AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER Amended and Restated Deposit Agreement Dated as of December __, 2005
SCOTTISH
& SOUTHERN ENERGY plc
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS, As Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
Amended
and Restated Deposit Agreement
Dated
as
of December __, 2005
AMENDED
AND RESTATED DEPOSIT AGREEMENT
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of December ●,
2005
among
SCOTTISH & SOUTHERN ENERGY plc, a public limited company incorporated in
Scotland (herein called the Company), DEUTSCHE BANK TRUST COMPANY AMERICAS,
a
corporation organized and existing under the laws of the State of New York
as a
trust company and an indirect wholly owned subsidiary of Deutsche Bank AG
(herein called the Depositary), and all HOLDERS from time to time of American
Depositary Receipts issued hereunder.
WITNESSETH:
WHEREAS,
the
Company has established an ADR facility to provide for the deposit of the
Shares
and the creation of American depositary shares representing the Shares so
deposited pursuant to the Deposit Agreement, dated as of
December
18, 1991 in relation to the American Depositary Receipt program (the "Old
Deposit Agreement"), by and among the Company, The Bank of New York and all
Holders from time to time of American depositary receipts ("Old Receipts")
issued thereunder;
WHEREAS,
pursuant to a letter dated November
10, 2005 (the "Notice Letter") the Company has provided written notice to
The
Bank of New York that the Company desires to remove The Bank of New York
as
Depositary under Section 5.04 of the Old Deposit Agreement and to appoint
the
Depositary as successor depositary thereunder;
WHEREAS,
pursuant to the Notice Letter, the Depositary has accepted its appointment
as
successor depositary under the Old Deposit Agreement and has agreed to be
bound
by all of the terms and provisions binding upon the depositary under the
Old
Deposit Agreement;
WHEREAS,
the
Company and the Depositary, in its capacity as successor depositary under
the
Old Deposit Agreement, now wish to amend and restate the Old Deposit Agreement
and the Old Receipts;
WHEREAS,
the
Company desires to provide, as hereinafter set forth in this Deposit Agreement,
for the deposit of Shares of the Company from time to time with the Depositary
or with the Custodian as agent of the Depositary for the purposes set forth
in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares;
and
WHEREAS,
the
American Depositary Receipts are to be substantially in the form of Exhibit
A
and B annexed hereto, with appropriate insertions, modifications and omissions,
as hereinafter provided in this Deposit Agreement.
NOW,
THEREFORE, in consideration of the premises, it is agreed by and among the
parties hereto as follows:
ARTICLE
I
Definitions
SECTION
1.01. Certain
Terms Defined.
The
following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit
Agreement.
The
term
“American
Depositary Shares”
shall
mean the rights evidenced by the Receipts issued hereunder, including the
interests in the Deposited Securities granted to the Holders pursuant to
the
terms and conditions of this Deposit Agreement. Each American Depositary
Share
shall represent rights to receive one (1) Share, until there shall occur
a
distribution upon Deposited Securities covered by Section 4.03 (a) 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 rights to receive the amount of Deposited Securities
specified in such Sections.
The
term
“Articles”
shall
mean the Memorandum and Articles of Association of the Company, as the same
may
be amended from time to time.
The
term
“Commission”
shall
mean the Securities and Exchange Commission of the United States or any
successor governmental agency in the United States.
The
term
“Companies
Act”
shall
mean the Companies ▇▇▇ ▇▇▇▇ of the United Kingdom, as amended by the Companies
▇▇▇ ▇▇▇▇ of the United Kingdom and as it may be further amended or re-enacted
from time to time.
The
term
“Company”
shall
mean Scottish & Southern Energy plc, a public limited company incorporated
in Scotland and its successors.
The
term
“Custodian”
shall
mean, as of the date hereof, State Street Bank and Trust Company, a company
organized and existing under the laws of the Commonwealth of Massachusetts,
the
United States of America as custodian, as agent of the Depositary for the
purposes of this Deposit Agreement, and any other entity, firm or corporation
which may hereafter be appointed by the Depositary pursuant to Section 5.05
as
substitute custodian hereunder.
The
term
“Deposit
Agreement”
shall
mean this Agreement, as the same may be amended from time to time in accordance
with the provisions hereof.
The
term
“Depositary”
shall
mean Deutsche Bank Trust Company Americas, an indirect wholly owned subsidiary
of Deutsche Bank AG, currently having its office for the administration of
its
American depositary receipt business (the “Depositary’s
Office”)
at ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and its successors as depositary
hereunder pursuant to Section 5.04.
The
term
“Deposited
Securities”
as of
any time shall mean Shares at such time deposited under this Deposit Agreement
and any and all other securities, property and cash received at any time
by the
Depositary or the Custodian in respect or in lieu of Shares, other securities,
property or cash previously received by the Depositary or the Custodian and
at
such time held hereunder.
The
term
“Directors”
shall
mean the directors of the Company.
The
term
“Holder”
shall
mean the person or persons in whose name a Receipt is registered on the books
of
the Depositary maintained for such purpose.
The
term
“Pre-release”
shall
have the meaning set forth in Section 2.09.
The
term
“Receipt
Registrar”
shall
mean the Depositary, or any other bank or trust company having an office
in the
Borough of Manhattan, The City of New York, appointed by the Depositary,
to
register transfers of Receipts and to countersign Receipts as herein provided,
and shall include any co-registrar appointed by the Depositary upon the prior
written notification to the Company for such purposes.
The
term
“Receipts”
or
“American
Depositary Receipts”
shall
mean the American Depositary Receipts issued hereunder evidencing American
Depositary Shares.
The
term
“Regulation
S”
shall
mean Rules 901 through 904, inclusive, under the Securities Act of 1933,
as such
Rules may from time to time be amended.
The
term
“Securities
Act of 1933”
shall
mean the United States Securities Act of 1933, as from time to time
amended.
The
term
“Securities
Exchange Act of 1934”
shall
mean the United States Securities Exchange Act of 1934, as from time to time
amended.
The
term
“Share
Registrar”
shall
mean the registrar of the Company’s register of holders of Shares from time to
time or, in the absence of such registrar, the Company.
The
term
“Shares”
shall
mean the Ordinary Shares of 50 ▇▇▇▇▇ each in the capital of the Company.
References to Shares shall include evidence of rights to receive Shares,
whether
or not stated in the particular instance; provided
that in
no event shall Shares include evidence of rights to receive Shares with respect
to which the full purchase price has not been paid.
The
term
“stamp
taxes”
shall
mean, as the context may require, (a) any stamp duty reserve tax imposed
by Part
IV of the Finance ▇▇▇ ▇▇▇▇ of the United Kingdom (or any statutory modification
or reenactment thereof) in respect of any deposit of Shares in accordance
with
Section 2.02 of this Deposit Agreement, or (b) any stamp duty imposed by
Part
III of the Finance ▇▇▇ ▇▇▇▇ of the United Kingdom (or any statutory modification
or reenactment thereof) on any deposit of Shares in accordance with Section
2.02
of this Deposit Agreement, or (c) both of them.
The
term
“U.S.
dollars”
or
“$”
shall
mean United States dollars. The term “pounds
sterling”
or
“₤”
shall
mean pounds sterling of the United Kingdom and the term “▇▇▇▇▇”
or
“p”
shall
mean ▇▇▇▇▇ of the United Kingdom.
ARTICLE
II
Form
of
Receipts, Deposit of Shares, Execution and
Delivery,
Transfer and Surrender of Receipts
SECTION
2.01. Form
and Transferability of Receipts.
Receipts shall be substantially in the form set forth in Exhibits A and B
hereto, with appropriate insertions, modifications and omissions as hereinafter
provided. Receipts may be issued in denominations of whole numbers of American
Depositary Shares only. Receipts shall be executed by the Depositary by the
manual signature of a duly authorized signatory of the Depositary; provided,
however,
that
such signature may be a facsimile if a Receipt Registrar or co-registrar
shall
have been appointed and such Receipts are countersigned by the manual signature
of a duly authorized signatory of the Receipt Registrar or any co-registrar.
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 signature of a duly authorized signatory
or, if
a Receipt Registrar shall have been appointed, by the manual signature of
a duly
authorized signatory of the Receipt Registrar, or any co-registrar. If a
Receipt
Registrar shall have been appointed, Receipts bearing the manual or facsimile
signature of anyone who was at any time a duly authorized signatory of the
Depositary shall bind the Depositary, notwithstanding that such signatory
has
ceased to be a duly authorized signatory of the Depositary prior to the
signature of the Receipt Registrar or any co-registrar and delivery of such
Receipts or was not a duly authorized signatory of the Depositary at the
date of
issuance of such Receipts. 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.
The
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement or the Articles as may be required by the Depositary or
required to comply with any applicable law or regulations or with the rules
and
regulations of any securities exchange upon which Receipts 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 of issuance of the underlying Deposited Securities or
otherwise.
Title
to
a Receipt (and to the American Depositary Shares evidenced thereby), when
properly endorsed or accompanied by proper instruments of transfer, shall
be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided,
however,
that
the Company and the Depositary, notwithstanding any notice to the contrary,
may
treat the Holder thereof as the absolute owner thereof for the purpose of
determining the person entitled to any 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 Shares.
Subject
to the terms and conditions of this Deposit Agreement, Shares may be deposited
by delivery thereof to the Custodian, accompanied by any appropriate instrument
or instruments of transfer, or endorsement, in form satisfactory to the
Custodian, together with all such certifications, payments (including, without
limitation, amounts in respect of any applicable stamp taxes) and evidence
of
such payments (including, without limitation, stamping or otherwise marking
such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement, and 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 Shares.
If
required by the Depositary, Shares presented for deposit at any time, whether
or
not the transfer books of the Company (or the appointed agent of the Company
for
transfer and registration of Shares, which may but need not be the Share
Registrar) are closed, shall also be accompanied by an agreement or assignment,
or other instrument satisfactory to the Depositary, which will provide for
the
prompt transfer to the Custodian of any dividend or right to subscribe for
additional Shares or to receive other property which any person in whose
name
the Shares are or have been registered may thereafter receive upon or in
respect
of such deposited Shares, or in lieu thereof, such agreement of indemnity
or
other agreement as shall be satisfactory to the Depositary. The Depositary
may
also require that any Shares deposited be registered in the name of the
Depositary, the Custodian or the nominee or nominees of either of them or
such
other name as the Depositary and the Company shall require.
At
the
request, risk and expense of any holder of Shares, and for the account of
such
holder, the Depositary may receive certificates for Shares to be deposited,
together with the other documents and payments herein specified, for the
purpose
of forwarding such Shares to the Custodian for deposit hereunder.
Upon
each
delivery to the Custodian of Shares to be deposited hereunder, together with
the
other documents and payments herein specified, the Custodian shall take action
to present such Shares to the Company (or the appointed agent of the Company
for
transfer and registration of Shares, which may but need not be the Share
Registrar) for registration of, or registration of transfer of, the Shares
being
deposited in the name of the Depositary or the Custodian or the nominee or
nominees of either of them, at the cost and expense of the holder making
such
deposit.
Deposited
Shares shall be held by the Depositary, or by the Custodian for the account
and
to the order of the Depositary, at such place or places as the Depositary
shall
determine.
SECTION
2.03. Execution
and Delivery of Receipts.
Upon
receipt by the Custodian of any deposit pursuant to Section 2.02 (and in
addition, if the transfer books of the Company are open, or the Depositary
so
requires, a proper acknowledgement or other evidence from the Company or
the
Share Registrar satisfactory to the Depositary that any deposited Shares
have
been recorded upon the Company’s books (or by the appointed agent of the Company
for transfer and registration of Shares, which may but need not be the Share
Registrar) in the name of the Depositary or the Custodian or the nominee
or
nominees of either of them), together with the other documents and payments
required as above specified, the Custodian shall notify the Depositary of
such
deposit, the person or persons to whom or upon whose written order a Receipt
or
Receipts is or 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
the
Custodian, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver at the Depositary’s Office, to or upon the
order of the person or persons named in the notice delivered to the Depositary,
a Receipt or Receipts registered in the name or names of, and evidencing
any
authorized number of American Depositary Shares requested by, such person
or
persons, but only upon payment to the Depositary by such person or persons
of
the fee of the Depositary for the execution and delivery of such Receipt
or
Receipts, and of all taxes (including, without limitation, amounts in respect
of
any applicable stamp taxes), duties and other governmental charges and fees
payable (whether by the Depositary, the Custodian or a nominee of either
of
them) in connection with such deposit, the transfer of the deposited Shares
and
the issuance of such Receipt or Receipts.
SECTION
2.04. Transfer
of Receipts; Combinations and Split-ups of Receipts.
The
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
register transfers on its transfer books from time to time of Receipts, upon
any
surrender at any of its designated transfer offices of a Receipt by the Holder
in person or by duly authorized attorney, properly endorsed or accompanied
by
proper instruments of transfer, and duly stamped as may be required by
applicable law. 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 at any of its designated transfer offices 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.
SECTION
2.05. Surrender
of Receipts and Withdrawal of Deposited Securities.
Upon
surrender at the Depositary’s Office of a Receipt for the purpose of transfer
and withdrawal of the Deposited Securities represented thereby, and upon
payment
of the fee of the Depositary for the surrender of Receipts against withdrawal
of
the Deposited Securities, and subject to the terms and conditions of this
Deposit Agreement, the Articles and the Deposited Securities, the Holder
of such
Receipt shall be entitled to delivery, to or upon the order of such Holder,
of
the Deposited Securities at the time evidenced by such Receipt.
Delivery
of such Deposited Securities may be made by the delivery of certificates
in the
name of such Holder or as ordered by such Holder or by the delivery of
certificates properly endorsed or accompanied by proper instruments of transfer.
Such delivery shall be made, as hereinafter provided, without unreasonable
delay.
A
Receipt
surrendered for such purpose may be required by the Depositary to be properly
endorsed in blank or accompanied by proper instruments of transfer in blank,
and
the Holder 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
principal office of the Custodian, subject to Sections 2.06, 2.09, 3.01,
3.02,
and
3.04
and
pursuant to the other terms and conditions of this Deposit Agreement and
the
Articles, to or upon the written order of the person or persons designated
in
the order delivered to the Depositary as above provided, the Deposited
Securities at the time evidenced by such Receipt, except that the Depositary
may, in its discretion, make delivery to such person or persons at the
Depositary’s Office of any cash, dividends, distributions or rights with respect
to the Deposited Securities evidenced by such Receipt, or of any proceeds
of
sale of any such cash, dividends, distributions or rights, which may at the
time
be held by the Depositary.
At
the
request, risk and expense of any Holder so surrendering a Receipt, and for
the
account of such Holder, the Depositary shall direct the Custodian to transfer
or
forward any cash, rights or other property comprising, and to forward any
certificate or certificates and other proper documents of title for, the
Deposited Securities evidenced by such Receipt to the Depositary for delivery
at
the Depositary’s Office. Such direction shall be given by letter or, at the
request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
SECTION
2.06. Limitations
on Execution and Delivery, Transfer and Surrender of Receipts.
As a
condition precedent to the execution and delivery, registration, registration
of
transfer, split-up, combination or surrender of any Receipt or transfer and
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require (i) payment from the presenter of the Receipt or the depositor of
Shares
of a sum sufficient to reimburse it for any tax, duty or other governmental
charge (including, without limitation, amounts in respect of any applicable
stamp taxes) payable with respect thereto (including any such tax, duty or
other
governmental charge with respect to Shares being deposited, to the Receipts
being issued or to Deposited Securities being withdrawn) and any share transfer
or registration fees in effect for the registration or registration of transfers
of Shares generally on the Share register of the Company (or the appointed
agent
of the Company for transfer and registration of Shares, which may but need
not
be the Share Registrar); (ii) payment of any applicable fees as herein provided;
(iii) the production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iv) compliance with such reasonable
regulations, if any as the Depositary may establish consistent with the
provisions of this Deposit Agreement.
The
delivery of Receipts against deposits of Shares generally may be suspended,
or
the delivery of Receipts against the deposit of particular Shares may be
withheld, or the registration of transfer of Receipts in particular instances
may be refused, or the registration of transfer or surrender of outstanding
Receipts generally may be suspended, during any period when the transfer
books
of the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body
or
commission, or under any provision of this Deposit Agreement, or for any
other
reason.
Notwithstanding
any provision of this Deposit Agreement to the contrary, Holders shall be
entitled to withdraw Deposited Securities subject only to the conditions
set
forth in paragraph I(A) (1) of the General Instructions (or any successor
provisions thereto), as in effect from time to time, to Form F-6 as prescribed
by the Commission under the Securities Act of 1933.
Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares which (a) if sold by the
holder
thereof in the United States (as defined in Regulation S), would be subject
to
the registration provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares or such sale would be exempt from
such
provisions or (b) would thereby infringe any provision of the Articles. The
Depositary will comply with written instructions of the Company not to accept
for deposit hereunder any Shares identified in such instructions at such
times
and under such circumstances as may be specified in such instructions in
order
to facilitate the Company’s compliance with the securities laws of the United
States.
SECTION
2.07. Lost
Receipts, etc.
In case
any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary
shall
execute and deliver, upon payment of the fees as herein provided, a new Receipt
evidencing the same number of Shares, 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, upon the Holder thereof filing
with
the Depositary (a) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (b) a sufficient indemnity bond satisfying 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 physical Receipts so canceled twenty
(20)
days after such cancellation and records of electronic Receipts one year
subsequent to any removal or resignation of the Receipt Registrar.
SECTION
2.09. Pre-Release;
Share Lending.
The
Depositary may issue Receipts against rights to receive Shares from the Company
(or the appointed agent of the Company for transfer and registration of Shares,
which may but need not be the Share Registrar). No such issue of Receipts
will
be deemed a “Pre-release” that is subject to the restrictions of the following
paragraph.
Neither
the Depositary nor the Custodian will lend Shares or other Deposited Securities
held hereunder except to the extent contemplated by the following sentence.
The
Depositary may (but is not required to) issue from time to time Receipts
prior
to the delivery to it or the Custodian for deposit, pursuant to Section 2.02,
of
the Shares in respect of which such Receipts are issued (each a “Pre-release”).
The Depositary will not make a Pre-release of any Receipts (each a “Pre-released
Receipt”) unless (a) the person to, or upon the order of, which Pre-released
Receipts are delivered is obligated to deliver to the Depositary or the
Custodian either (i) the same number of Shares as the Shares represented
by such
Pre-released Receipts or (ii) Receipts representing the same number of Shares
as
are represented by such Pre-released Receipts; and (b) the obligation of
such
person to deliver Shares (or a Receipt or Receipts in lieu thereof) pursuant
to
clause (a) shall, at all times, be fully collateralized with cash or United
States government securities. The
Depositary intends to Pre-release Receipts only pursuant to agreements that
contain provisions whereby the person to whom a Pre-release is made represents
and warrants that, at the time of the Pre-release, such person, or its customer,
is the owner of the Shares for each Receipt that is the subject of the
Pre-release. In addition, it is the Depositary’s standard practice with respect
to such Pre-releases (x) to enter into an agreement with the person seeking
to
engage in such a transaction providing that the Pre-release be terminable
by the
Depositary on not more than five (5) business days’ notice and subject to such
further indemnities and credit regulations as the Depositary deems appropriate;
(y) to limit the number of Receipts involved in such transactions at any
one
time to thirty percent (30%) of the Receipts outstanding (without giving
effect
to Pre-released Receipts outstanding under this Section 2.09), or Shares
held
under the terms of the Receipts, provided, however, that the Depositary reserves
the right to change or disregard such limit from time to time as it deems
appropriate; and (z) to set limits with respect to the number of Receipts
involved in Pre-releases to be done with any one person on a case by case
basis
as it deems appropriate.
Collateral
held pursuant to clause (b) above
shall be
held by the Depositary for the benefit of the Holders of Receipts. The
Depositary may, however, retain for its own account any earnings thereon
and any
other compensation received by it in connection with the issuance of
Pre-released Receipts.
Nothing
in this Deposit Agreement or in the Receipts (including, without limitation,
this Section 2.09 and paragraph (3) of the Receipts) shall in any way impair
any
right or obligation of any party hereto under any other agreement between
the
Company and any party hereto relating to Pre-release.
ARTICLE
III
Certain
Obligations of Holders of Receipts
SECTION
3.01. Filing
Proofs, Certificates and Other Information.
Any
person presenting Shares for deposit or any Holder of a Receipt, in addition
to
complying with the provisions of Section 2.02 hereof, may be required from
time
to time to file with the Depositary or the Custodian such proof of citizenship,
residence, exchange control approval, legal or beneficial ownership or other
information relating to the registration on the books of the Company (or
the
appointed agent of the Company for transfer and registration of Shares, which
may but need not be the Share Registrar) of the Shares presented for deposit,
to
execute and deliver to the Depositary or the Custodian such certificates,
and to
make such representations and warranties, as the Depositary may deem necessary
or proper or as the Company may 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 or sale of any dividend or other
distribution or rights or of the proceeds thereof or the delivery of any
Deposited Securities under-lying such Receipt until the foregoing is
accomplished to the Depositary’s satisfaction.
SECTION
3.02. Liability
of Holder for Taxes.
Any
tax, duty or other governmental charge (including, without limitation, any
stamp
taxes) or expense payable by the Custodian, the Depositary or the nominee
or
nominees of either as the registered holder of any Deposited Securities
underlying any Receipt shall be payable by the Holder of such Receipt, who
shall
pay the amount thereof to the Depositary. The Depositary may refuse to effect
registration of transfer of such Receipt or any transfer and withdrawal of
Deposited Securities underlying such Receipt until such payment is made,
and may
withhold any cash dividends or other cash distributions constituting Deposited
Securities underlying such Receipt, or may sell for the account of the Holder
thereof any part or all of the other Deposited Securities underlying such
Receipt, and may apply such cash or the proceeds of any such sale in payment
of
any such tax, duty or other governmental charge or expense (and any taxes
and
expenses arising or incurred as a result of effecting any such sale), the
Holder
of such Receipt remaining liable for any deficiency may be specified in such
instructions in order to facilitate the Company’s compliance with the securities
laws of the United States.
SECTION
3.03. Warranties
on Deposit of Shares.
Every
person depositing Shares under this Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefore are
validly issued and outstanding, fully paid, non-assessable and free of
preemptive rights and that the person making such deposit is duly authorized
so
to do. Every such person (other than the Company) shall also be deemed to
represent that the deposit of Shares or the sale of the Receipts issued upon
such deposit is not restricted under the securities laws of the United States.
In addition, such person shall be deemed to represent that such Shares
are
not
liable to disenfranchisement or disposal by the Company pursuant to
Article
50 of the Articles. All such representations and warrants shall survive the
deposit of Shares and issuance and transfer of Receipts therefore.
SECTION
3.04. Disclosure
of Beneficial Ownership.
(a)
Notwithstanding
any other provision of this
Deposit
Agreement,
each
Holder
agrees
to comply with requests from the Company, pursuant to the Articles or the
Companies Act, to provide information as to the capacity in which such Holder
owns Receipts, the identity of any other person interested (as defined in
the
Articles or the Companies Act) in such
Receipts
and the
nature and extent of such interest and any other information required by
such
request
in the
Articles
or the
Companies Act.
(b)
Each
Holder
acknowledges that failure to comply with such a request may result, inter
alia,
in the
withdrawal of the voting rights attaching to the Shares underlying such Holder's
Receipts and, if such Shares, together with all other such Shares in which
such
Holder has an interest, represent 0.25 percent or more of the nominal value
of
the issued Shares, the imposition of restrictions on the rights to transfer,
or
to receive distributions relating to, the Shares underlying such
Receipts.
(c)
Each
Holder agrees to comply with the provisions of the Articles and the Companies
Act with regard to notification to the Company of interests in
Shares.
(d)
If
the Company requests information from the Depositary or the Custodian as
the
registered holder of Shares and such request complies with the Articles,
the
obligations of the Depositary or the Custodian, as the case may be, to provide
information in respect of such request shall be limited to disclosing to
the
Company such information relating to the Shares in question as has in each
case
been recorded by it pursuant to the terms of this Agreement.
ARTICLE
IV
The
Deposited Securities
SECTION
4.01. Cash
Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution by the Company in respect of any Deposited Securities, the
Depositary shall, subject to the provisions of Section 4.05, promptly convert
such dividend or distribution into U.S. dollars and shall distribute promptly
the amount thus received (net of applicable fees and charges of, and expenses
incurred by, the Depositary) to the Holders 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 any cash dividend or other cash distribution in respect
of
any Deposited Securities an amount on account of taxes, the amount distributed
to the Holder of Receipts for American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without distributing
to any Holder a fraction of one cent, and any balance not so distributable
shall
be held by the Depositary (without liability for interest thereon) and shall
be
added to and become part of the next sum received by the Depositary for
distribution to Holders of Receipts then outstanding. The Company will remit
to
the appropriate governmental agency in the United Kingdom all amounts (if
any)
required to be withheld and owing to such agency by the Company. The Depositary
will remit to the appropriate governmental agency in the United Kingdom all
amounts required to be withheld and owing to such agency by the Depositary.
The
Depositary will promptly forward to the Company such information from its
records as the Company may reasonably request to enable the Company to file
necessary reports with governmental agencies, and either the Depositary or
the
Company may file any such reports necessary to obtain benefits under any
applicable tax treaties for Holders.
SECTION
4.02. Distributions
Other Than Cash or Shares.
Whenever the Depositary shall receive any distribution other than cash or
Shares
upon any Deposited Securities, the Depositary shall cause the securities
or
property received by it to be distributed promptly to the Holders entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them, respectively, in any manner that
the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided,
however,
that if
in the opinion of the Depositary such distribution cannot be made
proportionately among the Holders entitled thereto, or if for any other reason
(including any requirement that the Company or the Depositary withhold an
amount
on account of taxes) the Depositary deems such distribution not to be feasible,
the Depositary may adopt such method as it may deem equitable and practicable
for the purpose of effecting such distribution, including the sale (at 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 applicable (a) fees and charges
of, and expenses incurred by, the Depositary and (b) taxes) shall be distributed
by the Depositary to the Holders entitled thereto as in the case of a
distribution received in cash.
SECTION
4.03. Distribution
in Shares.
(a) if
any distribution upon any Deposited Securities consists of a dividend in,
or
free distribution of, Shares, the Depositary may with the approval of the
Company, and shall if the Company shall so request, distribute promptly to
the
Holders of outstanding Receipts entitled thereto, in proportion to the number
of
American Depositary Shares representing such Deposited Securities held by
them,
respectively, additional Receipts for an aggregate number of American Depositary
Shares representing the number of Shares received as such dividend or
distribution, after deduction or upon payment of (a) the fees and charges
of,
and expenses incurred by, the Depositary and (b) taxes. In lieu of delivering
Receipts for fractional American Depositary Shares in any such case, the
Depositary shall sell the amount of Shares represented by the aggregate of
such
fractions and distribute promptly the net proceeds, all in the manner and
subject to the conditions described in Section 4.02. If additional Receipts
are
not so distributed, each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities
represented thereby.
(b) In
the
event that the Company shall offer or cause to be offered to the holders
of any
Deposited Securities an option to elect to receive dividends in fully paid
Shares instead of cash, the Depositary and the Company agree to consult to
determine whether such option will be made available to the Holders of Receipts
and, if such option is to be made available to Holders, the procedures to
be
followed.
(c) If
for
any reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or other governmental charges or that
such Shares must be registered under the Securities Act in order to be
distributed to Holders of Receipts) the Depositary deems such distribution
not
to be feasible, the Depositary may adopt such method, as it may reasonably
deem
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the Shares thus received,
or
any part thereof, and the distribution of the net proceeds of any such sale
by
the Depositary to the Holders entitled hereto as in the case of a distribution
received in cash.
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 Shares or any
rights
of any other nature, the Depositary shall, after consultation with the Company,
have discretion as to the procedure to be followed in making such rights
available to the Holders of Receipts or in disposing of such rights on behalf
of
such Holders and making the net proceeds available in U.S. dollars or in
pounds
sterling to such Holders; provided,
however,
that
the Depositary will, if requested by the Company, take action as
follows:
(i)
if at
the time of the offering of any rights the Depositary determines that it
is
lawful and feasible to make such rights available to Holders by means of
warrants or otherwise, the Depositary shall distribute promptly warrants
or
other instruments therefore in such form as it may determine to the Holders
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them, respectively, or employ
such other method as it may deem feasible in order to facilitate the exercise,
sale or transfer of rights by such Holders (upon payment of applicable (a)
fees
and charges of, and expenses incurred by, the Depositary and (b) taxes and
other
governmental charges); or
(ii)
if
at the time of the offering of any rights the Depositary determines that
it is
not lawful or not feasible to make such rights available to Holders by means
of
warrants or otherwise, or if the rights represented by such Warrants or such
other instruments are not exercised and appear to be about to lapse, the
Depositary in its discretion may sell such rights or such warrants or other
instruments at public or private sale, at such place or places and upon such
terms as it may deem proper, and may allocate the proceeds of such sales
for
account of the Holders otherwise entitled to such rights, warrants or other
instruments, net of applicable (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes and other governmental charges, upon an
averaged or other practicable basis without regard to any distinctions among
such Holders because of exchange restrictions, the date of delivery of any
Receipt or Receipts or otherwise.
If
a
registration statement under the Securities Act of 1933 is required with
respect
to the securities to which any rights relate in order for the Company to
offer
such rights to Holders and sell the securities represented by such rights,
the
Depositary will not offer such rights to Holders having an address in the
United
States (as defined in Regulation S) unless and until such a registration
statement is in effect, or unless the offering and sale of such securities
and
such rights to such Holders are exempt from registration under the provisions
of
such Act.
SECTION
4.05. Conversion
of Foreign Currency.
Whenever the Depositary shall receive foreign currency, by way of dividends
or
other distributions or as 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 U.S. dollars and the resulting U.S. 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 U.S. dollars,
and
such U.S. dollars shall be distributed promptly to the Holders entitled thereto
or, if the Depositary shall have distributed any warrants or other instruments
which entitle the holders thereof to such U.S. dollars, then to the holders
of
such warrants and/or instruments, as applicable, upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account
of
exchange restrictions or otherwise.
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary shall promptly file such
application for approval or license, if any, as it may deem
desirable.
If
at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary is not convertible on a reasonable basis into
U.S.
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 for the respective accounts of, the Holders entitled to receive
the
same.
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some Holders entitled thereto, the Depositary may in its
discretion make such conversion and distribution in U.S. dollars to the extent
permissible to the Holders entitled thereto and may distribute the balance
of
the foreign currency received by the Depositary to, or hold such balance
for the
respective accounts of, the Holders entitled to receive the same.
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 notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall, after consultation with the Company, fix
a
record date, which date shall, to the extent practicable, be the same as
the
record date fixed by the Company, for the determination of the Holders who
shall
be entitled to receive such dividend, distribution or rights, or the net
proceeds of the sale thereof, or to give instructions for the exercise of
voting
rights at any such meeting. Subject to the provisions of Sections 4.01 through
4.05 and to the other terms and conditions of this Deposit Agreement, the
Holders on such record date shall be entitled 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 or to give
voting instructions in proportion to the number of American Depositary Shares
held by them, respectively.
SECTION
4.07. Voting
of Deposited Securities.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall, as soon as practicable thereafter and to
the
extent permitted by law, mail to the Holders a notice which shall contain
(a)
such information as is contained in such notice of meeting, (b) a statement
that
the Holders at the close of business on a specified record date will be
entitled, subject to any applicable provisions of law and of the Articles
and
the Deposited Securities, to instruct the Depositary as to the exercise of
the
voting rights, if any, pertaining to the amount of Deposited Securities
represented by the American Depositary Shares evidenced by their respective
Receipts and (c) a brief statement as to the manner in which such instructions
may be given, including an express indication that instructions may be given
to
the Depositary to give a discretionary proxy to a person or persons designated
by the Company. Upon the written request of a Holder 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 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. The Depositary agrees not to vote
the
number of Shares or other Deposited Securities represented by the American
Depositary Shares evidenced by a Receipt unless it receives instructions
from
the Holder of such Receipt. In accordance with the Articles and Scots law,
failure by a Holder, or a person holding an interest in Shares through a
Holder,
to comply with the Company’s request for information of the nature referred to
in Section 3.04 may result, inter alia,
in
withdrawal of the voting rights attaching to the Shares underlying the Receipts
held by that Holder and thus of the rights described in this Section 4.07
to
direct the voting of Deposited Securities underlying such Receipts.
SECTION
4.08. Changes
Affecting Deposited Securities.
Upon
any 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 the Custodian
in
exchange for or in conversion of or in respect of Deposited Securities shall
be
treated as new Deposited Securities under this Deposit Agreement, and American
Depositary Shares shall thenceforth represent the 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 with the approval of the Company, and shall if the Company
shall
so request and, subject to Section 5.07, execute and deliver additional Receipts
as in the case of a dividend of 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 Holders at the Depositary’s
Office and at any other designated transfer offices, any reports and
communications received from the Company which are both (a) received by the
Depositary or the Custodian or the nominee of either of them as the holder
of
the Deposited Securities and (b) made generally available to the holders
of such
Deposited Securities by the Company. The Depositary shall also send to Holders
copies of such reports when furnished by the Company pursuant to Section
5.06.
SECTION
4.10. Lists
of Receipt Holders.
Promptly upon request by the Company, the Depositary shall furnish to the
Company a list, as of that date or a specified date in the future, of the
names
and addresses of, 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.
Notwithstanding any other provision of this Deposit Agreement, if the Depositary
determines that any distribution in property (including Shares and rights
to
subscribe therefore) is subject to any tax which the Depositary is obligated
to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefore, in such amounts and
in such
manner as the Depositary deems necessary and practicable to pay such taxes,
by
public or private sale, and the Depositary shall distribute the net proceeds
of
any such sale or the balance of any such property after deduction of such
taxes
to the Holders entitled thereto. The Holders shall indemnify the Depositary,
the
Company, the Custodian and any of their respective directors, employees,
agents
and affiliates against, and hold each of them harmless from, any claims by
any
governmental authority with respect to taxes, additions to tax, penalties
or
interest arising out of any refund of taxes, reduced rate of withholding
at
source or other tax benefit obtained.
ARTICLE
V
The
Depositary, the Custodian
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
transfer and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The
Depositary shall keep books at such transfer office for the registration
of
Receipts and transfer of Receipts which at all reasonable times shall be
open
for inspection by the Holders and the Company: provided
that
such inspection shall not be for the purpose of communicating with Holders
in
the interest of a business or object other than the business of the Company
or a
matter related to this Deposit Agreement, the Receipts, the Shares or the
Articles.
The
Depositary may close the transfer books (a) after consultation with the Company,
at any time or from time to time, when deemed expedient by it in connection
with
the performance of its duties hereunder or (b) at the request of the
Company.
If
any
Receipts or the American Depositary Shares evidenced thereby are listed on
one
or more stock exchanges in the United States, the Depositary shall act as
Receipt Registrar, unless any other bank or trust company having an office
in
the Borough of Manhattan, The City of New York, shall have been appointed
by the
Depositary. Upon prior
written notification to the Company, the Depositary may appoint a Receipt
Registrar or one or more co-registrars for registration of such Receipts
in
accordance with any requirements of such exchange or exchanges. Such Receipt
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary upon prior written notification to the
Company.
The
Depositary, upon prior
written notification to the Company, may appoint one or more co-transfer
agents
for the purpose of effecting transfers, combinations and split-ups of Receipts
at designated transfer offices on behalf of the Depositary. Such co-transfer
agents may be removed by the Depositary upon prior
written notification to the Company and substitutes appointed by the Depositary
upon prior
written notification to the Company. Each Receipt Registrar, co-registrar
or
co-transfer agent appointed under this Section 5.01 shall give notice in
writing
to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement. In carrying out its functions, a co-transfer
agent may require evidence of authority and compliance with applicable laws
and
other requirements by Holders or persons entitled thereto but only to the
extent
that the Depositary would in similar circumstances be entitled so to
require.
The
Company shall have the right to inspect transfer and registration records
of the
Depositary relating to Receipts, to take copies thereof and to require the
Depositary, the Receipt Registrar and any co-transfer agents or co-registrars
to
supply copies of such portions of such records as the Company may
request.
SECTION
5.02. Prevention
or Delay in Performance by the Depositary, the Company or the
Directors.
None of
the Depositary, the Company or any Director shall incur any liability to
any
Holder if, by reason of any provision of any present or future law of the
United
States, the United Kingdom or any other country, or of any other governmental
authority, or by reason of any provision, present or future, of the Articles
or
the Deposited Securities, or by reason of any act of God or war or other
circumstance beyond its control, the Depositary, the Company or any Director
shall be prevented or forbidden from doing or performing any act or thing
which
by the terms of this Deposit Agreement it is provided shall be done or
performed; nor shall the Depositary, the Company or any Director incur any
liability to any Holder by reason of any non-performance or delay, caused
as
aforesaid, in performance of any act or thing which by the terms of this
Deposit
Agreement it is provided shall or may be done or performed, or by reason
of any
exercise of, or failure to exercise, any discretion provided for in this
Deposit
Agreement or the Articles.
SECTION
5.03. Obligations
of the Depositary, the Custodian and the Company.
The
Depositary assumes no obligation nor shall it be subject to any liability
under
this Deposit Agreement to Holders (including, without limitation, liability
with
respect to the validity or worth of, or investment risk associated with
acquiring an interest in, the Deposited Securities), except that it agrees
to
use its reasonable efforts and good faith in the performance of such duties
as
are specifically set forth in this Deposit Agreement.
Neither
the Company nor any Director assumes any obligation nor shall any of them
be
subject to any liability under this Deposit Agreement to Holders, except
that
each agrees to use its or his reasonable efforts and good faith in the
performance of its or his obligations set forth in this Deposit
Agreement.
None
of
the Depositary, the Company and any Director shall be under any obligation
to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its or
his
opinion may involve it or him in expense or liability, unless indemnity
satisfactory to it or him against all expense and liability be furnished
as
often as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary.
None
of
the Depositary, the Company and any Director shall be liable for any action
or
non-action by it or him in reliance upon the advice of or information from
legal
counsel, accountants, any governmental authority, any person presenting Shares
for deposit, any Holder, or any other person believed by it or him in good
faith
to be competent to give such advice or information.
The
Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities or for the manner in
which
any such vote is cast or for the effect of any such vote, provided that any
such
action or non-action is in good faith.
Neither
the Company nor the Depositary nor any of their respective agents shall be
liable to Holders or beneficial owners of interests in American Depositary
Shares for any indirect, special, punitive or consequential damages.
Subject
to the Articles and this Deposit Agreement, the Depositary may own and deal
in
any class of securities of the Company and its affiliates and in
Receipts.
No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of this Deposit Agreement.
The
Depositary and its agents shall not be liable for any acts or omissions made
by
a predecessor or successor depositary whether in connection with a previous
act
or omission of the Depositary or in connection with any matter arising wholly
before the appointment of or 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 willful misconduct while it acted as Depositary.
SECTION
5.04. Resignation
and Removal of the Depositary; Appointment of Successor
Depositary.
(a) The
Depositary may at any time resign as Depositary hereunder by written notice
of
its election so to do delivered to the Company, such resignation to take
effect
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
(b)
The
Depositary may at any time be removed as Depositary by the Company by written
notice of such removal effective upon the appointment of a successor depositary
and its acceptance of such appointment as hereinafter provided.
(c)
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 to it and on the written request of the Company
shall execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, and such predecessor shall
thereupon 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 Holders of all outstanding Receipts, together with copies of
such
records in relation to the Receipts as the Company may reasonably request.
Any
such successor depositary shall mail notice of its appointment within 30
days to
the Holders.
(d)
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing
of any
document or any further act.
SECTION
5.05. The
Custodian.
The
Depositary has appointed State Street Bank and Trust Company as Custodian
and
agent of the Depositary for the purposes of this Deposit Agreement. The
Custodian in acting hereunder shall be subject at all times and in all respects
to the directions of the Depositary and shall be responsible solely to and
the
Depositary undertakes to procure compliance by the Custodian with the applicable
provisions of this Deposit Agreement. The Custodian may resign and be discharged
from its duties hereunder by notice of such resignation delivered to the
Depositary at least ninety (90) days prior to the date on which such resignation
is to become effective. The Depositary shall, promptly after receiving such
notice, appoint a substitute custodian upon prior notification to the Company,
which shall thereafter be the Custodian hereunder. Whenever the Depositary
in
its discretion determines that it is in the best interest of the Holders
to do
so, it may appoint a substitute custodian approved by the Company (such approval
not to be unreasonably withheld), which shall thereafter be the Custodian
hereunder, and upon demand of the Depositary the previous Custodian shall
deliver the Deposited Securities held by it to such substitute custodian.
Each
such substitute custodian shall deliver to the Depositary forthwith upon
its
appointment an acceptance of such appointment satisfactory in form and substance
to the Depositary and the Company. Immediately upon any such change, the
Depositary shall give notice thereof in writing to all Holders.
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 the Custodian hereunder;
but
the successor Depositary so appointed shall, nevertheless, on the written
request of the Custodian, execute and deliver to the Custodian all such
instruments as may be proper to give the 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 of giving by the Company of notice, by publication
or
otherwise, of any meeting of holders of Shares or other Deposited Securities,
or
of any adjourned meeting of such holders, or of the taking of any action
in
respect of any cash or other distributions or the offering of any rights,
the
Company agrees to transmit to the Custodian and the Depositary a copy of
the
notice thereof in the form given or to be given to holders of Shares or other
Deposited Securities.
The
Company shall also promptly furnish to the Depositary and the Custodian such
quantities of any other reports and communications that are generally provided
by the Company to holders of its Shares as may be required by the Depositary
for
it to provide such material to all Holders.
The
Depositary will arrange for the prompt transmittal by the Custodian to the
Depositary of such notices and any other reports and communications which
are
made generally available by the Company to holders of Shares, and arrange
for
the mailing of copies thereof to all Holders or, at the request of the Company,
make such notices, reports and communication available to all Holders on
a basis
similar to that for holders of Shares, or on such other basis as the Company
may
advise the Depositary may be required by any applicable law or regulation
or any
requirement of any stock exchange to which the Company may be subject. Promptly
upon any amendment to the Articles or change therein, the Company shall transmit
to the Custodian a copy of the Articles as so amended or changed. The Depositary
may rely upon such copies for all purposes of this Deposit Agreement. The
Depositary will make such copies, a copy of this Deposit Agreement and such
notices, reports and communications available for inspection by Holders at
the
Depositary’s Office, at the office of the Custodian and at any other designated
transfer offices.
SECTION
5.07. Issuance
of Additional Shares, etc.
The
Company agrees that in the event of any issuance of (1) additional Shares,
(2)
rights to subscribe for Shares, (3) securities convertible into or exchangeable
for Shares, or (4) rights to subscribe for such securities, it will take
all
steps reasonably necessary to ensure that no violation by the Company of
the
Securities Act of 1933 will result from such issuance.
The
Company agrees with the Depositary that neither the Company nor any Company
controlled by the Company will at any time deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by
any
Company under the control of the Company, unless (i) a registration statement
is
in effect as to such Shares or other Deposited Securities under the Securities
Act of 1933 or (ii) the offer or sale of such Shares or other Deposited
Securities is exempt from registration under the provisions of the Securities
Act of 1933 or the transaction is exempt under such Act.
The
Depositary will comply with written instructions of the Company not to accept
for deposit hereunder any Shares identified in such instructions at such
times
and under such circumstances as may be specified in such instructions in
order
to facilitate the Company’s compliance with the securities laws of the United
States.
SECTION
5.08. Indemnification.
(a) The
Company agrees to indemnify the Depositary and the Custodian against, and
hold
each of them harmless from, any liability, cost or expense (including reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
in accordance with the provisions of this Deposit Agreement and of the Receipts,
as the same may be amended, modified or supplemented from time to time, or
from
any registration with the commission of Receipts, American Depositary Shares
or
Deposited Securities or the offer or sale thereof in the United States, (i)
by
either the Depositary or the Custodian, except for any liability, cost or
expense arising primarily out of the negligence or bad faith of, or breach
of
this Deposit Agreement or any other agreement by, either of them, and, except
to
the extent that such liability, cost or expense arises out of information
relating to the Depositary or the Custodian, as applicable, furnished in
writing
to the Company by the Depositary or the Custodian, as applicable, expressly
for
use in any registration statement, proxy statement, prospectus (or placement
memorandum) or preliminary prospectus (or preliminary placement memorandum)
relating to the Shares represented by the American Depositary Shares, or
omissions from such information or (ii) by the Company or any of its agents.
(b)
The
indemnities contained in subsection (a) shall not extend to any liability,
cost
or expense which may arise out of any Pre-release Arrangements (including
without limitation any claim that any party to a Pre-release Arrangement
may
assert relating to such Pre-release Arrangement). For this purpose, the term
“Pre-release Arrangement” means any arrangement entered into by the Depositary
or the Custodian (other than any such arrangement to which the Company is
a
party) to implement or carry out any one or more Pre-releases (including
without
limitation any arrangement made pursuant to the third, fourth and fifth
sentences of the second paragraph of Section 2.09), but does not include
the
issuance, transfer or exchange of any Pre-released Receipts or any other
act
performed or omitted in accordance with the provisions of this Deposit Agreement
or the Receipts (other than Section 2.09 of this Deposit Agreement and
comparable provisions contained in the Receipts).
(c)
The
Depositary agrees to indemnify the Company and to hold it harmless from any
liability, cost or expense (including fees and expenses of counsel) which
may
arise out of acts performed or omitted to be performed by the Depositary
or
Custodian primarily due to their negligence or bad faith or breach of this
Deposit Agreement.
(d)
The
Depositary and the Company and any of their respective agents shall not be
liable to either party for any indirect, special, consequential or punitive
damages (collectively
"Special Damages") except to the extent such Special Damages arise from the
gross negligence or willful misconduct of the party from whom indemnification
is
sought.
(e)
The
obligations set forth in this Section 5.08 shall survive the termination
of this
Deposit Agreement and the succession or substitution of any person indemnified
hereby.
SECTION
5.09. Charges
of the Depositary.
Subject
to Section 3.02 and the second paragraph of this Section 5.09 (and paragraph
(6)
of the ADR), the Company agrees to pay the charges and expenses of the
Depositary and those of any Receipt Registrar, co-transfer agent and
co-registrar under this Deposit Agreement that are agreed between the Company
and the Depositary in writing from time to time. Such charges may at any
time
and from time to time be changed by written agreement between the Company
and
the Depositary. 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 (and of changing the Custodian) are for the sole account of the
Depositary.
The
Depositary may charge any party to whom Receipts are issued a fee of $5.00
or
less per 100 American Depositary Shares (or portion thereof) for the issuance
of
a Receipt. The Depositary may charge any party who surrenders Receipts against
delivery of Deposited Securities (including any party who surrenders Receipts
after termination of the Deposit Agreement) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the surrender of a Receipt.
The Depositary may
charge
any Holder a fee of $5.00 or less per 100 American Depositary Shares (or
portion
thereof) with respect to (i) Receipts which are issued in connection with
any
distribution of Shares pursuant to the first sentence of Section 4.03 (a)
or
(ii) additional or new Receipts which are issued pursuant to the second sentence
of Section 4.08. In addition, the Depositary may charge a fee of up to $0.02
per
American Depositary Share with respect to any cash distribution made pursuant
to
the Deposit Agreement, including such cash distributions made pursuant to
Section 4.01 through 4.05 and a fee of up to $0.05 per American Depositary
Share
with respect to the distribution of rights pursuant to Section
4.04.
The
Company or the Depositary will, as agreed in writing between the Company
and the
Depositary from time to time, pay all other charges and expenses of the
Depositary, with the exception of (1) any tax, duty or other governmental
charge
(including, without limitation, any amounts in respect of any applicable
stamp
taxes), (2) such registration fees as may from time to time be in effect
for the
registration of transfers of Shares generally on the register of the Share
Registrar and accordingly applicable to transfers of Shares to the name of
the
Depositary of the Custodian or the nominee of either on the making of deposits
or withdrawals hereunder, (3) such cable, telex and facsimile transmission
expenses as are expressly provided in this Deposit Agreement to be at the
expense of persons depositing Shares or Holders of Receipts, (4) amounts
deducted from the proceeds of sales pursuant to Sections 4.02, 4.03 or 4.04
and
(5) such expenses as are incurred by the Depositary in the conversion of
foreign
currency into U.S. dollars pursuant to Section 4.05 (which are reimbursable
out
of such foreign currency).
SECTION
5.10. Available
Information to the Commission.
The
Company agrees that, so long as this Deposit Agreement remains in effect,
it
will either: (i) furnish the Commission with certain public reports and
documents required by foreign law or otherwise under Rule 12g3-2(b) under
the
Securities Exchange Act of 1934, and otherwise comply with the exemption
provided by such Rule, or (ii) be subject to the periodic reporting and other
requirements of the Securities Exchange Act of 1934, and in accordance therewith
file reports and other information with the Commission. Reports and other
information furnished by the Company to the Commission can be inspected by
Holders of Receipts and copied at public reference facilities maintained
by the
Commission located at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇.
ARTICLE
VI
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 in any respect that they may deem necessary or
desirable.
Any
amendment which shall impose or increase any fees or charges (other than
taxes
(including, without limitation, stamp taxes) and other governmental charges),
or
which shall otherwise prejudice any substantial existing right of Holders
of
Receipts shall, however, not become effective as to outstanding Receipts
until
the expiration of three months after notice of such amendment shall have
been
given to the Holders of outstanding Receipts, provided
that,
the parties hereto agree that any amendments which (i) are reasonably necessary
(as agreed by the Company and the Depositary) in order for American Depositary
Shares or Shares to be traded solely in electronic book-entry form and (ii)
do
not impose or increase any fees or charges to be borne by Holders, shall
be
deemed not to prejudice any substantial rights of Holders. Every Holder of
a
Receipt at the time any such amendment so becomes effective, shall be deemed,
by
continuing to hold such Receipt, to consent and agree to such amendment and
to
be bound by the Deposit Agreement or the Receipts or both of them, as
applicable, as amended thereby. In no event shall any amendment impair the
right
of the Holder of any Receipt to surrender such Receipt and receive therefore
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 (which shall
be
confirmed in writing) terminate this Deposit Agreement by mailing notice
of such
termination to the Holders of all Receipts then outstanding at least thirty
(30)
days prior to the date fixed in such notice for such termination. The Depositary
may terminate this Deposit Agreement if at any time ninety (90) days shall
have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have
been
appointed and accepted its appointment as provided in Section 5.04, such
termination to become effective by the Depositary mailing notice of such
termination to Holders of all Receipts then outstanding at least thirty (30)
days prior to the date fixed in such notice for such termination. If any
Receipts shall remain outstanding after the date of termination of this Deposit
Agreement, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under this Deposit Agreement, except that the Depositary shall, in
accordance with and subject to the provisions of this Deposit Agreement,
(a)
continue to collect dividends and other distributions pertaining to Deposited
Securities, (b) sell rights as provided in this Deposit Agreement and (c)
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. At any time after the expiration of two years 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 Holders of Receipts which have not theretofore been surrendered, such
Holders 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. 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
hereof.
ARTICLE
VII
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 which counterparts shall constitute
one
and the same instrument. Copies of this Deposit Agreement shall be filed
with
the Depositary and the Custodian and shall be open to inspection by any Holder
during business hours.
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, except as expressly provided in Section 5.08 with respect
to any co-transfer agent or co-registrar. Nothing in this Deposit Agreement
shall be deemed to give rise to a partnership or joint venture among the
parties
hereto nor establish a fiduciary or similar relationship among the parties.
The
parties hereto acknowledge and agree that (i) the Depositary and its affiliates
may at any time have multiple banking relationships with the Company and
its
affiliates, (ii) the Depositary and its affiliates may be engaged at any
time in
transactions in which parties adverse to the Company or the Holders may have
interests and (iii) nothing contained in this Deposit Agreement shall (a)
preclude the Depositary or any of its affiliates from engaging in such
transactions or establishing or maintaining such relationships, or (b) obligate
the Depositary or any of its affiliates to disclose such transactions or
relationships or to account for any profit made or payment received in such
transactions or relationships.
SECTION
7.03. 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. Holders
Parties; Binding Effect.
The
Holders 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 Articles
and of the Receipts by acceptance of the Receipts. Each Holder agrees that,
by
accepting a Receipt, such Holder shall hold such Receipt subject to, and
with
the obligations of, the provisions hereof, the Articles and the
Shares.
SECTION
7.05. Notices.
(a)
To
the
Company.
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 by cable, telex or facsimile
transmission confirmed by letter, addressed to the Company at ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, or any other person or place as shall
be
specified in writing by the Company.
(b)
To
the
Depositary.
Any and
all notices to be given to the Depositary shall be deemed to have been duly
given if personally delivered or sent by mail or by cable, telex or facsimile
transmission confirmed by letter, addressed to Deutsche Bank Trust Company
Americas, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ADR Division,
27th Floor, or any other place to which the Depositary may have transferred
the
Depositary’s Office.
(c)
To
any
Holder.
Any and
all notices to be given to any Holder shall be deemed to have been duly given
if
personally delivered or sent by mail or by cable, telex or facsimile (or
if
expressly agreed between a Holder, the Company and the Depositary, electronic)
transmission confirmed by letter, addressed to such Holder at the address
of
such Holder (each at the expense of the Company, unless otherwise agreed
in
writing between the Company and the Depositary) as it appears on the transfer
books of the Depositary, or, if such Holder shall have filed with the Depositary
a written request that notices intended for such Holder be mailed to some
other
address, at the address designated in such request.
(d)
General.
Delivery of a notice sent to the Company or the Depositary shall be deemed
to be
effected when received. Delivery of a notice sent to a Holder by mail or
by
cable, telex or facsimile (or if expressly agreed between a Holder, the Company
and the Depositary, electronic) transmission shall be deemed to be effected
at
the time when a duly addressed letter containing such notice (or a confirmation
thereof in the case of a cable, telex or facsimile (or if expressly agreed
between a Holder, the Company and the Depositary, electronic) transmission)
is
deposited, postage prepaid, in a post-office letter box. The Depositary or
the
Company may, however, act upon any cable, telex or facsimile (or if expressly
agreed between a Holder, the Company and the Depositary, electronic)
transmission received by it from the other or from any Holder, notwithstanding
that such cable, telex or facsimile (or if expressly agreed between a Holder,
the Company and the Depositary, electronic) transmission shall not subsequently
be confirmed by letter as aforesaid.
SECTION
7.06. 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
7.07. Headings.
Headings contained herein are included for convenience only and are not to
be
used in construing or interpreting any provision hereof.
SECTION
7.08. Conflict
with Articles.
If any
provision of this Deposit Agreement conflicts with any provision of the
Articles, the Articles shall govern (except to the extent that any provision
of
the Articles is expressly stated to be subject to this Deposit Agreement).
IN
WITNESS WHEREOF, SCOTTISH & SOUTHERN ENERGY plc and DEUTSCHE BANK TRUST
COMPANY AMERICAS have duly executed this Deposit Agreement as of the day
and
year first above set forth and all Holders of Receipts shall become parties
hereto upon acceptance by them of Receipts issued in accordance with the
terms
hereof.
| SCOTTISH & SOUTHERN ENERGY plc | ||
| |
|
|
| By: | ||
|
Title |
||
| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
| |
|
|
| By: | ||
|
Title |
||
|
By:
|
|
|
| Title | ||
| EXHIBIT A TO | |||
| DEPOSIT AGREEMENT |
[FORM
OF
FACE OF RECEIPT]
| *********************** | *********************** | |
| * NUMBER * | * DEPOSITARY SHARES* | |
| *********************** | *********************** |
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES OF
SCOTTISH
& SOUTHERN ENERGY plc
(Incorporated
in Scotland)
DEUTSCHE
BANK TRUST COMPANY AMERICAS, a corporation organized and existing under the
laws
of the State of New York as a trust company, as Depositary (herein called
the
Depositary), hereby certifies that ______________________________ is the
owner
of __________________ American Depositary Shares (herein called American
Depositary Shares), representing Ordinary Shares of fifty (50) ▇▇▇▇▇ each
(or
evidence of rights to receive Ordinary Shares) (herein called Shares) of
Scottish & Southern Energy plc, a public limited company incorporated in
Scotland (herein called the Company). At the date hereof, each American
Depositary Share represents one (1) Share deposited under the Deposit Agreement
(hereinafter defined) at the principal office of the Custodian appointed
under
the Deposit Agreement (herein called the Custodian).
Dated:
DEUTSCHE
BANK TRUST COMPANY AMERICAS
as
Depositary and Registrar
By:___________________________
Authorized
Signatory
Countersigned:
By:_______________________
Authorized
Signatory
THE
ADDRESS OF THE DEPOSITARY’S OFFICE IS ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
[Names
and addresses of any co-registrars and co-transfer agents]
(1) The
Deposit Agreement.
This
American Depositary Receipt is one of an issue (the “Receipts”), all issued and
to be issued upon the terms and conditions set forth in the
Amended
and Restated Deposit
Agreement dated as of December
[
], 2005
(as
amended from time to time, the “Deposit Agreement”) by and among the Company,
the Depositary and each person or persons in whose name a Receipt is registered
on the books of the Depositary maintained for such purpose (each a “Holder”),
each of whom by accepting a Receipt agrees to become a party thereto and
becomes
bound by all the terms and provisions thereof, hereof and of the Shares.
The
Deposit Agreement sets forth the rights and obligations of Holders of Receipts
and the rights and duties of the Depositary in respect of Shares deposited
thereunder and any and all other securities, property and cash received at
any
time in respect or in lieu of such Shares and held thereunder (such Shares,
securities, property and cash are herein called “Deposited Securities”). Copies
of the Deposit Agreement, the Shares and the Company’s Memorandum and Articles
of Association (the “Articles”) are on file at the office of the Depositary for
the administration of its American depositary receipt business (the
“Depositary’s Office”), at the office of the Custodian and at any other
designated transfer office. The statements made on the face and the reverse
of
this Receipt are summaries of certain provisions of the Deposit Agreement,
as
well as the Shares and the Articles, and are qualified by and subject to
the
detailed provisions thereof, to which reference is hereby made. The Depositary
makes no representation or warranty as to the validity or worth of the Deposited
Securities.
(2) Surrender
of Receipts and Withdrawal of Shares.
Upon
surrender at the Depositary’s Office of this Receipt, upon payment of the fee of
the Depositary provided for in paragraph (6) of this Receipt, and subject
to the
terms and conditions of the Deposit Agreement, the Articles, the Shares and
the
other Deposited Securities, the Holder hereof is entitled to delivery, to
or
upon the order of such Holder, of the Deposited Securities at the time
represented by the American Depositary Shares evidenced by this
Receipt.
Delivery
of such Deposited Securities may be made by the delivery of certificates
in the
name of the Holder hereof or as ordered by such Holder, or by the delivery
of
certificates properly endorsed or accompanied by proper instruments of transfer.
By ordering delivery of certificates in the name of any person, the Holder
hereof will warrant that such person agrees to be bound by all of the terms
and
conditions of the Articles (such warranty surviving the delivery of the
Deposited Securities pursuant to this paragraph). Such delivery will be made,
subject to the Deposit Agreement and the Articles, without unreasonable delay
at
the principal office of the Custodian or, at the request of the Holder hereof,
the Depositary shall direct the Custodian to forward such Deposited Securities
and proper documents of title therefor for delivery at the Depositary’s Office;
provided
that the
forwarding of Shares or other Deposited Securities for such delivery at the
Depositary’s office shall be at the risk and expense of the Holder
hereof.
(3) Transfers,
Split-ups and Combinations; Limitations.
This
Receipt is transferable on the books of the Depositary by the Holder hereof
in
person or by duly authorized attorney, until the transfer books of the
Depositary are closed as set forth in paragraph (4) of this Receipt, upon
surrender of this Receipt at any designated transfer office properly endorsed
or
accompanied by proper instruments of transfer and duly stamped as may be
required by applicable law; provided,
however,
that
the Depositary may close the transfer books (a) after consultation with the
Company at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties under the Deposit Agreement
or (b)
at the request of the Company. Except as set forth above, this Receipt may
be
split into other Receipts or may be combined with other 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, registration of transfer, split-up, combination
or
surrender of any Receipt or transfer and withdrawal of any Deposited Securities,
the Depositary or the Custodian may require (i) payment of a sum sufficient
to
reimburse it for any tax, duty or other governmental charge (including, without
limitation, amounts in respect of any applicable stamp taxes) payable with
respect thereto, any share transfer or registration fees in effect for the
registration or registration of transfers of Shares generally on the register
of
the Share Registrar (or of any co-registrar); (ii) payment of any applicable
fees as provided in paragraph (6) of this Receipt; (iii) the production of
proof
satisfactory to it as to the identity and genuineness of any signature; and
(iv)
compliance with such regulations, if any, as the Depositary may establish
consistent with the provisions of the Deposit Agreement.
The
Depositary may refuse to deliver Deposited Securities or Receipts, register
the
transfer of any Receipt, or make any distribution of, or related to, Deposited
Securities until it has received such proof of citizenship, residence, exchange
control approval, legal or beneficial ownership or other information as it
may
deem necessary or proper or as the Company may require by written request
to the
Depositary or the Custodian. The delivery of Receipts against deposits of
Shares
generally may be suspended, or the delivery of Receipts against deposits
of
particular Shares may be withheld, or the registration of transfer of Receipts
in particular instances may be refused, or the registration of transfer or
surrender 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 Receipt or
the
Deposit Agreement or for any other reason. Notwithstanding any provision
of this
Receipt or the Deposit Agreement to the contrary, Holders shall be entitled
to
withdraw Deposited Securities subject only to the conditions set forth in
paragraph I (A) (1) of the General Instructions (or any successor provisions
thereto), as in effect from time to time, to Form F-6 as prescribed by the
Commission under the Securities Act of 1933.
The
Depositary may issue Receipts against rights to receive Shares from the Company
(or the appointed agent of the Company for transfer and registration of Shares,
which may, but need not, be the Share Register). No such issue of Receipts
will
be deemed a “Pre-release” that is subject to the restrictions of the following
paragraph.
Neither
the Depositary nor the Custodian will lend Shares or Deposited Securities
held
under the Deposit Agreement except to the extent contemplated by the following
sentence. The Depositary may (but is not required to) issue from time to
time
Receipts prior to the delivery to it or the Custodian for deposit, pursuant
to
Section 2.02 of the Deposit Agreement, of the Shares in respect of which
such
Receipts are issued (each such issue a “Pre-release”). The Depositary will not
make a Pre-release of any Receipts (each a “Pre-released Receipt”) unless (a)
the person to, or upon the order of, which Pre-released Receipts are delivered
is obligated to deliver to the Depositary or the Custodian either (i) the
same
number of Shares as the Shares represented by such Pre-released Receipts
or (ii)
Receipts representing the same number of Shares as are represented by such
Pre-released Receipts; and (b) the obligation of such person to deliver Shares
(or a Receipt or Receipts in lieu thereof) pursuant to clause (a) shall,
at all
times, be fully collateralized with cash or United States government securities.
The Depositary intends to Pre-release Receipts only pursuant to agreements
that
contain provisions whereby the person to whom a Pre-release is made represents
and warrants that, at the time of the Pre-release, such person, or its customer,
is the owner of the Shares for each Receipt that is the subject of the
Pre-release. In addition, it is the Depositary’s standard practice with respect
to such Pre-releases (x) to enter into an agreement with the person seeking
to
engage in such a transaction providing that the Pre-release be terminable
by the
Depositary on not more than five (5) business days’ notice and subject to such
further indemnities and credit regulations as the Depositary deems appropriate;
(y) to limit the number of Receipts involved in such transactions at any
one
time to thirty percent (30%) of the Receipts outstanding (without giving
effect
to Pre-released Receipts outstanding under Section 2.09 of the Deposit
Agreement), or Shares held under the terms of the Receipts, provided,
however,
that
the Depositary reserves the right to change or disregard such limit from
time to
time as it deems appropriate; and (z) to set limits with respect to the number
of Receipts involved in Pre-releases to be done with any one person on a
case by
case basis as it deems appropriate.
Collateral
held pursuant to clause (b) above shall be held by the Depositary for the
benefit of the Holders of Receipts. The Depositary may, however, retain for
its
own account any earnings thereon and any other compensation received by it
in
connection with the issuance of Pre-released Receipts.
Without
limitation of the foregoing, the Depositary will not knowingly accept for
deposit under the Deposit Agreement any Shares which (a) if sold by the Holder
thereof in the United States (as defined in Regulation S under the Securities
Act of 1933) would be subject to the registration provisions of the Securities
Act of 1933 unless a registration statement is in effect as to such Shares
or
the sale of such Shares would be exempt from such provisions or (b) would
thereby infringe any provisions of the Articles. The Depositary may accept
Shares which the Depositary believes have been withdrawn from a restricted
American depositary receipt facility established or maintained by a depositary
bank for deposit only if such Shares have been acquired in a transaction
(i)
registered under the Securities Act of 1933, (ii) in compliance with Regulation
S under the Securities Act of 1933, or (iii) in accordance with Rule 144
under
the Securities Act of 1933, and the Depositary may, as a condition to accepting
the deposit of such Shares, require the person depositing such Shares to
provide
the Depositary with a certificate in writing to the foregoing effect. The
Depositary will comply with written instructions of the Company not to accept
for deposit under the Deposit Agreement any Shares identified in such
instructions at such times and under such circumstances as may be reasonably
specified in such instructions in order to facilitate the Company’s compliance
with the securities laws of the United States.
(4) Liability
of Holder for Taxes.
Any
tax, duty or other governmental charge (including, without limitation, any
stamp
taxes) or expense payable by the Custodian, the Depositary or the nominee
or
nominees of either as the registered holder of any Deposited Securities
underlying this Receipt shall be payable by the Holder hereof, who shall
pay the
amount thereof to the Depositary. The Depositary may refuse to effect any
registration of transfer of this Receipt or any transfer and withdrawal of
Deposited Securities underlying this Receipt until such payment is made,
and may
withhold any cash dividends or other cash distributions constituting Deposited
Securities underlying this Receipt, or may sell for the account of the Holder
hereof any part or all of the other Deposited securities underlying this
Receipt, and may apply such cash or the proceeds of any such sale in payment
of
any such tax, duty or other governmental charge or expense (and any taxes
and
expenses arising or incurred as a result of effecting any such sale), the
Holder
hereof remaining liable for any deficiency.
(5) Warranties
by Depositor.
Every
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor are
validly
issued and outstanding, fully paid and non-assessable and free of preemptive
rights, and that the person making such deposit is duly authorized so to
do.
Every such person (other than the Company) shall also be deemed to represent
that the deposit of Shares or the sale of Receipts issued upon such deposit
is
not restricted under the securities laws of the United States. In addition,
such
person shall be deemed to represent that such Shares (i) are not a holding,
or
part of a holding, representing an “interest” (as defined in the Relevant
Article) in Relevant Shares (as defined in such Relevant Article) (other
than
interests, if any, of Permitted Persons, as defined in such Relevant Article)
and (ii) are not liable to disenfranchisement or disposal by the Company
pursuant to the Relevant Article or Article 50 of the Articles. All such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts therefor.
(6) Charges
of Depositary.
The
Depositary may charge any party to whom Receipts are issued a fee of $5.00
or
less per 100 American Depositary Shares (or portion thereof) for the issuance
of
a Receipt. The Depositary may charge any party who surrenders Receipts against
delivery of Deposited Securities a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the surrender (including any party
who surrenders Receipts after termination of this Deposit Agreement) of a
Receipt. The Company or the Depositary will pay, in accordance with Section
5.09
of the Deposit Agreement, all other charges and expenses of the Depositary,
with
the exception of (1) any tax, duty or other governmental charge (including,
without limitation, any amounts in respect of any applicable stamp taxes),
(2)
such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the register of the Share
Registrar and accordingly applicable to transfers of Shares to the name of
the
Depositary or the Custodian or the nominee of either on the making of deposits
or withdrawals hereunder, (3) such cable, telex and facsimile transmission
expenses as are expressly provided in the Deposit Agreement to be at the
expense
of persons depositing Shares or Holders of Receipts, (4) amounts deducted
from
the proceeds of sales as provided in the Deposit Agreement and (5) such expenses
as are incurred by the Depositary in the conversion of foreign currency into
U.S. dollars as described in paragraph (10) (which are reimbursable out of
such
foreign currency). The Depositary may charge any Holder a fee of $5.00 or
less
per 100 American Depositary Shares (or portion thereof) with respect to (i)
Receipts which are issued in connection with any distribution of Shares as
described in paragraph (10) or (ii) additional or new Receipts which are
issued
as described in paragraph (13). In addition, the Depositary may charge a
fee of
up to $0.02 per American Depositary Share with respect to any cash distribution
made pursuant to the Deposit Agreement, including such cash distributions
made
pursuant to paragraph (10) and a fee of up to $0.05 per American Depositary
Share with respect to the distribution of rights pursuant to paragraph (10)
hereof.
(7) Title
to Receipts.
It is a condition of this Receipt, and every successive Holder hereof
by
accepting or holding this Receipt consents and agrees, that title to this
Receipt (and to the American Depositary Shares evidenced hereby), when properly
endorsed or accompanied by proper instruments of transfer, is transferable
by
delivery with the same effect as in the case of a negotiable instrument;
provided,
however,
that
the Company and the Depositary, notwithstanding any notice to the contrary,
may
treat the person in whose name this Receipt is registered on the books of
the
Depositary as the absolute owner hereof for the purpose of determining the
person entitled to any distribution of dividends or other distributions or
to
any notice provided for in the Deposit Agreement, and for all other
purposes.
(8) Validity
of This Receipt.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement
or be
valid or obligatory for any purpose unless executed by the Depositary by
the
manual signature of a duly authorized signatory or, if a Receipt Registrar
for
the Receipts shall have been appointed, by the manual signature of a duly
authorized signatory of such Receipt Registrar or any co-registrar.
(9) [Reserved].
(10) Dividends
and Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution by the Company in respect of 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 U.S. dollars transferable to the United States and
subject
to the provisions of the Deposit Agreement, convert such dividend or
distribution into U.S. dollars and distribute the amount thus received to
the
Holders entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them, respectively;
provided,
however,
that
the amount distributed will be reduced by any amounts required to be withheld
by
the Company or the Depositary on account of taxes and applicable fees and
charges of, and expenses incurred by, the Depositary. If in the judgment
of the
Depositary any amount received in foreign currency may not be converted on
a
reasonable basis into U.S. dollars transferable to the United States, or
may not
be so convertible for all of the Holders entitled thereto, the Depositary
may in
its discretion make such conversion, if any, and distribution in U.S. dollars
to
the extent permissible to the Holders entitled thereto and may distribute
the
balance of the foreign currency received and not so convertible by the
Depositary to, or hold such balance for the account of, the Holders entitled
thereto for whom such conversion and distribution is not practicable. If
in the
opinion of the Depositary any distribution other than cash or Shares upon
any
Deposited Securities cannot be made proportionately among the Holders entitled
thereto, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes) the Depositary
deems
such distribution not to be feasible, the Depositary may adopt such method
as it
may deem equitable and practicable for the purpose of effecting such
distribution, including the sale (at 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 applicable (a) fees and charges of, and expenses incurred by,
the
Depositary and (b) taxes) will be distributed by the Depositary to the Holders
entitled thereto as in the case of a distribution received in cash.
If
any
distribution upon any Deposited Securities consists of a dividend in, or
free
distribution of, Shares, the Depositary may with the approval of the Company,
and will if the Company so requests, distribute to the Holders of outstanding
Receipts entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them, respectively,
additional Receipts for an aggregate number of American Depositary Shares
representing the number of Shares received as such dividend or distribution,
after deduction or upon payment of (a) the fees and charges of, and expenses
incurred by, the Depositary and (b) taxes. In lieu of delivering Receipts
for
fractional American Depositary Shares in any such case, the Depositary shall
sell the amount of Shares represented by the aggregate of such fractions
and
distribute the net proceeds, converted into U.S. dollars if not in U.S. dollars,
to the Holders entitled thereto. If additional Receipts are not so distributed,
each American Depositary Share shall thenceforth also represent the additional
Shares distributed upon the Deposited Securities represented thereby.
If
for
any reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or other governmental charges or that
such Shares must be registered under the Securities Act in order to be
distributed to Holders of Receipts) the Depositary deems such distribution
not
to be feasible, the Depositary may adopt such method, as it may reasonably
deem
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the Shares thus received,
or
any part thereof, and the distribution of the net proceeds of any such sale
by
the Depositary to the Holders entitled hereto as in the case of a distribution
received in cash.
In
the
event that the Company shall offer or cause to be offered to the holders
of any
Deposited Securities any rights to subscribe for additional Shares or any
rights
of any other nature, the Depositary shall, after consultation with the Company,
have discretion as to the procedure to be followed in making such rights
available to the Holders of Receipts or in disposing of such rights on behalf
of
such Holders and making the net proceeds available in U.S. dollars or in
pounds
sterling to such Holders; provided,
however,
that
the Depositary will, if requested by the Company, either (a) make such rights
available to Holders by means of warrants or otherwise, if lawful and feasible
by such means, or (b) if making such rights available is not lawful or not
feasible by such means, or if the rights represented by such warrants or
other
instruments are not exercised and appear to be about to lapse, sell such
rights
or warrants or other instruments at public or private sale, at such place
or
places and upon such terms as the Depositary may deem proper, and allocate
the
proceeds of such sales for account of the Holders otherwise entitled thereto,
net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and other governmental charges, upon an averaged
or
other practicable basis without regard to any distinctions among such Holders
on
account of exchange restrictions, the date of delivery of any Receipt or
Receipts under the Deposit Agreement or otherwise.
(11) 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 Shares or other Deposited
Securities, the Depositary will, after consultation with the Company, fix
a
record date which date shall, to the extent practicable, be the same as the
record date fixed by the Company for the determination of the Holders who
shall
be entitled to receive such dividend, distribution or rights, or the net
proceeds of the sale thereof, or to give instructions for the exercise of
voting
rights at any such meeting, subject to the provisions of the Deposit
Agreement.
(12) Voting
of Deposited Securities.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall as soon as practicable thereafter and, to
the
extent permitted by law, mail to the Holders a notice which will contain
(a)
such information as is contained in such notice of meeting, (b) a statement
that
the Holders at the close of business on a specified record date will be
entitled, subject to any applicable provisions of law and of the Articles
and
the Deposited Securities, to instruct the Depositary as to the exercise of
voting rights, if any, pertaining to the amount of Deposited Securities
represented by the American Depositary Shares evidenced by their respective
Receipts and (c) a brief statement as to the manner in which such instructions
may be given, including an express indication that instructions may be given
to
the Depositary to give a discretionary proxy to a person or persons designated
by the Company. Upon the written request of a Holder of a Receipt on such
record
date, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor in so far as practicable to vote or
cause
to be voted the amount of Shares or other Deposited Securities represented
by
the American Depositary Shares evidenced by such Receipt in accordance with
such
instructions. The Depositary agrees not to vote the amount of Deposited
Securities represented by the American Depositary Shares evidenced by a Receipt
unless it receives instructions from the Holder of such Receipt. In accordance
with the Articles and Scots law, failure by a Holder, or a person holding
an
interest in Shares through a Holder, to comply with the Company’s request for
information of the nature referred to in paragraphs (20) and (21) may result,
inter alia,
in
withdrawal of the voting rights attaching to the Shares underlying the Receipts
held by that Holder and thus of the rights described in this paragraph to
direct
the voting of Deposited Securities underlying such Receipts.
(13) Changes
Affecting Deposited Securities.
Upon
any 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 the Custodian
in
exchange for or in conversion of or in respect of Deposited Securities shall
be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent the 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 with the approval of the Company, and shall if the Company
shall
so request, execute and deliver additional Receipts as in the case of a dividend
of Shares, or call for the surrender of outstanding Receipts to be exchanged
for
new Receipts specifically describing such new Deposited Securities.
(14) Reports;
Inspection of Transfer Books.
The
Depositary will make available for inspection by Holders at the Depositary’s
Office or at any other designated transfer office any reports and communications
received from the Company which are both (a) received by the Depositary or
its
nominee 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 Holders copies of such reports when furnished
by
the Company as provided in the Deposit Agreement. The Depositary will keep
books
at its transfer office in New York City for the registration of Receipts
and
their transfer which at all reasonable times will be open for inspection
by the
Holders and the Company and the Share Registrar provided that such inspection
shall not be for the purpose of communicating with Holders in the interest
of a
business or object other than the business of the Company or a matter related
to
the Deposit Agreement, the Receipts, the Shares or the Articles.
(15) Withholding.
Notwithstanding any other provision of the Deposit Agreement, if the Depositary
determines that any distribution in property (including Shares and rights
to
subscribe therefor) is subject to any tax which the Depositary is obligated
to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in
such
manner as the Depositary deems necessary and practicable to pay such taxes,
by
public or private sale, and the Depositary shall distribute the net proceeds
of
any such sale or the balance of any such property after deduction of such
taxes
to the Holders entitled thereto. The Holders shall indemnify the Depositary,
the
Company, the Custodian and any of their respective directors, employees,
agents
and affiliates against, and hold each of them harmless from, any claims by
any
governmental authority with respect to taxes, additions to tax, penalties
or
interest arising out of any refund of taxes, reduced rate of withholding
at
source or other tax benefit obtained.
(16) Liability
of the Depositary, the Company and the Directors.
None of
the Depositary, the Company and any Director shall incur any liability to
any
Holder of this Receipt if, by reason of any provision of any present or future
law of any country or of any governmental authority, or by reason of any
provision, present or future, of the Articles or the Deposited Securities,
or by
reason of any act of God or war or other circumstance beyond its control,
the
Depositary, the Company and any Director shall be prevented or forbidden
from
doing or performing any act or thing which by the terms of the Deposit Agreement
it is provided shall be done or performed. None of the Depositary, the Company
and any Director assumes any obligation nor shall either of them be subject
to
any liability under the Deposit Agreement to Holders, except that each agrees
to
use its or his reasonable efforts and good faith in the performance of its
or
his obligations set forth in the Deposit Agreement. None of the Depositary,
the
Company and any Director shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited
Securities or in respect of the Receipts, which in its or his opinion may
involve it or him in expense or liability, unless indemnity satisfactory
to it
or him against all expense and liability be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever
with
respect to such proceedings, the responsibility of the Custodian being solely
to
the Depositary. None of the Depositary, the Company and any Director shall
be
liable for any action or non-action by it or him in reliance upon the advice
of
or information from legal counsel, accountants, any governmental authority,
any
person presenting Shares for deposit, any Holder, or any other person believed
by it or him in good faith to be competent to give such advice or information.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities or for the manner in
which
any such vote is cast or for the effect of any such vote, provided that any
such
action or non-action is in good faith.
Subject
to the Articles, the Depositary may own and deal in any class of securities
of
the Company and its affiliates and in Receipts. The Company has agreed to
indemnify the Depositary and the Custodian against and hold each of them
harmless from any liability, cost or expense that may arise (a) out of acts
performed or omitted in accordance with the provisions of the Deposit Agreement
and the Receipts and (b) out of any registration with the Commission of
Receipts, American Depositary Shares or Deposited Securities or the offer
or
sale thereof in the United States, (i) by the Depositary or the Custodian,
except for any liability primarily arising out of the negligence or bad faith
of, or breach of the Deposit Agreement or any other agreement by either of
them,
and, except to the extent that such liability, cost or expense arises out
of
information relating to the Depositary or the Custodian, as applicable,
expressly for use in any registration statement, proxy statement, prospectus
(or
preliminary placement memorandum) relating to the Shares represented by the
American Depositary Shares, or omissions from such information or (ii) by
the
Company or any of its agents. The Depositary agrees to indemnify the Company
and
to hold it harmless from any such liability, cost or expense (including fees
and
expenses of counsel) which may arise out of acts performed or omitted to
be
performed by the Depositary or Custodian primarily due to their negligence
or
bad faith or breach of the Deposit Agreement. The Depositary and its agents
shall not be liable for any acts or omissions made by a predecessor or successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly before the
appointment of or 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 willful
misconduct while it acted as Depositary. Neither the Company nor the Depositary
nor any of their respective agents shall be liable to Holders or beneficial
owners of interests in American Depositary Shares for any indirect, special,
punitive or consequential damages.
(17) Resignation
and Removal of Depositary; Substitution of Custodian.
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of its election so to do, such resignation to take effect
upon
the appointment of a successor depositary as provided in the Deposit Agreement.
The Depositary may at any time be removed as Depositary by the Company by
written notice of such removal, such termination to take effect upon appointment
of a successor depositary as provided in the Deposit Agreement. The Depositary
may at any time appoint a substitute custodian and the term “Custodian” shall
refer to such substitute.
(18) Amendment
of Deposit Agreement and Receipts.
The
form of the Receipts and any provisions of the Deposit Agreement may at any
time
and from time to time be amended by agreement between the Company and the
Depositary in any respect they may deem necessary or desirable. Any amendment
which shall impose or increase any fees or charges (other than taxes (including,
without limitation, stamp taxes) and other governmental charges), or which
shall
otherwise prejudice any substantial existing right of Holders of Receipts,
shall, however, not become effective as to outstanding Receipts until the
expiration of three months after notice of such amendment shall have been
given
to the Holders of outstanding Receipts, provided
that any
amendments which (i) are reasonably necessary (as agreed by the Company and
the
Depositary) in order for American Depositary Shares or Shares to be traded
solely in electronic book-entry form and (ii) do not impose or increase any
fees
or charges to be borne by Holders, shall be deemed not to prejudice any
substantial rights of Holders. Every Holder of a Receipt at the time any
such
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement or the Receipts, or both of them, as applicable, as amended thereby.
In no event shall any amendment impair the right of the Holder 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.
(19) Termination
of Deposit Agreement.
The
Depositary will at any time at the direction of the Company terminate the
Deposit Agreement by mailing notice of such termination to the Holders of
all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may terminate the Deposit Agreement
if at any time ninety (90) days shall have expired after the Depositary shall
have delivered to the Company a written notice of its election to resign
and a
successor depositary shall not have been appointed and accepted its appointment
as provided under the Deposit Agreement, such termination to become effective
by
the Depositary mailing notice thereof to Holders of all Receipts then
outstanding at least thirty (30) days prior to the date fixed in such notice,
for such termination. If any Receipts remain outstanding after the date of
termination, the Depositary thereafter will discontinue the registration
of
transfers of Receipts, will suspend the distribution of dividends to the
Holders
thereof, and will not give any further notices or perform any further acts
under
the Deposit Agreement, except the collection of dividends and other
distributions pertaining to Deposited Securities, the sale of rights and
the
delivery of 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. At any time after the expiration of. two years from the date
of
termination, the Depositary may sell the Deposited Securities then held by
it
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 Holders of Receipts which have not theretofore been surrendered. 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.
(20) Disclosure
of Beneficial Ownership.
Notwithstanding any other provision of this Receipt or the Deposit Agreement,
the Holder hereof agrees to comply with requests from the Company, pursuant
to
the Articles or the Companies Act, to provide information as to the capacity
in
which such Holder owns Receipts, the identity of any other person interested
(as
defined in the Articles or the Companies Act) in this Receipt and the nature
and
extent of such interest and any other information required by such request.
The
Holder hereof acknowledges that failure to comply with such a request may
result, inter alia, in the withdrawal of the voting rights attaching to the
Shares underlying this Receipt and, if such Shares, together with all other
such
Shares in which such Holder has an interest, represent 0.25 percent or more
of
the nominal value of the issued Shares, the imposition of restrictions on
the
rights to transfer, or to receive distributions relating to, the Shares
underlying this Receipt. The Holder hereof agrees to comply with the provisions
of the Articles and the Companies Act with regard to notification to the
Company
of interests in Shares.
(21) Certain
Definitions.
Terms
used in this Receipt which are not otherwise defined shall have the respective
meanings ascribed to them in the Deposit Agreement.
(22) Headings.
Headings contained herein are included for convenience only and are not to
be
used in construing or interpreting any provision hereof.
(23) Governing
Law.
The
Deposit Agreement and this Receipt shall be interpreted and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed
by
the laws of the State of New York.
(24) Available
Information to the Commission.
The Company currently furnishes to the Commission certain public
reports
and documents required by foreign law or otherwise under Rule 12g3-2(b) under
the Securities Exchange Act of 1934, and otherwise complies with the exemption
provided by such Rule. Should the Company cease to furnish the Commission
with
reports as set forth above while the Deposit Agreement is in effect, it will
be
subject to the periodic reporting and other requirements under the Securities
Exchange Act of 1934, and in accordance therewith file reports and other
information with the Commission. Reports and other information furnished
by the
Company to the Commission can be inspected by Holders of Receipts and copied
at
public reference facilities maintained by the Commission in Washington,
D.C.