SPARK NETWORKS PLC AND THE BANK OF NEW YORK As Depositary AND OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS Deposit Agreement Dated as of , 2006
Exhibit 4.1
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
AMERICAN DEPOSITARY RECEIPTS
Dated as of , 2006
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS | - 1 - | |||||
SECTION 1.01. |
American Depositary Shares; Receipts | - 1 - | ||||
SECTION 1.02. |
Beneficial Owner | - 2 - | ||||
SECTION 1.03. |
Commission | - 2 - | ||||
SECTION 1.04. |
Company | - 2 - | ||||
SECTION 1.05. |
Custodian | - 2 - | ||||
SECTION 1.06. |
Deliver; Surrender | - 2 - | ||||
SECTION 1.07. |
Depositary; Corporate Trust Office | - 3 - | ||||
SECTION 1.08. |
Deposited Securities | - 3 - | ||||
SECTION 1.09. |
Dollars; Pounds; Xxxxx; P | - 3 - | ||||
SECTION 1.10. |
DTC | - 3 - | ||||
SECTION 1.11. |
Foreign Currency | - 3 - | ||||
SECTION 1.12. |
Foreign Registrar | - 3 - | ||||
SECTION 1.13. |
Deposit Agreement | - 3 - | ||||
SECTION 1.14. |
Master Receipt | |||||
SECTION 1.15. |
Owner | - 4 - | ||||
SECTION 1.16. |
Receipts | - 4 - | ||||
SECTION 1.17. |
Registrar | - 4 - | ||||
SECTION 1.18. |
Restricted Securities | - 4 - | ||||
SECTION 1.19. |
Securities Act | - 4 - | ||||
SECTION
1.20. |
Securities Exchange Act | - 4 - | ||||
SECTION 1.21. |
Shares | - 5 - | ||||
SECTION
1.22. |
Stamp Taxes | - 5 - | ||||
SECTION 1.23. |
United States | - 5 - | ||||
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS | - 5 - | |||||
SECTION 2.01. |
Form and Transferability of Receipts | - 5 - | ||||
SECTION 2.02. |
Deposit of Shares | - 6 - | ||||
SECTION 2.03. |
Execution and Delivery of Receipts | - 8 - | ||||
SECTION 2.04. |
Transfer of Receipts; Combination and Split-up of Receipts | - 8 - | ||||
SECTION 2.05. |
Surrender of Receipts and Withdrawal of Shares | - 9 - | ||||
SECTION 2.06. |
Limitations on Execution and Delivery, Transfer and Surrender of Receipts and Withdrawal of Deposited Securities | - 10 - | ||||
SECTION 2.07. |
Lost Receipts | - 11 - | ||||
SECTION 2.08. |
Cancellation and Destruction of Surrendered Receipts | - 11 - | ||||
SECTION 2.09. |
Pre-Release | - 11 - | ||||
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS | - 12 - | |||||
SECTION 3.01. |
Filing Proofs, Certificates and Other Information | - 12 - | ||||
SECTION 3.02. |
Liability of Owner for Taxes | - 12 - | ||||
SECTION 3.03. |
Warranties on Deposit or Withdrawal of Shares | - 12 - | ||||
ARTICLE 4. THE DEPOSITED SECURITIES | - 13 - |
SECTION 4.01. |
Cash Distributions | - 13 - | ||||
SECTION 4.02. |
Distributions Other than Cash, Shares or Rights | - 13 - | ||||
SECTION 4.03. |
Distributions in Shares | - 14 - | ||||
SECTION 4.04. |
Rights | - 14 - | ||||
SECTION 4.05. |
Conversion of Foreign Currency | - 16 - | ||||
SECTION 4.06. |
Fixing of Record Date | - 17 - | ||||
SECTION 4.07. |
Voting of Deposited Securities | - 17 - | ||||
SECTION 4.08. |
Changes Affecting Deposited Securities | - 19 - | ||||
SECTION 4.09. |
Reports | - 19 - | ||||
SECTION 4.10. |
Lists of Owners | - 19 - | ||||
SECTION 4.11. |
Withholding | - 19 - | ||||
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY | - 20 - | |||||
SECTION 5.01. |
Maintenance of Office and Transfer Books by the Depositary | - 20 - | ||||
SECTION 5.02. |
Prevention or Delay in Performance by the Depositary or the Company | - 20 - | ||||
SECTION 5.03. |
Obligations of the Depositary, the Custodian and the Company | - 21 - | ||||
SECTION 5.04. |
Resignation and Removal of the Depositary; Appointment of Successor Depositary | - 22 - | ||||
SECTION 5.05. |
The Custodians | - 23 - | ||||
SECTION 5.06. |
Notices and Reports | - 23 - | ||||
SECTION 5.07. |
Issuance and Distribution of Additional Shares, Rights, etc | - 24 - | ||||
SECTION 5.08. |
Indemnification | - 24 - | ||||
SECTION 5.09. |
Charges of Depositary | - 25 - | ||||
SECTION 5.10. |
Retention of Depositary Documents | - 25 - | ||||
SECTION 5.11. |
Exclusivity | - 26 - | ||||
SECTION 5.12. |
List of Restricted Securities Owners | - 26 - | ||||
ARTICLE 6. AMENDMENT AND TERMINATION | - 26 - | |||||
SECTION 6.01. |
Amendment | - 26 - | ||||
SECTION 6.02. |
Termination | - 27 - | ||||
ARTICLE 7. MISCELLANEOUS | - 28 - | |||||
SECTION 7.01. |
Counterparts | - 28 - | ||||
SECTION 7.02. |
No Third Party Beneficiaries | - 28 - | ||||
SECTION 7.03. |
Severability | - 28 - | ||||
SECTION 7.04. |
Owners and Beneficial Owners as Parties; Binding Effect | - 28 - | ||||
SECTION 7.05. |
Notices | - 28 - | ||||
SECTION 7.06. |
Governing Law | - 29 - | ||||
SECTION 7.07. |
Article; Section | - 29 - |
ii
DEPOSIT AGREEMENT dated as of , 2005 among SPARK NETWORKS PLC, incorporated under
the laws of England and Wales (herein called the Company), THE BANK OF NEW YORK, a New York banking
corporation (herein called the Depositary), and all Owners (as hereinafter defined) and Beneficial
Owners (as hereinafter defined) from time to time of American Depositary Receipts issued
hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide, as hereinafter set forth in this Deposit Agreement,
for the deposit of Shares (as hereinafter defined) of the Company from time to time with the
Depositary or with the Custodian (as hereinafter defined), as agent of the Depositary for the
purposes set forth in this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of American Depositary
Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided
in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and between the parties
hereto as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly indicated, apply to
the respective terms used in this Deposit Agreement:
SECTION 1.01. American Depositary Shares; Receipts.
The term “American Depositary Shares” shall mean the securities representing the interests in
the Deposited Securities and evidenced by Receipts issued hereunder. Each American Depositary
Share shall represent the right to receive the number of Shares specified in Exhibit A to this
Deposit Agreement, until there shall occur a distribution upon Deposited Securities covered by
Section 4.03 or a change in Deposited Securities covered by Section 4.08 with respect to which
additional Receipts are not executed and delivered, and thereafter American Depositary Shares shall
evidence the rights to receive the amount of Shares or Deposited Securities specified in such
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Sections. The term “Receipt” shall mean the American Depositary Receipts issued under this Deposit
Agreement evidencing the American Depositary Shares.
SECTION 1.02. Beneficial Owner.
The term “Beneficial Owner” shall mean each person owning from time to time any beneficial
interest in the Master RECEIPT issued hereunder but who is not the Owner of such Receipt.
SECTION 1.03. Commission.
The term “Commission” shall mean the Securities and Exchange Commission of the United States
or any successor governmental agency in the United States.
SECTION 1.04. Company.
The term “Company” shall mean Spark Networks plc, incorporated under the laws of England and
Wales, and its successors.
SECTION 1.05. Custodian.
The term “Custodian” shall mean the London office of The Bank of New York, as agent of the
Depositary for the purposes of this Deposit Agreement, and any other firm or corporation which may
hereafter be appointed by the Depositary pursuant to the terms of Section 5.05, as substitute or
additional custodian or custodians hereunder, as the context shall require and shall also mean all
of them collectively.
SECTION 1.06. Deliver; Surrender.
(a) The term “deliver”, or its noun form, when used with respect to Shares shall mean (i) one
or more book-entry transfers to an account or accounts maintained with a depository institution
authorized under applicable law to effect book-entry transfers of such securities or (ii) the
physical transfer of certificates representing Shares.
(b) The term “deliver”, or its noun form, when used with respect to Receipts, shall mean (i)
one or more book-entry transfers of American Depositary Shares to an account or accounts at The
Depository Trust Company (“DTC”) designated by the person entitled to such delivery or (ii) if
requested by the person entitled to such delivery, delivery at the Corporate Trust Office of the
Depositary of one or more Receipts.
(c) The term “surrender”, when used with respect to Receipts, shall mean (i) one or more
book-entry transfers of American Depositary Shares to the DTC account of the Depositary or (ii)
surrender to the Depositary at its Corporate Trust Office of one or more Receipts.
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SECTION 1.07. Depositary; Corporate Trust Office.
The term “Depositary” shall mean The Bank of New York, a New York banking corporation, and any
successor as depositary hereunder. The term “Corporate Trust Office”, when used with respect to
the Depositary, shall mean the corporate trust office of the Depositary which at the date of this
Deposit Agreement is 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.08. Deposited Securities.
The term “Deposited Securities” as of any time shall mean Shares at such time deposited or
deemed to be deposited under this Deposit Agreement and any and all other securities, property and
cash received by the Depositary or the Custodian in respect thereof and at such time held
hereunder, subject as to cash to the provisions of Section 4.05.
SECTION 1.09. Dollars; Pounds; Xxxxx; P.
The term “Dollars” shall mean United States dollars. The terms “Pounds” or “Xxxxx” or “P”
shall mean the lawful currency of the United Kingdom.
SECTION 1.10. DTC.
The term “DTC” shall mean The Depository Trust Company, or any successor corporation thereto.
SECTION 1.11. Foreign Currency.
The term “Foreign Currency” shall mean any currency other than Dollars.
SECTION 1.12. Foreign Registrar.
The term “Foreign Registrar” shall mean the entity that presently carries out the duties of
registrar for the Shares or any successor as registrar for the Shares and any other appointed agent
of the Company for the transfer and registration of Shares.
SECTION 1.13. Deposit Agreement.
The term “Deposit Agreement” shall mean this Deposit Agreement, as the same may be amended
from time to time in accordance with the provisions hereof, and all instruments supplemental
hereto.
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SECTION 1.14. Owner.
The term “Owner” shall mean the person in whose name a Receipt is registered on the books of
the Depositary maintained for such purpose.
SECTION 1.15. Receipts.
The term “Receipts” shall mean the American Depositary Receipts issued hereunder, in
substantially the form of Exhibit A hereto, evidencing American Depositary Shares as the same may
be amended from time to time in accordance with the provisions hereof.
SECTION 1.16. Registrar.
The term “Registrar” shall mean the Depositary or any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be appointed to register Receipts
and transfers of Receipts and to countersign Receipts as herein provided and shall include any
co-registrars appointed by the Depositary.
SECTION 1.17. Restricted Securities.
The term “Restricted Securities” shall mean Shares, or Receipts representing such Shares,
which are acquired directly or indirectly from the Company, or any affiliate (as defined in Rule
144 to the Securities Act of 1933) of the Company, in a transaction or chain of transactions not
involving any public offering, or which are held by an officer, director (or persons performing
similar functions) or other affiliate of the Company, or which would require registration under the
Securities Act of 1933 in connection with the public offer and sale thereof in the United States,
or which are subject to other restrictions on sale or deposit under the laws of the United States
or England and Wales, or under a shareholder agreement or the articles of association or similar
document of the Company.
SECTION 1.18. Securities Act.
The term “Securities Act” shall mean the United States Securities Act of 1933, as from time to
time amended.
SECTION 1.19. Securities Exchange Act.
The term “Securities Exchange Act” shall mean the United States Securities Exchange Act of
1934, as from time to time amended.
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SECTION 1.20. Shares.
The term “Shares” shall mean ordinary shares of 1p each in the Company heretofore validly
issued and outstanding and fully paid, nonassessable and free of any preemptive rights of the
holders of outstanding Shares, or hereafter validly issued and outstanding and fully paid,
nonassessable and free of any preemptive rights of the holders of outstanding Shares or interim
certificates representing such Shares; provided, however, that if there shall occur
any change in par value, a split-up or consolidation or any other reclassification or, upon the
occurrence of an event described in Section 4.08, an exchange or conversion in respect of the
Shares, the term “Shares” shall thereafter mean the successor securities resulting from such change
in par value, split-up or consolidation or such other reclassification or such exchange or
conversion.
SECTION 1.21. Stamp Taxes
The term “stamp taxes” shall mean any stamp duty reserve tax imposed by Part IV of the Finance
Xxx 0000 of the United Kingdom (or any statutory modification or re-enactment thereof) in respect
of any deposit of Shares in accordance with Section 2.02 of this Deposit Agreement, or any stamp
duty imposed by Part III of the Finance Xxx 0000 of the United Kingdom (or any statutory
modification or re-enactment thereof) on any deposit of Shares in accordance with Section 2.02 of
this Deposit Agreement, or both of them, as the context may require.
XXXXXXX 0.00. Xxxxxx Xxxxxx.
The term “United States” shall, except as otherwise provided in this Deposit Agreement or the
Receipts, mean the United States of America, its territories and possessions, any State of the
United States, and the District of Columbia.
ARTICLE
2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.01. Form and Transferability of Receipts.
(a) Receipts shall be entitled “American Depositary Receipts” and shall be substantially in
the form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions as hereinafter provided. No Receipt shall be entitled to any benefits
under this Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a duly authorized
signatory of the Depositary and, if a Registrar (other than the Depositary) for the Receipts shall
have been appointed, countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar. The Depositary shall maintain books on which each Receipt
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so executed
and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered. Receipts bearing the manual or facsimile signature of a duly authorized
signatory of the Depositary who was at any time a proper signatory of the Depositary shall bind the
Depositary, notwithstanding that such signatory has ceased to hold such office prior to the
execution and delivery of such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof such legends or
recitals or modifications not inconsistent with the provisions of this Deposit Agreement as may be
required (i) by the Depositary or (ii) to comply with any applicable law or regulations or with the
rules and regulations thereunder of any securities exchange upon which American Depositary Shares
may be listed or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject by reason of the date or
manner of issuance of the underlying Deposited Securities or otherwise.
The Receipts shall bear a CUSIP number that is different from any CUSIP number that is or may
be assigned to any other restricted depositary receipt facility relating to the Shares.
The Receipts shall be engraved, lithographed, printed or typewritten, or in such other form as
may be agreed upon by the Company and the Depositary.
Title to a Receipt (and to the American Depositary Shares evidenced thereby), when properly
endorsed or accompanied by a proper instrument or instruments of transfer and transferred in
accordance with the terms of this Deposit Agreement, shall be transferable by delivery with the
same effect as in the case of a negotiable instrument under the laws of the State of New York;
provided, however, that the Depositary, notwithstanding any notice to the contrary,
may treat the Owner thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice provided for in this
Deposit Agreement and for all other purposes and neither the Depositary nor the Company will have
any obligation or be subject to any liability under this Deposit Agreement to any holder of a
Receipt unless such holder is the Owner thereof.
SECTION 2.02. Deposit of Shares.
(a) Subject to the terms and conditions of this Deposit Agreement, Shares or evidence of
rights to receive Shares may be deposited under this Deposit Agreement by delivery thereof to any
Custodian hereunder, accompanied by any appropriate instrument or instruments of transfer, or
endorsement, in form satisfactory to the Custodian, and all such certifications, documents, other
information (including, with respect to any applicable stamp taxes, evidence satisfactory to the
Depositary that any such amounts have been fully paid) and payments as may be required by the
Depositary
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or the Custodian in accordance with the provisions of this Deposit Agreement, and, if
the Depositary requires, together with a written order (1) directing the Depositary to deliver to,
or upon the written order of, the person or persons stated in such order a Receipt or Receipts for
the number of American Depositary Shares representing such deposited Shares.
No Share shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary that all conditions to such deposit have been satisfied by the person depositing such
Shares under English laws and regulations and any necessary approval has been granted by any
governmental body in England, which is then performing the function of the regulation of currency
exchange or any other function which requires approval for the deposit of Shares. If required by
the Depositary, Shares presented for deposit at any time, whether or not the transfer books of the
Company or the Foreign Registrar, if applicable, are closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary, which will provide for
the prompt transfer to the Custodian of any dividend, or right to subscribe for additional Shares
or to receive other property which any person in whose name the Shares are or have been recorded
may thereafter receive upon or in respect of such deposited Shares, or in lieu thereof, such
agreement of indemnity or other agreement as shall be satisfactory to the Depositary.
At the request, risk and expense of any person proposing to deposit Shares, and for the
account of such person, the Depositary may receive certificates for Shares to be deposited,
together with the other instruments and payments herein specified, for the purpose of forwarding
such Share certificates to the Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for Shares to be deposited
hereunder, together with the other documents and payments specified above, such Custodian shall, as
soon as transfer and recordation can be accomplished, present such certificate or certificates to
the Company or the appointed agent of the Company for transfer and registration of Shares, which
may but need not be the Foreign Registrar, if applicable, for transfer and recordation of the
Shares being deposited in the name of the Depositary or its nominee or such Custodian or its
nominee.
(b) The Depositary agrees to instruct the Custodian to place all Shares accepted for deposit
under this Deposit Agreement into segregated accounts separate from any Shares of the Company that
may be held by such Custodian under any other depositary receipt facility relating to the Shares.
(c) Deposited Securities shall be held by the Depositary or by a Custodian for the account and
to the order of the Depositary or at such other place or places as the Depositary shall determine.
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SECTION 2.03. Execution and Delivery of Receipts.
(a) Upon receipt by any Custodian of any deposit hereunder (and in addition, if the transfer
books of the Company or the Foreign Registrar, if applicable, are open, the Depositary may in its
sole discretion require a proper acknowledgment or other evidence from the Company that any
Deposited Securities have been recorded upon the books of the Company or the Foreign Registrar, if
applicable, in the name of the Depositary or its nominee or such Custodian or its nominee),
together with the other documents and payments required as specified above and pursuant to
Section 2.06, such Custodian shall notify the Depositary of such deposit and the name of the person
or persons to whom or upon whose written order a Receipt or Receipts are deliverable in respect
thereof and the number of American Depositary Shares to be evidenced thereby. Such notification
shall be made by letter or, at the request, risk and expense of the person making the deposit, by
air courier, cable, telex or facsimile transmission.
Upon receiving such notice from such Custodian, the Depositary or its agent, subject to this
Deposit Agreement, execute and deliver to or upon the order of the person or persons named in the
notice delivered to the Depositary, a Receipt or Receipts, registered in the name or names
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, but, in either case, (A) only upon
payment to the Depositary or Custodian of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the deposited Shares and (B) subject to the other
terms of this Deposit Agreement and the provisions of the Company’s Memorandum and Articles of
Association and of the Deposited Securities.
SECTION 2.04. Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit Agreement, including
payment of the fees of the Depositary as provided in Section 5.09, shall register transfers of
Receipts on its transfer books from time to time upon surrender at the Corporate Trust Office of
the Depositary of a Receipt, by the Owner in person or by a duly authorized attorney, properly
endorsed or accompanied by a proper instrument or instruments of transfer and duly stamped as may
be required by the laws of the State of New York and of the United States. Thereupon the
Depositary shall execute a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto, but only upon payment to the Depositary of the fees of the Depositary as
provided in Section 5.09.
The Depositary, subject to the terms and conditions of this Deposit Agreement, shall upon
surrender of a Receipt or Receipts for the purpose of effecting a split-up or combination of such
Receipt or Receipts, execute and deliver a new Receipt or Receipts for any authorized number of
American Depositary Shares requested,evidencing
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the same aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered.
The Depositary may appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require evidence of authority
and compliance with applicable laws and other requirements by Owners or persons entitled to
Receipts and will be entitled to protection and indemnity to the same extent as the Depositary.
SECTION 2.05. Surrender of Receipts and Withdrawal of Shares.
Subject to the terms and conditions of this Deposit Agreement, upon surrender at the Corporate
Trust Office of the Depositary of a Receipt for the purpose of withdrawal of the Deposited
Securities represented by the American Depositary Shares evidenced by such Receipt, and upon
payment of the fee of the Depositary for the surrender of Receipts as provided in Section 5.09 and
payment of all taxes and governmental charges payable in connection with such surrender and
withdrawal of the Deposited Securities, and subject to the terms and conditions of this Deposit
Agreement, the Memorandum and Articles of Association of the Company, the Deposited Securities and
applicable law, the Owner of such Receipt acting for itself or on behalf of the Beneficial Owner or
DTC participant, as the case may be, shall be entitled to delivery, to him or upon his order, of
the amount of Deposited Securities at the time represented by the American Depositary Shares
evidenced by such Receipt. Delivery of such Deposited Securities may be made by the delivery of
(x) certificates in the name of such Owner or as ordered by him or certificates properly endorsed
or accompanied by a proper instrument or instruments of transfer to such Owner or as ordered by
him, and (y) any other securities, property and cash to which such Owner is then entitled in
respect of such Receipts to such Owner or as ordered by him. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary to be properly
endorsed in blank or accompanied by a proper instrument or instruments of transfer in blank, and if
the Depositary so requires, the Owner thereof shall execute and deliver to the Depositary a written
order directing the Depositary to cause the Deposited Securities being withdrawn to be delivered to
or upon the written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the London office of such Custodian, subject to
Sections 2.06, 3.01 and 3.02 and to the other terms and conditions of this Deposit Agreement, to or
upon the written order of the person or persons designated in the order delivered to the Depositary
as above provided, the amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, except that the Depositary may make delivery to such person or persons
at the Corporate Trust Office of the Depositary
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of any dividends or distributions with respect to the Deposited Securities represented by the American Depositary Shares evidenced by such Receipt, or of any
proceeds of sale of any dividends, distributions or rights, which may at the time be held by the
Depositary.
At the request, risk and expense of any Owner so surrendering a Receipt or any Beneficial
Owner submitting such written instructions for delivery, and for the account of such Owner or
Beneficial Owner, the Depositary shall direct the Custodian to forward any cash or other property
(other than rights) comprising, and forward a certificate or certificates and other proper
documents of title for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust Office of the
Depositary. Such direction shall be given by letter or, at the request, risk and expense of such
Owner, by air courier, cable, telex or facsimile transmission.
SECTION 2.06. Limitations on Execution and Delivery, Transfer and Surrender of Receipts
and Withdrawal of Deposited Securities.
(a) As a condition precedent to the execution and delivery, registration of transfer,
split-up, combination or surrender of any Receipt or withdrawal of any Deposited Securities or the
adjustment of the Depositary’s records to reflect the deposit of Shares or any such transfer,
split-up, combination, surrender or withdrawal, the Depositary, Custodian or Registrar may require
payment (or, with respect to any applicable stamp taxes, evidence satisfactory to the Depositary
that any such amounts have been fully paid) from the presenter of the Receipt or the depositor of
Shares of a sum sufficient to reimburse it for any tax or other governmental charge and any stock
transfer or registration fee with respect thereto (including any such tax or charge and fee with
respect to the Shares being deposited or withdrawn) and payment of any applicable fees as herein
provided, may require the production of proof satisfactory to it as to the identity and genuineness
of any signature and may also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without limitation, this
Section 2.06.
(b) The delivery of Receipts against deposits of Shares generally or against deposits of
particular Shares may be suspended, or deposits of Shares may be refused, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer, split-up or
combination of outstanding Receipts, or the surrender of outstanding Receipts for the purpose of
withdrawal of Deposited Securities, may be suspended generally or in particular instances, during
any period when the transfer books of the Depositary or the Company or the Foreign Registrar, if
applicable, are closed, or if any such action is deemed necessary or advisable by the Depositary or
the Company at any time or from time to time because of any requirement of law or of any government
or governmental body or commission, or under any provision of this Deposit Agreement, or for any
other reason.
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The Depositary shall comply with reasonable written instructions of the Company not to accept
for deposit hereunder any Shares identified in such instructions at such times and under such
circumstances as may be specified in such instructions in order to facilitate the Company’s
compliance with the securities laws of the United States.
SECTION 2.07. Lost Receipts.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary shall
execute and deliver a new Receipt of like tenor in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt. Before the Depositary shall execute and deliver a new Receipt in substitution for
a destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with the Depositary (i)
a request for such execution and delivery before the Depositary has notice that the Receipt has
been acquired by a bona fide purchaser and (ii) a sufficient indemnity bond and (b) satisfied any
other reasonable requirements imposed by the Depositary.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.09. Pre-Release.
Notwithstanding Section 2.03 hereof, the Depositary may execute and deliver Receipts prior to
the receipt of Shares pursuant to Section 2.02 (a “Pre-Release”). The Depositary may, pursuant to
Section 2.05, deliver Shares upon the receipt and cancellation of Receipts which have been
Pre-Released, whether or not such cancellation is prior to the termination of such Pre-Release or
the Depositary knows that such Receipt has been Pre-Released. The Depositary may receive Receipts
in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts or Shares are to be
delivered, that such person, or its customer, owns the Shares or Receipts to be remitted, as the
case may be, (b) at all times fully collateralized with cash or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The number of American Depositary Shares which are outstanding at any time as a
result of Pre-Release will not normally exceed thirty percent (30%) of the Shares deposited
hereunder; provided, however, that the Depositary reserves the right to change or
disregard such limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation received by it in connection
with the foregoing.
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ARTICLE 3.CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial Owner of a Receipt may be
required from time to time to file with the Depositary or the Custodian such proof of citizenship
or residence, exchange control approval, proof of the identity of any person legally or
beneficially interested in the Receipt and the nature of such interest, proof of compliance with
all applicable laws and regulations and provisions of or governing Deposited Securities and the
terms of this Deposit Agreement or such information relating to the registration on the books of
the Company or the Foreign Registrar, if applicable, of the Shares presented for deposit or other
information, to execute such certificates and to make such representations and warranties, as the
Depositary may deem necessary or proper. The Depositary may withhold the delivery or registration
of transfer of any Receipt or the distribution of any dividend or distribution of rights or of the
sale proceeds thereof or the delivery of any Deposited Securities until such proof or other
information is filed or such certificates are executed or such representations and warranties made.
SECTION 3.02. Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable (including, without limitation,
any applicable stamp taxes) by the Custodian or the Depositary with respect to any Receipt or any
Deposited Securities represented by the American Depositary Shares evidenced by any Receipt, such
tax or other governmental charge shall be payable by the Owner or Beneficial Owner of such Receipt
to the Depositary. The Depositary may refuse to effect registration of transfer of such Receipt
(or any split-up or combination thereof) or any withdrawal of Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt until such payment is made, and may
withhold any dividends or other distributions in respect of any Deposited Securities, or may sell
for the account of the Owner or Beneficial Owner thereof any part or all of the Deposited
Securities represented by the American Depositary Shares evidenced by such Receipt, and may apply
such dividends or other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner or Beneficial Owner of such Receipt shall remain liable for
any deficiency.
SECTION 3.03. Warranties on Deposit or Withdrawal of Shares.
Every person depositing Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and each certificate therefor
are validly issued, fully paid, nonassessable and free of any preemptive rights of the holders
of outstanding Shares, (ii) the person making such deposit is duly authorized to do so and (iii)
upon deposit, the Shares are not, and American Depositary Shares
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representing the Shares will not be, Restricted Securities. Such representations and warranties shall survive the deposit of such
Shares and the issuance of Receipts.
ARTICLE 4.THE DEPOSITED SECURITIES.
SECTION 4.01. Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash distribution on any
Deposited Securities, the Depositary shall, if such cash is received in Foreign Currency, subject
to the provisions of Section 4.05, convert such dividend or distribution into Dollars and shall
distribute the amount thus received (net of the fees and expenses of the Depositary as provided in
Section 5.09) to the Owners entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities evidenced by Receipts held by them respectively;
provided, however, that in the event that the Company or the Depositary shall be
required to withhold and does withhold from such cash dividend or such other cash distribution an
amount on account of taxes or other governmental charges, the amount distributed to the Owner of
the Receipts evidencing American Depositary Shares representing such Deposited Securities shall be
reduced accordingly. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Owner a fraction of one cent. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Owners entitled thereto. The
Company or its agent will remit to the appropriate governmental agency in England all amounts
withheld and owing to such agency. The Depositary will forward to the Company or its agent such
information from its records as the Company may reasonably request to enable the Company or its
agent to file necessary reports with governmental agencies, and the Depositary or the Company or
its agent may file any such reports necessary to obtain benefits under the applicable tax treaties
for the Owners of Receipts.
SECTION 4.02. Distributions Other than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the Depositary shall receive any
distribution other than a distribution described in Section 4.01, 4.03 or 4.04, the Depositary
shall cause the securities or property received by it to be distributed to the Owners entitled
thereto, after the deduction or upon payment of any fees and expenses of the Depositary or any
taxes or other governmental charges, in proportion to the number of American Depositary Shares
representing such Deposited Securities evidenced by Receipts held by them respectively, in any
manner that the Depositary may deem equitable and practicable for accomplishing such distribution;
provided, however, that if in the opinion of the Depositary such distribution
cannot be made proportionately among the Owners entitled thereto, or if for any other reason (including,
but not limited to, any requirement that the Company or the Depositary withhold an amount on
account of taxes or other governmental charges or that such
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securities must be registered under the
Securities Act in order to be distributed to Owners or Beneficial Owners) the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may deem equitable and
practicable for the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part thereof, and the
net proceeds of any such sale (net of the fees and expenses of the Depositary as provided in
Section 5.09) shall be distributed by the Depositary to the Owners entitled thereto, all in the
manner and subject to the conditions described in Section 4.01. Each beneficial owner of Receipts
or Shares so distributed shall be deemed to have acknowledged that the Shares have not been
registered under the Securities Act and to have agreed to comply with the restrictions on transfer
described in the form of legend set forth in Section 2.01 hereof.
SECTION 4.03. Distributions in Shares.
If any distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may distribute to the Owners of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares representing such
Deposited Securities evidenced by Receipts held by them respectively, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the amount of Shares
received as such dividend or free distribution, subject to the terms and conditions of the Deposit
Agreement with respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other governmental charge as
provided in Section 4.11 and the payment of the fees and expenses of the Depositary as provided in
Section 5.09. The Depositary may withhold any such distribution of Receipts if it has not received
satisfactory assurances from the Company that such distribution does not require registration under
the Securities Act or is exempt from registration under the provisions of such Act. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case, the Depositary
shall sell the amount of Shares represented by the aggregate of such fractions and distribute the
net proceeds, all in the manner and subject to the conditions described in Section 4.01. If such
adjustments on the records of the Depositary are not so made or additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.04. Rights.
In the event that the Company shall offer or cause to be offered to the holders of any
Deposited Securities any rights to subscribe for additional Shares or any rights of any other
nature, the Depositary shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of
such rights offering or for any other reason, the Depositary may not either make
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such rights available to any Owners or dispose of such rights and make the net proceeds available to such
Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any
rights the Depositary determines in its discretion that it is lawful and feasible to make such
rights available to all or certain Owners but not to other Owners, the Depositary may distribute to
any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other instruments therefor in
such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts
requests the distribution of warrants or other instruments in order to exercise the rights
allocable to the American Depositary Shares of such Owner hereunder, the Depositary will make such
rights available to such Owner upon written notice from the Company to the Depositary that (a) the
Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner
has executed such documents as the Company has determined in its sole discretion are reasonably
required under applicable law.
If the Depositary has distributed warrants or other instruments for rights to all or certain
Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to
the Depositary from such an Owner to exercise such rights, upon payment by such Owner to the
Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and expenses of the
Depositary and any other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall
cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of this Deposit Agreement, and shall, pursuant to Section 2.03 of this Deposit
Agreement, execute and deliver Receipts to such Owner. In the case of a distribution pursuant to
the second paragraph of this section, such Receipts shall be legended in the manner provided in
Section 2.01 and in accordance with applicable U.S. laws, and shall be subject to the appropriate
restrictions on sale, deposit, cancellation, and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and feasible to make such
rights available to all or certain Owners, it may sell the rights, warrants or other instruments in
proportion to the number of American Depositary Shares held by the Owners to whom it has determined
it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such
sales (net of the fees and expenses of the Depositary as provided in Section 5.09 and all taxes and
governmental charges payable in connection with such rights and subject to the terms and conditions of this Deposit
Agreement) for the account of such Owners otherwise entitled to such rights,
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warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among
such Owners because of exchange restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and the securities to
which such rights relate are either exempt from registration under the Securities Act with respect
to a distribution to all Owners or are registered under the provisions of such Act;
provided, that nothing in this Deposit Agreement shall create any obligation on the part of
the Company to file a registration statement with respect to such rights or underlying securities
or to endeavor to have such a registration statement declared effective. If an Owner of Receipts
requests the distribution of warrants or other instruments, notwithstanding that there has been no
such registration under such Act, the Depositary shall not effect such distribution unless it has
received an opinion from recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that it may be lawful or
feasible to make such rights available to Owners in general or any Owner in particular.
SECTION 4.05. Conversion of Foreign Currency.
Whenever the Depositary shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or rights, and if at the
time of the receipt thereof the Foreign Currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or in any other
manner that it may determine, such Foreign Currency into Dollars, and such Dollars shall be
distributed to the Owners entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments, as applicable, upon surrender thereof for cancellation
in whole or in part depending upon the terms of such warrants or other instruments. Such
distribution may be made upon an averaged or other practicable basis without regard to any
distinctions among Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars incurred by the Depositary
as provided in Section 5.09.
If such conversion or distribution can be effected only with the approval or license of any
government or agency thereof, the Depositary shall file such application for approval or license,
if any, as it may deem desirable.
If at any time the Depositary shall determine in its judgment that any Foreign Currency
received by the Depositary is not convertible on a reasonable basis into
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Dollars transferable to the United States, or if any approval or license of any government or agency thereof which is
required for such conversion is denied or in the opinion of the Depositary is not obtainable, or if
any such approval or license is not obtained within a reasonable period as determined by the
Depositary, the Depositary may distribute the Foreign Currency (or an appropriate document
evidencing the right to receive such Foreign Currency) received by the Depositary to, or in its
discretion may hold such Foreign Currency uninvested and without liability for interest thereon for
the respective accounts of, the Owners entitled to receive the same.
If any such conversion of Foreign Currency, in whole or in part, cannot be effected for
distribution to some of the Owners entitled thereto, the Depositary may in its discretion make such
conversion and distribution in Dollars to the extent permissible to the Owners entitled thereto and
may distribute the balance of the Foreign Currency received by the Depositary to, or hold such
balance uninvested and without liability for interest thereon for the respective accounts of, the
Owners entitled thereto.
SECTION 4.06. Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become payable or any distribution
other than cash shall be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of holders of Shares or
other Deposited Securities, or whenever for any reason the Depositary causes a change in the number
of Shares that are represented by each American Depositary Share, or whenever the Depositary shall
find it necessary or convenient, the Depositary shall fix a record date which shall be the same
date as the record date, if any, applicable to the Deposited Securities, or as close thereto as
practicable (a) for the determination of the Owners who shall be (i) entitled to receive such
dividend, distribution or rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of Shares. Subject to the provisions
of Sections 4.01 through 4.05 and to the other terms and conditions of this Deposit Agreement, the
Owners on such record date shall be entitled, as the case may be, to receive the amount
distributable by the Depositary with respect to such dividend or other distribution or such rights
or the net proceeds of sale thereof in proportion to the number of American Depositary Shares
evidenced by Receipts held by them respectively and to give voting instructions, to exercise the
rights of Owners hereunder with respect to such changed number of Shares and to act in respect of
any other such matter.
SECTION 4.07. Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other Deposited Securities, if
requested in writing by the Company, the Depositary shall, as
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soon as practicable thereafter, mail to the Owners a notice, the form of which notice shall be in the sole discretion of the Depositary,
which shall contain (a) such information as is contained in such notice of meeting received by the
Depositary from the Company, (b) a statement that the Owners as of the close of business on a
specified record date will be entitled, subject to any applicable provision of English law and of
the Memorandum and Articles of Association of the Company, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares and (c) a statement as to the
manner in which instructions may be given, including an express indication that, if the Depositary
does not receive instructions, it may deem instructions to have been given under the last sentence
of this paragraph to give a discretionary proxy to a person designated by the Company. Upon the
written request of an Owner of a Receipt on that record date, received on or before the date
established by the Depositary for the purpose, the Depositary shall endeavor, in so far as
practicable, to vote or cause to be voted the amount of Shares or other Deposited Securities
represented by the American Depositary Shares evidenced by that Receipt in accordance with the
instructions set forth in that request. The Depositary shall not vote or attempt to exercise the
right to vote that attaches to Deposited Securities other than in accordance with instructions
received from Owners or deemed received under the following sentence. If (i) the Company made a
request to the Depositary as contemplated by the first sentence of this Section 4.07 and complied
with the following paragraph of this Section 4.07 and (ii) no instructions are received by the
Depositary from an Owner with respect to an amount of Deposited Securities represented by the
American Depositary Shares evidenced by that Owner’s Receipts on or before the date established by
the Depositary for that purpose, the Depositary shall deem that Owner to have instructed the
Depositary to give, and the Depositary shall give, a discretionary proxy to a person designated by
the Company with respect to that amount of Deposited Securities, except that that such
instruction shall not be deemed to have been given and the Depositary shall not give a
discretionary proxy with respect to any matter as to which the Company informs the Depositary (and
the Company agrees to provide that information as promptly as practicable in writing, if
applicable) that (x) the Company does not wish to receive a discretionary proxy, (y) substantial
opposition exists or (z) the matter materially and adversely affects the rights of holders of
Shares.
In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise
of voting rights relating to Deposited Securities, if the Company will request the Depositary to
act under the preceding paragraph, the Company shall give the Depositary notice of any such meeting
or solicitation and details concerning the matters to be voted upon not less than 45 days prior to
the meeting date or date for giving such proxies or consents.
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SECTION 4.08. Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 do not apply, upon any change in nominal
value, change in par value, split-up, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of Deposited
Securities, shall be treated as new Deposited Securities under this Deposit Agreement, and American
Depositary Shares shall thenceforth represent, in addition to the existing Deposited Securities,
the right to receive the new Deposited Securities so received in exchange or conversion, unless
additional Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may (i) execute and deliver additional Receipts as in the case of a dividend in Shares
or (ii) call for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION 4.09. Reports.
The Depositary shall make available for inspection by Owners at its Corporate Trust Office any
reports and communications, including any proxy soliciting material, received from the Company
which are both (a) received by the Depositary as the holder of the Deposited Securities and (b)
made generally available to the holders of such Deposited Securities by the Company. The
Depositary shall also send to the Owners copies of such reports when furnished by the Company
pursuant to Section 5.06.
SECTION 4.10. Lists of Owners.
Upon request by the Company, the Depositary shall, at the expense of the Company, furnish to
it a list, as of a recent date, of the names, addresses and holdings of American Depositary Shares
by all persons in whose names Receipts are registered on the books of the Depositary.
SECTION 4.11. Withholding.
In the event that the Depositary determines that any distribution in property (including
Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which
the Depositary is obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and rights to subscribe therefor) in such
amounts and in such manner as the Depositary deems necessary and practicable to pay such taxes or
charges and the Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto in proportion to the number of American
Depositary Shares held by them respectively.
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ARTICLE 5.THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.
SECTION 5.01. Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms, the Depositary shall
maintain in the Borough of Manhattan, The City of New York, facilities for the execution and
delivery, registration, registration of transfers and surrender of Receipts in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at its Corporate Trust Office for the registration of Receipts
and transfers of Receipts which at all reasonable times shall be open for inspection by the Owners,
provided that such inspection shall not be for the purpose of communicating with Owners in
the interest of a business or object other than the business of the Company or a matter related to
this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby are listed on one or more
stock exchanges in the United States, the Depositary shall act as Registrar or appoint a Registrar
or one or more co-registrars for registry of such Receipts in accordance with any requirements of
such exchange or exchanges.
SECTION 5.02. Prevention or Delay in Performance by the Depositary or the Company.
Neither the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or Beneficial Owner of any Receipt, if
by reason of any provision of any present or future law, regulation, order, decree, moratorium or
fiat of the United States or any other country, or of any governmental or regulatory authority or
stock exchange, or by reason of any provision, present or future, of the Memorandum and Articles of
Association of the Company, or by reason of any provision of any securities issued or distributed
by the Company, or any offering or distribution thereof, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the Company or any of their
directors, employees, agents or affiliates shall be prevented, delayed or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any act or thing which
by the terms of this Deposit Agreement or Deposited Securities it is provided shall be done or
performed; nor shall the Depositary nor the Company nor any of their respective directors,
employees, agents or affiliates incur any liability to any Owner or Beneficial Owner of any
Receipt by reason of any nonperformance or delay, caused as aforesaid, in the performance of any
act or thing
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which by the terms of this Deposit Agreement it is provided shall or may be done or performed,
or by reason of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement. Where, by the terms of a distribution pursuant to Section 4.01, 4.02, or 4.03
of this Deposit Agreement, or an offering or distribution pursuant to Section 4.04 of this Deposit
Agreement, or for any other reason, such distribution or offering may not be made available to
Owners, and the Depositary may not dispose of such distribution or offering on behalf of such
Owners and make the net proceeds available to such Owners, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.03. Obligations of the Depositary, the Custodian and the Company.
The Company assumes no obligation nor shall it be subject to any liability under this Deposit
Agreement to Owners or Beneficial Owners, except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any liability under this
Deposit Agreement to any Owner or Beneficial Owner (including, without limitation, liability with
respect to the validity or worth of the Deposited Securities), except that it agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited Securities or in respect
of the Receipts, which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it in its sole discretion against all expense and liability shall be furnished as
often as may be required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or nonaction by it in
reliance upon the advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Owner, or any other person believed by it in good faith to be competent to
give such advice or information including, but not limited to, any such action or nonaction based
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 shall not be liable for any acts or omissions made by a successor depositary
whether in connection with a previous act or omission of the Depositary or in connection with any
matter arising wholly after the removal or resignation of the Depositary, provided that in
connection with the issue out of which
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such potential liability arises the Depositary performed its obligations without negligence or
bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any instructions to vote
any of the Deposited Securities, or for the manner in which any such vote is cast or the effect of
any such vote, provided that any such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act is intended by any provision of this
Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor
Depositary.
The Depositary may at any time resign as Depositary hereunder by written notice of its
election to do so delivered to the Company, such resignation to take effect upon the appointment of
a successor depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 120 days’ prior written notice of
such removal, to become effective upon the later of (i) the 120th day after delivery of the notice
to the Depositary or (ii) the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the Company
shall use its best efforts to appoint a successor depositary, which shall be a bank or trust
company having an office in the Borough of Manhattan, The City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor depositary, without any further
act or deed, shall become fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Deposited Securities to such successor, and shall deliver to such
successor a list of the Owners of all outstanding Receipts. Any such successor depositary shall
promptly mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or consolidated shall be the
successor of the Depositary without the execution or filing of any document or any further act.
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SECTION 5.05. The Custodians.
The Depositary may appoint from time to time one or more agents to act for it as Custodian
hereunder. Any such Custodian shall be subject at all times and in all respects to the directions
of the Depositary and shall be responsible solely to it. Any Custodian may resign and be
discharged from its duties hereunder by notice of such resignation delivered to the Depositary at
least 30 days prior to the date on which such resignation is to become effective. If upon such
resignation there shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, appoint a substitute custodian or custodians, each of which shall thereafter
be a Custodian hereunder. Whenever the Depositary in its discretion determines that it is in the
best interest of the Owners to do so, it may appoint a substitute or additional custodian or
custodians, each of which shall thereafter be one of the Custodians hereunder. Upon demand of the
Depositary any Custodian shall deliver such of the Deposited Securities held by it as are requested
of it to any other Custodian or such substitute or additional custodian or custodians. Each such
substitute or additional custodian shall deliver to the Depositary, forthwith upon its appointment,
an acceptance of such appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each Custodian then acting
hereunder shall forthwith become, without any further act or writing, the agent hereunder of such
successor depositary and the appointment of such successor depositary shall in no way impair the
authority of each Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to such Custodian all
such instruments as may be proper to give to such Custodian full and complete power and authority
as agent hereunder of such successor depositary.
SECTION 5.06. Notices and Reports.
On or before the first date on which the Company gives notice, by publication or otherwise, of
any meeting of holders of Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action in respect of any cash or other distributions or the
offering of any rights in respect of Deposited Securities, the Company agrees to transmit to the
Depositary and the Custodian a copy of the notice thereof in the form given or to be given to
holders of Shares or other Deposited Securities.
The Company will arrange for the translation into English and the prompt transmittal by the
Company to the Depositary and the Custodian of such notices and any other reports and
communications which are made generally available by the Company to holders of its Shares. If
requested in writing by the Company, the Depositary will arrange for the mailing, at the Company’s
expense, of copies of such notices, reports and
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communications to all Owners. The Company will timely provide the Depositary with
the quantity of such notices, reports, and communications, as requested by the Depositary from
time to time, in order for the Depositary to effect such mailings.
SECTION 5.07. Issuance and Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution of (1) additional Shares,
(2) rights to subscribe for Shares, (3) securities convertible into or exchangeable for Shares, or
(4) rights to subscribe for any such securities (each a “Distribution”), the Company will promptly
furnish to the Depositary a written opinion from United States counsel for the Company, which
counsel shall be satisfactory to the Depositary, stating whether or not the Distribution requires a
registration statement under the Securities Act to be in effect prior to making such Distribution
available to Owners entitled thereto. If in the opinion of such counsel a registration statement
is required, such counsel shall furnish to the Depositary a written opinion as to whether or not
there is a registration statement in effect which will cover such Distribution.
The Company agrees with the Depositary that neither the Company nor any company controlled by,
controlling or under common control with the Company will at any time deposit any Shares, either
originally issued or previously issued and reacquired by the Company or any such affiliate, unless
a registration statement is in effect as to such Shares under the Securities Act.
SECTION 5.08. Indemnification.
The Company agrees to indemnify the Depositary, its directors, employees, agents and
affiliates and any Custodian against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the fees and expenses of counsel) which may arise out of or in
connection with (a) any registration with the Commission of American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or (b) acts performed or omitted,
pursuant to the provisions of this Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, employees, agents and affiliates, except for any liability or expense
arising out of the negligence or bad faith of either of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Company, its directors, employees, agents and
affiliates and hold them harmless from any liability or expense which may arise out of acts
performed or omitted by the Depositary or its Custodian or their respective directors, employees,
agents and affiliates due to their negligence or bad faith.
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SECTION 5.09. Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket charges of the
Depositary and those of any Registrar only in accordance with agreements in writing entered into
between the Depositary and the Company from time to time. The Depositary shall present its
statement for such charges and expenses to the Company once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or withdrawing Shares or by
any party surrendering Receipts or to whom Receipts are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or an exchange of
stock regarding the Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03), whichever applicable: (1) taxes and other governmental charges, (2) such
registration fees as may from time to time be in effect for the registration of transfers of Shares
generally on the Share register of the Company or Foreign Registrar (or any other appointed agent
of the Company for transfer and registration of the Shares) and applicable to transfers of Shares
to the name of the Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals hereunder, (3) such cable, telex and facsimile transmission expenses as are
expressly provided for in this Deposit Agreement, (4) such expenses as are incurred by the
Depositary in the conversion of Foreign Currency pursuant to Section 4.05, (5) a fee of $5.00 or
less per 100 American Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.03, 4.03 or 4.04 and the surrender of Receipts pursuant to Section
2.05 or 6.02, (6) a fee of $.02 or less per American Depositary Share (or portion thereof) for any
cash distribution made pursuant to the Deposit Agreement, including, but not limited to Sections
4.01 through 4.04 hereof, (7) a fee for the distribution of securities pursuant to Section 4.02,
such fee being in an amount equal to the fee for the execution and delivery of American Depositary
Shares referred to above which would have been charged as a result of the deposit of such
securities (for purposes of this clause 7 treating all such securities as if they were Shares) but
which securities are instead distributed by the Depositary to Owners and (8) a fee not in excess of
$1.50 per certificate for a Receipt or Receipts for transfers made pursuant to the terms of the
Deposit Agreement.
The Depositary, subject to Section 2.09 hereof, may own and deal in any class of securities of
the Company and its affiliates and in Receipts.
SECTION 5.10. Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills and other data
compiled during the term of this Deposit Agreement at the times permitted by the laws or
regulations governing the Depositary, unless the Company requests that
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such papers be retained for a longer period or turned over to the Company or to a successor
depositary.
SECTION 5.11. Exclusivity.
The Company agrees not to appoint any other depositary for issuance of American or global
depositary receipts so long as The Bank of New York is acting as Depositary hereunder.
SECTION 5.12. List of Restricted Securities Owners.
The Company shall provide to the Depositary a list setting forth, to the actual knowledge of
the Company, those persons or entities who beneficially own Restricted Securities as of the date
hereof and the Company shall update that list as changes occur. The Company agrees to advise in
writing each of the persons or entities so listed that such Restricted Securities, so long as they
remain such, are ineligible for deposit hereunder. The Depositary may rely on the list provided
under this Section 5.12, as most recently updated, but shall not be liable for any action or
omission made in reliance thereon.
ARTICLE 6.AMENDMENT AND TERMINATION.
SECTION 6.01. Amendment.
The form of the Receipts and any provisions of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the Depositary without the consent of
Owners or Beneficial Owners of Receipts in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than the fees of the
Depositary for the execution and delivery or the cancellation of Receipts and taxes, including,
without limitation, stamp taxes and other governmental charges), or which shall otherwise prejudice
any substantial existing right of Owners, shall, however, not become effective as to outstanding
Receipts until the expiration of thirty days after notice of such amendment shall have been given
to the Owners of outstanding Receipts. Every Owner and Beneficial Owner, at the time any amendment
so becomes effective, shall be deemed, by continuing to hold such Receipt, to consent and agree to
such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner of any Receipt to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
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SECTION 6.02. Termination.
The Depositary shall, at any time at the direction of the Company, terminate this Deposit
Agreement by mailing notice of such termination to the Owners of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. The Depositary may
likewise terminate this Deposit Agreement by mailing notice of such termination to the Company and
the Owners of all Receipts then outstanding, if at any time 90 days shall have expired after the
Depositary shall have delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment as provided in
Section 5.04. On and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.05, and (c) payment of any
applicable taxes or governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by the American Depositary Shares evidenced by such
Receipt. If any Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends and other distributions to the Owners thereof, and shall not give any
further notices or perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions pertaining to Deposited
Securities, shall sell rights and other property as provided in this Deposit Agreement, and shall
continue to deliver Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or other property, in
exchange for Receipts surrendered to the Depositary (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year from the date of
termination, the Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, unsegregated and without liability for interest, for the pro
rata benefit of the Owners of Receipts which have not theretofore been surrendered, such
Owners thereupon becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net proceeds and other cash (after deducting, in each case,
the fee of the Depositary for the surrender of a Receipt, any expenses for the account of the Owner
of such Receipt in accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of this Deposit Agreement, the
Company shall be discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.08 and 5.09 hereof.
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ARTICLE 7.MISCELLANEOUS.
SECTION 7.01. Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of such counterparts shall constitute one and the same instrument.
Copies of this Deposit Agreement shall be filed with the Depositary and the Custodians and shall be
open to inspection by any Owner or Beneficial Owner of a Receipt during business hours.
SECTION 7.02. No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any other person.
SECTION 7.03. Severability.
In case any one or more of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or therein shall in no way
be affected, prejudiced or disturbed thereby.
SECTION 7.04. Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners of Receipts from time to time shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts
by acceptance thereof.
SECTION 7.05. Notices.
Any and all notices to be given to the Company shall be deemed to have been duly given if
personally delivered or sent by mail or cable, telex or facsimile transmission confirmed by letter,
addressed to Spark Networks plc, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000 or any other place to which the Company may have transferred its principal office with notice
to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have been duly given if
in English and personally delivered or sent by mail or cable, telex or facsimile transmission
confirmed by letter, addressed to The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Depositary Receipt Administration, or any other place to which the Depositary
may have transferred its Corporate Trust Office, with notice to the Company.
-28-
Any and all notices to be given to any Owner shall be deemed to have been duly given if
personally delivered or sent by mail or cable, telex or facsimile transmission confirmed by letter,
addressed to such Owner at the address of such Owner as it appears on the transfer books for
Receipts of the Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile transmission shall be deemed to
be effective at the time when a duly addressed letter containing the same (or a confirmation
thereof in the case of a cable, telex or facsimile transmission) is deposited, postage prepaid, in
a post office letter box. The Depositary or the Company may, however, act upon any cable, telex or
facsimile transmission received by it, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.06. Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by the laws of the State of New
York.
SECTION 7.07. Article; Section.
Wherever references are made in this Deposit Agreement to an “Article” or “Articles” or to a
“Section” or “Sections”, such references shall mean an article or articles or a section or sections
of this Deposit Agreement, unless otherwise required by the context.
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IN WITNESS WHEREOF, SPARK NETWORKS PLC and THE BANK OF NEW YORK have duly executed this
Deposit Agreement as of the day and year first set forth above and all Owners and Beneficial Owners
shall become parties hereto upon acceptance by them of Receipts issued in accordance with the terms
hereof.
SPARK NETWORKS PLC | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
THE BANK OF NEW YORK, | ||||||
as Depositary | ||||||
By: | ||||||
Name: | ||||||
Title: |
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EXHIBIT A
No. BNY- |
||||||
AMERICAN DEPOSITARY SHARES |
||||||
(Each American Depositary Share represents deposited Share[s]) |
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF 1P EACH
OF
SPARK NETWORKS PLC
(INCORPORATED UNDER THE LAWS OF ENGLAND AND WALES)
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF 1P EACH
OF
SPARK NETWORKS PLC
(INCORPORATED UNDER THE LAWS OF ENGLAND AND WALES)
The Bank of New York as depositary (hereinafter called the “Depositary”), hereby certifies that
, or registered assigns IS THE OWNER OF *
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares of 1p each in registered form (herein called “Shares”) of
Spark Networks plc, incorporated under the laws of England and Wales (herein called the “Company”).
At the date hereof, each American Depositary Share represents Share[s] which is either
deposited or subject to deposit under the Deposit Agreement at the London office of The Bank of New
York (herein called the “Custodian”). The Depositary’s Corporate Trust Office is located at a
different address than its principal executive office. Its Corporate Trust Office is located at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive office is located at Xxx Xxxx
Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY’S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called “Receipts”), all issued and
to be issued upon the terms and conditions set forth in the deposit agreement, dated as of
, 2006 (the “Deposit Agreement”), by and among the Company, the Depositary, and all Owners
and Beneficial Owners from time to time of Receipts issued thereunder, each of whom by accepting
this Receipt agrees to become a party thereto and become bound by all the terms and conditions
thereof. The Deposit Agreement sets forth the rights of Owners and Beneficial Owners of the
Receipts and the rights and duties of the Depositary in respect or in lieu of the Shares deposited
or deemed to be deposited thereunder and any and all other securities, property and cash from time
to time received in respect or in lieu of such Shares and held thereunder (such Shares, securities,
property, and cash are herein called “Deposited Securities”). Copies of the Deposit Agreement are
on file at the Depositary’s Corporate Trust Office in The City of New York and at the office of the
Custodian.
The statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are qualified by and subject to the detailed provisions of
the Deposit Agreement, to which reference is hereby made. Capitalized terms defined in the Deposit
Agreement and not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Subject to the terms and conditions of the Deposit Agreement, upon surrender at the Corporate
Trust Office of the Depositary of this Receipt for the purpose of withdrawal of the Deposited
Securities represented by the American Depositary Shares evidenced by such Receipt, and upon
payment of the fee of the Depositary for the surrender of Receipts as provided in Section 5.09 of
the Deposit Agreement and payment of all taxes and governmental charges payable in connection with
such surrender and withdrawal of the Deposited Securities (or, with respect to any applicable stamp
taxes, upon the Depositary’s receipt of evidence satisfactory to the Depositary that any such
amounts have been fully paid), and subject to the terms and conditions of the Deposit Agreement,
the Memorandum and Articles of Association of the Company, the Deposited Securities and applicable
law, the Owner of such Receipt acting for itself or on behalf of the Beneficial Owner or DTC
participant, as the case may be, shall be entitled to delivery, to him or upon his order of the
amount of Deposited Securities at the time represented by the American Depositary Shares evidenced
by such Receipt. Delivery of such Deposited Securities may be made by the delivery of (x)
certificates in the name of such Owner or as ordered by him or certificates properly endorsed or
accompanied by a proper instrument or instruments of transfer to such Owner or as ordered by him,
and (y) any other securities, property and cash to which such Owner is then entitled in respect of
such
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Receipts to such Owner or as ordered by him. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
A Receipt surrendered under Section 2.05 of the Deposit Agreement for such purposes may be
required by the Depositary to be properly endorsed in blank or accompanied by a proper instrument
or instruments of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be delivered to or upon the written order of a person or
persons designated in such order. Thereupon the Depositary shall direct the Custodian to deliver
at the London office of such Custodian, subject to Sections 2.06, 3.01 and 3.02 of the Deposit
Agreement and to the other terms and conditions of the Deposit Agreement, to or upon the written
order of the person or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, except that the Depositary may make delivery to such person or persons
at the Corporate Trust Office of the Depositary of any dividends or distributions with respect to
the Deposited Securities represented by the American Depositary Shares evidenced by such Receipt or
such beneficial interest, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering a Receipt, and for the account
of such Owner, the Depositary shall direct the Custodian to forward any cash or other property
(other than rights) comprising, and forward a certificate or certificates and other proper
documents of title for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust Office of the
Depositary. Such direction shall be given by letter or, at the request, risk and expense of such
Owner, by air courier, cable, telex or facsimile transmission.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary upon surrender at
the Corporate Trust Office of the Depositary of this Receipt, by the Owner hereof in person or by a
duly authorized attorney, properly endorsed or accompanied by a proper instrument or instruments of
transfer and duly stamped as may be required by the laws of the State of New York and the United
States, and subject to the payment of funds sufficient to pay any applicable transfer taxes and the
fees and expenses of the Depositary as provided in Section 5.09 of the Deposit Agreement (or, with
respect to any applicable stamp taxes, upon the Depositary’s receipt of evidence satisfactory to
the Depositary that any such amounts have been fully paid). Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
-3-
person entitled thereto,subject to receipt of any certifications by such person as the Depositary and
the Company may require in order to comply with applicable laws.
This Receipt may be split into other such Receipts, or may be combined with other such
Receipts into one Receipt, representing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered.
As a condition precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited Securities or any such
transfer, split-up, combination, surrender or withdrawal, the Depositary, Custodian or Registrar
may require payment from the depositor of Shares or the presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee with respect to the
Shares being deposited or withdrawn) and payment of any applicable fees as herein provided (or,
with respect to any applicable stamp taxes, upon the Depositary’s receipt of evidence satisfactory
to the Depositary that any such amounts have been fully paid), may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may also require
compliance with any regulations the Depositary may establish consistent with the provisions of the
Deposit Agreement, including, without limitation, Section 2.06 thereof.
The delivery of Receipts against deposits of Shares generally or against deposits of
particular Shares may be suspended, or deposits of Shares may be refused, or the transfer of
Receipts in particular instances may be refused or the registration of transfer, split-up or
combination of outstanding Receipts, or the surrender of outstanding Receipts for the purpose of
withdrawal of Deposited Securities, may be suspended generally or in particular instances, during
any period when the transfer books of the Depositary or the Company or the Foreign Registrar, if
applicable, are closed, or if any such action is deemed necessary or advisable by the Depositary or
the Company at any time or from time to time because of any requirement of law or of any government
or governmental body or commission, or under any provision of the Deposit Agreement, or for any
other reason.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable 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 will be payable by the Owner or Beneficial Owner hereof to
the Depositary (or, with respect to any applicable stamp taxes, such Owner or Beneficial Owner may
provide the Depositary with evidence satisfactory to the Depositary that any such amounts have been
fully paid). The Depositary may refuse to effect registration of transfer of this Receipt (or any
split-up or combination hereof) or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced by this Receipt until such payment is made, and may withhold any
dividends or other distributions in respect of any Deposited Securities, or may sell for the
account of the Owner or Beneficial Owner hereof any part or all of the Deposited Securities
represented by the American
-4-
Depositary Shares evidenced by this Receipt, and may apply such dividends or other distributions or
the proceeds of any such sale in payment of such tax or other governmental charge and the Owner or Beneficial
Owner hereof will remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement will be deemed thereby to represent
and warrant that (i) such Shares and each certificate therefor are validly issued, fully paid,
nonassessable, and free of any preemptive rights of the holders of outstanding Shares, (ii) the
person making such deposit is duly authorized to do so and (iii) upon deposit, the Shares are not,
and American Depositary Shares representing the Shares would not be, Restricted Securities. Such
representations and warranties will survive the deposit of such Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial Owner of this Receipt may
be required from time to time to file with the Depositary or the Custodian such proof of
citizenship or residence, exchange control approval, proof of the identity of any person legally or
beneficially interested in this Receipt and the nature of such interest, proof of compliance with
all applicable laws and regulations and provisions of or governing Deposited Securities and the
terms of the Deposit Agreement or such information relating to the registration on the books of the
Company or the Foreign Registrar, if applicable, of the Shares presented for deposit or other
information, to execute such certificates and to make such representations and warranties, as the
Depositary may deem necessary or proper. The Depositary may withhold the delivery or registration
of transfer of any Receipt or the distribution of any dividend or distribution of rights or of the
sale proceeds thereof or the delivery of any Deposited Securities until such proof or other
information is filed or such certificates are executed or such representations and warranties made.
No Share shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary that all conditions to such deposit have been satisfied by the person depositing such
Shares under the laws and regulations of England and that any necessary approval has been granted
by any governmental body in England which is then performing the function of the regulation of
currency exchange or any other function which requires approval for the deposit of Shares.
7. CHARGES OF DEPOSITARY.
-5-
The following charges shall be incurred by any party depositing or withdrawing Shares or by
any party surrendering Receipts or to whom Receipts are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or an exchange of
stock regarding the Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 of the Deposit Agreement), whichever applicable: (1) taxes and other governmental
charges, (2) such
registration fees as may from time to time be in effect for the registration of transfers of
Shares generally on the Share register of the Company (or any other appointed agent of the Company
for transfer and registration of the Shares) and applicable to transfers of Shares to the name of
the Depositary or its nominee or the Custodian or its nominee on the making of deposits or
withdrawals under the Deposit Agreement, (3) such cable, telex and facsimile transmission expenses
as are expressly provided in the Deposit Agreement, (4) such expenses as are incurred by the
Depositary in the conversion of Foreign Currency pursuant to Section 4.05 of the Deposit Agreement,
(5) a fee of $5.00 or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.03, 4.03 or 4.04 of the Deposit Agreement,
and the surrender of receipts pursuant to Section 2.05 or 6.02 of the Deposit Agreement and (6) a
fee of $.02 or less per American Depositary Share (or portion thereof) for any cash distribution
made pursuant to the Deposit Agreement, including, but not limited to, Sections 4.01 through 4.04
thereof, (7) a fee for the distribution of securities pursuant to Section 4.02 of the Deposit
Agreement, such fee being in an amount equal to the fee for the execution and delivery of American
Depositary Shares referred to above which would have been charged as a result of the deposit of
such securities (for purposes of this clause (7) treating all such securities as if they were
Shares) but which securities are instead distributed by the Depositary to Owners and (8) a fee not
in excess of $1.50 per certificate for a Receipt or Receipts for transfers made pursuant to the
terms of the Deposit Agreement.
The Depositary, subject to Section 2.09 of the Deposit Agreement, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02 of the Deposit Agreement (a
“Pre-Release”). The Depositary may, pursuant to Section 2.05 of the Deposit Agreement, deliver
Shares upon the receipt and cancellation of Receipts which have been Pre-Released, whether or not
such cancellation is prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a written
representation from the person to whom Receipts or Shares are to be delivered, that such person, or
its customer, owns the Shares or Receipts to be remitted, as the case may be, (b) at all times
-6-
fully collateralized with cash or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days notice, and (d) subject to
such further indemnities and credit regulations as the Depositary deems appropriate. The number of
American Depositary Shares which are outstanding at any time as a result of Pre-Release will not
normally exceed thirty percent (30%) of the Shares deposited under the Deposit Agreement;
provided, however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation received by it in connection
with the foregoing.
9. TITLE TO RECEIPTS.
Title to this Receipt (and to the American Depositary Shares evidenced hereby), when properly
endorsed or accompanied by a proper instrument or instruments of transfer and transferred in
accordance with the terms of the Deposit Agreement, is transferable by delivery with the same
effect as in the case of a negotiable instrument under the laws of the State of New York;
provided, however, that the Depositary, notwithstanding any notice to the contrary,
may treat the Owner hereof as the absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice provided for in the
Deposit Agreement and for all other purposes and neither the Depositary nor the Company will have
any obligation or be subject to any liability under the Deposit Agreement to any holder of this
Receipt, unless such holder is the Owner hereof.
10. VALIDITY OF RECEIPT.
This Receipt will not be entitled to any benefits under the Deposit Agreement or be valid or
obligatory for any purpose, unless this Receipt shall have been executed by the Depositary by the
manual or facsimile signature of a duly authorized signatory of the Depositary, and if a Registrar
(other than the Depositary) for the Receipts shall have been appointed, countersigned by the manual
or facsimile signature of a duly authorized signatory of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the Securities Exchange Act
of 1934 and, accordingly, files certain reports with the Commission. Such reports will be
available for inspection and copying by Owners and Beneficial Owners at the public reference
facilities maintained by the Commission located at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
-7-
The Depositary will make available for inspection by Owners at its Corporate Trust Office any
reports and communications, including any proxy soliciting material, received from the Company
which are both (a) received by the Depositary as the holder of the Deposited Securities and (b)
made generally available to the holders of such Deposited Securities by the Company. The
Depositary shall also send to the Owners copies of such reports when furnished by the Company
pursuant to Section 5.06 of the Deposit Agreement.
The Depositary shall keep books at its Corporate Trust Office for the registration of Receipts
and transfers of Receipts which at all reasonable times shall be open for inspection by the Owners,
provided that such inspection shall not be for the purpose of communicating with Owners in the
interest of a business or object other than the business of the Company or a matter related to the
Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties under the Deposit Agreement.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash distribution on any
Deposited Securities, the Depositary shall, if such cash is received in Foreign Currency, subject
to the provisions of Section 4.05 of the Deposit Agreement, convert such dividend or distribution
into Dollars and shall distribute the amount thus received (net of the fees and expenses of the
Depositary as provided in Section 5.09 of the Deposit Agreement) to the Owners entitled thereto, in
proportion to the number of American Depositary Shares representing such Deposited Securities
evidenced by Receipts held by them respectively; provided, however, that in the
event that the Company or the Depositary shall be required to withhold and does withhold from such
cash dividend or such other cash distribution an amount on account of taxes or other governmental
charges, the amount distributed to the Owner of the Receipts evidencing American Depositary Shares
representing such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.09 of the Deposit Agreement, whenever the
Depositary shall receive any distribution other than a distribution described in Section 4.01, 4.03
or 4.04 of the Deposit Agreement, the Depositary shall cause the securities or property received by
it to be distributed to the Owners entitled thereto, after the deduction or upon payment of any
fees and expenses of the Depositary or any taxes or other governmental charges under the Deposit
Agreement in proportion to the number of American Depositary Shares representing such Deposited
Securities evidenced by Receipts held by them respectively, in any manner that the Depositary may
deem equitable and practicable for accomplishing such distribution;
-8-
provided,however, that if in the opinion of the Depositary such distribution cannot be made
proportionately among the Owners entitled thereto, or if for any other reason (including, but not
limited to, any requirement that the Company or the Depositary withhold an amount on account of
taxes or other governmental charges or that such securities must be registered under the Securities
Act in order to be distributed to Owners or Beneficial Owners of Receipts) 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, but not limited to, the
public or private sale of the securities or property thus received, or any part thereof, and the net
proceeds of any such sale (net of the fees and expenses of the Depositary as provided in Section
5.09 of the Deposit Agreement) shall be distributed by the Depositary to the Owners entitled
thereto, all in the manner and subject to the conditions described in Section 4.01 of the Deposit
Agreement. Each beneficial owner of Receipts or Shares so distributed shall be deemed to have
acknowledged that the Shares have not been registered under the Securities Act and to have agreed
to comply with the restrictions on transfer described in the legend affixed at the beginning
hereof.
If any distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may distribute to the Owners of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares representing such
Deposited Securities evidenced by Receipts held by them respectively, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the amount of Shares
received as such dividend or free distribution, subject to the terms and conditions of the Deposit
Agreement with respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other governmental charge as
provided in Section 4.11 of the Deposit Agreement and the payment of the fees and expenses of the
Depositary as provided in Section 5.09 of the Deposit Agreement. The Depositary may withhold any
such distribution of Receipts if it has not received satisfactory assurances from the Company that
such distribution does not require registration under the Securities Act or is exempt from
registration under the provisions of such Act. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell the amount of Shares
represented by the aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.01 of the Deposit Agreement. If such
adjustments on the records of the Depositary are not so made or additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in property (including
Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which
the Depositary is obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and
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rights to subscribe therefor) in such amounts and in such manner as the Depositary deems necessary and
practicable to pay any such taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled thereto in proportion to the number
of American Depositary Shares held by them respectively.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to the holders of any
Deposited Securities any rights to subscribe for additional Shares or any rights of any other
nature, the Depositary shall have discretion as to the procedure to be followed in making such
rights available to any Owners or in disposing of such rights on behalf of any Owners and making
the net proceeds available to such Owners or, if by the terms of such rights offering or for any
other reason, the Depositary may not either make such rights available to any Owners or dispose of
such rights and make the net proceeds available to such Owners, then the Depositary shall allow the
rights to lapse. If at the time of the offering of any rights the Depositary determines in its
discretion that it is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American Depositary Shares
held by such Owner, warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an Owner of Receipts
requests the distribution of warrants or other instruments in order to exercise the rights
allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the
Depositary will make such rights available to such Owner upon written notice from the Company to
the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be
exercised and (b) such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights to all or certain
Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to
the Depositary from such an Owner to exercise such rights, upon payment by such Owner to the
Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and expenses of the
Depositary and any other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall
cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit
Agreement, execute and deliver Receipts to such Owner. In the case of a
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distribution
pursuant to the second paragraph of Section 4.04 of the Deposit Agreement, such Receipts
shall be legended in the manner provided in Section 2.01 of the Deposit Agreement and in accordance
with applicable U.S. laws, and shall be subject to the appropriate restrictions on sale, deposit, cancellation and
transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and feasible to make such
rights available to all or certain Owners, it may sell the rights, warrants or other instruments in
proportion to the number of American Depositary Shares
held by the Owners to whom it has determined it may not lawfully or feasibly make such rights
available, and allocate the net proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and governmental
charges payable in connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or
other instruments, upon an averaged or other practical basis without regard to any distinctions
among such Owners because of exchange restrictions or the date of delivery of any Receipt or
otherwise.
The Depositary will not offer rights to Owners unless both the rights and the securities to
which such rights relate are either exempt from registration under the Securities Act with respect
to a distribution to all Owners or are registered under the provisions of such Act;
provided, that nothing in the Deposit Agreement shall create any obligation on the part of
the Company to file a registration statement with respect to such rights or underlying securities
or to endeavor to have such a registration statement declared effective. If an Owner of Receipts
requests the distribution of warrants or other instruments, notwithstanding that there has been no
such registration under such Act, the Depositary shall not effect such distribution unless it has
received an opinion from recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that it may be lawful or
feasible to make such rights available to Owners in general or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or rights, and if at the
time of the receipt thereof the Foreign Currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or in any other
manner that it may determine, such Foreign Currency into Dollars, and such Dollars shall be
distributed to the Owners entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the
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holders thereof to such Dollars, then to the
holders of such warrants and/or instruments, as applicable, upon surrender thereof for cancellation
in whole or in part depending upon the terms of such warrants or other instruments. Such
distribution may be made upon an averaged or other practicable basis without regard to any
distinctions among Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars incurred by the Depositary
as provided in Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval or license of any
government or agency thereof, the Depositary shall file such application for approval or license,
if any, as it may deem desirable.
If at any time the Depositary shall determine in its judgment that any Foreign Currency
received by the Depositary is not convertible on a reasonable basis into Dollars transferable to
the United States, or if any approval or license of any government or agency thereof which is
required for such conversion is denied or in the opinion of the Depositary is not obtainable, or if
any such approval or license is not obtained within a reasonable period as determined by the
Depositary, the Depositary may distribute the Foreign Currency (or an appropriate document
evidencing the right to receive such Foreign Currency) received by the Depositary to, or in its
discretion may hold such Foreign Currency uninvested and without liability for interest thereon for
the respective accounts of, the Owners entitled to receive the same.
If any such conversion of Foreign Currency, in whole or in part, cannot be effected for
distribution to some of the Owners entitled thereto, the Depositary may in its discretion make such
conversion and distribution in Dollars to the extent permissible to the Owners entitled thereto and
may distribute the balance of the Foreign Currency received by the Depositary to, or hold such
balance uninvested and without liability for interest thereon for the respective accounts of, the
Owners entitled thereto.
15. FIXING OF RECORD DATE.
Whenever any cash dividend or other cash distribution shall become payable or any distribution
other than cash shall be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of holders of Shares or
other Deposited Securities, or whenever for any reason the Depositary causes a change in the number
of Shares that are represented by each American Depositary Share, or whenever the Depositary shall
find it necessary or convenient, the Depositary shall fix a record date which shall be the same
date as the record date, if any, applicable to the Deposited Securities, or as close thereto as
practicable (a) for the determination of the Owners who shall be (i) entitled to receive such
dividend, distribution or rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting, or (b) on or after
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which each
American Depositary Share will represent the changed number of Shares. Subject to the provisions
of Sections 4.01 through 4.05 of the Deposit Agreement and to the other terms and conditions of the
Deposit Agreement, the Owners on such record date shall be entitled, as the case may be, to receive
the amount distributable by the Depositary with respect to such dividend or other distribution or
such rights or the net proceeds of sale thereof in proportion to the number of American Depositary
Shares evidenced by Receipts held by them respectively and to give voting instructions, to exercise
the rights of Owners under the Deposit Agreement with respect to such changed number of Shares and
to act in respect of any other such matter.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other Deposited Securities, if
requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, mail
to the Owners a notice, the form of which notice shall be in the sole discretion of the Depositary,
which shall contain (a) such information as is contained in such notice of meeting received by the
Depositary from the Company, (b) a statement that the Owners as of the close of business on a
specified record date will be entitled, subject to any applicable provision of English law and of
the Memorandum and Articles of Association of the Company, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares and (c) a statement as to the
manner in which instructions may be given, including an express indication that, if the Depositary
does not receive instructions, it may deem instructions to have been given under the last sentence
of this paragraph to give a discretionary proxy to a person designated by the Company. Upon the
written request of an Owner of a Receipt on that record date, received on or before the date
established by the Depositary for the purpose, the Depositary shall endeavor, in so far as
practicable, to vote or cause to be voted the amount of Shares or other Deposited Securities
represented by the American Depositary Shares evidenced by that Receipt in accordance with the
instructions set forth in that request. The Depositary shall not vote or attempt to exercise the
right to vote that attaches to Deposited Securities other than in accordance with instructions
received from Owners or deemed received under the following sentence. If (i) the Company made a
request to the Depositary as contemplated by the first sentence of this paragraph and complied with
the following paragraph and (ii) no instructions are received by the Depositary from an Owner with
respect to an amount of Deposited Securities represented by the American Depositary Shares
evidenced by that Owner’s Receipts on or before the date established by the Depositary for that
purpose, the Depositary shall deem that Owner to have instructed the Depositary to give, and the
Depositary shall give, a discretionary proxy to a person designated by the Company with respect to
that amount of Deposited Securities, except that that such instruction shall not be deemed
to have been given and the Depositary shall not give a discretionary proxy with respect to any
matter as to which the Company informs the Depositary (and the Company agrees to provide that
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information as promptly as practicable in writing, if applicable) that (x) the Company does not
wish to receive a discretionary proxy, (y) substantial opposition exists or (z) the matter
materially and adversely affects the rights of holders of Shares.
In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise
of voting rights relating to Deposited Securities, if the Company will request the Depositary to
act under the preceding paragraph, the Company shall give the Depositary notice of any such meeting
or solicitation and details concerning the matters to be voted upon not less than 45 days prior to
the meeting date or date for giving such proxies or consents.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Deposit Agreement do not apply,
upon any change in nominal value, change in par value, split-up, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party, any securities
which shall be received by the Depositary or a Custodian in exchange for or in conversion of or in
respect of Deposited Securities, shall be treated as new Deposited Securities under the Deposit
Agreement, and American Depositary Shares shall thenceforth represent, in addition to existing
Deposited Securities, the right to receive the new Deposited Securities so received in exchange or
conversion, unless additional Receipts are delivered pursuant to the following sentence. In any
such case the Depositary may (i) execute and deliver additional Receipts as in the case of a
dividend in Shares or (ii) call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or Beneficial Owner of any Receipt, if
by reason of any provision of any present or future law, regulation, order, decree, moratorium or
fiat of the United States or any other country, or of any governmental or regulatory authority or
stock exchange, or by reason of any provision, present or future, of the Memorandum and Articles of
Association of the Company, or by reason of any provision of any securities issued or distributed
by the Company, or any offering or distribution thereof, or by reason of any act of God or war
terrorism or other circumstances beyond its control, the Depositary or the Company or any of their
directors, employees, agents or affiliates shall be prevented, delayed or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any act or thing which
by the terms of the Deposit Agreement or the Deposited Securities it is provided shall be done or
performed; nor shall the Depositary nor the Company nor any of their respective directors,
employees, agents or affiliates incur any liability to any Owner or Beneficial Owner of any
Receipt by reason of any nonperformance or delay, caused as
-14-
aforesaid, in the performance of any
act or thing which by the terms of the Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in
the Deposit Agreement. Where, by the terms of a distribution pursuant to Section 4.01, 4.02, or
4.03 of the Deposit Agreement, or an offering or distribution pursuant to Section 4.04 of the
Deposit Agreement, or for any other reason, such distribution or offering may not be made available
to Owners, and the Depositary may not dispose of such distribution or offering on behalf of such
Owners and make the net proceeds available to such Owners, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
The Company assumes no obligation nor shall it be subject to any liability under the Deposit
Agreement to any Owner or Beneficial Owner, except that it agrees to perform its obligations
specifically set forth in the Deposit Agreement without negligence or bad faith. The Depositary
assumes no obligation nor shall it be subject to any liability under the Deposit Agreement to any
Owner or Beneficial Owner (including, without limitation, liability with respect to the validity or
worth of the Deposited Securities), except that it agrees to perform its obligations specifically
set forth in the Deposit Agreement without negligence or bad faith. Neither the Depositary nor the
Company shall be under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to it in its sole
discretion against all expense and liability shall be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary. Neither the Depositary nor the
Company shall be liable for any action or nonaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for deposit, any Owner,
or any other person believed by it in good faith to be competent to give such advice or information
including, but not limited to, any such action or nonaction based 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 shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of the Depositary or
in connection with any matter arising wholly after the removal or resignation of the Depositary,
provided that in connection with the issue out of which such potential liability arises the
Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any instructions to vote any
of the Deposited Securities, or for the manner in which any such vote is cast or the effect of any
such vote, provided that any such action or nonaction is in good faith. No disclaimer of liability
under the Securities Act is intended by any provision of the Deposit Agreement.
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19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR CUSTODIAN.
The Depositary may at any time resign as Depositary under the Deposit Agreement by written
notice of its election to do so delivered to the Company, such resignation to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by 120 days’ prior
written notice of such removal, to become effective upon the later of (i) the 120th day after
delivery of the notice to the Depositary or (ii) the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. In case at any time the
Depositary shall resign or be removed, the Company will use its best efforts to
appoint a successor depositary, which will be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary will execute and deliver to
its predecessor and to the Company an instrument in writing accepting its appointment under the
Deposit Agreement, and thereupon such successor depositary, without any further act or deed, will
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, will execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor under the Deposit Agreement, will duly assign, transfer and deliver all
right, title and interest in the Deposited Securities to such successor, and will deliver to such
successor a list of the Owners of all outstanding Receipts. Any such successor depositary will
promptly mail notice of its appointment to the Owners. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners to do so, it may appoint a substitute or
additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the Depositary without the consent of
Owners or Beneficial Owners of Receipts in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees, cable, telex or facsimile transmission costs, delivery
costs or other expenses), or which shall otherwise prejudice any substantial existing right of
Owners will, however, not become effective as to outstanding Receipts until the expiration of
thirty days after notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner and Beneficial Owner at the time any amendment so becomes effective will be
deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound
by the Deposit Agreement as amended thereby. In no event shall any amendment impair the right of
the Owner of this Receipt to
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surrender such Receipt and receive herefor the Deposited Securities
represented hereby, except in order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company terminate the Deposit
Agreement by mailing notice of such termination to the Owners of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. The Depositary may
likewise terminate the Deposit Agreement by mailing notice of such termination to the Company and
the Owners of all Receipts then outstanding, if at any time 90 days shall have expired after the
Depositary shall have delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment as provided in
Section 5.04 of the Deposit Agreement. On and after the date of termination, the Owner
of this Receipt will, upon (a) surrender of such Receipt at the Corporate Trust Office of the
Depositary, (b) payment of the fee of the Depositary for the surrender of Receipts referred to in
Section 2.05 of the Deposit Agreement, and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. If any Receipts shall
remain outstanding after the date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of dividends and other
distributions to the Owners thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to collect dividends
and other distributions pertaining to Deposited Securities, shall sell rights and other property as
provided in the Deposit Agreement, and shall continue to deliver Deposited Securities, together
with any dividends or other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a Receipt, any expenses for
the account of the Owner of such Receipt in accordance with the terms and conditions of the Deposit
Agreement, and any applicable taxes or governmental charges). At any time after the expiration of
one year from the date of termination, the Depositary may sell the Deposited Securities then held
under the Deposit Agreement and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it under the Deposit Agreement, unsegregated and without
liability for interest, for the pro rata benefit of the Owners of Receipts which
have not theretofore been surrendered, such Owners thereupon becoming general creditors of the
Depositary with respect to such net proceeds. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in accordance with the
terms and conditions of the Deposit Agreement, and any applicable taxes or governmental charges).
Upon the termination of the Deposit
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Agreement, the Company shall be discharged from all obligations
under the Deposit Agreement except for its obligations to the Depositary under Sections 5.08 and
5.09 of the Deposit Agreement.
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