AMENDED AND RESTATED DEPOSIT AGREEMENT Dated as of , 2007 to DEPOSIT AGREEMENT Dated as of December 31, 1998, as amended BP p.l.c. and JPMorgan Chase Bank N.A., as Depositary and HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
AMENDED
AND RESTATED DEPOSIT AGREEMENT
Dated
as
of
,
2007
to
Dated
as
of December 31, 1998, as amended
BP
p.l.c.
and
JPMorgan
Chase Bank N.A.,
as
Depositary
and
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Amended
and Restated Deposit
Agreement
dated as
of 2007, among BP
p.l.c.,
a
corporation organized under the laws of England and Wales and its successors
(the “Company”),
JPMorgan
Chase Bank, N.A.,
a
national banking association organized under the laws of the United States,
as
depositary hereunder and any successor as depositary hereunder (the
“Depositary”),
and
all holders from time to time of American Depositary Receipts issued
hereunder.
WITNESSETH:
Whereas,
the
Company desires to amend and restate the Deposit Agreement dated as of December
31, 1998, as amended (the “Original
Deposit Agreement”),
among
the Company, BP Amoco Corporation, an Indiana corporation and a wholly owned
subsidiary of the Company, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
depositary thereunder, and all holders from time to time of Receipts issued
thereunder, and provide for the deposit of Shares of the Company from time
to
time with the Depositary or the Custodian (as hereinafter defined) and for
the
execution and delivery of American Depositary Receipts evidencing the American
Depositary Shares representing the Shares so deposited; and
Whereas,
the
American Depositary Receipts issued in certificated form are to be substantially
in the form of Exhibit A annexed hereto;
Now,
Therefore,
in
consideration of the premises, it is agreed by and among the parties hereto
that
the Original Deposit Agreement is hereby amended and restated in its entirety
to
read as follows effective as of the date first above written:
ARTICLE
I
DEFINITIONS
Section
1.1 The
term “American Depositary Shares” shall
mean the rights evidenced by the Receipts executed and delivered hereunder,
including the interests in the Deposited Securities granted to the Holders
of
Receipts pursuant to the terms and conditions of this Deposit Agreement. Each
American Depositary Share shall represent rights to receive six (6) Shares
until
there shall occur a distribution upon Deposited Securities referred to in
Section 4.2 or a change in Deposited Securities referred to in Section 4.8
with
respect to which additional Receipts are not executed and delivered, and
thereafter each American Depositary Share shall represent the right to receive
the Deposited Securities specified in such Sections.
Section
1.2 The
term “BP Direct Access Plan” shall
mean the direct share purchase plan for the purchase of American Depositary
Shares of the Company, the terms and conditions of which are set forth in the
Agreement for the BP Direct Access Plan between BP Company North America Inc.
and JPMorgan Chase Bank, N.A., dated as of , as the same may be amended from
time to time.
Section
1.3 The
term “Commission” shall
mean the Securities and Exchange Commission of the United States or any
successor governmental agency.
Section
1.4 The
term “Custodian” shall
mean one or more agent or agents of the Depositary (singly or collectively,
as
the context requires) named as Custodian in Exhibit A annexed hereto and any
additional or substitute Custodian appointed pursuant to Section
5.5.
Section
1.5
The terms “deliver”, “execute”, “issue”, “register”, “surrender”, “transfer” or
“cancel” when
used
with respect to Direct Registration Receipts, shall refer to an entry or entries
or an electronic transfer or transfers in the Direct Registration
System.
1
Section
1.6 The
term “Deposit Agreement” shall
mean this Agreement, as the same may be amended from time to time in accordance
with the provisions hereof.
Section
1.7 The
term “Depositary’s Office” shall
mean the office of the Depositary for the administration of depositary
receipts.
Section
1.8 The
term “Deposited Securities” as
of any
time shall mean all Shares whether in registered form or in the form of share
warrants to bearer (or evidence of rights to receive 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 such deposited Shares and other Shares (or evidence of
rights to receive Shares), securities, property and cash at such time held
hereunder.
Section
1.9 The
term “Direct Registration Receipt” means
a
Receipt, the ownership of which is recorded on the Direct Registration System.
Section
1.10 The
term “Direct Registration System” means
the
direct registration system maintained by the Depositary, pursuant to which
the
Depositary may record the ownership of uncertificated Receipts, which ownership
shall be evidenced by periodic statements issued by the Depositary to the
Holders entitled thereto.
Section
1.11 The
term “Holder” shall
mean the person or persons in whose name a Receipt is registered on the Receipt
register maintained by the Depositary for such purpose. So long as the
Depositary also serves as the administrator for the BP Direct Access Plan,
direct participants in such plan shall be treated as Holders for purposes of
Sections 4.07 and 4.11 hereof.
Section
1.12 The
term “Receipt Register” means
the
register maintained by the Depositary for the registration of transfer,
combination and split-up of Receipts, and, in the case of Direct Registration
Receipts, shall include the Direct Registration System.
Section
1.13 The
term “Receipts” shall
mean the American Depositary Receipts executed and delivered hereunder..
Receipts may be either in physical certificated form or Direct Registration
Receipts. Receipts in physical certificated form shall be in substantially
the
form of Exhibit A hereto, as the same may be amended from time to time in
accordance with the provisions hereof. References to “Receipts” shall include
Direct Registration Receipts, unless the context otherwise
requires.
Section
1.14 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.
Section
1.15 The
term “Shares” shall
mean the Ordinary Shares of $0.25 each, either in registered form or in the
form
of share warrants to bearer, of the Company and shall include rights to receive
Shares.
Section
1.16 The
term “Tax Treaty Payments” shall
mean a payment made pursuant to an entitlement to receive from the UK Inland
Revenue, in addition to any cash dividend paid by the Company, an amount in
the
nature of a tax credit.
2
Section
1.17 The
term “Voting Instruction” shall
mean a written instruction in the form required by the Depositary by a Holder
(or such Holder’s substitute proxy) to the Depositary relating to a matter on
which such Holder (or such Holder’s substitute proxy) is entitled to vote
pursuant to Section 4.7 and which instructs the Depositary or its nominee as
to
the exercise of such Holder’s (or such Holder’s substitute proxy’s) voting
right.
ARTICLE
II
FORM
OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND TRANSFER OF RECEIPTS AND
WITHDRAWAL OF DEPOSITED SECURITIES
Section
2.1 Form
and Transferability of Receipts
|
(a)
|
Certificated
Receipts
Receipts in certificated form shall be engraved or printed or lithographed
on steel-engraved borders and shall be substantially in the form
set forth
in Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions as hereinafter provided. Receipts may be issued in
denominations of any number of American Depositary Shares. Receipts
in
certificated form shall be executed by the Depositary by the manual
or
facsimile signature of a duly authorized officer of the Depositary.
Unless
so executed, no Receipt in certificated form shall be entitled to
any
benefits under this Deposit Agreement or be valid or obligatory for
any
purpose. Receipts in certificated form bearing the facsimile signature
of
anyone who was at any time a duly authorized officer of the Depositary
shall bind the Depositary, notwithstanding that such officer has
ceased to
hold such office prior to the delivery of such Receipts. Receipts
in
certificated form may, with the prior written consent of the Company
(which consent shall not be unreasonably withheld), be endorsed with
or
have incorporated in the text thereof such legends or recitals or
changes
not inconsistent with this Deposit Agreement as may be required by
the
Depositary in respect of its obligations hereunder or as may be required
to comply with any applicable law or regulations or with the rules
and
regulations of any securities exchange upon which Receipts may be
traded
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.
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|
(b)
|
Direct
Registration Receipts
Notwithstanding anything in this Deposit Agreement or in the Receipt
to
the contrary, American Depositary Shares shall be evidenced by Direct
Registration Receipts, unless certificated Receipts are specifically
requested by the Holder and for no additional fee. Holders shall
be bound
by the terms and conditions of this Deposit Agreement and of the
form of
Receipt, regardless of whether their Receipts are Direct Registration
Receipts or certificated
Receipts.
|
|
(c)
|
Transferability
Title
to a Receipt (and to the Deposited Securities represented by the
American
Depositary Shares evidenced thereby), when properly endorsed (in
the case
of Receipts in certificated form) or upon delivery to the Depositary
of
properly executed instruments of transfer, shall be transferable
by
delivery with the same effect as in the case of a negotiable instrument
under applicable law; provided
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
or
notice and for all other purposes.
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3
Section
2.2 Deposit
of Shares
|
(a)
|
Deposit
with Custodian
Shares may be deposited under this Deposit Agreement by delivery
thereof
to the Custodian, and in the case of Shares in registered form, properly
endorsed or accompanied by a duly executed instrument or instruments
of
transfer in form satisfactory to the Custodian, together with any
other
documents and payments required under this Deposit Agreement, and
a
written order directing the Depositary to issue to, or upon the written
order of, the person or persons stated in such order a Receipt or
Receipts
through the Direct Registration System (or, if specifically requested,
certificated Receipts) for the number of American Depositary Shares
representing such deposited Shares. Shares in the form of share warrants
to bearer shall be deposited under this Deposit Agreement in accordance
with the procedures set forth in the Procedures Agreement dated as
of
December 31, 1998 and amended on May 18, 2001 (the “Procedures
Agreement”),
among the Company, Amoco Corporation, the Depositary and Boston EquiServe
Limited Partnership, as Exchange Agent. 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 any other documents and payments required under this Deposit
Agreement, for the purpose of forwarding such Share certificates
to the
Custodian for deposit hereunder.
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|
(b)
|
Assignment
and Proxy
If
required by the Depositary, Shares presented for deposit at any time,
whether or not any register of Shareholders of the Company is closed,
shall also be accompanied by (1) an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for
the
prompt transfer to the Custodian or its nominee of any dividend or
right
to subscribe for additional Shares or to receive other property which
any
person in whose name the Shares are or have been recorded may thereafter
receive upon or in respect of such deposited Shares, or in lieu thereof
such agreement of indemnity or other agreement as shall be satisfactory
to
the Depositary, and (2) if the Shares are registered in the name
of the
person on whose behalf they are presented for deposit, a proxy or
proxies
entitling the Custodian to vote such deposited Shares for any and
all
purposes until the Shares are registered in the name of the Custodian
or
its nominee.
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(c)
|
Registration
and Holding
Upon each delivery to the Custodian of a certificate or certificates
for
Shares (or other Deposited Securities pursuant to Section 4.2, 4.3,
4.4 or
4.8) in registered form to be deposited hereunder, together with
any other
documents and payments required under this Deposit Agreement, the
Custodian shall as soon as practicable present such certificate or
certificates for registration of transfer of the Shares (or other
Deposited Securities) being deposited in the name of the Custodian
or its
nominee at the cost and expense of the person making such deposit
(or for
whose benefit such deposit is made) and shall obtain evidence satisfactory
to it of such registration. Deposited Securities shall be held by
the
Custodian for the account and to the order of the Depositary at such
place
or places as the Depositary shall determine. The Depositary shall
provide
written notice informing the Company of any such place or
places.
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Section
2.3 Execution
and Delivery of Receipts
After
the
deposit of any Shares pursuant to Section 2.2, the Custodian shall notify the
Depositary of such deposit and the person or persons to whom or upon whose
written order a Receipt or Receipts are deliverable in respect thereof and
the
number of American Depositary Shares to be evidenced thereby. Such notification
shall be made by letter, first class airmail postage prepaid, or, at the
request, risk and expense of the person making the deposit, by cable, telex,
facsimile or electronic transmission. After receiving such notice from the
Custodian, the Depositary, subject to this Deposit Agreement, shall execute
and
deliver a Receipt or Receipts at the Depositary’s Office to or upon the order of
the person or persons named in the notice delivered to the Depositary,
registered in the name or names requested by such person or persons, and
evidencing in the aggregate the number of American Depositary Shares to which
such person or persons are entitled.
4
Section
2.4 Transfer,
Combination and Split-up of Receipts
The
Depositary, subject to this Deposit Agreement, shall without unreasonable delay
register transfers of Receipts in the Receipt register from time to time, upon
receipt at any of its designated transfer offices of proper instruments of
transfer or upon any surrender of a Receipt at any of its designated transfer
offices 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 and
deliver a new Receipt or Receipts to or upon the order of the person entitled
thereto as such person may request evidencing the same aggregate number of
American Depositary Shares as those evidenced by the Receipts surrendered.
The
Depositary, subject to this Deposit Agreement, shall, for the purpose of
effecting a split-up or combination of a 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 those evidenced by the Receipt or Receipts replaced. At
the
request of a Holder, the Depositary shall, for the purpose of substituting
a
certificated Receipt with a Direct Registration Receipt, or vice versa, execute
and deliver a certificated Receipt or a Direct Registration Receipt, as the
case
may be, for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the certificated Receipt or Direct Registration Receipt, as the
case may be, substituted. The Depositary may close the Receipt Register at
any
time or from time to time when deemed expedient by it and shall do so when
reasonably requested by the Company.
Section
2.5 Withdrawal
of Deposited Securities
Upon
receipt at the Depositary’s Office or at such other offices as the Depositary
may designate of a Holder’s written order directing the Depositary to cause the
Deposited Securities represented by the American Depositary Shares evidenced
by
a Receipt to be withdrawn and delivered to or upon the written order of the
person or persons designated in such order, and upon the surrender, if
applicable, of such Receipt (properly endorsed in blank or accompanied by proper
instruments of transfer in blank, to the extent required by the Depositary),
the
Depositary shall direct the Custodian to deliver without unreasonable delay,
subject to this Deposit Agreement and to the provisions of or governing
Deposited Securities, to or upon the written order of the person or persons
designated in such order, the Deposited Securities at the time represented
by
the American Depositary Shares evidenced by such Receipt, and the Custodian
shall so deliver such Deposited Securities, at the office of the Custodian,
except that the Depositary may, in its discretion, at the request, risk and
expense of the Holder make delivery of such Deposited Securities without
unreasonable delay to such person or persons at the Depositary’s Office or at
any other place specified by the Holder in such order. Directions shall be
given
by letter or, at the request, risk and expense of the Holder, by cable, telex,
electronic or facsimile transmission. Delivery of Deposited Securities may
be
made by the delivery of certificates, to the extent such Deposited Securities
may be represented by certificates, which, if required by law, shall be properly
endorsed or accompanied by properly executed instruments of transfer, and if
such certificates may be so registered, registered in the name of such Holder,
or as ordered by such Holder or properly endorsed or accompanied by proper
instruments of transfer. Delivery of Deposited Securities consisting of Shares
shall be made by delivery of Shares in registered form only. Notwithstanding
any
provision of this Deposit Agreement or the Receipts, the Depositary may restrict
withdrawals of Deposited Securities only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 under the Securities Act of 1933.
5
Section
2.6 Limitations
on Issuance, Execution, Delivery and Transfer of Receipts and Withdrawal of
Deposited Securities
As
a
condition precedent to the issuance, execution, delivery, registration,
registration of transfer, split-up or combination of any Receipt, the delivery
of any distribution thereon or, subject to the last sentence of Section 2.5,
the
withdrawal of any Deposited Securities, the Depositary, the Company or the
Custodian may require of the Holder, the presenter of the Receipt or the
depositor of Shares: (a) payment of a sum sufficient to pay or reimburse it
for
payment of (i) any stock transfer or other tax or other governmental charge
with
respect thereto, other than Relevant Duties payable by the Company in accordance
with Section 3.2, (ii) any stock transfer or registration fees for the
registration of transfers of Shares or other Deposited Securities upon any
applicable register, and (iii) any charges of the Depositary upon delivery
of
Receipts against deposits of Shares and upon withdrawal of Deposited Securities
against surrender of Receipts set forth in Exhibit B to this Deposit Agreement;
(b) the production of proof satisfactory to it as to the identity and
genuineness of any signature and as to any other matter contemplated by Section
3.1; and (c) compliance with such reasonable regulations, if any, as the
Depositary and the Company may establish consistent with the provisions of
this
Deposit Agreement. The delivery of Receipts against deposits of Shares may
be
suspended, deposits of Shares may be refused, or the registration of transfer
of
Receipts, their split-up or combination or, subject to the last sentence of
Section 2.5, the withdrawal of Deposited Securities may be suspended, in
particular instances or generally, when the Receipt register or any register
for
Shares or other Deposited Securities is closed, or any time or from time to
time
when any such action is deemed necessary or advisable by the Depositary or
the
Company for any reason, including without limitation any requirement of law
or
of any government or governmental body or commission, any provision of this
Deposit Agreement or the provisions of or governing Deposited Securities, any
meeting of Shareholders or any payment of dividends.
The
Depositary will not issue Receipts against rights to receive Shares unless
(x)
such Receipts are fully collateralized (marked to market daily) with cash,
U.S.
government securities or such other collateral as the Depositary deems
appropriate until such Shares are deposited, (y) the applicant for such Receipts
represents and agrees in writing that such applicant or its customer
(i) beneficially owns such Shares, (ii) assigns all beneficial right, title
and interest to such Shares to the Depositary, (iii) holds such Shares for
the
account of the Depositary and (iv) will deliver such Shares upon the
Depositary’s request (no evidence of ownership is required or time of delivery
specified) and (z) all such Receipts which are outstanding at any time as a
result of pre-release represent not more than 20%, or such other percentage
as
the Company may determine in its sole discretion, of the total number of Shares
represented by American Depositary Receipts except to the extent, if any, that
such limitation is exceeded as a result of the withdrawal of Deposited
Securities subsequent to the execution and delivery of pre-released Receipts
in
compliance with such limitation. Such collateral, but not the earnings thereon,
shall be held for the benefit of the Holders. Any issue of pre-released Receipts
shall also be subject to such further limitations as may be agreed between
the
Company and the Depositary from time to time. The Depositary may retain for
its
own account any compensation for the issuance of Receipts against such other
rights to receive Shares, including without limitation earnings on the
collateral securing such rights. Subject to the provisions of this Section
2.6
with respect to the issuance of Receipts against rights to receive Shares,
neither the Depositary nor the Custodian shall lend Deposited Securities.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any Shares required to be registered
pursuant to the provisions of the Securities Act of 1933, unless a registration
statement under the Securities Act of 1933 is in effect as to such Shares.
The
Depositary will use reasonable efforts to comply with written instructions
of
the Company to not accept for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company’s compliance
with the securities laws in the United States.
6
Section
2.7 Substitution
of Receipts
In
case
any Receipt in certificated form shall be mutilated, destroyed, lost or stolen,
the Depositary shall, as the Holder may request, issue a new Receipt through
the
Direct Registration System or execute and deliver a new Receipt of like tenor,
in exchange and substitution for such mutilated Receipt upon cancellation
thereof, or in lieu of and in substitution for such destroyed or lost or stolen
Receipt, unless the Depositary has notice that such Receipt has been acquired
by
a bona
fide purchaser,
upon the Holder thereof filing with the Depositary (a) a request for such
execution and delivery and (b) a sufficient indemnity bond and satisfying any
other reasonable requirements imposed by the Depositary, including, without
limitation, evidence satisfactory to the Depositary of such destruction or
loss
or theft of such Receipt, the authenticity thereof and the Holder’s ownership
thereof.
Section
2.8 Cancellation
and Destruction of Receipts
All
Receipts surrendered to the Depositary shall be cancelled by the Depositary.
The
Depositary is authorized to destroy Receipts in certificated form so
cancelled.
Section
2.9 Maintenance
of Records
The
Depositary agrees to maintain or cause its agents to maintain records of all
Receipts surrendered and Deposited Securities withdrawn under Section 2.5,
substitute Receipts delivered under Section 2.7, and of cancelled or destroyed
Receipts under Section 2.8, in keeping with procedures ordinarily followed
by
stock transfer agents located in the City of New York or as required by laws
or
regulations governing the Depositary. The Depositary shall provide full
electronic access to such records to the Company, subject only to system
updating, standard downtimes and outages. At such times during normal New York
business hours as are mutually agreeable to the Depositary and the Company,
the
Company shall have reasonable access to the physical records described in this
Section 2.9.
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS
Section
3.1 Information
Any
person presenting Shares for deposit or any Holder of a Receipt may be required
from time to time to file with the Depositary or the Custodian such proof as
to
citizenship, residence, exchange control approval, legal or beneficial ownership
of Receipts, Deposited Securities or other securities, compliance with all
applicable laws and regulations, all applicable provisions of or governing
Deposited Securities, and the terms of this Deposit Agreement, or other
information, and to execute and deliver to the Depositary or the Custodian
such
certificates, including 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 any distribution on any Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt until the foregoing is accomplished to the Company’s and the
Depositary’s satisfaction.
Notwithstanding
anything to the contrary set forth in the Deposit Agreement, the Depositary
and
its agents may fully respond to any and all demands or requests for information
maintained by or on its behalf in connection with the Deposit Agreement, any
Holder or Holders, any Receipt or Receipts or otherwise related hereto to the
extent such information is requested or required by or pursuant to any lawful
authority, including without limitation laws, rules, regulations, administrative
or judicial process, banking, securities or other regulators. The Depositary
will give the Company prompt written notice of the receipt of any such demand
or
request for information about the Company and its dealings with the Depositary
so that, if the Company so elects, the Company may seek an appropriate
protective order or other remedy protecting such information from
disclosure.
7
Section
3.2 Liability
of Holder for Taxes
If
any
tax or other governmental charge, including any interest or penalties thereon,
shall become payable by or on behalf of the Custodian, the Depositary or the
nominee of either of them with respect to any Receipt or any Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, such tax or other governmental charge shall be payable by the Holder
in
whose name such Receipt is registered at the time such tax or other governmental
charge is incurred, who shall pay the amount thereof to the Depositary;
provided
that to
the extent that any United Kingdom stamp duty, stamp duty reserve tax or other
similar United Kingdom governmental charge (or any interest or penalties
thereon) (each, a “Relevant
Duty”)
arises
in connection with (a) the deposit of Shares, whether in registered form or
in
the form of share warrants to bearer (the “Exchange
Shares”),
in
connection with (i) the exchange of Receipts for common stock without par value
(“Amoco
Shares”)
of
Amoco Corporation pursuant to the Agreement and Plan of Merger dated as of
August 11, 1998, as amended as of October 22, 1998 (the “Merger
Agreement”),
by
and among The British Petroleum Company p.l.c., Amoco Corporation and Eagle
Holdings, Inc., or (ii) the issue of Receipts upon the exercise of employee
stock options over Amoco Shares outstanding as of the Effective Date (as defined
in the Merger Agreement), into the facility created by this Deposit Agreement,
including but not limited to the agreement to transfer, the transfer and the
delivery of Exchange Shares, whether in registered form or in the form of share
warrants to bearer, to the Depositary, the Custodian or the nominee of either
of
them and any issue of American Depositary Shares by the Depositary in respect
thereof or (b) the holding of Shares in the form of share warrants to bearer,
the transfer of Receipts representing Shares in the form of share warrants
to
bearer or the exchange of Shares in the form of share warrants to bearer for
Shares in registered form by the Depositary, the Custodian or the nominee of
either of them, but only, in the case of this clause (b), to the extent that
such Relevant Duty arises out of, or is imposed as a consequence of, the fact
that Exchange Shares were deposited in the form of share warrants to bearer
as
referred to in clause (a), such Relevant Duty shall be payable by the Company
and not by the Holder, and the Company shall be liable for such payment. In
cases where this Section 3.2 requires a payment to be made to the Depositary
by
a Holder, the Depositary may refuse to effect any registration of transfer
of
such Receipt or any split-up or combination thereof or any withdrawal of such
Deposited Securities until such payment is made, and may withhold or deduct
from
any distributions on such Deposited Securities or may sell for the account
of
the Holder thereof any part or all of such Deposited Securities (after
attempting by reasonable means to notify such Holder prior to such sale), and
may apply such cash or the proceeds of any such sale in payment of such tax
or
other governmental charge, the Holder of such Receipt remaining liable for
any
deficiency. Neither the Company, the Depositary nor any of their respective
officers, directors, representatives or agents shall be liable for failure
of a
Holder to comply with applicable tax laws or governmental charges.
Section
3.3 Warranties
on Deposit of Shares
Every
person depositing Shares under this Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and any certificate therefor are validly
issued and outstanding, fully paid, nonassessable and free of preemptive rights,
that the person making such deposit is duly authorized so to do and that such
Shares are not “restricted securities” as such term is defined in Rule 144 of
the Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and
sold
freely in the United States. Such representations and warranties shall survive
the deposit of Shares and the execution and delivery of Receipts.
8
Section
3.4 Disclosure
of Interests
Notwithstanding
any other provision of this Deposit Agreement, each Holder agrees to comply
with
requests from the Company which are made under statutory provisions in the
United Kingdom to provide information as to the capacity in which such Holder
owns Receipts and regarding the identity of any other person interested in
such
Receipts and the nature of such interest and may, pursuant to such statutory
provisions and any provisions of the constituent documents of the Company,
forfeit the right to vote and to direct the voting of, and be prohibited from
transferring, Receipts as to which compliance is not made, all as if such
Receipts were to the extent practicable the Shares represented by the American
Depositary Shares evidenced thereby, and the Depositary agrees to use its
reasonable efforts to comply with any instructions received from the Company
requesting that the Depositary take the reasonable actions specified therein
to
obtain such information.
ARTICLE
IV
DEPOSITED
SECURITIES
Section
4.1 Cash
Distributions
Whenever
the Company shall make any cash dividend or other cash distribution on Deposited
Securities available in U.S. dollars and it is possible, whether by election
or
other action, for the Depositary to receive that dividend or distribution in
U.S. dollars, the Depositary shall take any action to enable it to receive
such
dividend or distribution in U.S. dollars. In respect of any other cash dividend
or cash distribution by the Company on any Deposited Securities, whenever the
Depositary or the Custodian shall receive any cash dividend or other cash
distribution upon any Deposited Securities, the Depositary shall, after any
necessary conversion of such distribution into U.S. dollars pursuant to Section
4.5 and after fixing a record date in respect thereof pursuant to Section 4.6,
subject to this Deposit Agreement, distribute as promptly as reasonably
practicable the amount thus received, by checks drawn on or electronic transfers
from a bank in the United States, to the Holders of record on such record date
of Receipts evidencing American Depositary Shares representing such Deposited
Securities, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by each of them respectively;
provided
that the
Depositary shall make appropriate adjustments in the amounts so distributed
in
respect of (a) any of such Deposited Securities being not entitled, by reason
of
its date of issuance or otherwise, to receive all or any portion of such
distribution or (b) any amounts (i) required to be withheld by the Company,
the
Custodian or the Depositary from any such distribution on account of taxes,
or
(ii) charged by the Depositary in connection with the conversion of foreign
currency into U.S. dollars pursuant to Section 4.5, provided
that if
the Company shall announce any cash dividend on Deposited Securities in U.S.
dollars, the Company shall cause the amount of U.S. dollars paid to the
Depositary to be such that, subject to (i) above, the amount paid in respect
of
each Deposited Security hereunder is equal to the amount of the cash dividend
per Share as so announced. The Depositary shall distribute only such amount
as
can be distributed without distributing to any Holder a fraction of one cent.
Fractional cents will be withheld without liability and dealt with by the
Depositary in accordance with its then current practices.
9
Section
4.2 Share
Distributions
If
any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may or shall, if the Company shall
so
request, subject to this Deposit Agreement, distribute to the Holders on a
record date fixed pursuant to Section 4.6, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by each
of them respectively, additional Receipts for an aggregate number of American
Depositary Shares representing the number of Shares received as such dividend
or
free distribution. In lieu of delivering Receipts for fractional American
Depositary Shares in the case of any such distribution, the Depositary shall
sell the number of Shares represented by the aggregate of such fractions and
distribute the net proceeds of such sale as in the case of a distribution
received in cash pursuant to Section 4.1. If additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also represent
its
proportionate interest in the additional Shares so distributed upon such
Deposited Securities.
Section
4.3 Rights
Distributions
If
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
nature, the Depositary shall have discretion after consultation with the Company
as to the procedure to be followed in making such rights available to the
Holders or in disposing of such rights and distributing the net proceeds thereof
as in the case of a distribution received in cash pursuant to Section 4.1;
provided
that the
Depositary shall, if requested by the Company, subject to this Deposit Agreement
take action as follows: (a) if at the time of the offering of any such rights
the Depositary, after consultation with the Company, determines that it is
lawful and feasible to make such rights available to Holders by means of
warrants or otherwise, the Depositary shall distribute such warrants or other
instruments therefor in such form as it may determine to the Holders on a record
date fixed pursuant to Section 4.6 of Receipts evidencing American Depositary
Shares representing such Deposited Securities, in proportion to the number
of
American Depositary Shares representing such Deposited Securities held by each
of 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;
or
(b) if at the time of any such offering of any such 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, upon an averaged or other practicable basis without regard to
any
distinctions among such Holders because of exchange restrictions, or the date
of
delivery of any Receipt or Receipts, or otherwise, and distribute the net
proceeds so allocated to the extent practicable as in the case of a distribution
received in cash pursuant to Section 4.1. The Depositary will not offer such
rights to Holders having an address in the United States, unless the Company
furnishes to the Depositary (i) evidence that a registration statement under
the
Securities Act of 1933 covering such offering is in effect or (ii) an opinion
of
counsel for the Company in the United States satisfactory to the Depositary
(which counsel may be an employee of the Company or an affiliate of the Company)
to the effect that such offering does not require registration under the
Securities Act of 1933.
Section
4.4 Other
Distributions
Whenever
the Depositary or the Custodian shall receive any distribution other than cash,
Shares or rights upon any Deposited Securities, subject to this Deposit
Agreement, the Depositary shall cause securities or property to be distributed
to the Holders on a record date fixed pursuant to Section 4.6, in proportion
to
the number of American Depositary Shares representing such Deposited Securities
held by each of them respectively, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution; provided
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 tax withholding or securities laws requirement) 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 distribution by the
Depositary to the Holders of the net proceeds of any such sale as in the case
of
a distribution received in cash pursuant to Section 4.1.
10
Section
4.5 Conversion
of Foreign Currency
Whenever
the Depositary or the Custodian shall receive foreign currency, as a cash
dividend or other distribution or as the net proceeds from the sale of
securities, property or rights, which, in the judgment of the Depositary can
then be converted on a reasonable basis into U.S. dollars which can then be
transferred to the United States, the Depositary shall, as promptly as
practicable, convert or cause to be converted, by sale or in any other manner
that it may reasonably determine, such foreign currency into U.S. dollars and
shall thereafter transfer the resulting U.S. dollars (net of its charges and
expenses in effecting such conversion) to the United States. Such U.S. dollars
shall be distributed to the Holders entitled thereto or, if the Depositary
shall
have distributed any warrants or other instruments that entitle the holders
thereof to such U.S. dollars, then to the holders of such warrants 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
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 reasonable 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 governmental authority or agency thereof that is
required for such conversion is denied or in the opinion of the Depositary
is
not obtainable at a reasonable cost or within a reasonable period, the
Depositary shall in its discretion, but subject to applicable laws and
regulations, either distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) to, or hold such foreign
currency (uninvested and without liability for interest thereon) for the
respective accounts of, the Holders entitled to receive the same. If any such
conversion of foreign currency, in whole or in part, can be effected for
distribution to some but not all of the 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 (uninvested and without liability for interest thereon) for the
respective accounts of, the Holders entitled thereto for whom such conversion
and distribution is not practicable.
Section
4.6 Fixing
of Record Date
Whenever
any distribution is being made upon any Deposited Securities or any meeting
of
holders of Shares or other Deposited Securities is being held or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation of any consent or any other matter, the Depositary
shall, after consultation with the Company, fix a record date for the
determination of the Holders who shall be entitled to receive such distribution
or the net proceeds of the sale thereof, to vote or to give instructions for
the
exercise of voting rights at any such meeting, to receive such notice or
solicitation or to act in respect of such other matter which shall, to the
extent practicable, be the same record date as that fixed by the Company for
the
Deposited Securities. Subject to this Deposit Agreement, only such Holders
at
the close of business on such record date shall be entitled to receive any
such
distribution or proceeds, to vote or to give such voting instructions, to
receive such notice or solicitation or to act in respect of any such other
matter.
11
Section
4.7 Voting
of Deposited Securities
The
Depositary or, if the Deposited Securities are registered in the name of or
held
by its nominee, its nominee, subject to and in accordance with the constituent
documents of the Company hereby irrevocably appoints each Holder for the time
being on the record date (the “Voting Record Date”) fixed by the Depositary in
accordance with Section 4.6 in respect of any meeting (at which holders of
Deposited Securities are entitled to vote) as its proxy to attend, vote and
speak at the relevant meeting (or any adjournment thereof) in respect of the
Deposited Securities represented by the Receipt held by such Holder on the
Voting Record Date. In respect of any such meeting each such Holder can appoint
any person as its substitute proxy to attend, vote and speak on behalf of the
Holder subject to and in accordance with the provisions of this Section and
the
constituent documents of the Company. As soon as practicable after receipt
of
notice of any meeting at which the holders of Deposited Securities are entitled
to vote, or of solicitation of consents or proxies from holders of Deposited
Securities, the Depositary shall, in accordance with Section 4.6, fix the Voting
Record Date in respect of such meeting or solicitation. The Depositary or,
if
the Company so determines, the Company, shall distribute by mail, or such other
means and manner as may be mutually agreed between the Depositary and the
Company, to Holders of record on such Voting Record Date: (a) such information
as is contained in such notice of meeting or in the solicitation materials,
(b)
a Receipt proxy card in a form prepared by the Depositary, after consultation
with the Company, (c) a statement that each Holder at the close of business
on
the Voting Record Date will be entitled, subject to any applicable law, the
Company’s constituent documents and the provisions of or governing the Deposited
Securities, either (i) to use such Receipt proxy card in order to attend, vote
and speak at such meeting as the proxy of the Depositary or its nominee solely
with respect to the Shares or other Deposited Securities represented by American
Depositary Shares evidenced by such Holder’s Receipts or (ii) to appoint any
other person as the substitute proxy of such Holder, solely with respect to
the
Shares or other Deposited Securities represented by American Depositary Shares
evidenced by such Holder’s Receipts or (iii) to
renounce the proxy initially provided by the Depositary or its nominee to such
Holder or such Holder's substitute proxy and to provide Voting Instructions
to
the Depositary as to the exercise of the voting rights pertaining to the Shares
or other Deposited Securities represented by American Depositary Shares
evidenced by their respective Receipts, and (d) if the Depositary is to be
given
Voting Instructions by such Holder, a brief statement as to the manner in which
Voting Instructions may be given to the Depositary. Upon the written request
of
a Holder of record on the Voting Record Date received on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor,
insofar as practicable and permitted under applicable law, the provisions of
the
Company’s constituent documents and the provisions of the Deposited Securities,
to vote or cause to be voted the Deposited Securities in accordance with the
instructions set forth in such request.
If,
notwithstanding the above, an attempt is made to appoint the Depositary or
its
nominee as proxy in respect of Deposited Securities which are either registered
in the Depositary’s or its nominee’s own name or else are in the form of a share
warrant to bearer held by the Depositary or its nominee, and the Depositary
or
its nominee cannot under English law act as proxy in respect of such Deposited
Securities, then in order to give effect to the instructions contained in such
a
nomination, the Depositary or its nominee shall execute those instructions,
or
cause those instructions to be executed, in its capacity as registered owner
of
such Deposited Securities that are in registered form or in its capacity as
holder of a share warrant to bearer in the case of Deposited Securities in
that
form.
12
For
the
avoidance of doubt, when the Depositary receives Voting Instructions from a
substitute proxy of a Holder (including, without limitation, instructions from
ADP Inc. or any other entity acting on behalf of participants and/or customers
of participants within The Depository Trust Company) or their agents, and such
registered Holder has notified the Depositary that it holds Receipts on behalf
of such substitute proxies, the Depositary shall treat such Voting Instructions
as coming from an entity that holds Receipts on behalf of such substitute
proxies and the Depositary shall vote or cause to be voted the Deposited
Securities in accordance with such instructions.
Neither
the Depositary nor the Custodian shall exercise any discretion as to voting
and
neither the Depositary nor the Custodian shall vote or attempt to exercise
the
right to vote the Shares or other Deposited Securities represented by American
Depositary Shares except pursuant to and in accordance with such Voting
Instructions from Holders given in accordance with this Section 4.7. Shares
or
other Deposited Securities represented by American Depositary Shares for which
no specific Voting Instructions are received by the Depositary from the Holder
shall not be voted by the Depositary but may be directly voted by Holders in
attendance at meetings of shareholders as proxy for the Depositary or its
nominee, subject to, and in accordance with, the provisions of this Section
and
the Company’s constituent documents.
Section
4.8 Changes
Affecting Deposited Securities
Upon
any
change in par value, split-up, consolidation, cancellation 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 that shall be received by the
Depositary or the Custodian in exchange for, or in conversion, replacement,
or
otherwise in respect of, Deposited Securities shall be treated as Deposited
Securities under this Deposit Agreement, and the Receipts shall thenceforth
evidence American Depositary Shares representing the right to receive the
Deposited Securities including the securities so received to the extent
additional Receipts are not delivered pursuant to the following sentence. In
any
such case the Depositary may with the Company’s approval, and shall if the
Company shall so request, subject to this Deposit Agreement, 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 newly received Deposited Securities.
Section
4.9 Withholding
In
connection with any distribution to Holders, the Company will withhold from
such
distribution and remit to the appropriate governmental authority or agency
all
amounts (if any) required to be withheld by the Company and owing to such
authority or agency by the Company; and the Depositary and the Custodian will
withhold from such distribution and remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing
to
such authority or agency by the Depositary or the Custodian. The Depositary
will
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 authorities or agencies, and either the Company or the Depositary
may file any such reports necessary to obtain benefits under any applicable
tax
treaties for Holders. If the Depositary determines that any distribution in
property other than cash (including Shares or rights) on Deposited Securities
is
subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner, as the Depositary reasonably 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 as in
the
case of a distribution pursuant to Section 4.1, 4.2, 4.3 or 4.4. For so long
as
any United States Holders are eligible to receive Tax Treaty Payments, the
Depositary undertakes to use reasonable efforts to maintain arrangements with
the United Kingdom Inland Revenue under which such Holders satisfying the
applicable requirements may receive such Tax Treaty Payments at the same time
as
and together with the associated cash dividend, all as directed by the Company.
The Company undertakes that, for so long as the arrangements referred to in
the
immediately preceding sentence are in effect, the Company shall pay any Tax
Treaty Payment which may be payable by the Company pursuant to such arrangements
at the same time as and together with each dividend paid by the Company on
the
Shares.
13
Section
4.10
Canadian Holders
So
long
as the Company may list its Shares on a stock exchange in Canada and maintain
a
co-transfer agent in Canada, in the case of Holders who are registered on the
books of the Depositary with an address in Canada (“Canadian
Holders”)
and
who have not filed the election referred to below, references in this Article
IV
to “U.S. dollars” shall mean and be deemed to refer to Canadian dollars,
references to “transferred to the United States” shall mean and be deemed to
refer to “transferred to Canada”, references to “transferable to the United
States” shall mean and be deemed to refer to “transferable to Canada” and
references to “bank in the United States” shall mean and be deemed to refer to
“bank in Canada”. Canadian Holders may file with the Depositary an election, in
form and substance satisfactory to the Depositary, stating that they wish to
receive any cash dividends or other cash distributions in U.S. dollars,
provided
that in
order to take effect with respect to any distribution such election must be
duly
completed and received by the Depositary not less than 30 days before the record
date for such distribution.
Section
4.11
Actions by Holders
The
Depositary shall cause its nominee, Guaranty Nominees Limited, or a successor
nominee, in its capacity as a member of the Company in respect of the Shares
and
other Deposited Securities, from time to time, to take such limited actions
as
may be reasonably requested in writing by a Holder, to the extent practicable
and subject to any applicable law, regulation, stock exchange requirement or
the
constituent documents of the Company, solely to enable such Holder to exercise
those rights to which Guaranty Nominees Limited or such successor nominee is
entitled by virtue of being a member of the Company in respect of the Shares
or
other Deposited Securities represented by the American Depositary Shares
evidenced by such Holder’s Receipts; provided,
however,
that
with respect to rights other than as set forth in Section 4.7, Guaranty Nominees
Limited or such successor nominee shall take such action only to the extent
that
(a) it has been fully indemnified to its reasonable satisfaction by the Holder
against any and all loss, liability, or expense which it shall suffer or
reasonably incur, (b) such Holder has provided and will continue to provide
as
reasonably requested from time to time security in the form of a bond or
otherwise in relation to such action reasonably satisfactory to the Depositary,
and (c) any legal proceeding or similar action brought on behalf of such Holder
pursuant to the exercise of such rights shall be brought in the name of Guaranty
Nominees Limited or a successor nominee and not in the name of the Depositary
and shall state that Guaranty Nominees Limited or such successor nominee is
involved solely for the purpose of enabling the Holder to establish a right
of
action and for no other purpose and that Guaranty Nominees Limited or such
successor nominee has no other interest in such matter. Any exercise of such
rights or powers shall be for the sole benefit of, and at the cost and expense
of, such Holder.
14
ARTICLE
V
THE
DEPOSITARY AND THE COMPANY
Section
5.1 Maintenance
of Depositary’s Office and Receipt Register; Certain Agents of the Depositary;
Lists of Holders
|
(a)
|
Depositary’s
Office
The Depositary or its agent shall maintain facilities in the United
States
for the execution and delivery, registration, registration of transfer,
combination and split-up of Receipts and the withdrawal of Deposited
Securities all in accordance with the provisions of this Deposit
Agreement.
|
|
(b)
|
The
Receipt Register
The Depositary or its agent shall keep at facilities in the United
States,
a Receipt register for the registration of Receipts and transfers
of
Receipts that 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 or the
Receipts.
The Depositary, upon request by the Company, shall make available
access
to the Receipt register at an office in the Borough of Manhattan,
The City
of New York.
|
|
(c)
|
Receipt
Registrars and Co-Transfer Agents
If
any Receipts or the American Depositary Shares evidenced thereby
are
listed on one or more stock exchanges in the United States, the Depositary
or its agent shall act as Receipt registrar or, upon the written
request
or with the written approval of the Company, appoint a Receipt registrar
or one or more co-registrars to register Receipts and transfers,
combinations and split-ups of Receipts and to countersign Receipts
in
accordance with any requirements of such exchange or exchanges and
with
the terms of any such appointment. Such Receipt registrar or co-registrars
may be removed and a substitute or substitutes appointed by the Depositary
upon the written request or with the written approval of the Company.
The
Depositary, upon the written request or with the written approval
of the
Company, may appoint one or more co-transfer agents for the purpose
of
effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. Such co-transfer agents
may
be removed and substitutes appointed by the Depositary upon the written
request or with the written approval of the Company. Each Receipt
registrar, co-registrar or co-transfer agent appointed under this
Section
5.1 (other than the Depositary or an affiliate thereof) shall give
notice
in writing to the Company and the Depositary accepting such appointment
and agreeing to be bound by the applicable terms of this Deposit
Agreement.
|
|
(d)
|
Lists
of Holders
At
the expense of the Company, the Company shall have the right to inspect
transfer and registration records of the Depositary or its agent,
take
copies thereof and require the Depositary or its agent, 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. The Depositary
or its agent shall furnish to the Company promptly upon the written
request of the Company, a list of the names, addresses and holdings
of
American Depositary Shares by all Holders as of a recent date within
seven
days of the date of such
request.
|
|
(e)
|
Depositary’s
Agent
The Depositary may perform its obligations under this Section 5.1
through
any agent appointed by it, provided
that the Depositary shall notify the Company of such appointment
and shall
remain responsible for the performance of such obligations as if
no agent
were appointed.
|
15
Section
5.2 Prevention
or Delay in Performance
Neither
the Depositary, its agents nor the Company shall incur any liability if, by
reason of any present or future law, rule or regulation of the United States,
the United Kingdom or any other country or of any government or governmental
or
regulatory authority or any securities exchange or market or automated quotation
system, the provisions of or governing any Deposited Securities, any present
or
future provision of the Company's constituent documents, act of God, war,
terrorism or other circumstances beyond its control, the Depositary, its agents
or the Company shall be prevented or forbidden from, or subjected to any civil
or criminal penalty on account of, or delayed in, 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, its agents or the Company incur any
liability to any Holder or other person by reason of any nonperformance or
delay, caused as aforesaid, in performance of any act or thing that 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.
Section
5.3 Obligations
Limited
The
Company assumes no obligation and shall be subject to no liability under this
Deposit Agreement or the Receipts to Holders or other persons, except to perform
such obligations as are specifically set forth and undertaken by it to perform
in this Deposit Agreement without negligence or bad faith. Each of the
Depositary and its agents assumes no obligation and shall be subject to no
liability under this Deposit Agreement or the Receipts to Holders or other
persons, except to perform such obligations as are specifically set forth and
undertaken by it to perform in this Deposit Agreement without negligence or
bad
faith. Without limitation of the preceding sentence, none of the Depositary,
the
Company or their respective agents shall be (a) under any obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of
any
Deposited Securities or the Receipts that in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it in its sole discretion
against all expense and liability be furnished as often as may be required,
or
(b) liable for any action or inaction by it in reliance upon the advice of
or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to
give
such advice or information. Each of the Depositary, the Company or their
respective agents may rely and shall be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and
to
have been signed or presented by the proper party or parties. The Depositary
and
its agents shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, for the manner in which
any such vote is cast by the Depositary to the extent the Depositary has
received voting instructions as provided in the Deposit Agreement with respect
to any of the Deposited Securities (provided
that
such manner or failure to vote was without gross negligence or willful
misconduct), or for the effect of any such vote. The Depositary and its agents
may own and deal in any class of securities of the Company and its affiliates
and in Receipts. 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. No disclaimer of liability under the Securities Act
of
1933 is intended by any provision of this Deposit Agreement.
Section
5.4 Resignation
and Removal of the Depositary; Appointment of Successor
Depositary
The
Depositary may at any time resign as Depositary hereunder by written notice
of
its election so to do delivered to the Company or be removed as Depositary
by
the Company by written notice of such removal delivered to the Depositary,
such
resignation or removal to take effect upon the appointment of and acceptance
by
a successor depositary as hereinafter provided. In case at any time the
Depositary acting hereunder shall resign or be removed, the Company shall use
its reasonable efforts to appoint a successor depositary, which shall be a
bank
or trust company having an office in the Borough of Manhattan, The City of
New
York. Every successor depositary shall execute and deliver to its predecessor
and to the Company an instrument in writing accepting its appointment hereunder,
and thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor; but such predecessor, nevertheless, upon payment of all sums due
it
and on the written request of the Company shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, 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.
Any such successor depositary shall promptly mail notice of its appointment
to
the Holders. Any corporation into or with which the Depositary may be merged
or
consolidated shall be the successor of the Depositary without the execution
or
filing of any document or any further act.
16
Section
5.5 The
Custodian
The
Depositary, upon the written request or with the written approval of the
Company, may from time to time appoint one or more agents to act for it as
Custodian hereunder. Each Custodian so appointed (other than the Depositary
or
an affiliate thereof) shall give notice in writing to the Company and the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms hereof. Any 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 it. Any Custodian may resign from its duties hereunder by notice
of
such resignation delivered to the Depositary at least 30 days prior to the
date
on which such resignation is to become effective. The Depositary may discharge
any Custodian at any time upon notice to the Custodian being discharged. Any
Custodian ceasing to act hereunder as Custodian shall deliver all Deposited
Securities held by it to a Custodian continuing to act upon the instruction
of
the Depositary. The Depositary shall give notice in writing to all Holders
of
the name and location of the appointment of any Custodian not named in the
Receipts. Upon the appointment of any successor depositary hereunder, any
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 any
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver
to
such Custodian all such instruments as may be proper to give to the Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
Section
5.6 Notices
and Reports to Holders
On
or
before the first date on which the Company gives notice, by publication or
otherwise, of any meeting of holders of Shares or other Deposited Securities,
or
of any adjourned meeting of such holders, or of the taking of any action by
such
holders other than at a meeting, the Company shall transmit to the Custodian
a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities. The Depositary will, at the Company’s expense,
arrange for the prompt transmittal by the Custodian to the Depositary of such
notices and of any reports and other communications that are made generally
available by the Company to holders of its Shares or other Deposited Securities
and arrange for the mailing, at the Company’s expense, of copies thereof to all
Holders or, at the request of the Company, make such notices, reports and other
communications available to all Holders on a basis similar to that for holders
of Shares or other Deposited Securities, or on such other basis as the Company
may advise the Depositary may be required by any applicable law, regulation
or
stock exchange requirement. The Company has delivered to the Depositary and
the
Custodian a copy of the provisions of or governing the Shares and any other
Deposited Securities issued by the Company or any affiliate of the Company,
and
promptly upon any amendment thereto or change therein, the Company shall deliver
to the Depositary and the Custodian a copy of such provisions as so amended
or
changed. The Depositary may rely upon such copy for all purposes of this
Agreement. The Depositary will, at the expense of the Company, make such copy
and such notices, reports and other communications available for inspection
by
Holders at the Depositary’s Office, at the office of the Custodian and at any
other designated transfer offices.
17
Section
5.7 Issuance
of Additional Shares, etc.
Neither
the Company nor any company controlling, controlled by or under common control
with the Company shall issue additional Shares, rights to subscribe for Shares,
securities convertible into or exchangeable for Shares, or rights to subscribe
for any such securities or shall deposit any Shares under this Deposit
Agreement, except under circumstances complying in all respects with the
Securities Act of 1933. The Depositary will use reasonable efforts to comply
with written instructions of the Company not to accept for deposit hereunder
any
Shares identified in such instructions at such times and under such
circumstances as may reasonably be specified in such instructions in order
to
facilitate the Company’s compliance with securities laws in the United
States.
Section
5.8 Indemnification
The
Company shall indemnify, defend and save harmless the Depositary, the Custodian
and their respective agents (the “indemnified
persons”)
against any loss, liability or expense (including reasonable fees and expenses
of counsel) that may arise (a) out of acts performed or omitted in connection
with this Deposit Agreement and the Receipts, as the same may be amended,
modified or supplemented from time to time, (i) by such indemnified person,
except to the extent such loss, liability or expense is due to negligence or
bad
faith of such indemnified person, or (ii) by the Company or any of its agents
(other than the indemnified persons), or (b) out of or in connection with any
offer or sale of Receipts, American Depositary Shares, Shares or other Deposited
Securities or any registration statement under the Securities Act of 1933 in
respect thereof, except to the extent such loss, liability or expense arises
out
of information (or omissions from such information) relating to such indemnified
person, furnished in writing by the Depositary to the Company by such
indemnified person expressly for use in a registration statement under the
Securities Act of 1933 and so used without any substantive revision from the
information provided by the Depositary.
Except
as
provided in the next succeeding paragraph, each indemnified person shall
indemnify, defend and save harmless the Company against any loss, liability
or
expense incurred by the Company in connection with this Deposit Agreement and
the Receipts due to the negligence or bad faith of such indemnified
person.
Notwithstanding
any other provision of this Deposit Agreement to the contrary, neither the
Company nor the Depositary, nor any of their agents, shall be liable to the
other for any indirect, special, punitive or consequential damages (collectively
”Special
Damages")
except: (i) to the extent such Special Damages arise from the gross negligence
or willful misconduct of the party from whom indemnification is sought; or
(ii)
to the extent Special Damages arise from or out of a claim brought by a third
party (including, without limitation, Holders) against the Depositary or its
agents, except to the extent such Special Damages arise out of the gross
negligence or willful misconduct of the party seeking indemnification
hereunder.
The
obligations set forth in this Section 5.8 shall survive the termination of
this
Deposit Agreement and the succession or substitution of any indemnified
person.
18
Any
person seeking indemnification hereunder shall notify the person from whom
it is
seeking indemnification (the “indemnifying
person”)
of the
commencement of any indemnifiable action or claim promptly after such
indemnified person actually becomes aware of such commencement (provided
that the
failure to make such notification shall not affect such indemnified person's
rights to seek indemnification under this Section 5.8) and shall consult in
good
faith with the indemnifying person as to the conduct of the defense of such
action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the written consent of the indemnifying person, which consent shall
not
be unreasonably withheld or delayed.
Section
5.9 Charges
of Depositary
The
Company agrees to pay all reasonable charges and out-of-pocket expenses of
the
Depositary and those of any Receipt registrar, co-transfer agent, and
co-registrar and any other agent of the Depositary appointed under this Deposit
Agreement (except those of the Custodian which are for the sole account of
the
Depositary, except as provided in Section 5.8) that are shown in Exhibit B
hereto, which is hereby incorporated herein, to be payable by the Company,
notwithstanding the termination of this Deposit Agreement or the succession
or
substitution of any such person. Any other charges and expenses of the
Depositary and its agents hereunder not otherwise provided for herein will
be
paid by the Company after consultation and agreement between the Depositary
and
the Company as to the amount and nature of such charges and expenses. Such
charges may at any time and from time to time be changed by agreement between
the Company and the Depositary. Except as may be otherwise agreed between the
Company and the Depositary, the Company shall not pay or be liable for (1)
the
expenses of the Depositary for the execution and delivery of Receipts pursuant
to Section 2.3, transfers of Receipts pursuant to Section 2.4, the surrender
of
Receipts pursuant to Section 2.5, and the making of distributions pursuant
to
Section 4.1, (2) the items mentioned on Exhibit B hereto as not being payable
by
the Company and (3) overhead expenses and any other expenses (including, without
limitation, salaries and benefits to employees) incident to the administration
in the ordinary course of this Deposit Agreement.
Section
5.10
Statutory Reports
The
Depositary shall make available for inspection by Holders at the Depositary’s
Office, at the office of the Custodian and at any other designated transfer
offices any reports and communications received from the Company which are
both
(a) received by the Depositary, the Custodian or the nominee of either as the
holder of Deposited Securities and (b) made generally available to the holders
of Deposited Securities by the Company. In connection with any registration
statement relating to the Receipts, the Company and the Depositary shall each
furnish to the other and to the Commission such information as shall be required
to make such filings.
Section
5.11
Available Information to the Commission
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and agrees to file all required reports with the
Commission.
ARTICLE
VI
AMENDMENT
AND TERMINATION
Section
6.1 Amendment
The
Receipts and any provisions of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the Depositary
without the consent of Holders in any respect. Any amendment that shall impose
or increase any fees or charges (other than the fees and charges referred to
in
clauses (a) through (d) in Exhibit B hereto) or that shall otherwise prejudice
any substantial existing right of Holders, shall not, however, become effective
as to outstanding Receipts until the expiration of 30 days after notice of
such
amendment shall have been given to the Holders. Every Holder at the expiration
of 30 days after such notice shall be deemed by holding such Receipt to consent
and agree to such amendment and to be bound by the Deposit Agreement or the
Receipts 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. Any amendments or supplements which
(i)
are reasonably necessary (as agreed by the Company and the Depositary) in order
for (a) the American Depositary Shares to be registered on Form F-6 under the
Securities Act of 1933 or (b) the American Depositary Shares or Shares to be
traded solely in electronic book-entry form and (ii) do not in either such
case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to prejudice any substantial rights of Holders. Notwithstanding the
foregoing, if any governmental body or regulatory body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement or the form of Receipt to ensure compliance therewith, the Company
and
the Depositary may amend or supplement the Deposit Agreement and the Receipts
at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for
compliance.
19
Section
6.2 Termination
The
Depositary shall at any time at the direction of the Company terminate this
Deposit Agreement by giving notice of such termination to the Holders at least
30 days prior to the date fixed in such notice for such termination. The
Depositary may terminate this Deposit Agreement, upon the notice set forth
in
the preceding sentence of this Section 6.2, at any time after 90 days after
the
Depositary shall have delivered to the Company its written resignation,
provided
that no
successor depositary shall have been appointed and accepted its appointment
as
provided in Section 5.4 before the end of such 90 days. After the date so fixed
for termination, the Depositary and its agents shall perform no further acts
under this Deposit Agreement, except to advise Holders of such termination,
to
receive and hold distributions on Deposited Securities (or sell property or
rights or convert Deposited Securities into cash as provided in this Deposit
Agreement) and to deliver Deposited Securities in exchange for Receipts
surrendered to the Depositary. As soon as practicable after the expiration
of
six months from the date so fixed for termination, the Depositary shall sell
the
Deposited Securities and shall thereafter (so long as it may lawfully do so)
hold in a segregated account the net proceeds of any such sale, together with
any other cash then held by it hereunder, without liability for interest, in
trust for the pro rata
benefit
of the Holders of Receipts that have not theretofore been surrendered. After
making such sale, the Depositary shall be discharged from all obligations in
respect of the Receipts and this Deposit Agreement, except to account for such
net proceeds and other cash. After the date so fixed for termination, the
Company shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary and its agents under Sections
5.8
and 5.9.
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Counterparts
This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of such counterparts 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.
20
Section
7.2 No
Third Party Beneficiaries
This
Deposit Agreement is for the exclusive benefit of the Company, the Depositary,
the Custodian and, to the extent contemplated hereby, the Holders, and their
respective successors hereunder, and shall not give any legal or equitable
right, remedy or claim whatsoever to any other person.
Section
7.3 Severability
In
case
any one or more of the provisions contained in this Deposit Agreement or in
the
Receipts should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
Section
7.4 Holders
Parties; Binding Effect
The
Holders and owners of Receipts from time to time shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of the Receipts by acceptance thereof.
Section
7.5 Notices
|
(a)
|
To
the Company
|
Any
and
all notices to be given to the Company shall be duly given if sent by mail,
or
by cable, telex, electronic or facsimile transmission, addressed to BP p.l.c.,
1
St. James’s Square, London SW1Y 4PD, England, Attention: Company Secretary, or
any other address which the Company may specify in writing to the
Depositary.
|
(b)
|
To
the Depositary
|
Any
and
all notices to be given to the Depositary shall be duly given if sent by mail,
or by cable, telex, electronic or facsimile transmission, addressed to JPMorgan
Chase Bank, N.A., 4 New York Plaza, 13th Floor, New York, New York
10004, Attention: ADR Department, which is the location of the Depositary’s
Office on the date of this Deposit Agreement, or any other address which the
Depositary may specify in writing to the Company.
|
(c)
|
To
the Holders
|
Any
and
all notices to be given to any Holder shall be duly given if sent by mail,
or by
cable, telex, electronic or facsimile transmission, addressed to such Holder
at
the address of such Holder as it appears on the transfer books for Receipts
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
|
Notice
given as aforesaid, (i) to the Company or the Depositary, shall be deemed to
be
effected when received, and (ii) to a Holder by mail or by cable, telex,
electronic or facsimile transmission, shall be deemed to be effected at the
time
when a duly addressed letter containing the same (or a confirmation thereof
in
the case of a cable, telex, electronic or facsimile transmission) is deposited
in a post-office letter box. The Depositary or the Company may act upon any
cable, telex, electronic or facsimile transmission received by it from the
other
or from any Holder, notwithstanding that such cable, telex, electronic or
facsimile transmission shall not subsequently be confirmed as
aforesaid.
21
Section
7.6 Governing
Law
This
Deposit Agreement and the Receipts shall be interpreted and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by the laws
of the State of New York.
22
In
Witness Whereof,
BP
p.l.c. and
JPMorgan
Chase Bank N.A.
have
duly executed this Amended and Restated 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.
BP
p.l.c.
By:
__________________________
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
Company Secretary
JPMorgan
Chase Bank N.A.
By:
__________________________
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇,
Title:
Vice President
23
EXHIBIT
A
TO
DEPOSIT AGREEMENT
[FORM
OF
FACE OF RECEIPT]
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
BP
p.l.c.
(Organized
under the laws of England and Wales)
No.
JPMorgan
Chase Bank N.A., a national banking association organized under the laws of
the
United States, as depositary (the “Depositary”),
hereby certifies that
is the owner of American Depositary Shares, representing deposited Ordinary
Shares of $0.25 each, including rights to receive such Ordinary Shares
(“Shares”),
of BP
p.l.c., a corporation organized under the laws of England and Wales and its
successors (the “Company”).
At
the date hereof, each American Depositary Share represents six (6) Shares
deposited under the Deposit Agreement (hereinafter defined) with the Depositary
or the Custodian. Capitalized terms used herein that are not defined herein
shall have the meanings assigned to them in the Deposit Agreement.
|
1
|
The
Deposit Agreement
|
This
American Depositary Receipt is one of the receipts executed and delivered (the
“Receipts”),
pursuant to the Amended and Restated Deposit Agreement dated as of , to the
Deposit Agreement dated as of December 31, 1998, as amended (as amended from
time to time, the “Deposit
Agreement”),
by
and among the Company, the Depositary (and any of its successors) and all
registered holders (“Holders”)
from
time to time of Receipts, each of whom by accepting a Receipt becomes a party
thereto, bound by all applicable terms and provisions thereof and hereof. The
Deposit Agreement sets forth the rights of Holders and the rights and duties
of
the Depositary in respect of the Shares deposited thereunder and any rights
to
receive Shares and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such securities,
property and cash, collectively, the “Deposited
Securities”).
Copies of the Deposit Agreement and of the Company’s provisions of or governing
Deposited Securities are on file at the Depositary’s Office, 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 and are qualified by and subject to the detailed
provisions thereof. The Depositary makes no representation or warranty as to
the
validity or worth of the Deposited Securities.
A-1
| 2 |
Withdrawal
of Deposited Securities
|
Upon
surrender of this Receipt and payment of the fee of the Depositary provided
for
in paragraph 8 of this Receipt at the Depositary’s Office or at such other
offices as it may designate, subject to the Deposit Agreement and the provisions
of or governing the Deposited Securities, the Holder hereof is entitled to
the
delivery without unreasonable delay at the office of the Custodian to such
Holder or upon such Holder’s order of the Deposited Securities at the time
represented by the American Depositary Shares evidenced by this Receipt. At
the
request, risk and expense of the Holder hereof, the Depositary may deliver
such
Deposited Securities at the Depositary’s Office or at such other place as may
have been requested by the Holder. Delivery of Deposited Securities may be
made
by the delivery of certificates to the extent such Deposited Securities may
be
represented by certificates. Delivery of Deposited Securities consisting of
Shares shall only be made by delivery of Shares in registered form.
Notwithstanding any other provision of the Deposit Agreement or this Receipt,
the Depositary may restrict the withdrawal of Deposited Securities only for
the
reasons set forth in General Instruction I.A.(1) of Form F-6 under the
Securities Act of 1933.
|
3
|
Transfers,
Combinations and Split-ups
|
Subject
to paragraph 4, this Receipt is transferable on the register maintained by
the
Depositary by the Holder hereof in person or by duly authorized attorney, 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. 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 those evidenced by the Receipt or
Receipts surrendered.
|
4
|
Certain
Limitations
|
Prior
to
the issuance, execution, delivery, registration, registration of transfer,
split-up or combination of this Receipt, the delivery of any distribution in
respect hereof, or, subject to the last sentence of paragraph 2, the withdrawal
of any Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, the Depositary, the Company or the Custodian may
require: (a) payment of a sum sufficient to pay or reimburse it for payment
of
(i) any stock transfer or other tax or other governmental charge with respect
thereto, other than Relevant Duties payable by the Company in accordance with
paragraph 5, (ii) any stock transfer or registration fees in effect for the
registration of transfers of Shares or other Deposited Securities upon any
applicable register and (iii) any applicable charges as provided in paragraph
8
of this Receipt; (b) the production of proof satisfactory to it of the identity
and genuineness of any signature and of such other information (including
without limitation information as to citizenship, residence, exchange control
approval, or legal or beneficial ownership of any securities) as it may deem
necessary or proper or as the Company may require; and (c) compliance with
such
reasonable regulations, if any, as the Depositary and the Company may establish
consistent with the provisions of the Deposit Agreement. The delivery of
Receipts against deposits of Shares may be suspended, deposits of Shares may
be
refused, or the registration of transfer of Receipts, their split-up or
combination or, subject to the last sentence of paragraph 2, the withdrawal
of
Deposited Securities may be suspended, generally or in particular instances,
when the Receipt register or any register for Shares or other Deposited
Securities is closed or any time or from time to time when any such action
is
deemed necessary or advisable by the Depositary or the Company. The Depositary
will not issue Receipts against rights to receive Shares unless (x) such
Receipts are fully collateralized (marked to market daily) with cash, U.S.
government securities or such other collateral as the Depositary deems
appropriate until such Shares are deposited, (y) the applicant for such Receipts
represents and agrees in writing that such applicant or its customer (i)
beneficially owns such Shares, (ii) assigns all beneficial right, title and
interest to such Shares to the Depositary, (iii) holds such Shares for the
account of the Depositary and (iv) will deliver such Shares upon the
Depositary’s request (no evidence of ownership is required or time of delivery
specified) and (z) all such Receipts which are outstanding at any time as a
result of pre-release represent not more than 20%, or such other percentage
as
the Company may determine in its sole discretion, of the total number of Shares
represented by American Depositary Receipts except to the extent, if any, that
such limitation is exceeded as a result of the withdrawal of Deposited
Securities subsequent to the execution and delivery of pre-released Receipts
in
compliance with such limitation. Such collateral, but not the earnings thereon,
will be held for the benefit of the Holders. Any issue of pre-released Receipts
shall also be subject to such further limitations as may be agreed between
the
Company and the Depositary from time to time. The Depositary may retain for
its
own account any compensation for the issuance of Receipts against such other
rights to receive Shares, including without limitation earnings on the
collateral securing such rights. Subject to the provisions of this paragraph
4
with respect to the issuance of Receipts against rights to receive Shares,
neither the Depositary nor the Custodian shall lend Deposited Securities. The
Depositary will not knowingly accept for deposit under the Deposit Agreement
any
Shares required to be registered under the Securities Act of 1933 and not so
registered; the Depositary may refuse to accept for such deposit any Shares
identified by the Company in order to facilitate the Company’s compliance with
securities laws in the United States.
A-2
|
5
|
Liability
of Holder for Taxes
|
If
any
tax or other governmental charge, including any interest or penalties thereon,
shall become payable by or on behalf of the Custodian, the Depositary or the
nominee of either of them with respect to this Receipt or any Deposited
Securities represented by the American Depositary Shares evidenced by this
Receipt, such tax or other governmental charge shall be payable by the Holder
in
whose name this Receipt is registered at the time such tax or other governmental
charge is incurred, who shall pay the amount thereof to the Depositary;
provided
that to
the extent that any United Kingdom stamp duty, stamp duty reserve tax or other
similar United Kingdom governmental charge (or any interest or penalties
thereon) (each, a “Relevant
Duty”)
arises
in connection with (a) the deposit of Shares, whether in registered form or
in
the form of share warrants to bearer (the “Exchange
Shares”),
in
connection with (i) the exchange of Receipts for common stock without par value
(“Amoco
Shares”)
of
Amoco Corporation pursuant to the Agreement and Plan of Merger dated as of
August 11, 1998, as amended as of October 22, 1998 (the “Merger
Agreement”),
by
and among The British Petroleum Company p.l.c., Amoco Corporation and Eagle
Holdings, Inc., or (ii) the issue of Receipts upon the exercise of employee
stock options over Amoco Shares outstanding as of the Effective Date (as defined
in the Merger Agreement), into the facility created by the Deposit Agreement,
including but not limited to the agreement to transfer, the transfer and the
delivery of Exchange Shares, whether in registered form or in the form of share
warrants to bearer, to the Depositary, the Custodian or the nominee of either
of
them and any issue of American Depositary Shares by the Depositary in respect
thereof or (b) the holding of Shares in the form of share warrants to bearer,
the transfer of Receipts representing Shares in the form of share warrants
to
bearer or the exchange of Shares in the form of share warrants to bearer for
Shares in registered form by the Depositary, the Custodian or the nominee of
either of them, but only, in the case of this clause (b), to the extent that
such Relevant Duty arises out of, or is imposed as a consequence of, the fact
that Exchange Shares were deposited in the form of share warrants to bearer
as
referred to in clause (a), such Relevant Duty shall be payable by the Company
and not by the Holder, and the Company shall be liable for such payment. In
cases where this paragraph 5 requires a payment to be made to the Depositary
by
a Holder, the Depositary may refuse to effect any registration of transfer
of
this Receipt or any split-up or combination hereof or any withdrawal of such
Deposited Securities until such payment is made, and may withhold or deduct
from
any distributions on such Deposited Securities, or may sell for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such cash or the proceeds of any such sale in payment of such tax or
other
governmental charge, the Holder hereof remaining liable for any deficiency.
Neither the Company, the Depositary nor any of their respective officers,
directors, representatives or agents will be liable for failure of a Holder
to
comply with applicable tax laws or governmental charges.
A-3
|
6
|
Warranties
by Depositor
|
Every
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and any certificate therefor are validly
issued and outstanding, fully paid, nonassessable and free of preemptive rights,
that the person making such deposit is duly authorized so to do and that such
Shares are not “restricted securities” as such term is defined in Rule 144 of
the Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and
sold
freely in the United States. Such representations and warranties shall survive
the deposit of Shares and the execution and delivery of Receipts.
| 7 |
Disclosure
of Interests
|
Notwithstanding
any other provision of the Deposit Agreement or this Receipt, the Holder hereof
agrees to comply with requests from the Company which are made under statutory
provisions in the United Kingdom to provide information as to the capacity
in
which such Holder owns this Receipt and regarding the identity of any other
person interested in this Receipt and the nature of such interest and may,
pursuant to such statutory provisions and any provisions of the constituent
documents of the Company, forfeit the right to vote and to direct the voting
of,
and be prohibited from transferring, this Receipt if compliance is not made,
all
as if this Receipt were to the extent practicable the Shares represented hereby,
and the Depositary agrees to use its reasonable efforts to comply with any
instructions received from the Company requesting that the Depositary take
the
reasonable actions specified therein to obtain such information.
|
8
|
Charges
of Depositary
|
The
Depositary will charge each person to whom Receipts are delivered against
deposits of Shares, and each person surrendering Receipts for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 American Depositary Shares (or
portion thereof) evidenced by the Receipts delivered or surrendered. The Company
will pay all other charges and expenses of the Depositary and those of any
Receipt registrar, co-transfer agent, co-registrar and any other agent of the
Depositary (except the Custodian, other than as provided in the Deposit
Agreement), except (i) stock transfer or other taxes and other governmental
charges (which are payable by Holders or persons depositing Shares or other
Deposited Securities, except as otherwise provided in paragraph 5), (ii) cable,
telex, electronic and facsimile transmission and delivery charges incurred
at
the request of persons depositing Shares or Holders delivering Shares, Receipts
or Deposited Securities (which are payable by such persons or Holders), (iii)
transfer or registration fees for the registration of transfers of deposited
Shares and other Deposited Securities on any applicable register in the name
of
the Custodian or its nominee in connection with the deposit of Shares or in
the
name of such person as a Holder may direct in connection with any withdrawal
of
Deposited Securities (which are payable by persons depositing Shares or Holders
withdrawing Deposited Securities; there are no such fees payable by such persons
or Holders in respect of the Shares as of the date of the Deposit Agreement),
and (iv) expenses of the Depositary in connection with the conversion of foreign
currency into U.S. dollars (which are paid out of such foreign currency). The
provisions in respect of these charges may be changed in the manner indicated
in
paragraph 21.
A-4
|
9
|
Title
to Receipts
|
Title
to
this Receipt (and to the Deposited Securities represented by the American
Depositary Shares evidenced hereby), when properly endorsed or accompanied
by
properly executed instruments of transfer, is transferable by delivery with
the
same effect as in the case of a negotiable instrument; provided
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 register
maintained by the Depositary as the absolute owner hereof for the purpose of
determining the person entitled to any distribution or notice and for all other
purposes.
| 10 |
Validity
of Receipt
|
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or
be
valid or obligatory for any purpose unless executed by the Depositary by the
manual or facsimile signature of a duly authorized officer of the
Depositary.
|
11
|
Available
Information
|
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and accordingly files certain reports with the Securities
and Exchange Commission. Such reports and other information may be inspected
and
copied at the public reference facilities maintained by the Commission and
located at the date of the Deposit Agreement at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
Dated:
JPMorgan
Chase Bank N.A., as Depositary
|
By:
|
__________________________
|
Authorized Officer
|
The
address of the Depositary’s Office is
|
4
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇.
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
ADR Department
A-5
[FORM
OF REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE DEPOSIT AGREEMENT
|
12
|
Distributions
Upon Deposited Securities
|
Whenever
the Company shall make any cash dividend or other cash distribution on Deposited
Securities available in U.S. dollars and it is possible, whether by election
or
other action, for the Depositary to receive that dividend or distribution in
U.S. dollars, the Depositary shall take any action to enable it to receive
such
dividend or distribution in U.S. dollars. In respect of any other cash dividend
or cash distribution by the Company on any Deposited Securities, whenever the
Depositary or the Custodian shall receive any cash dividend or other cash
distribution upon any Deposited Securities, the Depositary shall after any
necessary conversion of such distribution into U.S. dollars and after fixing
a
record date in respect thereof, subject to the Deposit Agreement, distribute
as
promptly as reasonably practicable the amount thus received, by checks drawn
on
or electronic transfers from a bank in the United States, to the Holders of
record on the record date set by the Depositary therefor of Receipts evidencing
American Depositary Shares representing such Deposited Securities, in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by each of them respectively; provided
that the
Depositary shall make appropriate adjustments in the amounts so distributed
in
respect of (a) any of the Deposited Securities being not entitled, by reason
of
its date of issuance or otherwise, to receive all or any portion of such
distribution or (b) any amounts (i) required to be withheld by the Company,
the
Custodian or the Depositary on account of taxes or (ii) charged by the
Depositary in connection with the conversion of foreign currency into U.S.
dollars, provided
that if
the Company shall announce any cash dividend on Deposited Securities in U.S.
dollars, the Company shall cause the amount of U.S. dollars paid to the
Depositary to be such that, subject to (i) above, the amount paid in respect
of
each Deposited Security hereunder is equal to the amount of the cash dividend
per Share as so announced. The Depositary shall distribute only such amount
as
can be distributed without distributing to any Holder a fraction of one cent.
Fractional cents will be withheld without liability and dealt with by the
Depositary in accordance with its then current practices. Cash distributions
and
cash proceeds from sales of non-cash distributions in foreign currency which,
in
the judgment of the Depositary can then be converted on a reasonable basis
into
U.S. dollars which can then be transferred to the United States, will, as
promptly as practicable, be converted by sale or in such other manner as the
Depositary may determine into U.S. dollars (net of the Depositary’s charges and
expenses in effecting such conversion) before distribution to Holders. If in
the
reasonable judgment of the Depositary amounts 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 and
distribution in U.S. dollars to the extent reasonable and permissible to the
Holders entitled thereto and may distribute the balance in foreign currency
to
the Holders entitled thereto or hold such balance or all such foreign currency
for the Holders entitled thereto (uninvested and without liability for interest
thereon). So long as the Company may list its Shares on a stock exchange in
Canada and maintain a co-transfer agent in Canada, in the case of Holders who
are registered on the books of the Depositary with an address in Canada
(“Canadian
Holders”)
and
who have not filed the election referred to in the next following sentence,
references above in this paragraph 12 to “U.S. dollars” shall mean and be deemed
to refer to Canadian dollars, references to “transferred to the United States”
shall mean and be deemed to refer to “transferred to Canada”, references to
“transferable to the United States” shall mean and be deemed to refer to
“transferable to Canada” and references to “bank in the United States” shall
mean and be deemed to refer to “bank in Canada”.
A-6
Canadian
Holders may file with the Depositary an election, in form and substance
satisfactory to the Depositary, stating that they wish to receive any cash
dividends or other cash distributions in U.S. dollars, provided
that in
order to take effect with respect to any distribution such election must be
duly
completed and received by the Depositary not less than 30 days before the record
date for such distribution. If any distribution upon any Deposited Securities
consists of a dividend in, or free distribution of, Shares, the Depositary
may
or shall if the Company shall so request, subject to the Deposit Agreement,
distribute to the Holders on a record date set by the Depositary therefor of
Receipts evidencing American Depositary Shares representing such Deposited
Securities, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by each of them respectively,
additional Receipts for an aggregate number of Depositary Shares representing
the number of Shares received as such dividend or free distribution. In lieu
of
delivering Receipts for fractional American Depositary Shares in the case of
any
such distribution, the Depositary shall sell the number of Shares represented
by
the aggregate of such fractions and distribute the net proceeds to the Holders
entitled thereto as in the case of a distribution received in cash. If
additional Receipts are not so distributed, each American Depositary Share
shall
thenceforth also represent its proportionate interest in the additional Shares
so distributed upon such Deposited Securities. If 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 nature, the Depositary
shall have discretion, after consultation with the Company, as to the procedure
to be followed in making such rights available to the Holders or in disposing
of
such rights and distributing the net proceeds thereof; provided
that the
Depositary will, if requested by the Company, subject to the Deposit Agreement
either (y) make such rights available to Holders by means of warrants or
otherwise, if lawful and feasible, or (z) if making such rights available is
not
lawful or not feasible, or if such rights or warrants are not exercised and
appear to be about to lapse, sell such rights or warrants 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 upon an averaged or other practicable basis without
regard to any distinctions among such Holders because of exchange restrictions,
or the date of delivery of any Receipt or Receipts, or otherwise, and distribute
the net proceeds so allocated to the Holders entitled thereto to the extent
practicable as in the case of a distribution received in cash. The Depositary
will distribute to Holders on the record date set by it therefor any
distribution on Deposited Securities other than cash, Shares or rights in any
manner that the Depositary deems equitable and practicable; provided
that if
in the opinion of the Depositary any distribution other than cash, Shares or
rights upon any Deposited Securities cannot be made proportionately among the
Holders entitled thereto, or if for any other reason (including any tax
withholding or securities law requirement) 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 distribution by the Depositary
of
the net proceeds of any such sale to the Holders entitled thereto as in the
case
of a distribution received in cash. The Depositary need not distribute
securities, Receipts or rights unless the Company furnishes certain evidence
or
opinions in respect of United States securities laws (which the Company has
no
obligation to do).
A-7
|
13
|
Record
Dates
|
Whenever
any distribution is being made upon any Deposited Securities or any meeting
of
holders of Shares or other Deposited Securities is being held or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation of any consent or any other matter, the Depositary
will, after consultation with the Company, fix a record date for the
determination of the Holders who shall be entitled to receive such distribution
or the net proceeds of the sale thereof, to vote or to give instructions for
the
exercise of voting rights at any such meeting, to receive such notice or
solicitation or to act in respect of such other matter, subject to the
provisions of the Deposit Agreement, which shall, to the extent practicable,
be
the same date as is fixed by the Company for the Deposited Securities.
|
14
|
Voting
of Deposited Securities
|
The
Depositary or, if the Deposited Securities are registered in the name of or
held
by its nominee, its nominee, subject to and in accordance with the Company’s
constituent documents, irrevocably appoints the Holder hereof for the time
being
on the record date (the “Voting
Record Date”)
fixed
by the Depositary in respect of any meeting (at which holders of Shares or
other
Deposited Securities are entitled to vote) as its proxy to attend, vote and
speak at the relevant meeting (or any adjournment thereof) in respect of the
Deposited Securities represented hereby on the Voting Record Date. In respect
of
any such meeting such Holder can appoint any person to attend, vote and speak
on
its behalf subject to and in accordance with the provisions of this paragraph
and the constituent documents of the Company. As soon as practicable after
receipt of notice of any meeting at which the holders of Deposited Securities
are entitled to vote, or of solicitation of consents or proxies from holders
of
Deposited Securities, the Depositary will in accordance with paragraph 13 fix
the Voting Record Date in respect of such meeting or solicitation. The
Depositary or, if the Company so determines, the Company, will distribute by
mail, or such other means and manner as may be mutually agreed between the
Depositary and the Company, to the Holder of record hereof on such Voting Record
Date: (a) such information as is contained in such notice of meeting or in
the
solicitation materials, (b) a Receipt proxy card in a form prepared by the
Depositary, (c) a statement that the Holder hereof at the close of business
on
the Voting Record Date will be entitled, subject to any applicable law, the
Company’s constituent documents and the provisions of or governing the Deposited
Securities, either (i) to use such Receipt proxy card in order to attend, vote
and speak at such meeting as the proxy of the Depositary or its nominee solely
with respect to the Shares or other Deposited Securities represented by American
Depositary Shares evidenced by this Receipt or (ii) to appoint any other person
as the substitute proxy of such Holder, solely with respect to the Shares or
other Deposited Securities represented by American Depositary Shares evidenced
by this Receipt or (iii) to provide Voting Instructions to the Depositary as
to
the exercise of the voting rights pertaining to the Shares or other Deposited
Securities represented by American Depositary Shares evidenced by this Receipt,
and (d) if the Depositary is to be given Voting Instructions by such Holder,
a
brief statement as to the manner in which Voting Instructions may be given
to
the Depositary. Upon the written request of a Holder of record hereof on the
Voting Record Date received on or before the date established by the Depositary
for such purpose, the Depositary shall endeavor, insofar as practicable and
permitted under applicable law, and the provisions of the Company’s constituent
documents and the provisions of the Deposited Securities, to vote or cause
to be
voted the Deposited Securities in accordance with the instructions set forth
in
such request.
A-8
Any
appointment or purported appointment by a Holder (or such Holder's substitute
proxy) of the Depositary as proxy in respect of Deposited Securities held by
the
Depositary, and any appointment or purported appointment by such a Holder (or
such Holder's substitute proxy) of the Depositary’s nominee as proxy in respect
of Deposited Securities held by that nominee, shall operate (a) as a
renunciation of the proxy initially provided by the Depositary or its nominee
to
such Holder or such Holder's substitute proxy in relation to those Deposited
Securities, and (b) as an instruction to the Depositary (or its nominee, as
the
case may be) to cast the votes attaching to those Deposited Securities (or
to
refrain from casting such votes) in the manner indicated by the Holder (or
such
Holder's substitute proxy) in the appointment or purported
appointment.
For
the
avoidance of doubt, when the Depositary receives Voting Instructions from a
substitute proxy of a Holder (including, without limitation, instructions from
ADP Inc. or any other entity acting on behalf of participants and/or customers
of participants within The Depository Trust Company) or their agents, and such
registered Holder has notified the Depositary that it holds Receipts on behalf
of such substitute proxies, the Depositary shall treat such Voting Instructions
as coming from an entity that holds Receipts on behalf of such substitute
proxies and the Depositary shall vote or cause to be voted the Deposited
Securities in accordance with such instructions.
Neither
the Depositary nor the Custodian shall exercise any discretion as to voting
and
neither the Depositary nor the Custodian shall vote or attempt to exercise
the
right to vote the Shares or other Deposited Securities represented by American
Depositary Shares evidenced hereby except pursuant to and in accordance with
such Voting Instructions from the Holder hereof given in accordance with this
paragraph 14. Shares or other Deposited Securities represented by American
Depositary Shares evidenced hereby for which no specific Voting Instructions
are
received by the Depositary from the Holder hereof shall not be voted by the
Depositary but may be directly voted by the Holder in attendance at meetings
of
shareholders as proxy for the Depositary or its nominee, subject to, and in
accordance with, the provisions of this paragraph and the Company’s constituent
documents.
|
15
|
Changes
Affecting Deposited
Securities
|
Upon
any
change in par value, split-up, consolidation, cancellation 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 that shall be received by the
Depositary or the Custodian in exchange for, or in conversion, replacement
or
otherwise in respect of, Deposited Securities shall be treated as Deposited
Securities under the Deposit Agreement; and, the Depositary may with the
Company’s approval, and shall if the Company shall so request, execute and
deliver additional Receipts in respect of such securities as in the case of
a
dividend of Shares or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, reflecting such securities, and to the extent that
such additional or new Receipts are not delivered this Receipt shall thenceforth
evidence American Depositary Shares representing the right to receive the
Deposited Securities including the securities so received.
|
16
|
Reports;
Inspection of Register
|
The
Depositary will make available for inspection by Holders at the Depositary’s
Office, at the office of the Custodian and at any other designated transfer
offices any reports and communications received from the Company which are
both
(a) received by the Depositary, the Custodian or the nominee of either as the
holder of the Deposited Securities and (b) made generally available to the
holders of Deposited Securities by the Company. The Depositary or its agent
will
keep at facilities in the United States a Receipt register for the registration
of Receipts and their transfer that at all reasonable times will 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 the Deposit Agreement or the Receipts. The Depositary, upon
request by the Company, will make available access to the Receipt register
at an
office in the Borough of Manhattan, The City of New York.
A-9
|
17
|
Withholding
|
In
connection with any distribution to Holders, the Company will withhold from
such
distribution and remit to the appropriate governmental authority or agency
all
amounts (if any) required to be withheld by the Company and owing to such
authority or agency by the Company; and the Depositary and the Custodian will
remit to the appropriate governmental authority or agency all amounts (if any)
required to be withheld by the Company and owing to such authority or agency
by
the Depositary or the Custodian. If the Depositary determines that any
distribution in property other than cash (including Shares or rights) on
Deposited Securities is subject to any tax that the Depositary or the Custodian
is obligated to withhold, the Depositary may dispose of all or a portion of
such
property in such amounts and in such manner, as the Depositary reasonably 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.
|
18
|
Actions
by Holders
|
The
Depositary shall cause its nominee, Guaranty Nominees Limited, or a successor
nominee, in its capacity as a member of the Company in respect of the Shares
and
other Deposited Securities, from time to time, to take such limited actions
as
may be reasonably requested in writing by a Holder, to the extent practicable
and subject to any applicable law, regulation, stock exchange requirement or
the
constituent documents of the Company, solely to enable such Holder to exercise
those rights to which Guaranty Nominees Limited or such successor nominee is
entitled by virtue of being a member of the Company in respect of the Shares
or
other Deposited Securities represented by the American Depositary Shares
evidenced by such Holder’s Receipts; provided,
however,
that,
with respect to rights other than as set forth in paragraph 14, Guaranty
Nominees Limited or such successor nominee shall take such action only to the
extent that (a) it has been fully indemnified to its reasonable satisfaction
by
the Holder against any and all loss, liability, or expense which it shall suffer
or reasonably incur, (b) such Holder has provided and will continue to provide
as reasonably requested from time to time security in the form of a bond or
otherwise in relation to such action reasonably satisfactory to the Depositary,
and (c) any legal proceeding or similar action brought on behalf of such Holder
pursuant to the exercise of such rights shall be brought in the name of Guaranty
Nominees Limited or a successor nominee and not in the name of the Depositary
and shall state that Guaranty Nominees Limited or such successor nominee is
involved solely for the purpose of enabling the Holder to establish a right
of
action and for no other purpose and that Guaranty Nominees Limited or such
successor nominee has no other interest in such matter. Any exercise of such
rights or powers shall be for the sole benefit of, and at the cost and expense
of, such Holder.
A-10
|
19
|
Liability
of the Company and the
Depositary
|
Neither
the Depositary, its agents nor the Company shall incur any liability if, by
reason of any present or future law, rule or regulation of the United States,
the United Kingdom or any other country or of any government or governmental
or
regulatory authority or any securities exchange or market or automated quotation
system, the provisions of or governing any Deposited Securities, any present
or
future provision of the Company's constituent documents, act of God, war,
terrorism or other circumstance beyond its control, the Depositary, its agents
or the Company shall be prevented or forbidden from, or subjected to any civil
or criminal penalty on account of, or delayed in, doing or performing any act
or
thing which by the terms of the Deposit Agreement it is provided shall be done
or performed nor shall the Depositary, its agents or the Company incur any
liability to any Holder or other person by reason of any nonperformance or
delay, caused as aforesaid, in performance of any act or thing that by the
terms
of the Deposit Agreement it is provided shall or may be done or performed,
or by
reason of any exercise of, or failure to exercise, any discretion provided
for
in the Deposit Agreement. Each of the Company, the Depositary and its agents
assumes no obligation and shall be subject to no liability under the Deposit
Agreement or this Receipt to Holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to perform in
the
Deposit Agreement without negligence or bad faith. Neither the Depositary,
its
agents nor the Company will be (a) under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited
Securities or this Receipt that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it in its sole discretion against
all expense and liability be furnished as often as may be required or (b) liable
for any action or inaction by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for deposit,
any
Holder, or any other person believed by it to be competent to give such advice
or information. Each of the Depositary, its agents and the Company may rely
and
shall be protected in acting upon any written notice, request, direction or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties. The Depositary and its agents will not be
responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, for the manner in which any such vote is cast, in each
case to the extent the Depositary or its agents act without negligence or
willful misconduct, or for the effect of any such vote. The Depositary and
its
agents may own and deal in any class of securities of the Company and its
affiliates and in Receipts. The Company has agreed to indemnify the Depositary,
Custodian and any other agent of the Depositary (the “indemnified
persons”)
under
certain circumstances and each indemnified person has agreed to indemnify the
Company and its agents under certain circumstances.
|
20
|
Resignation
and Removal of Depositary; the
Custodian
|
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of its election so to do delivered to the Company or be removed
by the Company by written notice of such removal delivered to the Depositary,
such resignation or removal to take effect upon the appointment of and
acceptance by a successor depositary as provided in the Deposit Agreement.
The
Depositary may, upon written request or written approval of the Company at
any
time appoint substitute or additional Custodians and the term “Custodian” refers
to each Custodian or all Custodians as the context requires.
A-11
|
21
|
Amendment
of Deposit Agreement and
Receipts
|
The
Receipts and the Deposit Agreement may be amended by agreement between the
Company and the Depositary without the consent of Holders. Any amendment that
shall impose or increase any fees or charges (other than the fees and charges
listed in clauses (i) through (iv) of paragraph 8) or that shall otherwise
prejudice any substantial existing right of Holders shall not, however, become
effective as to outstanding Receipts until the expiration of 30 days after
notice of such amendment shall have been given to the Holders. Every Holder
at
the expiration of such 30 days shall be deemed by holding such Receipt to
consent and agree to such amendment and to be bound by the Deposit Agreement
or
the Receipt as amended thereby. In no event shall any amendment impair the
right
of the Holder hereof to surrender this Receipt and receive therefor the
Deposited Securities represented hereby, except in order to comply with
mandatory provisions of applicable law.
|
22
|
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 at least
30 days prior to the date fixed in such notice for such termination. The
Depositary may terminate the Deposit Agreement, upon the notice set forth in
the
preceding sentence, at any time after 90 days after the Depositary shall have
resigned, provided
that no
successor depositary shall have been appointed and accepted its appointment
within such 90 days. After the date so fixed for termination, the Depositary
and
its agents will perform no further acts under the Deposit Agreement, except
to
advise Holders of such termination, receive and hold distributions on Deposited
Securities (or sell property or rights or convert Deposited Securities into
cash) and deliver Deposited Securities being withdrawn. As soon as practicable
after the expiration of six months from the date so fixed for termination,
the
Depositary shall sell the Deposited Securities and shall thereafter (as long
as
it may lawfully do so) hold in a segregated account the net proceeds of any
such
sale, together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro
rata
benefit
of the Holders of Receipts not theretofore surrendered.
A-12
EXHIBIT
B TO DEPOSIT AGREEMENT
CHARGES
OF THE DEPOSITARY
The
charges of the Depositary, subject to Sections 5.9 and 6.1 of the Deposit
Agreement, are as follows:
|
Service
|
Rate
|
By
Whom Paid
|
|||
|
(1)
|
Delivery
of Receipts against deposits of Shares
|
$5
per 100 American Depositary Shares or portion thereof
|
Person
to whom Receipts are delivered
|
||
|
(2)
|
Withdrawal
of Deposited Securities against surrender of Receipts
|
$5
per 100 American Depositary Shares or portion thereof
|
Person
surrendering Receipts
|
||
The
Company will pay all other charges of the Depositary and those of any Receipt
registrar, co-transfer agent, co-registrar and any other agent of the Depositary
(except the Custodian, except as provided in Section 5.8 of the Deposit
Agreement), plus reasonable expenses such as printing, translation, stationery,
postage, insurance, cables, etc., incurred by the Depositary or any such person
in the exercise of its duties and obligations under the Deposit Agreement,
in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time, except (a) stock transfer or other taxes and
other governmental charges (which are payable by Holders or persons depositing
Shares or other Deposited Securities) other than Relevant Duties payable by
the
Company pursuant to Section 3.2 of the Deposit Agreement, (b) cable, telex,
electronic or facsimile transmission and delivery charges incurred at the
request of persons depositing Shares or Holders delivering Shares, Receipts
or
Deposited Securities (which are payable by such persons or Holders), (c)
transfer or registration fees for the registration of transfers of deposited
Shares and other Deposited Securities on any applicable register in the name
of
the Custodian or its nominee in connection with the deposit of Shares or in
the
name of such person as a Holder may direct in connection with the withdrawal
of
Deposited Securities (which are payable by persons depositing Shares or Holders
withdrawing Deposited Securities; there are no such fees payable by such persons
or Holders in respect of the Shares as of the date of the Deposit Agreement)
and
(d) expenses of the Depositary in connection with the conversion of foreign
currency into U.S. dollars (which are paid out of such foreign
currency).
B-1
Table
of Contents
|
Contents
|
Page
|
|
|
ARTICLE
I Definitions
|
1
|
|
|
Section
1.1
|
The
term “American Depositary Shares”
|
1
|
|
Section
1.2
|
[The
term “BP Direct Access Plan”
|
1
|
|
Section
1.3
|
The
term “Commission”
|
1
|
|
Section
1.4
|
The
term “Custodian”
|
1
|
|
Section
1.5
|
The
terms “deliver”, “execute”, “issue”, “register”, “surrender”, “transfer”
or “cancel”
|
1
|
|
Section
1.6
|
The
term “Deposit Agreement”
|
2
|
|
Section
1.7
|
The
term “Depositary’s Office”
|
2
|
|
Section
1.8
|
The
term “Deposited Securities”
|
2
|
|
Section
1.9
|
The
term “Direct Registration Receipt”
|
2
|
|
Section
1.10
|
The
term “Direct Registration System”
|
2
|
|
Section
1.11
|
The
term “Holder”
|
2
|
|
Section
1.12
|
The
term “Receipt Register”
|
2
|
|
Section
1.13
|
The
term “Receipts”
|
2
|
|
Section
1.14
|
The
term “Securities Act of 1933”
|
2
|
|
Section
1.15
|
The
term “Shares”
|
2
|
|
Section
1.16
|
The
term “Tax Treaty Payments”
|
2
|
|
Section
1.17
|
The
term “Voting Instruction”
|
3
|
|
ARTICLE
II Form of Receipts, Deposit of Shares, Execution and Transfer of
Receipts
and Withdrawal of Deposited Securities
|
3
|
|
|
Section
2.1
|
Form
and Transferability of Receipts
|
3
|
|
Section
2.2
|
Deposit
of Shares
|
4
|
|
Section
2.3
|
Execution
and Delivery of Receipts
|
4
|
|
Section
2.4
|
Transfer,
Combination and Split-up of Receipts
|
5
|
|
Section
2.5
|
Withdrawal
of Deposited Securities
|
5
|
|
Section
2.6
|
Limitations
on Issuance, Execution, Delivery and Transfer of Receipts and Withdrawal
of Deposited Securities
|
6
|
|
Section
2.7
|
Substitution
of Receipts
|
7
|
|
Section
2.8
|
Cancellation
and Destruction of Receipts
|
7
|
|
Section
2.9
|
Maintenance
of Records
|
7
|
|
ARTICLE
III Certain Obligations of Holders
|
7
|
|
|
Section
3.1
|
Information
|
7
|
|
Section
3.2
|
Liability
of Holder for Taxes
|
8
|
|
Section
3.3
|
Warranties
on Deposit of Shares
|
8
|
|
Section
3.4
|
Disclosure
of Interests
|
9
|
|
ARTICLE
IV Deposited Securities
|
9
|
|
|
Section
4.1
|
Cash
Distributions
|
9
|
|
Section
4.2
|
Share
Distributions
|
10
|
|
Section
4.3
|
Rights
Distributions
|
10
|
|
Section
4.4
|
Other
Distributions
|
10
|
|
Section
4.5
|
Conversion
of Foreign Currency
|
11
|
|
Section
4.6
|
Fixing
of Record Date
|
11
|
|
Section
4.7
|
Voting
of Deposited Securities
|
12
|
-
i
-
|
Section
4.8
|
Changes
Affecting Deposited Securities
|
13
|
|
Section
4.9
|
Withholding
|
13
|
|
Section
4.10
|
Canadian
Holders
|
14
|
|
Section
4.11
|
Actions
by Holders
|
14
|
|
ARTICLE
V The Depositary and the Company
|
15
|
|
|
Section
5.1
|
Maintenance
of Depositary’s Office and Receipt Register; Certain Agents of the
Depositary; Lists of Holders
|
15
|
|
Section
5.2
|
Prevention
or Delay in Performance
|
16
|
|
Section
5.3
|
Obligations
Limited
|
16
|
|
Section
5.4
|
Resignation
and Removal of the Depositary; Appointment of Successor
Depositary
|
16
|
|
Section
5.5
|
The
Custodian
|
17
|
|
Section
5.6
|
Notices
and Reports to Holders
|
17
|
|
Section
5.7
|
Issuance
of Additional Shares, etc.
|
18
|
|
Section
5.8
|
Indemnification
|
18
|
|
Section
5.9
|
Charges
of Depositary
|
19
|
|
Section
5.10
|
Statutory
Reports
|
19
|
|
Section
5.11
|
Available
Information to the Commission
|
19
|
|
ARTICLE
VI Amendment and Termination
|
19
|
|
|
Section
6.1
|
Amendment
|
19
|
|
Section
6.2
|
Termination
|
20
|
|
ARTICLE
VII Miscellaneous
|
20
|
|
|
Section
7.1
|
Counterparts
|
20
|
|
Section
7.2
|
No
Third Party Beneficiaries
|
21
|
|
Section
7.3
|
Severability
|
21
|
|
Section
7.4
|
Holders
Parties; Binding Effect
|
21
|
|
Section
7.5
|
Notices
|
21
|
|
Section
7.6
|
Governing
Law
|
22
|
EXHIBIT
A
[FORM
OF
FACE OF RECEIPT]
|
1
|
The
Deposit Agreement
|
A-1
|
|
2
|
Withdrawal
of Deposited Securities
|
A-2
|
|
3
|
Transfers,
Combinations and Split-ups
|
A-2
|
|
4
|
Certain
Limitations
|
A-2
|
|
5
|
Liability
of Holder for Taxes
|
A-3
|
|
6
|
Warranties
by Depositor
|
A-4
|
|
7
|
Disclosure
of Interests
|
A-4
|
|
8
|
Charges
of Depositary
|
A-4
|
|
9
|
Title
to Receipts
|
A-5
|
|
10
|
Validity
of Receipt
|
A-5
|
-
ii
-
|
11
|
Available
Information
|
A-5
|
|
[FORM
OF REVERSE OF RECEIPT]
|
||
|
12
|
Distributions
Upon Deposited Securities
|
A-6
|
|
13
|
Record
Dates
|
A-8
|
|
14
|
Voting
of Deposited Securities
|
A-8
|
|
15
|
Changes
Affecting Deposited Securities
|
A-9
|
|
16
|
Reports;
Inspection of Register
|
A-9
|
|
17
|
Withholding
|
A-10
|
|
18
|
Actions
by Holders
|
A-10
|
|
19
|
Liability
of the Company and the Depositary
|
A-10
|
|
20
|
Resignation
and Removal of Depositary; the Custodian
|
A-11
|
|
21
|
Amendment
of Deposit Agreement and Receipts
|
▇-▇▇
|
|
▇▇
|
▇▇▇▇▇▇▇▇▇▇▇
of Deposit Agreement
|
A-12
|
|
EXHIBIT
B
|
||
|
Charges
of the Depositary
|
B-1
|
|
-
iii
-