
7.09 Waiver
of Immunities.
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any respect thereof, from
setoff or counterclaim, from the jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid
of
execution or judgment, or from execution of judgment, or other legal process
or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be commenced, with
respect to its obligations, liabilities or any other matter under or arising
out
of or in connection with the Preference Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Deposit Agreement, the Company,
to the fullest extent permitted by law, hereby irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to
such
relief and enforcement.
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IN
WITNESS
WHEREOF, LLOYDS TSB GROUP plc and THE BANK OF NEW YORK have duly executed
this Deposit Agreement as of the day and year first set forth above and all
Owners and Beneficial Owners shall become parties hereto upon acceptance by
them
of American Depositary Shares issued in accordance with the terms hereof or
any
interest therein.
By: ___________________________
Name:
_____________________
Title:
______________________
THE
BANK
OF NEW YORK,
as
Depositary
By:
___________________________
Name:
_____________________
Title:
______________________
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EXHIBIT
A
No.
_________________________________
AMERICAN DEPOSITARY SHARES
AMERICAN DEPOSITARY SHARES
(Each
American Depositary Share represents one (1) deposited Preference
Share)
SOLELY
FOR
PURPOSES OF TRADING AND SETTLEMENT, THE AMERICAN DEPOSITARY SHARES MAY BE DEEMED
TO HAVE A PRINCIPAL AMOUNT OF $1,000 PER AMERICAN DEPOSITARY SHARE.
THE
BANK OF NEW YORK
AMERICAN
DEPOSITARY RECEIPT
FOR
U.S. DOLLAR PREFERENCE SHARES NOMINAL VALUE $0.25 PER PREFERENCE SHARE[, SERIES
__]
OF
(A
PUBLIC LIMITED COMPANY INCORPORATED UNDER THE LAWS OF
SCOTLAND)
The
Bank
of New York, as depositary (herein called the Depositary), hereby certifies
that___________ ____________________________________________, or registered
assigns IS THE OWNER OF _____________________________
AMERICAN
DEPOSITARY SHARES[, SERIES __]
representing
deposited U.S. Dollar Preference Shares[,Series __] (herein called “Preference
Shares”), of Lloyds TSB Group plc, a public limited company incorporated under
the laws of Scotland (herein called the “Company”). At the date
hereof, each American Depositary Share represents one (1) Preference Share
deposited or subject to deposit under the Deposit Agreement (as such term is
hereinafter defined) at the principal 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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇,
and its principal executive office is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇.▇.
▇▇▇▇▇.
THE
DEPOSITARY’S CORPORATE TRUST OFFICE ADDRESS IS
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
A-2
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 _________, 2007, as the same may be amended from time
to
time in accordance with its terms (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 or any
interest therein 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 Preference Shares deposited thereunder
and
any and all other securities, property and cash from time to time received
in
respect of such Preference Shares and held thereunder (such Preference 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 defined in the Deposit Agreement and not
defined herein shall have the meanings set forth in the Deposit
Agreement.
2. SURRENDER
OF RECEIPTS AND WITHDRAWAL OF PREFERENCE 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 memorandum and
articles of association of the Company and the terms of the Deposited
Securities, 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) Preference Shares in the name
of
the Owner hereof or as ordered by him or 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 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 Preference
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.
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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 depositor of the Preference 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 with respect to
Preference 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, may
require delivery of such certifications as the Company may from time to time
specify in writing to the Depositary to assure the Company of compliance with
the Securities Act and the rules and regulations thereunder and may also require
compliance with any regulations the Depositary may establish consistent with
the
provisions of the Deposit Agreement or this Receipt, including, without
limitation, this Article 3.
The
delivery of Receipts against deposit of Preference Shares generally or against
deposit of particular Preference 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 any provision governing the Deposited Securities or for any other
reason.
Notwithstanding
anything to the contrary in the Deposit Agreement, 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 Preference 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.
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The
Depositary shall not knowingly accept for deposit under the Deposit Agreement
any Preference Shares that would be required to be registered under the
provisions of the Securities Act for the public offer and sale thereof in the
United States, unless a registration statement is in effect as to such
Preference Shares for such offer and sale.
Without
limiting the foregoing, Preference Shares that the Depositary believes have
been
withdrawn from a restricted depositary receipt facility established or
maintained by a depositary bank (including any such other facility maintained
by
the Depositary) may be accepted for deposit under the Deposit Agreement only
if
those Preference Shares are not “restricted securities” within the meaning of
Rule 144(a)(3) under the Securities Act, and the Depositary may, as a condition
of accepting those Preference Shares for deposit, require the person depositing
those Preference Shares to provide the Depositary with a certificate to the
foregoing effect.
4. 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 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
ON DEPOSIT OF PREFERENCE SHARES.
Every
person depositing Preference Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Preference Shares and each
certificate therefor, if applicable, are validly issued, fully paid,
nonassessable and were not issued in violation of any preemptive or similar
rights of the holders of outstanding Preference Shares and that the person
making such deposit is duly authorized to do so. All representations
and warranties required by Section 3.03 of the Deposit Agreement shall survive
the deposit of Preference Shares, delivery of Receipts, transfer of American
Depositary Shares and surrender of Receipts and withdrawal of Deposited
Securities.
6. FILING
PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any
person
presenting Preference 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
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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 or as the Company may reasonably require by written request to the
Depositary or the Custodian. 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 that is then performing
the function of the regulation of currency exchange.
7. 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
Preference Shares or by any party surrendering Receipts or to whom Receipts
are
issued (including, without limitation, issuance pursuant to a stock dividend
or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 of the Deposit Agreement), or by Owners, as applicable:
(1) taxes and other governmental charges, (2) such registration fees
as may from time to time be in effect for the registration of transfers of
Preference Shares generally on the share register of the Company or Foreign
Registrar and applicable to transfers of Preference Shares to the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals under the terms of the Deposit Agreement, (3) such
cable, telex and facsimile transmission expenses as are expressly provided
in
the Deposit Agreement, (4) such expenses as are incurred by the Depositary
in the conversion of foreign currency pursuant to Section 4.05 of the
Deposit Agreement, (5) a fee of $5.00 or less per 100 American Depositary
Shares (or portion thereof) for the execution and delivery of Receipts pursuant
to Section 2.03, 4.03 or 4.04 of the Deposit Agreement and the surrender of
Receipts pursuant to Section 2.05 or 6.02 of the Deposit Agreement, (6) a
fee of $.02 or less per American Depositary Share (or portion thereof) for
any
cash distribution made pursuant to Sections 4.01 through 4.04 of the Deposit
Agreement, (7) a fee for the distribution of securities pursuant to
Section 4.02 of the Deposit Agreement, such fee being in an amount equal to
the fee for the execution and delivery of American Depositary Shares referred
to
above which would have been charged as a result of the deposit of such
A-6
securities
(for purposes of this clause 7 treating all such securities as if they were
Preference Shares), but which securities are instead distributed by the
Depositary to Owners, (8) a fee of $.02 or less per American Depositary Share
(or portion thereof) for depositary services, which will accrue on the last
day
of each calendar year and will be payable as provided in clause 9 below and
(9)
any other charges payable by the Depositary, any of the Depositary’s agents,
including the Custodian, or the agents of the Depositary’s agents in connection
with the servicing of Preference Shares or other Deposited Securities (which
charge shall be assessed against Owners as of the date or dates set by the
Depositary in accordance with Section 4.06 of the Deposit Agreement and shall
be
collected at the sole discretion of the Depositary by billing such Owners for
such charge or by deducting such charge from one or more cash dividends or
other
cash distributions).
The
Depositary may own and deal in any class of securities of the Company and its
affiliates and in Receipts.
8. 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 under the laws of New York; provided,
however, that the Depositary and the Company, 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.
9. 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 signature of a duly
authorized officer of the Registrar.
10. AVAILABLE
INFORMATION; 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
Commission. Such reports will be available for inspection and copying
by Owners and Beneficial Owners at the public reference facilities maintained
by
the Commission located at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇.
A-7
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 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. Any such reports and communications, including any such
proxy soliciting material, furnished to the Depositary by the Company shall
be
furnished in English to the extent such materials are required to be translated
into English pursuant to any regulations of the Commission.
The
Depositary will keep books, at its Corporate Trust Office, for the registration
of Receipts and transfers of Receipts which at all reasonable times shall be
open for inspection by the Owners 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.
11. 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, as promptly as practicable,
convert such dividend or distribution into dollars and will distribute the
amount thus received (net of the fees and expenses of the Depositary as provided
in Section 5.09 of the Deposit Agreement) 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 Sections 4.11 and 5.09 of the Deposit Agreement, whenever
the Depositary receives any distribution other than a distribution described
in
Section 4.01, 4.03 or 4.04 of the Deposit Agreement, the Depositary will,
after consultation with the Company to the extent practicable, as promptly
as
practicable, cause the securities or property received by it to be distributed
to the Owners 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 may, after consultation with the Company
A-8
to
the
extent practicable, as promptly as practicable, adopt such method as it may
deem
equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities
or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees and expenses of the Depositary as provided in
Section 5.09 of the Deposit Agreement) will be distributed by the
Depositary to the Owners of Receipts entitled thereto all in the manner and
subject to the conditions described in Section 4.01 of the Deposit
Agreement. The Depositary may withhold any distribution of Securities
under Section 4.02 of the Deposit Agreement if it has not received satisfactory
assurances from the Company that the distribution does not require registration
under the Securities Act. The Depositary may sell, by public or private sale,
an
amount of securities or other property it would otherwise distribute under
Section 4.02 of the Deposit Agreement that is sufficient to pay its fees and
expenses in respect of that distribution. To the extent that such
securities or property or the net proceeds thereof are not effectively
distributed to Owners or applied to fees or expenses of the Depositary as
provided in Section 4.02 of the Deposit Agreement, the same shall constitute
Deposited Securities and each American Depositary Share shall thereafter also
represent its proportionate interest in such securities, property or net
proceeds.
If
any
distribution consists of a dividend in, or free distribution of, Preference
Shares, the Depositary may, and shall, if the Company shall so request in
writing, distribute to the Owners of outstanding Receipts entitled thereto,
additional Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Preference Shares received as such dividend or free
distribution subject to the terms and conditions of the Deposit Agreement with
respect to the deposit of Preference Shares and the issuance of American
Depositary Shares evidenced by Receipts, including the withholding of any tax
or
other governmental charge as provided in Section 4.11 of the Deposit Agreement
and the payment of the fees and expenses of the Depositary as provided in
Section 5.09 of the Deposit Agreement (and the Depositary may sell, by
public or private sale, an amount of the Preference Shares received that is
sufficient to pay its fees and expenses in respect of that
distribution). In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary will use its reasonable
efforts to sell the amount of Preference Shares represented by the aggregate
of
such fractions and distribute the net proceeds, all in the manner and subject
to
the conditions described in Section 4.01 of the Deposit Agreement. If
additional Receipts are not so distributed, each American Depositary Share
shall
thenceforth also represent the additional Preference Shares distributed upon
the
Deposited Securities represented thereby.
In
the
event that the Depositary determines that any distribution in property
(including Preference 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 Preference Shares and rights to subscribe therefor) in
such
amounts and in such manner as the Depositary reasonably deems necessary and
practicable to pay any
A-9
such
taxes
or charges, and the Depositary shall distribute the net proceeds of any such
sale after deduction of such taxes or charges to the Owners of Receipts entitled
thereto.
12. 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 Preference 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 for any other reason, the Depositary may not either
make such rights available to any Owners or dispose of such rights and make
the
net proceeds available to such Owners, then the Depositary shall allow the
rights to lapse. If at the time of the offering of any rights the
Depositary reasonably determines, after consultation with the Company, that
it
is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom
it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems reasonably
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 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 Preference Shares to
be
received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Preference Shares, and the Company shall cause
the
Preference Shares so purchased to be delivered to the Depositary on behalf
of
such Owner. As agent for such Owner, the Depositary will cause the
Preference Shares so purchased to be deposited pursuant to Section 2.02 of
the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit
Agreement, execute and deliver Receipts to such Owner. In the case of
a distribution pursuant to the second paragraph of Section 4.04 of the Deposit
Agreement, such Receipts shall be
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legended
in accordance with applicable U.S. law and shall be subject to the appropriate
restrictions on sale, deposit, cancellation and transfer under such
laws.
If
the
Depositary determines reasonably in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it shall use
its reasonable efforts to sell the rights, warrants or other instruments in
proportion to the number of American Depositary Shares held by the Owners to
whom it has determined it may not lawfully or feasibly make such rights
available, and allocate the net proceeds of such sales (net of the fees and
expenses of the Depositary as provided in Section 5.09 of the Deposit
Agreement and all taxes and governmental charges payable in connection with
such
rights and subject to the terms and conditions of the Deposit Agreement) for
the
account of such Owners otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Owners because of exchange restrictions or the date
of
delivery of any Receipt or otherwise and distribute such net proceeds to the
Owners entitled to them as in the case of a distribution of cash.
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 with respect to a distribution to all Owners or are
registered under the provisions of such Act; provided, that nothing in
the Deposit Agreement shall create any obligation on the part of the Company
to
file a registration statement with respect to such rights or underlying
securities or to endeavor to have such a registration statement declared
effective. If an Owner of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under the Securities 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 such rights available to Owners in general or any
Owner in particular.
13. CONVERSION
OF FOREIGN CURRENCY.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, 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 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
A-11
warrants
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 5.09 of the Deposit Agreement.
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary shall file such application
for
approval or license, if any, as it may deem desirable.
If
at any
time the Depositary or the Custodian shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if
any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period
as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for
the
respective accounts of, the Owners entitled to receive the same.
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some of the Owners entitled thereto, the Depositary may in
its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance of
the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of,
the
Owners entitled thereto.
14. 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 the Depositary shall
receive notice of any meeting of holders of Preference Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Preference Shares that are represented by each American Depositary
Share, or whenever the Depositary shall find it necessary or convenient, the
Depositary shall fix a record date (which shall be as near as practicable to
any
corresponding record date set by the Company) (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) responsible for any fees or charges assessed by the
Depositary pursuant to the Deposit Agreement, or (b) on or after which each
American Depositary Share will
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represent
the changed number of Preference Shares, subject to the provisions of the
Deposit Agreement.
15. VOTING
OF DEPOSITED SECURITIES.
Upon
receipt from the Company of notice of any meeting or solicitation of proxies
or
consents of holders of Preference Shares or other Deposited
Securities, the Depositary shall, if requested in writing
by the Company, as soon as practicable thereafter, mail to the Owners a notice,
the form of which notice shall be in the sole discretion of the Depositary,
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 Scottish law and of the
articles of association and any similar document of the Company, to instruct
the
Depositary as to the exercise of the voting rights, if any, pertaining to the
amount of Preference Shares or other Deposited Securities represented by their
respective American Depositary Shares and (c) a statement as to the manner
in
which such instructions may be given. Upon the written request 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
insofar as practicable to vote or cause to be voted the amount of Preference
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, including an express indication that, if the
Depositary does not receive instructions, it may deem instructions to have
been
given under the last sentence of this paragraph to give a discretionary proxy
to
a person designated by the Company. Upon the written request of an
Owner of a Receipt on that record date, received on or before the date
established by the Depositary for the purpose, the Depositary shall endeavor,
in
so far as practicable, to vote or cause to be voted the amount of Preference
Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by that Receipt in accordance with the instructions set forth
in that request. The Depositary shall not vote or attempt to exercise
the right to vote that attaches to Deposited Securities other than in accordance
with instructions received from Owners or deemed received under the following
sentence. If (i) the Company made a request to the Depositary as
contemplated by the first sentence of Section 4.07 of the Deposit Agreement
and
complied with the last paragraph of that Section 4.07 and (ii) no
instructions are received by the Depositary from an Owner with respect to an
amount of Deposited Securities represented by the American Depositary Shares
evidenced by that Owner’s Receipts on or before the date established by the
Depositary for that purpose, the Depositary shall deem that Owner to have
instructed the Depositary to give, and the Depositary shall give, a
discretionary proxy to a person designated by the Company with respect to that
amount of Deposited Securities, except that such instruction shall not be deemed
to have been given and the Depositary shall not give a discretionary proxy
with
respect to any matter as to which the Company informs the Depositary (and the
Company agrees to provide that information as promptly as practicable in
writing, if applicable) that (x) the Company does not wish to receive a
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discretionary
proxy, (y) substantial opposition exists or (z) the matter materially and
adversely affects the rights of holders of Preference Shares.
In
order
to give Owners a reasonable opportunity to instruct the Depositary as to the
exercise of voting rights relating to Deposited Securities, if the Company
requests the Depositary to act under the first sentence of Section 4.07 of
the
Deposit Agreement, the Company shall give the Depositary notice of the meeting
or solicitation not less than 30 days prior to the meeting date or date for
giving proxies or consents.
16. CHANGES
AFFECTING DEPOSITED SECURITIES.
In
circumstances where the provisions of Section 4.03 of the Deposit Agreement
do not apply, upon any change in nominal value, change in par value, split-up,
consolidation, or any other reclassification of Deposited Securities, or upon
any recapitalization, reorganization, merger or consolidation, or sale of assets
affecting the Company or to which it is a party, any securities which shall
be
received by the Depositary or a Custodian in exchange for or in conversion
of or
in respect of Deposited Securities shall be treated as new Deposited Securities
under the Deposit Agreement, and American Depositary Shares shall thenceforth
represent, in addition to the existing Deposited Securities, the right to
receive the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may execute and deliver
additional Receipts as in the case of a dividend in Preference Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
17. LIABILITY
OF THE COMPANY AND DEPOSITARY.
Neither
the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or Beneficial Owner
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 other governmental or regulatory
authority, or by reason of any provision, present or future, of the articles
of
association or any similar document of the Company, or by reason of any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the
Company shall be prevented, delayed or forbidden from or be subject to any
civil
or criminal penalty on account of doing or performing any act or thing which
by
the terms of the Deposit Agreement or Deposited Securities it is provided shall
be done or performed; nor shall the Depositary or the Company or any of their
respective directors, employees, agents or affiliates incur any liability to
any
Owner or Beneficial Owner of a Receipt (i) by reason of any nonperformance
or
delay, caused as aforesaid, in the performance of any act or thing which by
the
terms of the Deposit Agreement it is provided shall or may be done or performed,
(ii) by reason of any exercise of, or failure
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to
exercise, any discretion provided for in the Deposit Agreement, (iii) for the
inability of any Owner or Beneficial Owner to benefit from any distribution,
offering, right or other benefit which is made available to holders of Deposited
Securities but is not, under the terms of the Deposit Agreement, made available
to Owners or Beneficial Owners or (iv) for any special, consequential or
punitive damages for any breach of the terms of the Deposit
Agreement. Where, by the terms of a distribution pursuant to
Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of the Deposit Agreement, 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 or Beneficial Owners of Receipts, except that they
agree to perform their obligations specifically set forth in the Deposit
Agreement without negligence or bad faith. 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
on behalf of any Owner, Beneficial Owner or other person, 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 Preference Shares for
deposit, any Owner or Beneficial Owner of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or
information. Each of the Company and the Depositary may relay and
shall be protected in relying upon any written notice, request, direction or
other document believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties. 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. 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. No disclaimer of liability under the Securities
Act is intended by any provision of the Deposit
Agreement.
|
18.
|
RESIGNATION
AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
|
The
Depositary may at any time resign as Depositary by written notice of its
election so to do delivered to the Company, such resignation to take
effect upon the
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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 60 days’ prior written notice of such removal, to become
effective upon the later of (i) the 60th day after delivery of the notice to
the
Depositary or (ii) the appointment of a successor depositary and its acceptance
of such appointment as provided in the Deposit Agreement. Whenever
the Depositary in 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.
19. AMENDMENT.
The
form
of the Receipts and any provisions of the Deposit Agreement may at any time
and
from time to time be amended by agreement between the Company and the Depositary
without the consent of Owners or Beneficial Owners in any respect which they
may
deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees and 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 and Beneficial Owner of a Receipt at the time
any amendment so becomes effective shall be deemed, by continuing to hold such
Receipt or any interest therein, 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.
20. TERMINATION
OF DEPOSIT AGREEMENT.
The
Depositary at any time at the direction of the Company, shall terminate the
Deposit Agreement by mailing notice of termination to the Owners of all Receipts
then outstanding at least 30 days prior to the date fixed in such notice for
such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of termination to the Company and the Owners of
all
Receipts then outstanding if at least 60 days have passed since the Depositary
delivered to the Company a written notice of its election to resign and a
successor depositary has not 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 2.05 of the
Deposit Agreement, and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by the American
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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 dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable
taxes
or governmental charges). At any time after the expiration of one
year from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash
then
held by it 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 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.
21. SUBMISSION
TO JURISDICTION; WAIVER OF JURY TRIAL.
In
the
Deposit Agreement, the Company has (i) appointed ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief US
Counsel, Lloyds TSB Bank plc, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, as the Company’s authorized agent upon which process may be served in any
suit or proceeding arising out of or relating to the Preference Shares or
Deposited Securities, the American Depositary Shares, the Receipts or this
Agreement, (ii) consented and submitted to the jurisdiction of any state or
federal court in the State of New York in which any such suit or proceeding
may
be instituted, and (iii) agreed that service of process upon said authorized
agent shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding.
EACH
PARTY
TO THE DEPOSIT AGREEMENT WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THE DEPOSIT AGREEMENT
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OR
THE
TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY TO THE DEPOSIT AGREEMENT (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES THERETO HAVE BEEN INDUCED TO ENTER INTO THE DEPOSIT AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN SECTION 7.07
OF THAT AGREEMENT.
22. WAIVER
OF IMMUNITIES.
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any respect thereof, from
setoff or counterclaim, from the jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid
of
execution or judgment, or from execution of judgment, or other legal process
or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be commenced, with
respect to its obligations, liabilities or any other matter under or arising
out
of or in connection with the Preference Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Deposit Agreement, the Company,
to the fullest extent permitted by law, hereby irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to
such
relief and enforcement.
23. REDEMPTION
OF DEPOSITED SECURITIES.
If
the
Depositary receives a notice that Deposited Securities are to be redeemed,
the
Depositary shall (i) call for surrender a corresponding number of American
Depositary Shares, (ii) notify the Owners of those American Depositary Shares
that the Deposited Securities underlying their American Depositary Shares will
be surrendered for redemption and (iii) surrender Deposited Securities that
have
been redeemed to the issuer of those securities or its agent on the redemption
date. Owners of American Depositary Shares affected by the redemption
may surrender the Receipts evidencing those American Depositary Shares and
receive delivery of money or other property the Depositary receives upon
redemption of Deposited Securities as provided in Section 2.05 of the Deposit
Agreement.
If
the
Depositary receives notice that less than all the Deposited Securities are
to be
redeemed, the Depositary shall determine in its discretion which American
Depositary Shares to call for surrender in connection with that
redemption. If the Depositary calls for surrender less than all
the American Depositary Shares evidenced by
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a
Receipt
in connection with a redemption of Deposited Securities, the Depositary shall,
upon surrender of that Receipt, deliver to the Owner a Receipt evidencing the
amount of American Depositary Shares evidenced by the surrendered Receipt that
were not called for surrender.
24. DISCLOSURE
OF INTERESTS.
The
Company may from time to time request Owners to provide information as to the
capacity in which such Owners own or owned Receipts and regarding the identity
of any other persons then or previously having a beneficial interest in such
Receipts and the nature of such interest and various other
matters. Each Owner agrees to provide any information requested by
the Company or the Depositary pursuant to Section 3.04 of the Deposit
Agreement.
25. ISSUANCE
IN SERIES.
If
the
Company issues Preference Shares in more than one class or series or that
otherwise entitle their holders to rights that vary from the rights to which
other Preference Shares entitle their holders, the following provisions shall
apply, notwithstanding anything to the contrary in the Deposit
Agreement:
(a) The
word
“Series,” when used with respect to Preference Shares, shall mean all
outstanding Preference Shares that entitle their holders to identical rights
with respect to those Preference Shares, regardless of the title or any other
designation that may be assigned to Preference Shares.
(b) The
Depositary shall direct the Custodian to hold Preference Shares of a Series
deposited under the Deposit Agreement, and other Deposited Securities it
receives in respect of those Preference Shares in a segregated account different
from the account in which it holds Preference Shares of any other
Series.
(c) Preference
Shares of each Series that are deposited under the Deposit Agreement shall
be
represented by a “Series” of American Depositary Shares separate from the
American Depositary Shares representing Preference Shares of any other
Series. The Depositary shall assign a designation to each Series of
American Depositary Shares and shall reflect in its records the series to which
each American Depositary Share belongs. Each series of American
Depositary Shares shall be evidenced by a “Series” of Receipts separate from the
Receipts evidencing American Depositary Shares of any other
Series. Each Receipt shall be marked to indicate the designation of
the Series of the American Depositary Shares evidenced by that Receipt and
to
identify the Series of Preference Shares those American Depositary Shares
represent.
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(d) If
the
rights to which deposited Preference Shares of a Series entitle their holders
are modified such that those rights become identical to the rights to which
deposited Preference Shares of another Series entitle their holders, the
Depositary shall cause the Custodian to combine the accounts in which the former
separate Series of Preference Shares are held, the Series of American Depositary
Shares representing those Preference Shares will automatically be combined
into
one Series of American Depositary Shares and the Depositary may take any action
necessary or convenient to effect that combination. At any time after
that combination, the Owners of Receipts affected by that combination will
be
entitled to surrender their Receipts to the Depositary and receive Receipts
reflecting the designation of the American Depositary Shares owned by them
as a
result of that combination.
(e)
Owners
and Beneficial Owners of American Depositary Shares of a Series shall be
entitled to rights under the Deposit Agreement only with respect to deposited
Preference Shares of the corresponding Series and other Deposited Securities
received in respect of deposited Preference Shares of that Series.
26. UNCERTIFICATED
AMERICAN DEPOSITARY SHARES; DIRECT REGISTRATION
SYSTEM.
Notwithstanding
anything to the
contrary in the Deposit Agreement:
(a) American
Depositary Shares may be certificated securities evidenced by Receipts or
uncertificated securities. The form of Receipt annexed as Exhibit A
to the Deposit Agreement describes the terms and conditions of, and will be
the
prospectus required under the Securities Act for, both certificated and
uncertificated American Depositary Shares. Except for those
provisions of the Deposit Agreement that by their nature do not apply to
uncertificated American Depositary Shares, all the provisions of this Deposit
Agreement shall apply, mutatis mutandis, to uncertificated American
Depositary Shares as well as to certificated American Depositary Shares, and
to
Owners and holders of uncertificated American Depositary Shares as well as
to
Owners and holders of Receipts.
(b) (i) The
term “deliver”, or its noun form, when used with respect to Receipts, shall mean
(A) book-entry transfer of American Depositary Shares to an account at DTC
designated by the person entitled to such delivery, (B) registration
of American Depositary Shares not evidenced by a Receipt on the books of the
Depositary in the name requested by the person entitled to such delivery
and mailing to that person of a statement confirming that
registration or (C) if requested by the person entitled to such delivery,
delivery at the Corporate Trust Office of the Depositary to the person entitled
to such delivery of one or more Receipts evidencing American Depositary Shares
registered in the name requested by that person.
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(ii) The
term “surrender”, when used with respect to Receipts, shall mean (A) one or more
book-entry transfers of American Depositary Shares to the DTC account of the
Depositary, (B) delivery to the Depositary at its Corporate Trust Office of
an
instruction to surrender American Depositary Shares not evidenced by a
Receipt or (C) surrender to the Depositary at its Corporate Trust
Office of one or more Receipts evidencing American Depositary
Shares.
(c) American
Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of the State of New
York.
(d) The
Depositary shall have a duty to register a transfer in the case of
uncertificated American Depositary Shares, upon receipt from the Owner of a
proper instruction (including, for the avoidance of doubt, instructions through
DRS and Profile, as defined and provided in subsection (f)
below). The Depositary, upon surrender of a Receipt for the purpose
of exchanging for uncertificated American Depositary Shares, shall cancel that
Receipt and send the Owner a statement confirming that the Owner is the owner
of
the same number of uncertificated American Depositary Shares that the
surrendered Receipt evidenced. The Depositary, upon receipt of a proper
instruction (including, for the avoidance of doubt, instructions through DRS
and
Profile as provided in subsection (f) below) from the Owner of uncertificated
American Depositary Shares for the purpose of exchanging for certificated
American Depositary Shares, shall execute and deliver to the Owner a Receipt
evidencing the same number of certificated American Depositary
Shares.
(e) Upon
satisfaction of the conditions for replacement of a Receipt that is mutilated,
lost, destroyed or stolen, the Depositary shall deliver to the Owner the
American Depositary Shares evidenced by that Receipt in uncertificated form
unless otherwise requested by the Owner.
(f) (i) The
parties acknowledge that the Direct Registration System (“DRS”) and Profile
Modification System (“Profile”) shall apply to uncertificated American
Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the
system administered by DTC pursuant to which the Depositary may register the
ownership of uncertificated American Depositary Shares, which ownership shall
be
evidenced by periodic statements issued by the Depositary to the Owners entitled
thereto. Profile is a required feature of DRS which allows a DTC
participant, claiming to act on behalf of an Owner of American Depositary
Shares, to direct the Depositary to register a transfer of those American
Depositary Shares to DTC or its nominee and to deliver those American Depositary
Shares to the DTC account of that DTC participant without receipt by the
Depositary of prior authorization from the Owner to register such
transfer.
(ii) In
connection with and
in accordance with the arrangements and procedures relating to DRS/Profile,
the
parties understand that the Depositary will not verify, determine or otherwise
ascertain that the DTC participant which is claiming to be acting
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on
behalf
of an Owner in requesting a registration of transfer and delivery as described
in subsection (a) has the actual authority to act on behalf of the Owner
(notwithstanding any requirements under the Uniform Commercial
Code). For the avoidance of doubt, the provisions of Sections 5.03
and 5.08 of the Deposit Agreement shall apply to the matters arising from the
use of the DRS. The parties agree that the Depositary’s reliance on
and compliance with instructions received by the Depositary through the
DRS/Profile System and in accordance with the Deposit Agreement shall not
constitute negligence or bad faith on the part of the Depositary.
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